(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued January 19, 2000 -- Decided August 15, 2000
Poritz, C.J., writing for a majority of the Court.
This appeal requires the Court to consider plaintiffs' constitutional challenge to a State statute, the Parental
Notification for Abortion Act (N.J.S.A. 9:17A-1.1 to -1.12), that conditions a minor's right to obtain an abortion on
parental notification unless a judicial waiver is obtained.
The Parental Notification for Abortion Act (“Act”) was signed into law on June 28, 1999. The Act sets
forth the Legislature's findings that there exist compelling and important State interests in protecting minors from
the consequences of decisions that are not fully informed, in fostering the family structure and in protecting the
rights of parents to rear their children. To effectuate these State interests, the Act requires a physician to wait at
least forty-eight hours after written notice has been given to the parent of an unemancipated minor before
performing an abortion. Notice is not required when a parent certifies in writing before a notary that he or she has
already been informed of the impending abortion or when the attending physician certifies in the minor's medical
records that the abortion is necessary due to a medical emergency. Alternatively, a minor may seek a judicial
waiver of the notification requirement by filing a petition or motion with a judge of the Superior Court.
In seeking a judicial waiver, the minor is entitled to court-appointed counsel and all proceedings are
confidential. Absent the granting of an extension, a judge must rule on the petition or motion for waiver within
forty-eight hours or the application is deemed granted. The judge must authorize the waiver of notification if he or
she finds by clear and convincing evidence that the minor is sufficiently mature to make the decision, that the minor
is being subjected to a pattern of abuse, or that notification of the parent is not in the minor's best interests. If the
judge does not make findings permitting waiver, the physician must comply with the Act's notice provisions before
performing the abortion or face potential civil liability in an action by the parents or civil penalties ranging from
$1,000 to $5,000. The Act further requires the Department of Health and Senior Services (“DHSS”) to promulgate
rules that physicians must follow in complying with the Act, and to prepare a fact sheet for distribution to pregnant
minors seeking abortions in which the Act's provisions and requirements are explained, including the procedure for
petitioning the court for a waiver of notification.
On September 8, 1999, the Administrative Office of the Courts issued a Directive regarding
implementation of the judicial waiver provisions. The Directive provides that a minor seeking judicial waiver of the
notice requirements must file a petition in the Chancery Division, Family Part, in a county where the minor resides
or is being sheltered, or where the abortion will take place. It further provides that the minor must appear at a
waiver hearing or the petition will be dismissed. A Supplemental Directive establishes expedited procedures for
appellate review of denied waivers.
Prior to the effective date of the Act, plaintiffs sought a declaratory judgment and preliminary injunction
precluding its enforcement. Proceeding by Order to Show Cause, the trial court dismissed the challenge for failure
to demonstrate the likelihood of success on the merits. The Supreme Court stayed implementation of the Act on
September 27, 1999, and remanded to the Chancery Division for an expedited disposition on the merits to be
followed by direct certification to the Supreme Court. On December 10, 1999, after considering the merits of
plaintiffs' challenge, the Chancery Division held that the Act was constitutional.
HELD: The State's interests fail to override the substantial intrusions that the Act imposes on a young woman's
fundamental right to choose an abortion, and therefore the Act is unconstitutional under the equal protection
principles set forth in the Constitution of the State of New Jersey.
1. Under the Constitution of the United States, a woman has a fundamental right to choose whether to carry
her pregnancy to term or choose an abortion, and to be free from unwarranted governmental intrusion in making
that decision. That right belongs to both adults and minors. However, a state may place certain restrictions on a
minor's exercise of the right to protect her from her own immaturity. The United States Supreme Court has upheld
under the Due Process Clause state statutes requiring physicians to notify a parent of an impending abortion when
those statutes contained adequate judicial bypass provisions. Little guidance exists from that Court regarding the
treatment of different classes of young women under equal protection principals, i.e., those who seek an abortion
and those who seek medical and/or surgical care related to pregnancy and childbirth. (Pp. 15-27).
2. Other states have enacted legislation similar to New Jersey's Act. Most of the state courts that have
considered those statutes applied federal case law to uphold the legislation. Massachusetts and California, however,
recently struck down statutes that required parental consent, rather than notification, despite the availability of
judicial bypass procedures. California's highest court grounded its decision in the guarantee of privacy provided by
that state's constitution. (Pp. 27-30)
3. Article I, paragraph 1, of the New Jersey Constitution incorporates within its terms the right of privacy,
including a woman's right to make certain fundamental choices. This provision provides broader protection than
the corresponding federal provision. Unlike the multi-tiered, federal constitutional analysis, which generally
considers equal protection challenges under either a rational-basis or strict-scrutiny standard, equal protection
analysis under the New Jersey Constitution weighs the governmental interest in the statutory classification against
the interests of the affected class. Using this balancing test, the Court considers the nature of the affected right, the
extent to which the governmental restriction intrudes upon it, and the public need for the restriction. New Jersey's
Act imposes restrictions on minors who seek an abortion, treating them differently than it treats young women who
choose to carry to term. Applying the balancing test, the Court must consider whether that differential treatment
unfairly burdens only one class of minors, thereby violating the State Constitution's guarantee of equal protection.
(Pp. 30-33)
4. The importance of a woman's right to make reproductive decisions requires that the Act's classification
receive exacting scrutiny. The Court finds that the Act significantly burdens unemancipated minors seeking
abortions by imposing requirements that create time delays affecting the cost and availability of abortion and the
associated medical risks. These consequences of the Act may cause minors to leave the State to obtain help, or use
unlicensed doctors or unorthodox procedures in procuring abortions. The statute may also operate as a functional
bar against minors exercising their constitutional rights to make reproductive decisions. The procedures to obtain
judicial waiver of the notification requirements impose far greater burdens on minors who are unable to
communicate with their parents about their decisions to obtain abortions. These burdens include delay in obtaining
the abortions and risk to minors' anonymity because of the need to contact and be contacted by court officials and
attorneys, absence from school, and the presence of the public at the courthouse. These burdens may prevent the
exercise of that fundamental right altogether. Such a result is unacceptable absent substantial adequate justification
for the classification created by the Legislature. (Pp. 34-43)
5. The Court finds that the Act does not advance the justifications offered by the State, i.e., that it protects
minors from their own immaturity, fosters and preserves the family structure, and protects parents' rights to raise
their children in a manner they deem appropriate. The State has recognized the maturity of minors in matters
relating to decisions on sexuality, reproduction, substance-abuse treatment, and placing children for adoption, and
the State does not require parental notification when minors must undergo cesarean sections, a procedure which is
more dangerous than normal delivery and more difficult than abortion. The available evidence indicates that minors
choosing abortions do not suffer greater psychological problems than minors carrying pregnancies to term.
