Did two 1990 Supreme Court rulings make Maryland's parental notification law for a minor's abortion enforceable?

Plain-English summary

Two Maryland legislators asked the Attorney General in August 1990 whether two U.S. Supreme Court decisions issued earlier that year, Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health, changed the constitutional status of Maryland's law requiring a physician to notify a minor's parent before performing an abortion, HG §20-103. They also asked how those decisions would have affected two bills considered, but not enacted, in the 1990 General Assembly session, Senate Bill 356 and Senate Bill 836, which would have amended that notification requirement.

The opinion concluded that neither Supreme Court decision changed the existing constitutional standard, which required any parental notification law to include a bypass procedure letting a minor who is mature, or whose best interests are not served by notification, avoid it through a confidential and expeditious process. Because Maryland's existing law, HG §20-103, had no such bypass procedure, the opinion concluded it remained unenforceable, exactly as a prior 1985 opinion had already found. It went on to conclude that Senate Bill 356's version, which would have added the missing bypass procedure, would have been constitutional if enacted, while Senate Bill 836's version, which restricted the bypass to narrower circumstances and let a judge weigh a fetus's interests against the minor's, would not have been enforceable.

Currency note

This opinion was issued in 1990 and applied the constitutional standard for a minor's abortion parental-notification law that existed under U.S. Supreme Court precedent at the time, including two decisions issued that same year, Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health. The opinion's own editor's note records that the parental notification provision it analyzed, HG §20-103, was amended the following year by Chapter 1 (Senate Bill 162) of the Laws of Maryland 1991. The broader constitutional framework the opinion relied on, requiring any parental-notice law to include a judicial bypass procedure under Bellotti v. Baird, was itself displaced when the U.S. Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), returning abortion regulation to the states under a different constitutional framework than the one this opinion analyzed. This page is presented strictly as a historical record of how Maryland's 1990 parental notification law and two competing legislative proposals were analyzed at the time. It describes what the opinion concluded then; it is not a statement of current Maryland or federal law, and none of its legal analysis should be relied on today. Verify current Maryland and federal law on parental involvement in a minor's abortion before drawing any conclusions.

Common questions

Did the 1990 Hodgson and Akron Center Supreme Court rulings make Maryland's one-parent abortion notice law enforceable?
No. According to this 1990 opinion, both rulings reaffirmed that any parental-notice law needed a bypass procedure for a mature minor or one whose best interests weighed against notification, and Maryland's law, HG §20-103, still had no such procedure, so the Attorney General concluded it remained unenforceable, exactly as a 1985 opinion had already found.

Would Senate Bill 356's 1990 version of Maryland's parental notification law have been constitutional if it passed?
The opinion concluded yes. Senate Bill 356 would have added the missing bypass procedure, letting a physician forgo parental notice if the minor was mature or if notice was not in her best interests, curing the defect the Attorney General had identified in the existing statute.

Would Senate Bill 836's version have been enforceable instead?
No. The opinion concluded that Senate Bill 836's bypass procedure was too narrow, since it excluded a minor who was mature or whose best interests didn't favor notice unless she also could not be found or had reported past abuse, and it let a judge weigh the interests of the "unborn child" against the minor's, which the opinion found unconstitutional under existing case law.

Background and statutory framework

HG §20-103 required a physician performing an abortion on an unmarried minor to first notify a parent or guardian, excusing notice only when the physician judged, in his or her professional judgment, that notice might lead to physical or emotional abuse of the minor. A 1985 opinion, 70 Opinions of the Attorney General 3 (1985), had already concluded that this one-parent notice requirement was unenforceable because it lacked a bypass procedure letting a mature minor, or one whose best interests were not served by notification, avoid notice through a confidential and expeditious process, as required by Bellotti v. Baird and City of Akron v. Akron Center for Reproductive Health.

Two bills considered in the 1990 General Assembly session would have amended HG §20-103. Senate Bill 356 would have added a bypass letting a physician forgo notice if, in the physician's professional judgment, the minor was mature and capable of giving informed consent, or notification was not in her best interest, and would have barred the physician from telling her parent or guardian about the pregnancy afterward if she chose not to have the abortion. Senate Bill 836 took a narrower approach: it would have required written notice to all responsible parents or a guardian, and would have allowed judicial authorization without that notice only if notice could not be given, or if the minor alleged past abuse or neglect that she had reported to the appropriate authorities; in a judicial proceeding under that bill, a court could also authorize the abortion by weighing the minor's best interests against those of her "unborn child."

