H. L. v. MATHESON

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ORAL ARGUMENT OF DAVID S. DOLOWITZ ON BEHALF OF THE APPELLANT

Chief Justice Burger: We'll hear arguments next in H. L. and Others against Matheson, the Governor of Utah.

Mr. Dolowitz, I think you may proceed when you are ready.

Mr. Dolowitz: Mr. Chief Justice, and may it please the Court:

The question before the Court today involves the validity of a Utah statute which provides that before an abortion may be provided to a minor, her parents must be notified if it is physically possible to do so.

The facts of the case involved a 15-year-old minor who determined she was in the first trimester of an undesired pregnancy, spoke with her social worker, determined that she should terminate that pregnancy.

She determined further that her parents should not be involved, then consulted her treating physician--

Unidentified Justice: The... now, who's "she"?

The social worker?

Mr. Dolowitz: --No.

At this point the woman herself contacted the doctor and the doctor also had a social worker working with him.

They consulted with her, determined with the social workers, the physicians, that her parents should not be notified.

Unidentified Justice: Now, who made that determination?

Mr. Dolowitz: That determination was made, Mr. Justice Stewart, by the woman, the doctor, and the social worker.

Unidentified Justice: By H. L..

Mr. Dolowitz: All of them felt that the parents should not be involved.

Unidentified Justice: Where in the record, counsel, is the finding or testimony that the doctor felt the parents should not be consulted?

Mr. Dolowitz: That is in the complaint, and that was part of her testimony when she testified.

Unidentified Justice: Could you cite the pages?

Mr. Dolowitz: I can only refer the Court to the transcript of--

Unidentified Justice: I read the transcript.

The physician felt he could not do it without consulting the parents.

But I didn't read the transcript to find any place that he felt it was in her best interest that the parents not be consulted.

Wasn't it a matter of notice to the parents rather than consulting the parents?

Mr. Dolowitz: --Yes, it was.

Well, it is a matter of notice rather than consultation and if I said Mr. Justice Rehnquist.

It's a question of that they should not be given notice of it.

Unidentified Justice: Now, where in the transcript or findings do you find anything that the physician thought it was contrary to her best medical interest that her parents not be notified?

Mr. Dolowitz: That's what he told her as--

Unidentified Justice: Where in what we have before us?

Mr. Dolowitz: --I believe that is in her testimony.

I was looking at it.

It is definitely testified by her that her counselor... and I am looking in the pages 24 through 26--

Unidentified Justice: Appendix?

Mr. Dolowitz: --of the appendix, Mr. Chief Justice.

And she said that she should go ahead without notifying--

Unidentified Justice: Could you give us the verbatim?

Mr. Dolowitz: --I am looking now at her testimony and I am going down page 25:

"Question: You consulted with a counselor that you were pregnant, or about the pregnancy? "

And then it goes on to say, "You were living at home".

Unidentified Justice: Mr. Dolowitz, is that you testifying or the--

Mr. Dolowitz: Oh, I'm asking the questions that she is answering; right.

Unidentified Justice: --Well, all she says is "yes".

Mr. Dolowitz: That's correct, Your Honor, and if I may say so, I led her through this very carefully and the reason that I did that is, she had a highly unique fact situation, and as you read through the appendix you saw that this examination took place after the Court had already denied a preliminary injunction and had ruled that the peculiar facts of her circumstances made no difference.

It was... the only question, under the Utah statute, the trial judge felt, was whether it was physically possible to notify her.

Because then, Mr. Justice Rehnquist, after this, you see there's about ten pages of colloquy between the court and--

Unidentified Justice: Do you think that any of what you have read from the testimony so far supports a finding that her doctor told her that it was in her... not in her best medical interests to get an abortion?

Mr. Dolowitz: --In terms of the record, it does not.

Now, what happened there is I forgot to ask her that question.

Unidentified Justice: Well, in your--

Mr. Dolowitz: I had spoken with the doctor myself and the doctor told her that and I talked to her.

Unidentified Justice: --In your statement of the case, in your brief, Mr. Dolowitz, you say,

"In consultation with both her physician and social worker, she determined that it was in her best medical interest that she be aborted and that her parents not be notified of either her decision or its implementation. "

Mr. Dolowitz: I do, sir, and that is the finding.

Unidentified Justice: And that's a fair paraphrase of what you read us, isn't it?

Mr. Dolowitz: Yes, it is, Mr. Justice Stewart.

That is the finding of the court, of the trial court.

Unidentified Justice: But it is not a finding that the doctor told her it was against her best interest?

Mr. Dolowitz: It is not a... it is a finding, I believe, and I at this point would have to refer the trial court... or this Court, Your Honor, to the specific findings, conclusions of law and in the findings that I'm referring to I am looking at page 40, Finding 7, of the Findings of Fact, page 40 of the appendix, where the trial court made the determination that she should be aborted and that he felt... that's the doctor... that it was not in her best medical interest to do... or was in her best medical interest to do so, but could not and would not perform an abortion on her without informing her parents prior to aborting her because of the statute.

Unidentified Justice: Mr. Dolowitz, you have emphasized in your oral argument... you have spent quite a bit of time on it, and our questions, and you did in the examination, direct examination of your witness, the importance, you have emphasized the importance of getting counsel and advice and assistance, lawyers, social workers, doctors.

And you rest on the fact that she had the advice and counsel of all these people?

Mr. Dolowitz: Yes, Mr. Justice.

Unidentified Justice: What if she has the advice of no one?

Just walked in off the street and said, I want to have an abortion, and the doctor said, not unless I notify the parents.

No other factors.

Would this be any different from the points that you have got here?

Mr. Dolowitz: Factually it would, Your Honor.

Unidentified Justice: And factually, would it be--

Mr. Dolowitz: It would.

But legally, in terms of the position I'm taking today, I am speculating... I would say, no.

And the reason that I would--

Unidentified Justice: --You don't need to speculate on that, do you?

Mr. Dolowitz: --What?

Unidentified Justice: You don't need to speculate on the Constitutional question, do you?

Mr. Dolowitz: No.

I would say--

Unidentified Justice: It would make no difference, would it?