Furthermore, applications for waiver of notification in Massachusetts and Minnesota, two states brought to the
Court's attention, are granted by the courts almost without exception, suggesting that the waiver process serves only
to delay the abortion rather than advance the State's asserted interests. Nor does the Court find that the Act fosters
family communications. Abortion providers already encourage minors to consult their parents, and the record
shows that it is the pre-existing relationships between the parents and minors that determine whether minors will
involve the parents in their decisions. Many minors are justified in not doing so because of abusive home
environments. Finally, although the Court acknowledges the right of parents to raise their children with limited
government interference, the Act unjustifiably prevents minors from exercising a fundamental right independent of
parental involvement. (Pp. 44-50)
6. The State having failed to show that the proffered statutory reasons are furthered by the Act or that the
asserted need is capable of realization through the Act's provisions, and the State having failed to offer adequate
justification for distinguishing between minors seeking abortions from those seeking medical and surgical care
relating to their pregnancies, the Court finds no basis on which to impose a special burden on the class of minors
seeking abortions. As such, the Act violates the equal protection principles of the New Jersey Constitution. (Pp.
50-51)
Judgment of the Superior Court, Chancery Division, is REVERSED.
JUSTICE O'HERN, dissenting, is of the view that the repugnancy of the Act to the New Jersey
Constitution is not clear beyond a reasonable doubt. He believes that the Act does not offend the State
Constitution's equal protection requirements because it involves a reasonable classification of different medical
procedures.
JUSTICE VERNIERO, dissenting, is of the view that the Act does not unduly regulate or forbid any
form of abortion procedure. He would remand the matter to permit the parties to develop a full record before
invalidating the Act based on asserted flaws in the waiver process.
JUSTICES STEIN, COLEMAN, and LONG join in CHIEF JUSTICE PORITZ's opinion. JUSTICE
O'HERN filed a separate, dissenting opinion in which JUSTICE VERNIERO joins. JUSTICE VERNIERO
filed a separate, dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
52 September Term 1999
PLANNED PARENTHOOD OF CENTRAL
NEW JERSEY; PLANNED
PARENTHOOD ASSOCIATION OF THE
MERCER AREA; AMERICAN
ACADEMY OF PEDIATRICS/NEW
JERSEY CHAPTER; METROPOLITAN
SURGICAL ASSOCIATES, INC.,
d/b/a METROPOLITAN MEDICAL
ASSOCIATES; CHERRY HILL
WOMEN'S SURGERY CENTER;
WOMEN'S CHOICE MEDICAL
CENTER; DOCTORS OF WEST NEW
YORK; SOUTH JERSEY WOMEN'S
CENTER; GYNE SURGICAL
ASSOCIATES OF MIDDLESEX
COUNTY, P.A.; WOMEN'S
SURGICARE OF HOWELL, P.A.;
GERSON WEISS, M.D.; HERBERT
HOLMES, M.D. and GEORGE
DAINOFF, D.O.,
Plaintiffs-Appellants,
v.
JOHN J. FARMER, JR., ATTORNEY
GENERAL OF THE STATE OF NEW
JERSEY, in his official
capacity, and his successors
in office; CHRISTINE GRANT,
COMMISSIONER, DEPARTMENT OF
HEALTH and SENIOR SERVICES OF
THE STATE OF NEW JERSEY, in
her official capacity, and
her successors in office;
HON. RICHARD S. WILLIAMS,
DIRECTOR, ADMINISTRATIVE
OFFICE OF THE COURTS OF THE
STATE OF NEW JERSEY, in his
official capacity, and his
successors in office,
Defendants-Respondents.
Argued January 19, 2000-- Decided August 15, 2000
On certification to the Superior Court,
Chancery Division, Bergen County.
Jennifer Dalven, a member of the New York
bar, argued the cause for appellants (Lenora
M. Lapidus, Director, American Civil
Liberties Union of New Jersey, attorney; Ms.
Lapidus, Ms. Dalven, Catherine Weiss and
Julie Sternberg, a members of New York bar,
on the brief).
Michael J. Haas, Assistant Attorney General,
argued the cause for respondents (John J.
Farmer, Jr., Attorney General of New Jersey,
attorney).
Michael Patrick Carroll submitted a brief on
behalf of amicus curiae New Jersey Right to
Life.
James Katz submitted a brief on behalf or
amici curiae American Medical Women's
Association, Inc., The Society for
Adolescent Medicine, and Physicians for
Reproductive Choice and Health (Tomar,
Simonoff, Adourian, O'Brien, Kaplan, Jacoby
& Graziano, attorneys).
Russell J. Passamano submitted a brief on
behalf of amici curiae Life Education and
Resource Network - New Jersey, LifeNet,
Inc., Abortions Aftermath, League of
American Families and New Jersey Family
Policy Council.
Ann R. Bartlett submitted a brief on behalf
of amicus curiae New Jersey State Bar
Association.
The opinion of the Court was delivered by
PORITZ, C.J.
In this appeal plaintiffs challenge a state statute that
conditions a minor's right to obtain an abortion on parental
notification unless a judicial waiver is obtained, but imposes no
corresponding limitation on a minor who seeks “medical and
surgical care [otherwise] related to her pregnancy or her child.”
N.J.S.A. 9:17A-1; §§1.2 et seq. The State responds that its
substantial interests in “protecting” immature minors, “in
fostering the family,” and in preserving “the rights of parents
to rear their children” justify that differential treatment.