The opinion then analyzed Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health, two Supreme Court decisions handed down in 1990 while these bills were pending. In Hodgson, the Court struck down a two-parent notice requirement that had no bypass at all, but upheld, by a different five-Justice majority, a version of the same law that added a judicial bypass procedure. In Akron Center, the Court upheld a one-parent notice law's judicial bypass procedure as adequate on its face, without deciding whether a bypass was constitutionally required for a one-parent, as opposed to two-parent, notice statute. The opinion reasoned that neither decision disturbed the existing rule requiring a bypass procedure for any parental notice law, so HG §20-103 remained unenforceable, Senate Bill 356's proposed bypass would have cured the defect, and Senate Bill 836's narrower bypass, along with its "best interests of the unborn child" balancing test, would not have satisfied the standard set in Bellotti v. Baird and its progeny.

Citations and references

Statutes:

• HG §20-103, the then-existing one-parent notification requirement the opinion found still unenforceable
• HG §20-103(b), excusing notice only when a reasonable effort to give it is unsuccessful
• HG §20-103(c), excusing notice only when it may lead to physical or emotional abuse of the minor
• HG §20-103(c)(1)(i) and (ii), Senate Bill 356's proposed bypass grounds (maturity or best interests)
• HG §20-103(e), Senate Bill 356's proposed confidentiality provision barring later disclosure to a parent
• HG §20-103(b)(1)(ii), Senate Bill 836's proposed written-notice-to-all-responsible-parents requirement
• HG §20-103(b)(3), Senate Bill 836's proposed limited circumstances for judicial authorization without notice
• HG §20-103(d), cross-referenced alongside Senate Bill 836's judicial-authorization provisions
• HG §20-103(b)(3)(iii)(2), Senate Bill 836's proposed maturity-finding factors for a judge
• HG §20-103(b)(3)(i)(2), Senate Bill 836's proposed "best interests of the unborn child" balancing provision
• HG §20-103(a)(5), Senate Bill 836's proposed definition of "responsible parent"
• Senate Bill 356 (1990), the 1990 legislative proposal the opinion found would have been enforceable
• Senate Bill 836 (1990), the 1990 legislative proposal the opinion found would not have been enforceable
• Chapter 1 (Senate Bill 162) of the Laws of Maryland 1991, the editor's-note-referenced later amendment of HG §20-103

Cases:

• Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926 (1990), U.S. Supreme Court decision requiring a bypass procedure for a two-parent notice law
• Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972 (1990), U.S. Supreme Court decision upholding a one-parent notice law's judicial bypass procedure
• City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), U.S. Supreme Court decision the 1985 opinion relied on for the bypass-procedure requirement
• Bellotti v. Baird, 443 U.S. 622 (1979), U.S. Supreme Court decision setting the criteria a judicial bypass procedure must meet
• Planned Parenthood Ass'n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476 (1983), U.S. Supreme Court decision on judicial maturity-determination factors
• Indiana Planned Parenthood Affiliates Ass'n v. Pearson, 716 F.2d 1127, 1134 (7th Cir. 1983), Seventh Circuit decision on physician-only bypass procedures
• Webster v. Reproductive Health Services, 492 U.S. 490, 542 (1989), U.S. Supreme Court decision on state interests in potential life after viability
• Rodriguez de Quijas v. Shearson/American Express, Inc., 109 S.Ct. 1917, 1921-22 (1989), U.S. Supreme Court decision on lower courts following direct precedent over speculation
• Akron Center For Reproductive Health v. Slaby, 854 F.2d 852 (6th Cir. 1988), Sixth Circuit decision reviewed in Ohio v. Akron Center
• Roe v. Wade, 410 U.S. 113 (1973), U.S. Supreme Court decision this opinion assumed remained controlling (later overruled by Dobbs v. Jackson Women's Health Organization in 2022, well after this opinion issued)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 14-26 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Abortion — Parental Notification Requirements — Effect
of Recent Supreme Court Decisions — Current
Parental Notification Statute Remains Unenforceable

                       August 30, 1990

The Honorable Lawrence A. LaMotte
The Honorable Samuel I. Rosenberg
Maryland House of Delegates

  Each of you has requested an opinion on the effect of two recent

Supreme Court decisions on abortion laws, Hodgson v. Minnesota, 497
U.S. 417, 110 S.Ct. 2926 (1990), and Ohio v. Akron Center for
Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972 (1990).
Specifically, you ask (i) whether the parental notification requirement
now in the statute, §20-103 of the Health-General Article ("HG"
Article), has become enforceable; and (ii) whether the parental
notification requirements of Senate Bill 356 (1990) or Senate Bill 836
(1990), as adopted by the Senate, would now have become enforceable
if either had been enacted.