Mr. Dolowitz: --No.

If she has the right of privacy, to go ahead on her own, then she has that right.

Unidentified Justice: Now, she's 15 years old, isn't she?

Mr. Dolowitz: That's correct.

Unidentified Justice: Suppose she were 12?

Same?

Mr. Dolowitz: I would... the problem, Your Honor, is I've... then I move to speculation and I move to it in a very difficult area, and that is the level of maturity is such that as a 12-year-old she could be very mature, totally immature; though we're leaving something out, and that is that she is talking to a doctor and says, I want an abortion.

But you're leaving out that the state has already said, who is going to practice medicine and what are reasonable standards?

And the physician is going to say, I have a right to make a decision whether it's in your best medical interest and I'm not going to take an action which is in opposition to your best medical interest.

And if the 12-year-old that you have asked me about the doctor feels cannot rationally make that decision in her own best interest, he--

Unidentified Justice: What about ten years of age?

Mr. Dolowitz: --I would give you the same answer.

I think that you're dealing with a doctor patient decision where the doctor who the state has said is licensed to practice medicine should be able to deal with his patient, and a minor, and deal without the outside influences; talk to that patient and say, at the end of that discussion, I'm not going to do this without your parents, I'm going to do this with your parents.

Unidentified Justice: In Utah, under Utah law, if she had walked in, a girl of 10, 11, 12, 15, whatever, and said, I want my tonsils taken out but my parents won't send me to a doctor and won't agree to it, would the doctor be legally permitted to perform the tonsillectomy?

Mr. Dolowitz: There is no law that prohibits it, but I believe that most physicians would not do it.

But there is--

Unidentified Justice: Because of the possibility of a malpractice suit, among other things, I suppose.

Mr. Dolowitz: --There is a difference, though, and that is the decision of this Court in Danforth and Bellotti II, and a statute of the State of Utah which states that a minor of any age can consent to any treatment regarding pregnancy.

Unidentified Justice: Mr. Dolowitz, would you straighten me out?

I want to be sure about this.

On page 25 of the appendix... do you have it in front of you?

Mr. Dolowitz: Yes, Mr. Justice Blackmun.

Unidentified Justice: Down just below the middle there is a question:

"After talking the matter over with a counselor, the counselor concurred in your decision that your parents should be notified. "

is what it says.

Now, when you read it, you put a "not" in there.

Should the "not" be in there?

Mr. Dolowitz: It should have been, because if it wasn't, then I misspoke it at the time.

Because it was very clear, all the way through, from the time that she came in, that she had spoken to her counselor, she had spoken to her counselors and her physician before she came to me, and that they all felt that this was a very unique situation and she should not, her parents simply shouldn't be notified.

Unidentified Justice: Well, all I want to know is, whether you and opposing counsel agree that this is an error in the printing of the transcript, that the "not" is in there?

Mr. Tinker: Yes.

I agree, Mr. Justice Blackmun.

Mr. Dolowitz: Now, Your Honor, what we are dealing with... as you can see; and I realize from your questions, Mr. Chief Justice, that you're very concerned about the age of the woman involved.

The problem is that I think that Utah has overstepped in doing that by saying that a parent must be notified in every case.

Because just as I answered to you that the physician must be involved in making that decision--

Unidentified Justice: Then are you saying that it might, the statute might be constitutional if it fixed the limit at age 12 or 14?

Mr. Dolowitz: --No, Your Honor, I would not.

I would say it would be unconstitutional if it did that.

But if it said that the physician... if the words "if possible"... and this, in fact, is I urged the Utah... on the construction I urged on the Utah Supreme Court... the language, if possible, should be construed to mean, "if medically appropriate", that, if the doctor in consultation with his patient feels that the parents should be notified, consulted, brought in, however that's to be phrased, that would be a rational statute, because it would be reasonable, it could be done.

Unidentified Justice: But could it not also, could that phrase not also be intended to take into account a child who had been abandoned by her parents, didn't know where her parents were, her parents impossible to reach, that sort of thing?

Mr. Dolowitz: Yes, and that--

Unidentified Justice: Isn't that what the statute is aimed at?

Mr. Dolowitz: --Your Honor, the answer I'm going to say is that that might have been the intention and they added... the Utah Supreme Court said, if possible, within a rational time.

And the problem is, that makes it very vague, as to precisely what it means.

And the problem than then comes from that is, if you say, well, you know, if physically possible, like if they're on a trip, if they're somewhere else.

You still have the same problem.

But what happens if they're on the trip?

But you have a social worker or a doctor who knows that family and says, gee, I'm glad they're on that trip; it is best not to notify them.

So what happens when they're in town and he still feels it's best not to notify them?

I can explain the reasons why that is good.

I think Mr. Justice Powell in the Bellotti II decision did a very careful description of the reasons why a parent should not be notified.

I think there's a tendency to mix up the concept of notification and consultation, assuming that if you notify the parents you're going to bring them into consultation.

But that isn't always true, that you bring parents in, and frequently you bring them in, and have the result that that will cause more trouble, if it's an abusive parent.

If it's a parent who for a religious reason doesn't agree, they will impose their values on a child.

Now, on that case, this is the problem with the statute: instead of being able to respond to the very particularized questions you asked me, Mr. Chief Justice, this is a broad, it's an all inclusive statute.

It disregarded the concerns that this Court has stated, that in this area a statute that's drawn should be drawn very narrowly, and very carefully, and consider the interests of the minor.

Because you asked me about a 10-year-old, a 12-year-old.

That's not what I'm talking about.

Those are some of the circumstances.

But Utah doesn't take any consideration into that.

H. L.... you asked me when we started about a lot of the facts in this case.

There is also another case that was filed between the decision of the Utah Supreme Court and the granting or taking of jurisdiction by this Court in this case.

It was filed in the United States District Court for the District of Utah.

In that case four women have been granted injunctions and allowed to obtain abortions by the determination of the trial judge in that case that they were mature minors, handling their own affairs... one of them had another child... who, on their own, could make the decision, and in fact it would be detrimental to them to have their parents notified.

