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Ohio v. Akron Center for Reproductive Health (1990)

In Depth

Background

In 1985, the Ohio Legislature enacted Amended Substitute House Bill 319, which prohibited the performance of an abortion upon an unmarried and unemancipated minor except in certain circumstances (described below).  Plaintiffs, the Akron Center for Reproductive Health, a facility that provides abortions, a physician who performs abortions and an unmarried, unemancipated, minor woman who sought an abortion, filed a lawsuit in federal district court against defendant, the State of Ohio, alleging that H.B. 319 was unconstitutional.  The district court agreed with plaintiffs, declared H.B. 319 unconstitutional and permanently enjoined its enforcement.  The court of appeals affirmed.  The Supreme Court thereafter granted the State's petition for review.

The Statutes Under Review

H.B.. 319  amended § 2919.12 of the Ohio Revised Code and created §§ 2151.85 and 2505.073.  Section 2919.12(B) made it a criminal offense, except in four specified circumstances, for a physician or other person to perform an abortion on an unmarried and unemancipated woman under 18 years of age (H.B. 319 also provided civil penalties for violation of the law):

First, a physician may perform an abortion if he provides "at least twenty-four hours actual notice, in person or by telephone," to one of the woman's parents (or guardian or custodian) of his intention to perform the abortion.  Ohio Rev. Code § 2919.12(B)(1)(a)(i).  As an alternative, the physician may notify a minor's adult brother, sister, stepparent or grandparent, if the minor and the other relative each file an affidavit in the juvenile court stating that the minor fears physical, sexual or sever emotional abuse from one of her parents (or guardian or custodian). Id. §§ 2919.12(B)(1)(a)(i), 2919.12(B)(1)(b), 2919.12(B)(1)(c).  If the physician cannot give the notice "after a reasonable effort," he may perform the abortion after "at least forty-eight hours constructive notice," by both ordinary and certified mail.  Id. § 2919.12(B)(2).

Second, a physician may perform an abortion on the minor if one of her parents (or guardian or custodian) has consented to the abortion in writing.  Ohio Rev. Code § 2919.12(B)(1)(a)(ii).

The third and fourth circumstances in which a physician may perform an abortion upon an unmarried and unemancipated woman under 18 years of age depend on a judicial procedure that allows a minor to bypass the notice and consent provisions described above.  The statute allows a physician to perform an abortion on the minor without notifying one of the minor's parents (or guardian or custodian) or receiving the parent's (or guardian's or custodian's) consent if the juvenile court, in a judicial bypass proceeding, issues an order authorizing the minor to consent, Ohio Rev. Code § 2919.12(B)(1)(a)(iii), or if a juvenile court or court of appeals, by its inaction, provides constructive authorization for the minor to consent.  Id. § 2919.12(B)(1)(a)(iv).

The bypass procedure requires the minor to file a complaint in the juvenile court, stating (1) that she is pregnant; (2) that she is unmarried, under 18 years of age, and unemancipated; (3) that she desires to have an abortion without notifying one of her parents (or guardian or custodian); (4) that she is sufficiently mature and well enough informed to make an intelligent decision whether to have an abortion without such notice, or that one or both of her parents (or guardian or custodian) has engaged in a pattern of physical, sexual or emotional abuse against her or that notice is not in her best interests; and (5) that she has or has not retained an attorney.  Ohio Rev. Code §§ 2151.85(A)(1)-(5).  The Ohio Supreme Court has prescribed pleading forms for the minor to use.

The juvenile court must hold a hearing at the earliest possible time, but not later than the fifth business day after the minor files her complaint.  Ohio Rev. Code § 2151.85(B)(1).  The court must render its decision immediately after the conclusion of the hearing.  Id. Failure to hold the hearing within this time results in constructive authorization for the minor to consent to the abortion. Id.  At the hearing the court must appoint a guardian ad litem and an attorney to represent the minor if she has not retained her own counsel.  Id. § 2151.85(B)(2).  The minor must prove her allegation of maturity, pattern of abuse or best interests by clear and convincing evidence, id. § 2151.85(C), and the juvenile court must conduct the hearing to preserve the anonymity of the complainant, keeping all papers confidential. Id. §§ 2151.85(D), (F).