N.J.S.A. 9:17A-1.2. We decide today that the classification
created by the Legislature burdens the “fundamental right of a
woman to control her body and destiny,” Right to Choose v. Byrne,
91 N.J. 287, 306 (1982), without adequate justification and
cannot be sustained against plaintiffs' equal protection
challenge.
We acknowledge that the State has a substantial interest in
preserving the family and protecting the rights of parents. When
weighed against the right of a young woman to make the most
personal and intimate decision whether to carry a child to term,
however, the insubstantial connection between the notification
requirement and the interests expressed by the State is not
sufficient to sustain the statute. We emphasize that our
decision in no way interferes with parents' protected interests,
nor does it prevent pregnant minors or their physicians from
notifying parents about a young woman's choice to terminate her
pregnancy. Simply, the effect of declaring the notification
statute unconstitutional is to maintain the State's neutrality in
respect of a minor's childbearing decisions and a parent's
interest in those decisions. In effect, the State may not
affirmatively tip the scale against the right to choose an
abortion absent compelling reasons to do so.
We also emphasize, once again, that our holding is not based
on, nor do we “presume to answer the profound questions about the
moral, medical, and societal implications of abortion.” Id. at
299. At the end of the day, those questions are left to the
individual to decide for herself. A young woman's right to
choose, to personal dignity and autonomy, is imbedded in the
liberties found in the Constitutions of the United States and of
this State. As Justice O'Connor has so eloquently explained:
“At the heart of liberty is the right to define one's own concept
of existence, of meaning, of the universe, and of the mystery of
human life.” Planned Parenthood v. Casey,
505 U.S. 833, 851,
112 S. Ct. 2791, 2807,
120 L. Ed.2d 674, 698 (1992). Because a
minor's right to control her reproductive decisions is among the
most fundamental of the rights she possesses, and because the
State has failed to demonstrate a real and significant
relationship between the statutory classification and the ends
asserted, we hold that the statute violates the Constitution of
the State of New Jersey.
A. The Parental Notification for Abortion Act
We have previously adverted to the legislative findings that
provide the underlying rationale for the Parental Notification
Act. More specifically, the Act states:
The Legislature finds that there exist compelling
and important State interests in protecting minors
against their own immaturity, in fostering the family
structure and preserving it as a viable social unit,
and in protecting the rights of parents to rear their
children.
The Legislature further finds that minors often
lack the ability to make fully informed choices that
take into account both immediate and long-range
consequences of their actions; that the medical,
emotional, and psychological consequences of abortion
are serious and of indeterminate duration, particularly
when the patient is a minor; that parents ordinarily
possess information essential to a physician's exercise
of his best medical judgment concerning their child;
and that parents who are aware that their minor
daughter has had an abortion may better insure that the
minor receives adequate medical attention after her
abortion. The Legislature further finds that parental
consultation regarding abortion is desirable and in the
best interests of the minor.
notice may be made by certified mail addressed to the
parent at the parent's last known address with return
receipt requested and restricted delivery to the
addressee, which means a postal employee may only
deliver the mail to the authorized addressee. At the
same time that notice is mailed by certified mail, it
shall also be sent by first class mail to the parent at
the parent's last known address. The 48 hour period
for notice sent under the provisions of this subsection
shall begin at noon on the next day on which regular
mail delivery takes place following the day on which
the mailings are posted.
The Act explains that a “parent”
means a parent with care and control of the
unemancipated minor, unless the parent has no custodial
rights; or if there is no parent with care and control,
then the foster parent or the guardian of the
unemancipated minor; or a person standing in loco
parentis to the unemancipated minor,
and a “person standing in loco parentis”
means (1) that the biological or adoptive parent
consented to and fostered, the person's formation and
establishment of a parent-like relationship with the
minor; (2) that the person and the minor live together
in the same household; (3) that the person assumed
obligations of parenthood by taking significant
responsibility for the minor's care, education and
development, including contributing towards the minor's
support, without expectation of financial compensation;
and (4) that the person has been in a parental role for
a length of time sufficient to have established with
the minor a bonded, dependent relationship parental in
nature.
Notice is not otherwise required if a parent certifies that he or she has been informed about the pending abortion by setting forth “in a notarized writing that notice was received.” N.J.S.A. 9:17A-1.5. Notice is also not required if “the attending physician certifies in the unemancipated minor's medical records that the abortion is necessary due to a medical emergency.” N.J.S.A. 9:17A-1.6. Alternatively, when that finding cannot be made, a minor may seek a judicial waiver of the notification requirement by filing a petition or motion with a judge of the Superior Court. N.J.S.A. 9:17A-1.7(a). The minor is entitled to “court appointed counsel,” N.J.S.A. 9:17A-1.7(b), and to waiver proceedings that
shall be confidential and insure the anonymity of the
minor and [that] shall be given precedence over other
pending matters so that the court may reach a decision
promptly and without delay so as to serve the best
interests of the minor.
On September 8, 1999, the AOC issued a Directive regarding implementation of the Act's judicial waiver provisions. Under the Directive, a minor seeking an abortion must file a petition in the Chancery Division, Family Part, “in the county where [she] resides, in the county where the abortion is proposed to occur, or in the county where [she] is being sheltered.” AOC Directive No. 10-99 § II(A) (Sept. 8, 1999). A filing may be made “Monday through Friday during the normal working hours of the Family Division,” id. § II(B)(1), and is handled by a member of the county's Judicial Bypass Team who assists the minor in navigating the procedural shoals of the waiver process. Id. § II(C)(1)(3). All proceedings are confidential, as required by statute, “and the anonymity of the minor [is] preserved.” Id. §§ II(G)(2), IV. The Directive also provides that the court shall enter an order dismissing the petition if the minor fails to appear for the waiver hearing. Id. § II(G)(10).
If her petition is denied, the minor may seek review in the Appellate Division. Two Appellate Division judges have been recalled to handle appeals from orders by the trial court denying waivers. Supplement to AOC Directive No. 10-99 at 1 (Sept. 22, 1999). The judges must hold oral argument not later than two business days after receiving the record from the parties. Id. at 3. Should the minor seek further review by this Court, she must file her Notice of Petition for Certification or Notice of Appeal “within two business days of the Appellate Division's decision,” along with “a written statement of reasons why the Supreme Court should review the matter.” Ibid. The Supplemental Directive further provides that “[t]he Supreme Court shall enter . . . judgment within two business days following oral argument or the submission of the matter to the Court on the papers.” Id. at 4.