Unidentified Justice: Those four plaintiffs were all emancipated were they not?

Not living with the parents?

Mr. Dolowitz: Three of the four were; one was still living at home.

And I've lodged the papers with the Clerk's Office if the Court wishes to pursue that so that, the findings, the conclusions, the orders, in each of those four cases... the first one is included as an appendix to my brief.

The other three I've lodged with the Clerk's Office.

Now, in each of those cases, they were mature minors and it was, and the trial judge, Judge Jenkins, determined that it would be detrimental to the parent child relationship to notify the parents, in some cases because there'd been a split.

That's why the child had left; things were getting better.

That would be broken out.

These are just illustrations as to the overbreadth of the statute.

Then there's a second set of problems that come up, and that is the doctor patient relationship has been invaded by this statute.

Unidentified Justice: Mr. Dolowitz, before you leave those other cases, I don't understand their relevance to the issue presented by this case.

Mr. Dolowitz: The relevance, Mr. Justice Stevens, tends to come from the observations of Mr. Justice Powell in the second Bellotti decision, and that is that as applied to two... I will call them categories of minors--

Unidentified Justice: Well, let's say that the statute is unconstitutional as applied to a lot of people who are not before the Court.

Assume that.

How does that help you in this case?

Mr. Dolowitz: --In this case we're dealing with a subgroup of a minor where the determination had been made by the social worker and the physician that it was not in her best interest, and the trial court--

Unidentified Justice: I thought you just agreed with Mr. Justice Rehnquist that there was no such determination, the child so determined after consultation with the doctor and the social worker?

Mr. Dolowitz: --If I said that, then that was not what I meant.

I think the determination was made by the social workers, by the doctor, by the woman.

Unidentified Justice: You don't suggest anything that you read from the transcript said the doctor said it was not in her best interest to notify the parents?

Mr. Dolowitz: Nothing that I read said that, and that means that when I asked the questions in the trial, I stopped one question too soon, because--

Unidentified Justice: We review questions or cases on transcripts, not on unasked questions.

Mr. Dolowitz: --Well, I realize that, Mr. Justice Rehnquist, and one of the problems that was going on in this case was that from the prior determination of the trial judge that the only question that he considered important is, was it physically possible to locate the parents, meant that I was conducting that hearing with her to simply show that the facts alleged in the complaint were in fact correct.

And then, when we got into the questions, as you see, Mr. McCarthy asked her the question of, you know, do you feel you can't discuss this with your parents?

And she said, "Right".

And he said, do you feel you can't discuss other problems with your parents?

And she said "Right".

And he said, what other problems?

And at that point I objected.

We went from there around to the question that if the only issue, as far as the Utah trial court was concerned, was was it in her best interest, or was... I'm sorry, I misspoke that.

Was it possible to physically locate her parents?

Unidentified Justice: Nothing in the record about that here.

Have you got something in the record about giving notice?

Mr. Dolowitz: I have that she did not want to give notice to her parents.

Unidentified Justice: Well... no, no, the possibility, the capability, the feasibility of writing a letter to the parents.

Mr. Dolowitz: I believe... okay; no.

But there was no question in terms of my representations to the judge, the discussion as far as Mr. Tinker and Mr. McCarthy were concerned whether she could physically, her parents, could be located.

And I believe Mr. McCarthy asked her those questions and she responded that they could, that she went... again, I think we're going on just past that, where Mr. McCarthy is asking the questions.

He said,

"Are you still living at home? "

"Are you dependent on your parents? "

Now, again, this may be an error.

I may have been too protective of her in the trial.

But there is no question that her parents could have been readily notified.

Unidentified Justice: Had the doctor written a letter simply stating the simple, direct fact that, your daughter has come to me to have an abortion performed and I'm prepared to do it, and under the statute I'm giving you notice that I will proceed with this procedure seven days from today, would he have complied with the statute?

Mr. Dolowitz: Yes, But she--

Unidentified Justice: I'm not sure you've answered my earlier question about whether it affects your case one way or the other... it would affect it one way or the other, if there had been no consultation with anyone.

The girl, 10, 12, 14, 15, walked in off the street and said, I want the abortion, and the doctor said, all right, I'll give the notice, or, I won't give the notice.

Is the counseling of any relevance here to a constitutional question?

Mr. Dolowitz: --I believe it is not.

Now, I... when I answer that, Mr. Chief Justice, I answer that knowing that a number of the members of this Court have expressed themselves in these opinions that you believe that it is, it's a wise policy to encourage the family and to some way get the families together so that that counseling occurs, so that... I say that with some degree of trepidation when I say, no, but I say it with the knowledge that when she is initially going to someone who the State of Utah has licensed as a physician, and said that, to this regard, you have to counsel.

So, in this they weren't saying that there may not be mandatory counseling, in that sense.

But you're asking me, does the fact that she had that counseling make it any different than if she had just walked in to the doctor and to the constitutional issue, I say, no, because this state mandates, this statute mandates that in all cases.

But I say that with the knowledge that you have, that at least a number of the members of this Court feel that there should be some counseling.

And I say that it in fact exists because the physicians provide it.

And a physician is not in a position where he is going to simply go ahead and perform it without, that type of counseling without knowing that, if you want to call it this way, his license is at risk, his malpractice insurance is at risk, if he commits a malpractice or a violation of a licensing statute.

And in fact, that same protection is insidiously, I feel, undermined in this case because it moves in and if a doctor is in a situation where the minor who comes in and they sit down, no counselor, no social workers at all, and the counseling takes place one to one and the doctor says, you should be aborted, your parents should not be notified, in my best medical judgment, but I can't do it because of this statute.

Unidentified Justice: Well, Mr. Dolowitz, I think you referred us to this Finding 7, didn't you, at page 40?

Mr. Dolowitz: Yes, sir.

Yes, Mr. Justice Brennan.

Unidentified Justice: Am I to read that finding as you have just stated the proposition, that after consultation... or rather, when consulting with her physician, he advised her that she should be aborted, that he was unwilling to perform an abortion without complying with the provisions of the statute even though he believed it was best to do so, or to perform the abortion without complying with the statute?