The minor has the right to expedited review of an order denying waiver.  The statute provides that, within four days after the minor files a notice of appeal, the clerk of the juvenile court shall deliver the notice of appeal and record to the state court of appeals.  Ohio Rev. Code § 2505.073(A).  The clerk of the court of appeals dockets the appeal upon receipt of those items.  Id. The minor must file her brief within four days after the docketing.  Id. If she desires oral argument, the court of appeals must hold one within five days after the docketing and must issue a decision immediately after oral argument.  Id.  If the minor waives her right to oral argument, the court of appeals must issue a decision within five days after the docketing of the appeal.  Id.  If the court of appeals does not comply with these time limits, a constructive order results authorizing the minor to consent to the abortion.  Id. All proceedings in the court of appeals must be conducted in a manner that preserves the minor's anonymity.  Id. § 2505.073(B).  All papers and records that pertain to the minor's appeal must be kept confidential and are not public records under Ohio law. Id.

Finally, it is an "affirmative defense" to criminal prosecution and civil liability under the law that "compliance with the requirements of [§ 2919.12] was not possible because an immediate threat of serious risk to the life or physical health of the pregnant woman from the continuation of her pregnancy created an emergency necessitating the immediate performance or inducement of an abortion."  Ohio Rev. Code § 2919.12(C)(2).

The Court's Decision

By a six-to-three vote, the Supreme Court upheld the constitutionality of H.B. 319 and reversed the judgment of the court of appeals.

The Court's Reasoning

The court of appeals concluded that H.B. 319 had six constitutional defects, relating to the sufficiency of the expedited procedures; the guarantee of anonymity; the constructive authorization provisions; the clear and convincing evidence standard; the pleadings requirement; and the physician's personal obligation to give notice to one of the minor's parents.  The Supreme Court, in an opinion by Justice Kennedy, rejected each of these grounds for striking down the statute, as well as others advanced by the plaintiffs.

Justice Kennedy noted that the Court has not yet decided whether "parental notice statutes must contain [judicial bypass] procedures."  Akron Center, 497 U.S. at 510.  The Court left that issue undecided because, "whether or not the Fourteenth Amendment requires notice statutes to contain bypass procedures, H.B. 319's bypass procedure meets the requirements identified for parental consent statutes" in the Court's parental consent precedents.  Id. In reviewing H.B. 319, Justice Kennedy relied upon the principal opinion (Justice Powell's opinion) in Bellotti v. Baird, 443 U.S. 622 (1979). Bellotti set forth four criteria that a bypass procedure must satisfy:

First, "the procedure must allow the minor to show that she possesses the maturity and information to make her abortion decision, in consultation with her physician, without regard to her parents' wishes."  Akron Center, 497 U.S. at 511 (citing Bellotti, 443 U.S. at 643).  H.B. 319 "allows a minor to show maturity in conformity with . . . Bellotti."  Id. "The statute  permits the minor to show that she 'is sufficiently mature and well enough informed to decide intelligently whether to have an abortion.' " Id. (quoting Ohio Rev. Code § 2151.85(C)(1)).

Second, "the procedure must allow the minor to show that, even if she cannot make the abortion decision by herself, 'the desired abortion would be in her best interests.' " Akron Center, 497 U.S. at 511 (quoting Bellotti, 443 U.S. at 644).  Once again, H.B. 319 satisfies BellottiId.  "The statute requires the juvenile court to authorize the minor's consent where the court determines that the abortion is in the minor's best interest and in cases where the minor has shown a pattern of physical, sexual or emotional abuse."  Id. (citing Ohio Rev. Code § 2151,85(C)(2)).

Third, "the procedure must assure the minor's anonymity."  Akron Center, 497 U.S. at 512 (citing Bellotti, 443 U.S. at 644).  H.B. 319 satisfied this standard as well.  Id. Section 2151.85(D) provides that "[t]he [juvenile] court shall not notify the parents, guardian or custodian of the complainant that she is pregnant or wants to have an abortion."  Ohio Rev. Code § 2151.85(D).  Section 2151.85(F) states:

Each hearing under this section shall be conducted in a manner that will preserve the anonymity of the complainant.  The complaint and all other papers and records that pertain to an action commenced under this section shall be kept confidential and are not public records.

Id. § 2151.85(F).  Similarly, § 2505.073(B) requires the court of appeals to preserve the minor's anonymity and confidentiality of all papers on appeal.  Finally, the State makes it a criminal offense for an employee to disclose documents not designated as public records.  Id. §§ 102.03(B), 102.99(B).