B. The Trial Court Proceedings
Plaintiffs claim that the Notification Act infringes on a minor's right to privacy and to equal protection of the law granted in Article I, paragraph 1, of the New Jersey Constitution. Plaintiffs also claim that the statutory waiver provision fails “to ensure a confidential and expeditious alternative to the Act's parental notification requirement . . . .” Because of those alleged infirmities, plaintiffs seek a declaration that the Act is facially unconstitutional and the entry of a permanent injunction prohibiting the State from enforcing the Act.
On remand from this Court for disposition on the merits, the parties agreed that the matter should be heard “solely on briefs and certifications.” The trial court, after hearing argument, issued a written opinion on December 10, 1999, sustaining the Act. Planned Parenthood v. Farmer, No. BER-C-362-99, 1 999 WL 1138605 (N.J. Super. Ct. Ch. Div. Dec. 10, 1999). The court first considered the appropriate standard of review to be applied in a facial challenge but could find no New Jersey case directly on point. Id. at *3. On a review of relevant federal caselaw, it chose the standard adopted by the plurality in Casey, supra, 505 U.S. at 876-77, 112 S. Ct. at 2820-21, 120 L. Ed. 2d at 714 15, namely, whether the statute at issue presents an undue burden to a woman's fundamental right to choose “'in a large fraction of the cases.'” Farmer, supra, 1 999 WL 1138605, at *4 (quoting Casey, supra, 505 U.S. at 895, 112 S. Ct. at 2830, 120 L. Ed. 2d at 726).
The court next turned to the right of privacy found in the New Jersey Constitution within Article I, paragraph 1, and discussed by this Court in a series of cases related to the more personal and intimate aspects of the right. See, e.g., In re Grady, 85 N.J. 235, 249 (1981) (recognizing right to sterilization as component of right of privacy); State v. Saunders, 75 N.J. 200, 210-14 (1977) (applying right of privacy to sexual conduct between consenting adults); In re Quinlan, 70 N.J. 10, 38-40 (recognizing right to terminate life as component of right of privacy), cert. denied, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed.2d 289 (1976). Whether the New Jersey Constitution affords greater protection than does the Federal Constitution was considered in the context of other state court responses to laws governing minors' access to abortions. Farmer, supra, 1 999 WL 1138605, at *5-*7. Noting that only the California Supreme Court has invalidated a parental consent/judicial waiver statute, and that the California court's decision was predicated on an explicit right to privacy in that state's Constitution, the trial court decided that our Constitution had not been so expansively interpreted. Id. at *6 (citing Right to Choose, supra, 91 N.J. at 303-04).
The court found that minors are persons who “'possess constitutional rights,'” id. at *7 (quoting Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S. Ct. 2831, 2843, 49 L. Ed.2d 788, 808 (1976)), but that the United States Supreme Court, under Bellotti v. Baird, 443 U.S. 622, 635, 99 S. Ct. 3035, 3044, 61 L. Ed.2d 797, 808 (1979) (plurality opinion), has permitted the imposition of limitations on those rights for the protection of immature minors. Farmer, supra, 1 999 WL 1138605, at *7, *13. After an exhaustive review of the record, including plaintiffs' certifications, the AOC Directives, the DHSS fact sheet, and other relevant materials, the court held that the Act does not place an undue burden on the minor's right to privacy under the New Jersey Constitution. Id. at *16. The court also rejected plaintiffs' equal protection challenge, concluding that differential treatment of minors who choose abortion and minors who choose to carry to term is mitigated by the bypass provision and the State's interest in protecting minors from making ill informed choices. Id. at *18. Ultimately, the trial court sustained the Parental Notification for Abortion Act against plaintiffs' “facial challenge.” Id. at *19.
Plaintiffs bring their facial challenge to the Notification Act under Article I, paragraph 1, of the Constitution of the State of New Jersey. “[O]rdinarily legislative enactments are presumed to be valid and the burden to prove invalidity is a heavy one.” Bell v. Township of Stafford, 110 N.J. 384, 394 (1988). However, when legislation impinges on a constitutionally protected right, we have looked more closely at the State's purported justification. Cf. id. at 395. In a case such as this, it is difficult for a young woman to bring an as applied challenge when she will lose the opportunity to exercise the fundamental right she seeks to vindicate in a relatively short period of time. The brevity of the gestation period and concerns about confidentiality create special burdens on minors who wish to have an abortion. Notably, every week of delay increases the risk of health problems associated with the abortion procedure and decreases the opportunity to obtain it. Because of those concerns, we consider plaintiffs' facial challenge to the Notification Act under the more stringent standard we use in cases involving as applied challenges to a legislative classification that burdens the exercise of a fundamental right.
This case also requires us to consider whether our State Constitution affords greater protection of a woman's right of privacy than does its federal counterpart. In that undertaking, we again adhere to the principle set out in Right to Choose, that, “in appropriate cases, the individual states may accord greater respect than the federal government to certain fundamental rights.” Supra, 91 N.J. at 300. Thus:
Where provisions of the federal and state Constitutions
differ, . . . or where a previously established body of
state law leads to a different result, . . . we must
determine whether a more expansive grant of rights is
mandated by our state Constitution.