Is that the way we're supposed to read that?

Mr. Dolowitz: Yes, he was not willing to do it.

Unidentified Justice: Is that the way you want us to read that?

Mr. Dolowitz: I want you to read that as saying that he felt in his best medical judgment, one, an abortion should be performed; secondly, that her parents should not be notified; third, that he was not willing to act on his best medical judgment, which was to abort her, without notifying her parents because he was at criminal risk if he did so--

Unidentified Justice: That's what we read into it, even though he believed it was best to do so.

Mr. Dolowitz: --Do so.

Unidentified Justice: It's a very ambiguous finding, isn't it, if you read it with all the nuances that Mr. Justice Brennan puts in it?

Mr. Dolowitz: What I have just expressed to you is what was intended to go that and if we were not, between the trial judge and counsel we were not able to articulate it--

Unidentified Justice: Did you submit the findings?

Did you draft the findings?

Mr. Dolowitz: --I drafted the findings, Mr. Justice White.

Unidentified Justice: Were they entered exactly as you drew them?

Mr. Dolowitz: They were, after dispute.

In other words, the State submitted its set, Mr. Tinker--

Unidentified Justice: And then the Court adopted yours?

Mr. Dolowitz: --That's correct.

Unidentified Justice: Verbatim?

Mr. Dolowitz: Yes, sir.

Unidentified Justice: Mr. Dolowitz, does the record in fact show whether she was aborted?

Mr. Dolowitz: The record does not show that.

What I am trying to indicate to Mr. Justice White in responding is that both of us submitted the findings.

Then Judge Winter asked us both to come in and we talked, and Mr. Tinker and I both communicated with him.

And if you'll note, that hearing occurred in, I believe, April or May and the entry did not occur until, I think, it's November or December.

And a big part of that was the question over the findings, getting the transcript made, and going back over the questions that had been presented.

Unless the Court has further questions, I would like to reserve the remainder of my time for rebuttal.

Chief Justice Burger: Very well, Mr. Dolowitz.

Mr. Tinker.

ORAL ARGUMENT OF PAUL M. TINKER ON BEHALF OF THE APPELLEES

Mr. Tinker: Mr. Chief Justice, and may it please the Court:

By enacting the statue which is at issue here, the parents in the State of Utah... and after all, it's parents who are of voting age and who are represented in the Utah Legislature... have essentially said something to the effect as follows: yes, we recognize that it is not possible under the Constitution for us to exercise any kind of absolute veto or place a roadblock, an absolute roadblock, in the way of our minor daughter who is living at home and who may seek to have an abortion.

And it should be noted that we've conceded this even in, as early as 1974, which is when this statute was enacted, which precedes both the Danforth decision and the first Bellotti decision.

But, even if we may not veto the decision of our minor daughter living at home who chooses to have an abortion, we at least want to know about it.

Unidentified Justice: Does the statute refer to living at home?

Mr. Tinker: No.

The statute on its face--

Unidentified Justice: Then why are you putting those words in your description of the statute?

Mr. Tinker: --Merely for emphasis, in that that is who the statute is primarily intended to control.

The statute speaks in terms of minors, Mr. Justice Blackmun.

Unidentified Justice: Yes, but how do we know that?

There are many emancipated minors even in Utah, I would assume.

Mr. Tinker: Well, and I think that is precisely the separate question which is raised by this other case that Mr. Dolowitz has referred to, and which Mr. Justice Stevens has questioned the relevance here.

I would suggest to this Court that the question of the emancipated minor is not before this Court, is not part of this record.

It is--

Unidentified Justice: The statute does not refer to an emancipated minor or an unemancipated one.

Mr. Tinker: --That's true.

Unidentified Justice: I'd like to look at the case in the face of your statute.

Mr. Tinker: Right.

And the statute on its face describes only "minors".

And my suggestion, which I don't think is entirely relevant in this case, but is clearly the heart of this other case that is still pending, is whether under Utah law, as a matter of construction of Utah law, that term minor includes emancipated minors.

Unidentified Justice: Well, do you think that a minor still living at home can challenge the statute that Mr. Justice Blackmun has just described, which does not limit it that way?

Does she have standing?

Mr. Tinker: Does the minor not living at home have standing?

Unidentified Justice: Does the minor living at home have standing to challenge the statute on the ground that it's overbroad as to minors who are not living at home?

Mr. Tinker: No, I don't think that that minor has that standing.

And I don't think that's the case presented here at all.

The case presented here is a minor 15 years old living at home, challenging the statute as it applies to her.

And I don't think there's any reasonable question that can be raised that it was intended to apply to her.

There can be a question raised, I think as to whether it was intended to apply to the emancipated minor.

Unidentified Justice: She's challenging the statute on its face, not as it applies to her, isn't she?

Mr. Tinker: Well, yes.

She is--

Unidentified Justice: Now, somebody else, an emancipated... let's assume that the Supreme Court of your State has already decided that the statute on its face is constitutional.

On the other hand, the Federal court out in your state has decided that as applied to an emancipated minor the statute, if it does apply to an emancipated minor, is unconstitutional.

Mr. Tinker: --That's correct, Mr. Justice Stewart.

Unidentified Justice: She's not... in this case, the statute is not being challenged as applied, but it's simply being challenged on its face, isn't it?

Mr. Tinker: Yes.

But I would see the facial challenge as being substantially different if there were an authoritative construction of the statute that said it cannot, by virtue of state law, apply to emancipated minors.

Unidentified Justice: What is a minor in Utah?

Mr. Tinker: Under 18, unless married.

Minors achieve their majority under Utah law if they are married; otherwise, not till 18.

Now, that's by statutory law.

Unidentified Justice: Therefore this statute could be, its constitutional validity could be attacked as it applies to people over 17, for example.

Mr. Tinker: Yes.

Unidentified Justice: But here it's being attacked on its face--

Mr. Tinker: --by a 15-year-old who it clearly--

Unidentified Justice: --who is living at home.

Mr. Tinker: --does apply to; yes.

Unidentified Justice: Do you see any inherent conflict between the Federal court case and this one?

