Ohio v. Akron Center for Reproductive Health (1990)
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 §
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
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 Bellotti.
Id. "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 §
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
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
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),
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
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
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,
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