We recognize, however, that caution is required when we extend
the protections of our State Constitution beyond the limits set
by the United States Supreme Court for parallel provisions in the
Federal Constitution. Id. at 301 (citing State v. Hunt,
91 N.J. 338, 344-45 (1982)).
Under the Federal Constitution, a woman has a fundamental
right to choose whether to carry her pregnancy to term or to
choose an abortion. Roe v. Wade,
410 U.S. 113, 153,
93 S. Ct. 705, 727,
35 L. Ed.2d 147, 177 (1973); see also Stenberg v.
Carhart, ___ U.S. ___, ___,
120 S. Ct. 2597, 2604, ___ L. Ed.2d
___, ___ (2000) (“[T]he Constitution offers basic protection to
the woman's right to choose.”); Casey, supra, 505 U.S. at 853,
112 S. Ct. at 2808, 120 L. Ed.
2d at 699 (reaffirming Roe). A
woman also has a constitutional right to be free from
“unwarranted governmental intrusion” in making that personal and
life-altering decision. Eisenstadt v. Baird,
405 U.S. 438, 453,
92 S. Ct. 1029, 1038,
31 L. Ed.2d 349, 362 (1972). Most
important in this case, those rights belong equally to adults and
to minors. Hodgson v. Minnesota,
497 U.S. 417, 435,
110 S. Ct. 2926, 2937,
111 L. Ed.2d 344, 360 (1990). As stated by the
Supreme Court:
Constitutional rights do not mature and come into being
magically only when one attains the state-defined age
of majority. Minors, as well as adults, are protected
by the Constitution and possess constitutional rights.
[Planned Parenthood v. Danforth,
428 U.S. 52,
74,
96 S. Ct. 2831, 2843,
49 L. Ed.2d 788,
808 (1976).]
Nonetheless, as recognized by the court below, the State may
place certain restrictions on a minor's exercise of her rights in
order to protect her from her own immaturity. Farmer, supra,
1
999 WL 1138605, at *7 (citing Bellotti, supra, 443 U.S. at 635,
99 S. Ct. at 3044, 61 L. Ed.
2d at 808).
Various restrictions relating to both parental consent and
parental notification have been discussed by the United States
Supreme Court in a series of cases beginning with Planned
Parenthood v. Danforth, supra, 428 U.S. at 52, 96 S. Ct. at 2831,
49 L. Ed.
2d at 788. Because they are instructive to our
consideration of the state constitutional challenge, we review
them here.
A. Consent Statutes
In Planned Parenthood v. Danforth, the Supreme Court
addressed for the first time the constitutionality of a state
statute that contained a mandatory parental consent provision,
and rejected that part of the statute prohibiting unmarried
minors from procuring abortions during the first trimester of
their pregnancies without a parent's consent. Id. at 75, 96 S.
Ct. at 2844, 49 L. Ed.
2d at 808. Five members of the Court
determined that a state could not subject a minor's right to
terminate her pregnancy to a parent's absolute veto “without a
sufficient justification for the restriction.” Id. at 74-75, 96
S. Ct. at 2844, 49 L. Ed.
2d at 808.
Shortly thereafter in 1979, the Court assessed the
constitutionality of a Massachusetts parental consent statute.
Bellotti, supra, 443 U.S. at 622, 99 S. Ct. at 3035, 61 L. Ed.
2d
at 797. The statute in Bellotti required unmarried minors to
obtain consent from both parents before a physician could perform
an abortion. Id. at 625, 99 S. Ct. at 3038, 61 L. Ed.
2d at 802.
If the parents refused consent, however, a state court judge
could, but was not required to, give judicial consent to an
abortion without involving the young woman's parents. Ibid. A
plurality of the Court announced that states requiring parental
consent from one or both parents had to provide an alternative
process in which a minor could obtain a waiver by demonstrating
either that she is sufficiently mature to make the decision on
her own with her physician, or that an abortion is in her best
interests. Id. at 643-44, 99 S. Ct. at 3048, 61 L. Ed.
2d at
813-14. The process, said Justice Powell, must guarantee
anonymity and occur expeditiously so that the minor has a
realistic opportunity to procure an abortion. Id. at 644, 99 S.
Ct. at 3048, 61 L. Ed.
2d at 814. The Massachusetts statute was
deemed unconstitutional by four members of the Court because it
failed to meet those essential conditions. Id. at 651, 99 S. Ct.
at 3052, 61 L. Ed.
2d at 818. Four other justices concurred in
the judgment of the plurality by application of Danforth but
expressed reservations regarding the burden imposed under a
bypass process. Id. at 655-656, 99 S. Ct. at 3054, 61 L. Ed.
2d
at 821.See footnote 33
In 1983, the Court considered an Ohio statute that, among
other things, specifically proscribed abortions for minors under
fifteen years of age who did not secure the informed, written
consent of one parent. City of Akron v. Akron Ctr. for Reprod.
Health, Inc.,
462 U.S. 416, 422 n.4,
103 S. Ct. 2481, 2488 n.4,
76 L. Ed.2d 687, 698 n.4. (1983) (Akron I), overruled in part by
Casey, supra, 505 U.S. at 833, 112 S. Ct. at 2791, 120 L. Ed.
2d
at 674. Although the statute contained an exception for minors
who obtained a court order permitting the abortion, the exception
did not provide adequate alternative waiver procedures. The
Court concluded “that Akron may not make a blanket determination
that all minors under the age of 15 are too immature to make this
decision or that an abortion never may be in the minor's best
interests without parental approval.” Id. at 440, 103 S. Ct. at
2497, 76 L. Ed.
2d at 709. On the same day Akron I was decided,
however, the Court sustained a Missouri parental consent statute
that contained an acceptable judicial bypass provision. Planned
Parenthood Ass'n v. Ashcroft,
462 U.S. 476, 493,
103 S. Ct. 2517,
2526,
76 L. Ed.2d 733, 746 (1983); id. at 504, 103 S. Ct. at
2532, 76 L. Ed.
2d at 754 (O'Connor, J., concurring in part in
the judgment and dissenting in part) (concluding parental consent
statute does not impose undue burden on minors).
Most recently, the Court upheld a Pennsylvania statute
requiring one parent's consent before a physician can perform an
abortion on an unemancipated minor. Casey, supra, 505 U.S. at
899, 112 S. Ct. at 2832, 120 L. Ed.
2d at 728-29.See footnote 44 That statute
passed muster because it too permitted a bypass of parental
approval if the minor could show that she was sufficiently mature
to make the abortion decision, or that the abortion was in her
best interests. Ibid.; id. at 970, 112 S. Ct. at 2868-69, 120 L.
Ed.
2d at 776 (Rehnquist, C.J., concurring in the judgment in
part and dissenting in part).