Mr. Tinker: No, Mr. Chief Justice, I do not.

The Federal trial court judge has taken pains in his findings to differentiate between what the Utah Supreme Court found.

He has felt that that decision is binding as far as state law is concerned, so far as it goes.

And he sees this as presenting a different class and a different issue.

That's why I suggest that that case is irrelevant in this case as it presently stands before this Court.

Unidentified Justice: But, Mr. Tinker, the class described in the complaint, as I understand the trial judge, he did in effect say the class was proper, includes all minor women who are suffering unwanted pregnancies and desire to terminate them, which would include the emancipated minors as well as the unemancipated minors.

I'm looking at page 5 of the appendix.

There is nothing in the Supreme Court of Utah's opinion that says, we are only deciding the question presented by the named plaintiff as opposed to the class as a whole which had been certified.

Mr. Tinker: But I'm not sure, Mr. Justice Stevens, that that alone, the fact that the class was not defined to exclude all these others, permits the named plaintiff to represent a class that she's not part of.

Unidentified Justice: Except that as a matter of state law the state judge said she's an adequate representative.

And his reasoning would apply equally to emancipated or unemancipated, and the reasoning of the Utah Supreme Court would apply equally to both.

Now, maybe the Federal cases are different, but it seems that if you have a class which as a matter of state law includes emancipated minors, and the Supreme Court of the State disposed of the case on the assumption that they were all before the Court, we have that issue, and I don't know why we shouldn't decide it.

Unless, as a matter of Federal constitutional law, a particular plaintiff doesn't have standing to make a particular argument.

That's right.

And the trial judge did confine it, as I read his opinion on page 14, the last part of it,

"under the facts involved here where the woman in question is aged 15, unmarried, resides at home with her parents and is dependent upon them for support, and where the identity of the parents is either known to the physician or easily ascertainable by him. "

He did indicate that his reasoning, at least, was confined to the facts of this case in upholding the facial constitutionality of the statute.

It was all that he did and all the Supreme Court of Utah did.

Mr. Tinker: Well, at least there was no discussion--

Unidentified Justice: Had he certified the class?

That was in his order denying the temporary injunction.

Didn't he thereafter describe the... except the class?

Maybe we shouldn't take your time with this.

Mr. Tinker: --Well, I think the class was essentially defined at that preliminary stage and it was not changed in the subsequent proceedings.

Let me suggest, further, what the Legislature of the State of Utah was doing.

They're saying that with respect to minors generally we as parents forego any claim to being able to veto an abortion decision But if there is to be an abortion performed, we simply want notice of it.

Unidentified Justice: A little due process for the parents, is that what you're saying?

Mr. Tinker: That's exactly I'm saying, Mr. Chief Justice.

And we want to know about it.

We would ideally like to have some input, perhaps some consultation.

But even by this statute we do not mandate that.

The statute on its face could be satisfied as one of the briefs has suggested by a mere telephone call at a certain point prior to the performance of the abortion, advising that the abortion will take place.

That might not be an entirely satisfactory kind of performance under the statute, but it would be sufficient, I think, to preclude any criminal penalty upon the doctor.

The parents are--

Unidentified Justice: And what does that accomplish?

Does that enable the physician to exercise his best medical judgment a little better?

Mr. Tinker: --Among other things.

He may, Mr. Justice Blackmun, obtain additional information that he might not know in the case of a girl of tender years, by talking with her parents.

Unidentified Justice: And yet the statute doesn't go that far with respect to parents if the child is married, even though her husband is 16.

Mr. Tinker: No, it does not take into account that particular situation.

The parents are saying, we not only want a little due process, but they're saying, we would like to enhance the full range of choices that our daughter may have in this matter.

We recognize that the trend of things, if you will, in our society is very much in the direction that abortion will be viewed by a great many people, especially the professionals, the counselors, the doctors, and so forth, as the option of choice in this situation.

In some cases we may if we had the chance merely like to give another viewpoint there.

Not that our viewpoint could be binding, by any means, and not even that the statute requires the consultation, but merely that the doctor must give the opportunity for the parents to know and then it essentially becomes the doctor's own problem as a matter of ethics.

It's really thrown back entirely into the private sector without the state being involved.

Unidentified Justice: Is it possible the Legislature had in mind that... or is it possible that it's inherent in the case, that the parents might be able to give something of the medical history and background of the child which would be relevant to the doctor and his decision?

Mr. Tinker: Well, the Utah Supreme Court in its unanimous decision made that specific finding but that would be one of the purposes.

I don't think that's the only purpose, but I think that is a very significant one.

Unidentified Justice: I'm not quite clear what it is you say would satisfy the requirement of notification.

Suppose he's about ready to perform the abortion.

Before he does he picks up the telephone, he gets hold of the mother of the girl, and he says, I have your daughter here, I'm about to perform an abortion.

Goodbye.

Does that do it?

Mr. Tinker: I'm afraid it does, Mr. Justice Brennan, on the face of the statute.

As I say, I don't--

Unidentified Justice: Then how much input does this contemplate that the parents will have?

Mr. Tinker: --Well, it contemplates, I think, only as much as the doctor in his professional judgment will permit.

But I think most doctors, given the requirement that they must go at least that far, will at least be willing to hear a few things.

Now, this gets us off into speculation again.

Unidentified Justice: But I just want to be clear.

They don't have to.

The statute doesn't require them to go beyond what I suggested?

Mr. Tinker: Clearly not; clearly not.

Unidentified Justice: What if the mother in that hypothetical case then said, are you aware, doctor, that our daughter has been under psychiatric care for the last seven years, and the doctor, says, no, I'm not aware of that.

Is that something he merely must apply to his medical decision--

Mr. Tinker: I think he has... excuse me, I think he has a professional obligation to then take that knowledge into account.

Again, the law of the State of Utah probably does not compel him to do that unless it were so egregious that it became a matter of malpractice.

And in that respect, the statute may tend to protect the doctor.

Unidentified Justice: --Well, that might mean, among other things, that the minor patient was not capable of giving consent to anything, a tonsillectomy, an appendectomy, or an abortion.

Might it not?

Mr. Tinker: It could be.