Plaintiffs argued that the complaint forms prescribed by the Ohio Supreme Court require the minor to disclose her identity.  Akron Center, 497 U.S. at 512.  The forms do not permit the minor to use a pseudonym or to sign her complaint with her initials only.  Plaintiffs argued further that the Ohio laws prohibiting court employees from disclosing public documents are "irrelevant" because "the right to anonymity is broader than the right not to have officials reveal one's identity to the public at large." Id. at 512 (summarizing plaintiffs' arguments).  Justice Kennedy noted that "[c]onfidentiality differs from anonymity," but found that the distinction had no constitutional significance in the context of the present case.  Id. at 513   "[W]e do not find complete anonymity critical.  H.B. 319 . . . takes reasonable steps to prevent the public from learning of the minor's identity.  We refused to base a decision on the facial validity of a statute on the mere possibility of unauthorized, illegal disclosure by state employees."  Id.

Fourth, "the courts must conduct a bypass procedure with expedition to allow the minor an effective opportunity to obtain the abortion."  Akron Center, 497 U.S. at 513.  H.B. 319 requires the juvenile court to make its decision within five "business day[s]" after the minor files her complaint, Ohio Rev. Code § 2151.85(B)(1); requires the court of appeals to docket an appeal within four days" after the minor files a notice of appeal, id. § 2505.073(A); and requires the court of appeals to render a decision within five "days" after docketing the appeal, id.  The district court and the court of appeals assumed that all of the references to days in these two statutory provisions meant business days, as opposed to calendar days.  As a result, they calculated that the procedure to obtain a judicial bypass could take up to twenty-two calendar days because the minor could file at a time during the year in which the fourteen business days needed for the bypass procedure would encompass three Saturdays, three Sundays and two legal holidays.  This delay, plaintiffs maintained, "could increase by a substantial measure both the costs and the medical risks of an abortion."  Akron Center, 497 U.S. at 513 (summarizing plaintiffs' argument).  The Court rejected plaintiffs' argument.

As an initial matter, Justice Kennedy noted that the twenty-two day calculation was based on the assumption that the word "days" as used in § 2505.073(A) means business days (days excluding weekends and holiday), as opposed to calendar days.  Akron Center, 497 U.S. at 514.  That assumption was "dubious" in light of the fact that in § 2151.85(B)(1), the legislature expressly used the contrasting term "business days." Id.  Moreover, the court of appeals "should not have invalidated the Ohio statute upon a worst-case analysis that may never occur." Id.  "[T]he mere possibility that the procedure may take up to 22 days in rare case in plainly insufficient to invalidate the statute on its face."  Id. (citing Planned Parenthood Ass'n of Kansas City, Missouri v. Ashcroft, 462 U.S. 476 (1983) (bypass procedure could require seventeen calendar days plus a sufficient time for deliberation and decisionmaking at both the trial and appellate levels)).  Furthermore, as Justice Kennedy observed, § 2504.073(A) allows the court of appeals, upon the minor's motion, to shorten or extend the time periods. Id.

Plaintiffs raised other arguments against the constitutionality of H.B. 319.  First, plaintiffs challenged the constructive authorization provisions in H.B. 319, which enable a minor to obtain an abortion without notifying one of her parents (or guardian or custodian) if either the juvenile court or the court of appeals fails to act within the prescribed time limits.  See Ohio Rev. Code §§ 2151.85(B)(1), 2505.073(A) and 2919.12(B)(1)(a)(iv).  They speculated that "the absence of an affirmative order when a court fails to process the minor's complaint will deter the physician from acting."  Akron Center, 497 U.S. at 515 (summarizing plaintiffs' argument).  The Court rejected this argument stating that, "[a]bsent a demonstrated pattern of abuse or defiance, a State may expect that its judges will follow mandated procedural requirements."  Id. Moreover, "a physician can obtain certified documentation from the juvenile or appellate court that constructive authorization has occurred."  Id.

Second, plaintiffs objected to the requirement that the minor prove maturity or best interests by a standard of clear and convincing evidence, arguing that, "when a State seeks to deprive an individual of liberty interests, it must take upon itself the risk of error."  H.B. 319 "violates this standard," plaintiffs submitted, "not only by placing the burden of proof upon the minor, but also by imposing a heightened standard of proof."  Akron Center 497 U.S. at 515 (summarizing plaintiffs' argument).  The Court rejected this argument, as well.  "A State does not have to bear the burden of proof on the issues of maturity or best interests." Id. Moreover, a State "may require a heightened standard of proof when, as here, the bypass procedure contemplates an ex parte proceeding at which no one opposes the minor's testimony."  Id. at 516.