B. Notification Statutes
In H.L. v. Matheson, the Supreme Court approved a Utah
statute that required a physician to “'[n]otify, if possible, the
parents or guardian of the woman upon whom the abortion is to be
performed, if she is a minor . . . .'”
450 U.S. 398, 400,
101 S.
Ct. 1164, 1167,
67 L. Ed.2d 388, 393 (1981) (quoting Utah Code
Ann. § 76-7-304(c)(2)). The Court determined that the statute
was constitutional as applied to an unemancipated minor who is
“living with and dependent on her parents” and has not made any
“showing as to her maturity or as to her relations with her
parents. . . .” Id. at 407-11, 101 S. Ct. at 1171-72, 67 L. Ed.
2d at 397-401. Nine years later, the Court invalidated as unduly
burdensome a provision in a parental notification statute that
mandated written notice to both parents of an unemancipated minor
without providing judicial bypass procedures. Hodgson, supra,
497 U.S. at 450, 110 S. Ct. at 2945, 111 L. Ed.
2d at 370-71. An
alternative section of the statute that contained a bypass
process was sustained by a five-member majority. Id. at 461, 110
S. Ct. at 2951, 111 L. Ed.
2d at 378 (O'Connor, J., concurring in
part and concurring in the judgment in part); id. at 499-501, 110
S. Ct. at 2971-72, 111 L. Ed.
2d at 403 (Kennedy, J., concurring
in the judgment in part and dissenting in part).
Subsequently, the Court approved an Ohio one-parent
notification statute that provided for judicial bypass and met
the Bellotti criteria for a consent statute. Akron II, supra,
497 U.S. at 510-13, 110 S. Ct. at 2978-81, 111 L. Ed.
2d at 416
18. The Ohio statute permitted abortions for unemancipated
minors: (1) if the physician provided a minimum twenty-four hours
actual notice to a parent; (2) if the minor and an alternative
relative certified that the minor feared abuse from one of her
parents; (3) if one parent provided written consent to the
abortion; or (4) if the juvenile court granted a judicial bypass.
Id. at 507-08, 110 S. Ct. at 2977, 111 L. Ed.
2d at 416. Akron
II concluded that “a bypass procedure that will suffice for a
consent statute will suffice also for a notice statute.” Id. at
511, 110 S. Ct. at 2979, 111 L. Ed.
2d at 418.
In Lambert v. Wicklund,
520 U.S. 292, 293-94, 117 S.
Ct. 1169, 1169-70,
137 L. Ed.2d 464, 468 (1997) (per curiam),
the Court evaluated a Montana notification statute that was
virtually identical to the statute approved in Akron II. Lambert
repeated the Akron II conclusion that when a state mandates
notice, but also provides for a bypass process that is acceptable
in a consent statute, the notice provisions are a fortiori
constitutional. Id. at 295-97, 117 S. Ct. at 1171-72, 137 L. Ed.
2d at 467-69. Thus, although the Court has not decided that a
parental notification statute must contain a judicial bypass
provision, Lambert teaches that if a notice statute has a bypass
procedure that satisfies Bellotti, it must necessarily withstand
constitutional scrutiny. Id. at 295, 117 S. Ct. at 1171, 137 L.
Ed.
2d at 467-68.
C. The Basis for Decision
When faced with a challenge to a notification statute, the
United States Supreme Court has relied on a perceived distinction
between parental consent and parental notification, namely that a
consent statute imposes a more onerous burden than does a
notification statute. Hodgson, supra, 497 U.S. at 496, 110 S.
Ct. at 2969, 111 L. Ed.
2d at 400 (Kennedy, J., concurring in the
judgment in part and dissenting in part). After holding that a
consent statute must include a bypass procedure, the Court
reasons that a notification statute with a judicial bypass must
be acceptable. Akron II, supra, 497 U.S. at 511, 110 S. Ct. at
2979, 111 L. Ed.
2d at 418. Thus, Casey relies on the now
familiar precedents of Bellotti, Akron II, and Hodgson to explain
why a notice statute containing a bypass is constitutional.
Casey, supra, 505 U.S. at 899, 112 S. Ct. at 2832, 120 L. Ed.
2d
at 729. Yet, despite its holding that a reviewing court must, in
such cases, consider whether the “state regulation imposes an un
due burden on a woman's ability” to exercise her right to choose,
id. at 874, 112 S. Ct. at 2819, 120 L. Ed.
2d at 713, Casey does
not address the actual burdens imposed by the bypass process.See footnote 55 As
for Bellotti, Akron II and Hodgson, only the concurring or
dissenting Justices in those earlier cases actually discuss the
impact of those burdens on young women who seek abortions. Akron
II, supra, 497 U.S. at 526-38, 110 S. Ct. at 2985-91, 111 L. Ed.
2d at 428-36 (Blackmun, J., dissenting) (detailing barriers in
“obstacle course” of judicial bypass procedure that detrimentally
affect abused minors); Hodgson, supra, 497 U.S. at 464-79, 110 S.
Ct. at 2952-60, 111 L. Ed.
2d at 379-89 (Marshall, J., concurring
in the judgment in part and dissenting in part) (discussing
psychological impact of forced notification and health risks of
delay); Matheson, supra, 450 U.S. at 437-41, 101 S. Ct. at 1185
88, 67 L. Ed.
2d at 416-19 (Marshall, J., dissenting)
(recognizing that “threat of parental notice” endangers minors'
health; leads to delays, self-abortions, or illegal abortions; or
forces minors to carry to term); Bellotti, supra, 443 U.S. at
655, 99 S. Ct. at 3054, 61 L. Ed.
2d at 820-21 (Stevens, J.,
concurring) (noting that judicial bypass procedure to “secure the
consent of the sovereign” is potentially greater burden than
obtaining parental consent because vesting absolute veto power in
one judge is “particularly troubling”).
In Akron II, for example, the majority held without further
comment that the Ohio notification statute did not violate the
Due Process Clause:
The confidentiality provisions, the expedited
procedures, and the pleading form requirements, on
their face, satisfy the dictates of minimal due
process. We see little risk of erroneous deprivation
under these provisions and no need to require
additional procedural safeguards.