You have an interesting kind of overlap in my view of legal disabilities that are occasioned simply by minority and legal disabilities that are occasioned by absolute lack of competency, mental type lack of competency.

You might have those overlapping, fitting in the same situation here.

I think the teachings of this Court have been that as far as those disabilities which occur as simply because of lack of majority status are somewhat tempered, somewhat moderated or modified when you're in the abortion context or in the other contexts regarding the ability to procreate.

But there you get into a very difficult situation when you bring both of them in and again you have a difficult kind of balancing problem.

Unidentified Justice: Mr. Tinker?

Mr. Tinker: Yes, Mr. Justice Powell?

Unidentified Justice: In the plurality opinion in Bellotti II we said this with respect to notice:

"We conclude that every minor must have the opportunity if she so desires to go directly to a court without first consulting or notifying her parents. "

How do you construe that language, granted, of course, that it is part of a plurality opinion?

Mr. Tinker: I construe that language as relating to the situation of the Massachusetts statute which was a consent statute, not a mere notice statute like ours, and which already created the possibility of alternatives.

The question of notice, which is presented in what I would suggest is a pure form in our particular case because of the nature of the statute, was presented in a much more complicated scheme in the Massachusetts case.

Unidentified Justice: There was an alternative in Massachusetts, the court.

No alternative in Utah.

Mr. Tinker: Right.

But the reason there was an alternative in Massachusetts was that there was consent required.

You had to get consent from somebody.

In Utah you don't have to get consent from anybody.

Unidentified Justice: I have that... I haven't read it recently, but I thought the purpose of the constitutional requirement that the plaintiff, pregnant, unmarried female, be allowed to go to a court was to convince that court that she was a mature minor.

There's no claim here, is there, that the plaintiff is a mature minor?

Mr. Tinker: Not in the pleadings of this case or in the record.

Unidentified Justice: Not that she's an immature minor, is there?

Mr. Tinker: I'm sorry?

Unidentified Justice: Are we to assume she's an immature minor?

Mr. Tinker: I believe so.

I don't know of a finding to the contrary.

Unidentified Justice: It's not clear at all that she's a mature minor or was prohibited or prevented from showing a court that she was.

Mr. Tinker: No, in Utah we don't have a specific procedure for showing a court any--

Unidentified Justice: There wasn't in the Massachusetts legislation either, and that's what we found constitutionally deficient, as I remember.

Mr. Tinker: --My recollection was that the Massachusetts statute provided that if a parent refused to give consent or was unavailable, that you could then repair to the Court of General Jurisdiction and seek an order granting the consent in place of parent--

Unidentified Justice: Despite the failure to give consent.

But the Court held, as I remember it, that the minor should be permitted to go to the court for a determination that she was a mature minor and that therefore no effort to get consent was required.

But now, as I understand it, in the present case, which doesn't, of course, involve consent but rather notice alone, there is no claim that the plaintiff was a mature minor and/or that she was prevented from going to a court to show that she was, is there?

Mr. Tinker: --I don't believe there is such a claim, Mr. Justice Stewart.

Unidentified Justice: Mr. Tinker, may I ask on this subject, I think the record is a little unclear.

As Justice Stewart has correctly pointed out, the trial judge did emphasize the specific facts here in denying the injunction.

Then later on there's reference to the class she purports to represent.

So I have some doubt as to whether the mature minor or emancipated minor issue is here.

But assume for the moment it is and recognizing that the point is not clear, what is the position of the State of Utah?

(a) Does the statute apply to the emancipated minor?

And secondly, is the statute then constitutional?

Mr. Tinker: That's sort of the horns of a dilemma, Mr. Justice Stevens.

But the--

Unidentified Justice: Under the district courts, under the holding in the Federal court, this statute is unconstitutional as applied to emancipated minors, is it not?

Mr. Tinker: --If it applies, he essentially found in the alternative.

Either it does not apply to them, or if it does, it is unconstitutional as applied to them.

And I don't disagree with the findings of the Federal District Court on that point.

Unidentified Justice: That's a little ambiguous to me.

On that point he gave alternative findings.

Mr. Tinker: Yes.

Unidentified Justice: And now what is it you don't disagree with?

Mr. Tinker: Well, that it either doesn't apply or that if it should be found to apply it's unconstitutional with respect to those.

Unidentified Justice: Do you have an opinion as to the matter of state law?

First of all, do you have an opinion as a matter of state law as to whether it should be construed as a matter of state law to apply to emancipated minors?

Mr. Tinker: Yes, I have an opinion, and my opinion is that it should be construed so as not to apply to an emancipated minor.

Unidentified Justice: And is there any judicial authority in the State that has so construed the statute, other than Federal judges?

Any State judges?

Mr. Tinker: No.

It has not been before the State courts for that kind of an interpretation.

It's not been... interestingly enough, in contrast to the many abortion kinds of statutes which have been so severely restricted and have been attacked even before they went into effect, this statute has been in effect, was in effect for about four years before it was even challenged on this parental notice issue.

And this case that is presently before the Court and the other case that Mr. Dolowitz has supplied the information regarding, that's still pending in the Federal District Court, are the only two cases that I know of, and I'm sure they're the only two cases that exist.

Unidentified Justice: Well, you're in effect saying the statute doesn't mean what it would appear to mean to an uninitiated reader insofar as it excludes a class of minors which are not identified on the face of the statute.

Does it also exclude a class of married women?

I was wondering if it is as broad in that area as it appears to be?

Mr. Tinker: Well, I don't think it applies to married women at all because in Utah the statutory provision is that all minors achieve their majority by marriage.

Unidentified Justice: No, but I'm talking about the requirement of notice to the husband of a married woman.

Mr. Tinker: Oh.

Well, that... I see that as a completely separate problem.

Unidentified Justice: Oh, if she is not a minor, there is no requirement of notification.

Mr. Tinker: Right.

But another part of the statute which is not before the Court and not challenged here at all requires notice to the husband and that's what Mr. Justice Stevens is referring to.

Unidentified Justice: If she is married, whatever her age, or whatever his age.

Mr. Tinker: Yes.