 For the reasons given below, we conclude that the decisions in

Hodgson and Akron Center have not changed the current standards for
determining the constitutionality of parental notification requirements.
Therefore, the existing requirement in HG §20-103 is still
unenforceable, and the proposed requirement in Senate Bill 836 also
would be unenforceable if it had been enacted. However, the proposed
requirement in Senate Bill 356, because it would have been consistent
with current constitutional standards, would be enforceable had it been
enacted.

                               I

 Existing and Proposed Parental Notification Requirements

A. Current Law

HG §20-103 requires a physician who contemplates performing an

abortion upon an unmarried minor to first notify a parent or guardian
of the minor.1 Even if the minor does not live with a parent or
guardian, notice is not excused unless a reasonable effort to give notice
is unsuccessful. HG §20-103(b). The only circumstance in which a
physician is not required to attempt to notify the minor's parent or
guardian is when, in the physician's professional judgment, notice may
lead to the physical or emotional abuse of the pregnant minor. HG
§20-103(c).

 In 70 Opinions of the Attorney General 3, 10 (1985), the Attorney

General, relying on City of Akron v. Akron Center for Reproductive
Health, 462 U.S. 416 (1983), concluded that a parental notice statute,
like a parental consent statute, must include a bypass procedure for
mature minors and those whose best interests are contrary to parental
notification.2 See also Bellotti v. Baird, 443 U.S. 622, 643-44 (1979).
Because HG §20-103 does not allow bypass when a minor is mature or
bypass is in the minor's best interests for reasons other than the risk of
abuse, the Attorney General concluded that the statute's bypass
provision is not adequate to validate the notice requirement. 70
Opinions of the Attorney General at 12.3

B. Senate Bill 356 (1990)

 Senate Bill 356 (1990) proposed to amend HG §20-103(c) by

adding new HG §20-103(c)(1)(i) and (ii) authorizing a physician to
perform an abortion on a minor without notice to her parent or
guardian if, in the physician's professional judgment, "the minor is
mature and capable of giving informed consent to an abortion; or ...
[notification would not be in the best interest of the minor." Senate
Bill 356, at 3. The bill would also have added a new HG §20-103(e)
prohibiting the physician from notifying the minor's parent or guardian
if she decided not to have an abortion. Id.

 During the consideration of this bill, we advised that its provisions

would be constitutional under current standards. Letter from J. Joseph
Curran, Jr., Attorney General, to Delegate Timothy F. Maloney
(March 23, 1990).4 Although the various statutes that the Supreme
Court has considered all involved judicial bypass provisions, no opinion
in those cases has concluded that a court proceeding is constitutionally
required. Indeed, the plurality in Bellotti v. Baird, 443 U.S. at 643 n.
22, pointed out that "much can be said for employing procedures and
a forum less formal than those associated with a court of general
jurisdiction." See also Indiana Planned Parenthood Affiliates Ass'n v.
Pearson, 716 F.2d 1127, 1134 (7th Cir. 1983) (physician bypass
procedure "would be simpler, quicker, and undoubtedly less distressing
for a minor than requiring her to go to court"). The proposed
amendments to HG §20-103(c) would make the bypass available to any
minor who is mature or for whom parental notification would not be
in her best interests, thereby curing the defects identified in 70
Opinions of the Attorney General at 12. Moreover, the proposed new
HG §20-103(e) would have assured complete confidentiality of the
bypass procedure.

C. Senate Bill 836 (1990)

 Senate Bill 836 (1990) would have amended HG §20-103 by

requiring the physician in nonemergency situations to give written
notice of a contemplated abortion on a minor to "all responsible
parents" or to the guardian or conservator of the minor. Senate Bill
836, at 5 (proposed HG §20-103(b)(1)(ii)).5 The bill would have
provided for judicial authorization of the abortion without notice to one
or both parents under only two circumstances: (i) if the required notice
could not be given or (ii) if the minor alleged that she had been
neglected or physically or sexually abused by a person entitled to the
notice and had reported the abuse or neglect to "the appropriate legal
authorities." Senate Bill 836, at 6 and 7 (proposed HG §20-103(b)(3)
and (d)).

 In the judicial proceeding, the court would be permitted, but not

required, to authorize the abortion if it determined that the minor was
mature and capable of giving informed consent. In making that
determination:

            [A] court shall consider evidence relating to the
       emotional development, maturity, intellect, and
       understanding of the pregnant minor, the fact and
       duration of her pregnancy, the nature, possible
       consequences and alternatives to abortion, and any
       other evidence that the court may find useful in
       determining whether the minor should be determined
       to be mature for the purpose of consenting to the
       abortion.