[Akron II, supra, 497 U.S. at 517, 110 S. Ct.
at 2982, 111 L. Ed.
2d at 422.]
Nor were the burdens of the judicial bypass thoroughly examined
by the majority in Hodgson. There, the Court reviewed Bellotti
and decided that notifying one's parents about an abortion, as in
Hodgson, is a far less taxing undertaking than obtaining consent
for an abortion, as in Bellotti. Hodgson, supra, 497 U.S. at
499-500, 110 S. Ct. at 2971, 111 L. Ed.
2d at 403. As noted, the
two-parent notification statute in Hodgson was found to be
constitutional because it satisfied the prerequisites for a
parental consent statute. Id. at 497-98, 110 S. Ct. at 2970, 111
L. Ed.
2d at 401-02. Most recently, the Court repeated that
theme in Lambert, which concerned a statute identical to the one
upheld in Akron II. Lambert, supra, 520 U.S. at 295-97, 117 S.
Ct. at 1171-72, 137 L. Ed.
2d at 468-69. Even in Bellotti, the
case that described the bypass requirements for a parental
consent statute, there is no discussion of the burdens imposed by
those requirements. Bellotti, supra, 443 U.S. at 643-4, 99 S.
Ct. at 3048-49, 61 L. Ed.
2d at 813-14.
Finally, we observe that the United States Supreme Court has
reviewed states' consent and notification statutes on due process
grounds without discussion of the parties' equal protection
arguments. As a consequence, that body of caselaw offers little
guidance concerning the treatment of different classes of young
women under equal protection principles -- i.e., those who seek
an abortion and those who seek medical and/or surgical care
(related to pregnancy and childbirth).
Other states have enacted legislation that is similar but not identical to New Jersey's Parental Notification Act. Courts in those states have therefore considered the issues now before us, generally in the context of state constitutional provisions that correspond to ours. Those cases also inform our decision today.
Most of the state courts that have examined either parental consent or parental notification statutes have relied on federal caselaw to uphold their states' laws. We will not repeat the discussion in those cases because it tracks cases we have already considered. See, e.g., In re Anonymous, 531 So.2d 901, 903-04 (Ala. 1988); Pro-Choice Miss. v. Fordice, 716 So.2d 645, 656 (Miss. 1998); In re Anonymous, 558 N.W.2d 784, 789 (Neb. 1997). Recently, however, California and Massachusetts have struck down parental consent statutes even though they contained judicial bypass provisions. American Academy of Pediatrics v. Lungren, 940 P.2d 797, 804-05 (Cal. 1997); Planned Parenthood League v. Attorney Gen., 677 N.E.2d 101, 103 (Mass. 1997). The Massachusetts Supreme Court, relying in part on Hodgson, supra, 497 U.S. at 417, 110 S. Ct. at 2926, 111 L. Ed. 2d at 344, invalidated a two-parent consent statute because
[t]he burden [it] places on a minor to seek and obtain
the consent of both parents can force her, even when
one parent consents, to turn to the judicial bypass for
relief. . . . To require that a minor follow such a
process when the purpose of parental consent is
fulfilled by the consent of one parent is to burden the
minor's constitutional rights without adequate
justification.
In Lungren, however, California's highest court relied on
that state's explicit constitutional guarantee of privacy in
determining whether California could require parental consent
before a minor could obtain an abortion. Lungren, supra, 940
P.
2d at 816. Under California law, “when a statute impinges upon
a constitutional right, legislative findings with regard to the
need for, or probable effect of, the statutory provision [are
not] considered determinative for constitutional purposes.” Id.
at 824. Thus, the court examined the state's claim
that the restrictions imposed by [the] statute upon a
minor's constitutionally protected right of privacy are
necessary to protect the physical and emotional health
of a pregnant minor [and held that those restrictions
were] undermined by the circumstance that California
law authorizes a minor, without parental consent, to
obtain medical care and make other important decisions
in analogous contexts that pose at least equal or
greater risks to the physical, emotional, and
psychological health of a minor and her child as those
posed by the decision to terminate pregnancy.
The court was unable to reconcile California's alleged interest
in “a minor's emotional or psychological health” in respect of
the abortion decision with the state's silence on a minor's
decision to give birth or to give her child up for adoption. Id.
at 827. In the same vein, the existence of a variety of medical
emancipation statutes applicable to minors further undermined the
state's claim that the parental consent statute was “necessary
. . . to sustain the parent-child relationship.” Ibid.
Ultimately, Lungren held that the State had failed to put forward
“adequate justification for the statute's intrusion on a pregnant
minor's right to privacy under the California Constitution.” Id.
at 831.
Article I, paragraph 1, of the New Jersey Constitution
provides:
All persons are by nature free and independent, and
have certain natural and unalienable rights, among
which are those of enjoying and defending life and
liberty, of acquiring, possessing, and protecting
property, and of pursuing and obtaining safety and
happiness.
The language of that paragraph is “more expansive . . . than that
of the United States Constitution . . . .” Right to Choose,
supra, 91 N.J. at 303. It incorporates within its terms the
right of privacy and its concomitant rights, including a woman's
right to make certain fundamental choices. Thus, in New Jersey,
we have a long-standing history that begins even prior to Roe v.
Wade, see Gleitman v. Cosgrove,
49 N.J. 22, 62-63 (1967)
(Weintraub, C.J., dissenting in part), demonstrating a commitment
to the protection of individual rights under the State
Constitution. Right to Choose, supra, 91 N.J. at 304 (citing,
among other cases, Schroeder v. Perkel,
87 N.J. 53, 66 (1981)
(holding that mother, after giving birth to child with cystic
fibrosis, had right to choose whether to conceive second child
who might suffer from same genetic defect)); see Grady, supra, 85
N.J. at 249; Saunders, supra, 75 N.J. at 210; Quinlan, supra, 70
N.J. at 38. It is with that body of caselaw in mind that we turn
to plaintiffs' equal protection challenge.
A. Right to Choose v. Byrne
Right to Choose v. Byrne is this Court's seminal case
addressing equal protection and abortion rights under the New
Jersey Constitution.