A married person of whatever age.

Unidentified Justice: If she's not a minor, there's no requirement of notification to her parents?

Mr. Tinker: Oh, that's definitely correct.

Unidentified Justice: No question that she's not mature, this one.

There's no question, is there?

Mr. Tinker: There's no question that she's not mature?

Unidentified Justice: Yes.

Mr. Tinker: There's no question.

Unidentified Justice: Because if she were mature, she wouldn't be included under the statute, would she?

Mr. Tinker: Well, no.

I'm not saying... I did not say, Mr. Justice Marshall, that the fact that she was mature would take her out of the statute.

The question of maturity in--

Unidentified Justice: That's why I'm confused about this marriage and maturity.

You used it there but you don't want to use it here.

I thought you said it did take her out of the statute?

I thought so too.

Mr. Tinker: --I make a distinction.

One class is married.

They are out by operation of law.

Another class is mature, another category is emancipated.

I don't believe that mature and emancipated in this context are coextensive categories.

Unidentified Justice: By emancipated, you are referring to a young person who is married and therefore not a minor within the meaning of the statute?

An emancipated minor is somebody living away from her parents and living independently, among other things.

And unmarried?

Mr. Tinker: Among other things.

Yes.

Unidentified Justice: Now, is that person covered by the statute?

I think I know your answer but I'm--

--Well, he said in his opinion it is or ought to be.

No, no.

He said it was not covered.

Not covered.

But he said there's no state ruling on the subject.

Mr. Tinker: Mr. Justice Stewart is correct in understanding me to this point on that issue.

Unidentified Justice: I apologize.

The statute does apply as a matter of state law, in your opinion, to such a person?

Mr. Tinker: No, not to the emancipated minors.

Unidentified Justice: But it's just a matter of his opinion, in any event.

I understand that but I just want to know what his opinion is.

Your opinion is, as a matter of state law the statute does not apply to that person?

Mr. Tinker: To the emancipated minor.

Unidentified Justice: Unmarried; an emancipated minor.

Mr. Tinker: Living away from home, all the other things.

See, one the difficulties is determining what constitutes an emancipated miner.

I see a number of factors which go into that.

A still separate problem comes when you try to determine whether the minor is "mature".

I think that's a lesser standard and a minor could be mature without being emancipated.

The statute clearly takes in all minors who might be deemed mature and this comes down merely to a question of legislative line drawing, in my view.

The Legislature had to make a category of who were included, and they took the standard definition of what constitutes the line between minority and majority, the age of 18.

Unidentified Justice: Also, maturity and immaturity?

Mr. Tinker: Well, it's an arbitrary decision, in a sense, as to what constitutes--

Unidentified Justice: Aren't you saying that if there's any maturity element in this case at all it's in the use of the word 18 and over 18?

Mr. Tinker: --Yes, I am saying that, Mr. Justice Stewart.

Unidentified Justice: In other words, you don't concede that someone might be 15 and mature?

Mr. Tinker: Oh, I concede that somebody might be but there's nothing in this record to suggest that anyone is.

Unidentified Justice: Well, there's nothing to suggest that this 15-year-old is not either, is there, in this record?

Well, doesn't the action of the State Legislature amount to a declaration that prima facie or presumptively a woman under the age of 18, if not emancipated, is too immature to make that decision, at least without notice to the parents?

Mr. Tinker: At least without notice, but with no requirement that the parent can control the decision.

Unidentified Justice: Well, now, let me ask you again, is that to say, if there were evidence in this case that this 15-year-old was mature, then the statute would not apply?

Mr. Tinker: No, I would not make that argument, sir.

I would not suggest that.

Unidentified Justice: But you do say, if she were away from home it would not apply?

Mr. Tinker: Well, if she were away from home and if all the other factors... and this is what we've gone through before Judge Jenkins in the Federal District Court, is trying to find out whether a particular girl is emancipated or not.

And he's taken into account where she was living, what her source of income was, whether she's living apart on her own volition or whether the parents had something to do with that--

Unidentified Justice: The thing that puzzles me is how all those criteria can be found in this rather short statute.

You seem to agree they can't.

Mr. Tinker: --Well, no, I'm saying--

Unidentified Justice: You said if she's emancipated, the statute doesn't apply and those are all the things you look at and decide whether she's emancipated.

Mr. Tinker: --Yes, I'm saying... But an emancipated person is not under terms of state law a minor for purposes of the statute.

Unidentified Justice: Did the State make any motion for the Federal District Court to abstain on the question of state law construction?

Mr. Tinker: I have argued the abstention question in the L. R. case and Judge Jenkins said that he would not abstain in this particular case because of the exigencies of time.

The girl was near the end of the first trimester, nearing the point where the possibility of an abortion was complicated if it went longer and he felt that to send this back to a State court would aggravate that situation and so he refused to abstain I still propose to ask Judge Jenkins to certify the question to the Utah Supreme Court, whether... this precise question that I've been discussing with Mr. Justice Stevens, of whether an emancipated minor is included in the statute at all.

Unidentified Justice: Does Utah have one of those certification statutes?

Mr. Tinker: I just found out recently that the Utah Supreme Court adopted by a minute entry, it's not in their Rules, but they've accepted one certification in the past and they tell me they're willing to accept them.

Unidentified Justice: Mr. Tinker, how old is this Utah statute?

Mr. Tinker: The statute was passed in 1974.

That was the point that I thought was significant in that it came before Danforth and before Bellotti I and of course long before Bellotti II.

It was passed in '74 and challenged in this case in 1978.

A particular emphasis that I would like to give, just in summary, to this case is that the State of Utah has chosen in this sensitive area to keep the State and its mechanisms, its agencies, and everyone else, far removed from the decision making process.

It has seen this problem as being one to be handled within the family context.

And that's why I see this case as an important case involving what the limits of family participation are, what the rights of the family as a unit are.

The appellant has painted a picture of many adverse consequences that might come to a young lady seeking an abortion if her parents were notified.

The problem is that any of those adverse consequences come purely, if they come at all... which is not in the record... come as a matter of private action of parents.

There is no state action involved.