Third, the plaintiffs contended that the pleading requirements set forth in H.B. 319 "create a trap for the unwary."  "The minor . . . must choose among three pleading forms," only one which allows her to attempt to prove both maturity and best interests.  Akron Center, 497 U.S. at 516 (summarizing plaintiffs' argument).  The Court found no merit in this argument, either.  Even assuming that "the pleading scheme could produce some initial confusion, because few minors would have counsel when pleading, the simple and straightforward procedure does not deprive the minor of an opportunity to prove her case."  Id. at 516-17.  The Ohio courts would likely treat her choice of complaint form with due care and understanding for her unrepresented status.  Id. at 517.  In any event, under H.B. 319, counsel is appointed for the minor after she files her complaint and counsel may move for leave to amend her complaint.  Id.

Plaintiffs argued further that, even if H.B. 319 complied with the Court's precedents regarding parental consent laws, it failed to provide minors seeking to avoid notifying their parents of their intention to obtain an abortion with adequate procedural due process rights.  Akron Center, 497 U.S. at 517 (summarizing plaintiffs' argument).  The Court rejected this argument, too, finding that "[t]he confidentiality provisions, the expedited procedures, and the pleading form requirements . . . satisfy the dictates of minimal due process." Id.

Finally, plaintiffs argued that H.B. 319 should be invalidated in its entirety because "the statute requires the parental notice to be given by the physician who is to perform the abortion."  Akron Center, 497 U.S. at 518 (setting forth plaintiffs' argument).  This argument was based on the Court's holding in City of Akron v. Akron Center for Reproductive Rights, 462 U.S. 476, 446-49 (1983), striking down a requirement that the physician himself provide the information and counseling relevant to informed consent (for an analysis of the constitutional issues decided in City of Akron, please see the summary for that case).  The Court rejected this argument, as well.  Justice Kennedy said that "[t]he distinction between notifying a minor's parents and informing a woman of the routine risks of an abortion has ample justification . . . ."  Akron Center, 497 U.S. at 518.  Plaintiffs did not question "the superior ability of a physician to garner and use information supplied by a minor's parents upon receiving notice."  Id.  Moreover, "[t]he conversation with the physician . . . may enable a parent to provide better advice to the minor."  Id.

In the final section of his opinion, Justice Kennedy stated that the H.B. 319 did not impose an undue, or otherwise unconstitutional, burden on a minor seeking an abortion."  Akron Center, 497 U.S. at 519-20.  "It is both rational and fair for the State to conclude that, in most instances, the family will strive to give a lonely or even terrified minor advice that is both compassionate and mature.  The statute in issue here is a rational way to further those ends." Id. at 520.

The Concurring And Dissenting Opinions

Justice Scalia concurred in the Court's opinion, but expressed his belief that "the Constitution contains no right to abortion."  Akron Center, 497 U.S. at 520 (Scalia, J., concurring).

Justice Stevens concurred in the Court's disposition of the plaintiffs' facial challenge to H.B. 319, noting that "[t]he State may presume that, in most of its applications, the statute will reasonably further its legitimate interest in protecting the welfare of its minor citizens."  Akron Center, 497 U.S. at 521 (Stevens, J., concurring in part and concurring in the judgment).  In those "exceptional cases" in which "notice [would] cause a realistic risk of physical harm to the pregnant woman, [would] cause trauma to an ill parent, or [would] enable the parent to prevent the abortion for reasons that are unrelated to the best interests of the minor," H.B. 319 provided a judicial bypass.  Id. In the absence of evidence of how the statute would be implemented if it were allowed to go into effect, Justice Stevens was unwilling to conclude that the judicial bypass was inadequate.  Id.

Justice Stevens noted that the Court has not decided the specific question "whether a judicial bypass procedure is necessary in order to save the constitutionality of a one-parent notice statute."  Akron Center, 497 U.S. at 522 (Stevens, J. concurring in part and concurring in the judgment).  "We have, however, squarely held that a requirement of preabortion parental notice in all cases involving pregnant minors is unconstitutional.  Although it need not take the form of a judicial bypass, the State must provide an adequate mechanism for cases in which the minor is mature or notice would not be in her best interests." Id.

Justice Blackmun, joined by Justices Brennan and Marshall dissented.  Justice Blackmun's dissent largely focused on his disagreements with the Court's evaluation of the judicial bypass procedure created by H.B. 319, and whether that procedure comported with the requirements set forth in Bellotti.  In Justice Blackmun's opinion, the selection of pleading forms was confusing; the forms failed to provide for her anonymity; there was no assurance that the proceedings would be handled expeditiously; the constructive notice provision was inadequate; and the heightened standard of proof was unconstitutional.  Akron Center, 497 U.S. at 526-38.  He also expressed the view that the requirement that the physician personally notify the minor's parent (or guardian or custodian) ran afoul of the Court's decision in the City of Akron case. Id. at 538-40.

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