91 N.J. 287 (1982). The New Jersey
Legislature had restricted state Medicaid funding of abortions to
only those abortions necessary to preserve the life of the
mother. Id. at 294. The statute thereby premised funding on the
distinction between an abortion necessary to preserve a woman's
life and an abortion necessary to protect a woman's health. Id.
at 292. At the time the Court decided Right to Choose, the
Supreme Court of the United States had recently handed down
Harris v. McRae,
448 U.S. 297, 326,
100 S. Ct. 2671, 2693,
65 L.
Ed.2d 784, 811 (1980), which held that the Equal Protection
Clause did not prohibit Congress from proscribing the use of
Medicaid funds for an abortion except when required to save the
life of the mother. We held to the contrary under equal
protection principles found in our State Constitution. Right to
Choose, supra, 91 N.J. at 310.
Right to Choose, in considering the state equal protection
claim, first applied the analytical framework developed by the
United States Supreme Court in parallel cases under the Federal
Constitution -- a tiered equal protection analysis generally
using either a rational-basis or strict-scrutiny review. Right
to Choose, supra, 91 N.J. at 305-06 (citing, e.g., San Antonio
Sch. Dist. v. Rodriquez,
411 U.S. 1, 28-29,
93 S. Ct. 1278, 1293
94,
36 L. Ed.2d 16, 39-41 (1973); Roe v. Wade, supra, 410 U.S.
at 163-65, 93 S. Ct. at 731-33, 35 L. Ed.
2d at 182-84). We
observed, however, that in cases involving a classification that
“indirectly infringes on a fundamental right,” Right to Choose,
supra, 91 N.J. at 310, the inflexibility of the tiered framework
prevents a full understanding of the clash between individual and
governmental interests. Id. at 308-09. Rather, we adopted a
test that weighed the governmental interest in the statutory
classification against the interests of the affected class.
Subsequently, in Greenberg, we explained:
In striking the balance, we have considered the nature
of the affected right, the extent to which the
governmental restriction intrudes upon it, and the
public need for the restriction.
In Right to Choose, the Court placed a woman's health and
privacy on one side of the scale and weighed those interests
against the State's interest in potential life. Supra, 91 N.J.
at 310. The Court held that the government had unreasonably
interfered with a woman's fundamental right to choose an abortion
when necessary to protect her life or health. Ibid. The Court
declined, however, to hold that all statutory funding
restrictions on abortion are unconstitutional. Ibid. Instead,
it decided that the State's equal protection guarantee barred
discrimination against a particular class of pregnant women
because it could not be justified by a compelling state interest.
Id. at 308, 310. In lieu of striking the entire statute, the
State was required to fund “those abortions medically necessary
to preserve the life or health of the woman.” Id. at 312; cf.
Doe v. Poritz,
142 N.J. 1, 94 (1995) (applying equal protection
balancing test enunciated in Right to Choose); Greenberg, supra,
99 N.J. at 576 (same). That holding, consistent with New
Jersey's more expansive constitutional provision, gave women
seeking to exercise their right to choose greater protection than
the protection afforded in Harris v. McRae.
B. Application of the Right to Choose Balancing Test
to the Notification Act
The Parental Notification for Abortion Act is designed to
impose restrictions on young women who seek an abortion, treating
them differently than it treats young women who decide to carry
to term. We employ the Right to Choose balancing test to
determine whether that differential treatment unfairly burdens
only one class of young women, thereby violating the State
Constitution's guarantee of equal protection.See footnote 66
Our inquiry begins with an examination of the nature of the
affected right. We have earlier discussed the importance of a
woman's right to control her body and her future, a right we as a
society consider fundamental to individual liberty. Ante at ___
(slip op. at 16-17). Although we will not repeat that discussion
here, we are keenly aware of the principle of individual autonomy
that lies at the heart of a woman's right to make reproductive
decisions and of the strength of that principle as embodied in
our own Constitution. We have not hesitated, in an appropriate
case, to read the broad language of Article I, paragraph 1, to
provide greater rights than its federal counterpart. Our
precedents make clear that the classification created by the
statute is deserving of the most exacting scrutiny.
We next consider the extent of the governmental restriction
on that fundamental right. The Notification Act requires a minor
either to tell a parent that she intends to have an abortion or
to obtain a judicial waiver permitting her to bypass parental
notification. The minors who choose abortion are therefore
subject to burdens not imposed on minors who do not. The greater
the burden on the underlying right, the more difficult it is to
sustain the State's classification.
The record reflects that the Act significantly burdens
unemancipated women seeking abortions. In analyzing those
burdens, we rely on extensive and detailed certifications
submitted by the plaintiffs.See footnote 77 Mindful that those submissions
have been presented by advocates, and that there is little in the
record to contradict the factual context that they provide,See footnote 88 we
nonetheless believe that they are a source of important
information and useful insights into the impact of the
Notification Act on young women who seek abortions.
From those certifications we have learned that pregnant
minors as a group take much longer to make the decision whether
to have an abortion. Many are unable to recognize that they are
pregnant because minors frequently have irregular menstrual
cycles. In arranging for an abortion, minors must overcome their
unfamiliarity with the health-care system and their lack of
financial resources. Those factors create time delays that
affect the cost and availability of an abortion even without the
demands of a statutory notification process.
In cases where a minor wishes to notify her parent, the
parent must locate a notary and complete the form attached to the
DHSS fact sheet. The minor then must take the notarized form and
present it to her doctor. Alternatively, the doctor could send a
notice to the minor's parent via restricted, certified mail, with
the caveat that notice can be delivered to, and accepted by, only
the one parent specified in the notice. As a final alternative,
the abortion provider could seek out the parent and hand-deliver
a notice of abortion, but that alternative is extremely onerous
for the provider and may not be a real-world possibility.
Counterbalanced against those burdens, we are told that, without
the statute, physicians suggest to young women that they should
tell a parent about their decision and that most young women do
so. In fact, the record indicates that most young women
voluntarily inform their parents about their intention to seek an
abortion.
Apart from the delay caused by the bypass