The State has no right to veto an abortion decision, much less does it have the right to delegate to someone else the right to veto an abortion decision.

The State is not trying to do any of those things.

The State is merely trying to encourage within the private sphere of action the maximum possible parental knowledge and participation, if that is permitted by the doctor.

Unidentified Justice: Was that always true in the State of Utah prior to 1973?

Mr. Tinker: No, I believe Utah had requirements prior to 1973 that were controlled and invalidated by this Court's 1973 decisions.

Unidentified Justice: So that what you've just said didn't apply to Utah prior to Roe against Wade?

Mr. Tinker: No.

Chief Justice Burger: Mr. Dolowitz, do you have anything further?

Mr. Dolowitz: I do, Your Honor.

I wanted to point out to the Court briefly as a matter of history the statute actually was adopted in '75.

The statute adopted in '74 was declared unconstitutional by a three judge Federal court.

Appeal was taken to this Court and it was dismissed when this statute was adopted in '75.

It was challenged within a few weeks of being adopted.

The Federal court found it very vague and abstained.

That was appealed to the 10th Circuit who affirmed the abstention decision.

This case was filed in '77 as a result.

So there has been a series of challenges to this spread out over the years.

Then I wanted to point out from the questions of Mr. Justice Stewart and Mr. Justice Stevens where they were talking about the mature minor or emancipated minor, none of those exist in the statute.

This statute is, on its face... and Mr. Justice Stewart, you asked and I didn't fully respond about emancipation occurring.

Emancipation in terms of moving out of the house, no; in terms of marriage, yes.

But Utah doesn't have the emancipated minor.

Mr. Tinker gave his opinion but that isn't even in the Attorney General's Office opinion, that's his personal opinion that's come about.

And the problem is, this statute says, "all minors".

ORAL ARGUMENT OF DAVID S. DOLOWITZ ON BEHALF OF THE APPELLANT -- REBUTTAL

Unidentified Justice: Well, I understand in Utah, once a woman is married, whatever her age she is no longer a minor?

Mr. Dolowitz: That's a question I'm discussing.

We do not have a clear answer.

The statute said she gains her majority.

But in terms of the question I was asked, what happens if she is 16, marries someone who is 16, and you send notice to the 16-year-old husband, is now acquired.

Okay If three weeks later they get a divorce, it's determined that the marriage was a mistake.

Then it's not--

Unidentified Justice: Well, we don't have that case.

Mr. Dolowitz: --We don't.

No, we don't.

But the problem is that this statute says, you notify the parents in all women, including... in this case let's say there's that 16-year-old, if there is a divorce and she now suddenly finds out she's pregnant three or four weeks later, who do you notify?

The statute says, her parents.

Unidentified Justice: We don't need to worry about that problem now, do we?

Mr. Dolowitz: I think, Mr. Justice Burger, you do, and the reason I say that is because this statute says, all parents.

There is no distinction, and it says it--

Unidentified Justice: Well, if marriage emancipates a minor woman, divorce does not probably vitiate--

Mr. Dolowitz: --Utah law doesn't... Utah law isn't clear on that point.

I can't give you an answer on that.

And picking up on--

Unidentified Justice: --I think you'd lose a lot of weight when you talk about divorces.

Why don't you talk about annulments?

Mr. Dolowitz: --Okay.

That's also a problem.

I will accept that.

Unidentified Justice: What are you... you'll lose that point.

Doesn't all of this add up to making some sense of the idea that we have not applied the overbreadth doctrine except in cases dealing with free speech generally as a matter of standards?

Mr. Dolowitz: I think in this case that it must be done in overbreadth, because that's what was done.

And the questions that you've asked, first me and then Mr. Tinker, have demonstrated how overbroad the statute is.

Remember, Mr. Justice Rehnquist, that the Utah Supreme Court between the the time this was argued to Judge Winder, who had before him only the lower court decision in Bellotti, and the Utah Supreme Court decision, this Court rendered its Bellotti II decision and that case was argued by me twice to the Utah Supreme Court.

Because after this Court enunciated that decision, I filed a motion with the Utah Supreme Court for an intermediate injunction enjoining the statute, and argued many of the points that we've covered today.

They denied it, said they would defer it, set us on an early calendar.

Mr. Tinker and I argued it again.

They had it, they knew about the problems of the mature minor, but they didn't exempt the mature minor, they didn't, they knew about the discussion in terms of best interest.

Unidentified Justice: But you were free also to go to the Circuit justice and ask for the same relief, were you not?

Mr. Dolowitz: At that point, Mr. Justice Rehnquist, that's true.

But I had staring at me a 10th Circuit decision saying that the trial court was correct in abstaining because the statute was vague, because the Utah Supreme Court hadn't said what that language "if possible" meant.

And I didn't have a ruling until when the decision came out in March of this year.

It was at that time that we had a definition as to what the statute was and instead of doing that, further cases were filed in the Federal District Court because we finally had an interpretation of what the language "if possible" meant.

Unidentified Justice: Mr. Dolowitz, do you agree with Justice Brennan that the answer to Mr. Justice Brennan's question that if 10 minutes before performing the abortion the doctor called up the parents and said, I'm about to abort your daughter, I want to give you notice in compliance with the statute.

He does so and then aborts.

There would be no danger to interference with the... I mean, it would be no violation of the statute if he went ahead and there would be no terrible danger that he could--

Mr. Dolowitz: I do agree with Mr. Tinker that that would be compliance with the statute, which is what shows that despite its--

Unidentified Justice: --And if it's that easy to comply with it, how can you seriously argue that it substantially burdens the, a woman's private right to choose a decision?

Mr. Dolowitz: --Because if that, if the reason that he did that is that he knew, for example, that the parents were unbalanced and she risked physical injury when they found out, that injury risk is still waiting for her when she gets home, if she gets home, or when she next meets her parents, if she's afraid to go home.

They can still hurt her.

Unidentified Justice: So you'd say it would be equally unconstitutional if there was a requirement that two hours after an abortion is performed they notify the parents because they might be unhappy about it?

Mr. Dolowitz: Yes.

It is still too overbroad.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.