HODGSON v. MINNESOTA OHIO v. AKRON CENTER FOR REPRODUCTIVE HEALTH 497 U.S. 417 (1990)

Minnesota and Ohio adopted laws requiring that parents be notified before abortions were performed on minors. By shifting 5–4 votes, the Supreme Court struck down one version of Minnesota's law and upheld another. The Court upheld the Ohio law, 6–3. Four Justices thought all the laws were valid, and three thought they were all invalid; the swing votes were Justices sandra day o'connor and john paul stevens.

Minnesota required notification to both of a minor's biological parents before she could have an abortion. A majority concluded that this law "[did] not reasonably further any legitimate state interest." This formulation avoided the question whether a restriction on the right to have an abortion must pass the test of strict scrutiny, as roe v. wade (1973) had held. Whatever the rhetoric, the effective standard of review was a demanding one. Justice Stevens, for the majority, acknowledged the state's interest in supporting parents' authority and counseling, but said that any such interest could be served by a one-parent notification rule. He also conceded that the state might wish to protect parents' interests in shaping their children's values, but said this interest could not "overcome the liberty interests of a minor acting with the consent of a single parent or court." Justice O'Connor, too, found this version of the Minnesota law "unreasonable," especially considering that only half the minors in the state lived with both biological parents.

The Minnesota legislature, anticipating that the Court might hold the statute invalid, had adopted a fall-back procedure: If a minor could convince a judge that she was mature enough to give her informed consent to an abortion or that an abortion without two-parent notification was in her best interests, the judge might dispense with that notification. This "judicial bypass" was enough to secure the approval of Justice O'Connor, and so was upheld, 5–4.

The Ohio law required notification of only one parent. Here Justices O'Connor and Stevens joined the four Justices who had considered both Minnesota laws valid. Justice anthony m. kennedy wrote the principal opinion, most of which was joined by a majority of the Court. The dissenters in this case, who also dissented as to the Court's disposition of Minnesota's fall-back law, emphasized the severe costs of any parental notification requirement to a minor who dared not tell her parents she was pregnant and who was likely to find a judicial proceeding intimidating. As Justice thurgood marshall said, those costs are not merely psychological; the fear of confronting parents may cause a young woman to delay an abortion, with attendant increases in risks to her health.

Justice antonin scalia, who voted to uphold all three laws, took note of the way in which different majorities were pieced together in these cases and concluded that the reason lay in the lack of a principled way to distinguish the results when the Court persists in "this enterprise of devising an Abortion Code." Given the retirement from the Court of Justice william j. brennan, who formed part of the five-Justice majority that invalidated the first Minnesota law, the issue of parental notification seems sure to return to the Court. When it does so, some Justices seem prepared to avoid the complications identified by Justice Scalia in a single doctrinal stroke, sweeping abortion rights—and thus, in some states, abortions—into the back alley.

Kenneth L. Karst
(1992)