Senate Bill 836, at 6 (proposed HG §20-103(b)(3)(iii)(2)). Alternatively,
the court would be empowered to authorize the abortion if, "balancing
the best interests of the pregnant minor against those of her unborn
child," the court determined that the abortion should be performed. Id.
(proposed HG §20-103(b)(3)(i)(2)). The physician would have been
prohibited from notifying the minor's parent or guardian if she decided
not to have the abortion. Senate Bill 836, at 7 (proposed HG §20-
103(e)).

 During consideration of this bill, we advised that these provisions

did not meet current constitutional standards and, if enacted, would not
be currently enforceable. Letter from J. Joseph Curran, Jr., Attorney
General, to Delegate John S. Amick at 2 (March 23, 1990).6 The
bypass procedure would not have been available to a mature minor or
a minor whose best interests would not be served by parental
involvement unless notice could not be given or she was a victim of
past neglect or physical abuse and had reported the neglect or abuse.
See 70 Opinions of the Attorney General at 10 (bypass procedure must
give every minor opportunity to make showing of maturity or best
interests). In a proceeding for judicial authorization of an abortion, the
judge determining the minor's maturity would have been required to
consider evidence not relevant to her maturity, in addition to that
bearing on her "emotional development, maturity, intellect, and
understanding."7 The judge would have been permitted to withhold
authorization even if the judge found that the minor was mature. See
Bellotti v. Baird, 443 U.S. at 651 (judicial authorization may not be
withheld from mature minor). Moreover, the bill would have required
a judge making a "best interests" determination to "balanc[e] the best
interests of the pregnant minor against those of her unborn child" —
a balancing that is unconstitutional before viability. See Webster v.
Reproductive Health Services, 492 U.S. 490, 542 (1989) (Blackmun,
J., dissenting) (acknowledging that Roe permits states to regulate
abortions to promote interest in potential human life after viability).

                                  II

                    Supreme Court Opinions

A. Introduction

 In 74 Opinions of the Attorney General 19, 27-28 (1989), we noted

that we could not predict what, if any, effect on constitutional doctrine
regarding abortion the decisions in Hodgson and Akron Center might
have if the Supreme Court should uphold the state laws at issue in
those cases without overruling Roe v. Wade, 410 U.S. 113 (1973). In
light of the uncertain state of the law in this area, we have also advised
that enactments proposed during the last session of the General
Assembly that would restrict abortions in ways inconsistent with Roe
and its progeny, although not enforceable unless constitutional doctrine
changes, would probably not be "clearly unconstitutional," our standard
for bill review. , letter from J. Joseph Curran, Jr., Attorney General,
to Delegate John S. Amick (March 23, 1990). Your questions arise
because the Supreme Court in Hodgson and Akron Center did uphold
state parental notification statutes without overruling Roe.8

B. Hodgson v. Minnesota

 In this case, the Supreme Court held that a law requiring notice of

a minor's contemplated abortion to both parents is constitutional only
if it includes a bypass procedure by which the minor may avoid
notifying one or both parents.9

 Subdivision 2 of the statute at issue in this case requires that 48

hours' notice of an unemancipated minor's contemplated abortion be
given to both parents, unless one is deceased or cannot be located, or
to her guardian or conservator. This subdivision of the statute makes
no provision for bypass of the notice to either parent. Subdivision 6
of the statute embodies the same two-parent notice requirement but
includes a procedure for judicial authorization of an abortion without
notice to one or both parents. Subdivision 6 was enacted conditionally,
to take effect only if enforcement of the notice requirement without the
bypass procedure were restrained or enjoined. 110 S.Ct. at 2933
n.9.10

 A majority of the Supreme Court (comprised of Justices Stevens,

Brennan, Marshall, Blackmun, and O'Connor) held subdivision 2 of the
statute, requiring notice to both parents in all cases, unconstitutional.
In this majority's view, the state's interest in ensuring that the minor's
decision to terminate her pregnancy is "knowing, intelligent, and
deliberate" would be fully served by requiring notice to one parent, and
the state has no legitimate interest in overruling the judgment of that
parent if he or she decides not to consult the other parent. 110 S.Ct.
at 2945. Further, the state's interest in protecting the second parent's
authority over the minor cannot "overcome the liberty interests of a
minor acting with the consent of a single parent." 110 S.Ct. at
2946.11

 A different majority (comprised of Chief Justice Rehnquist and

Justices O'Connor, Kennedy, White, and Scalia) held that subdivision
6's two-parent notice requirement with a procedure for bypass of the
notice to one or both parents is constitutional.12 However, those
members of the Court did not agree on a single rationale for their
holding.

 Justice Kennedy, writing for himself, Chief Justice Rehnquist, and

Justices White and Scalia, concluded that the judicial bypass procedure
necessarily validated the notice requirement because the Court had
indicated in Bellotti v. Baird, 443 U.S. 622 (1979), that a similar
bypass procedure would validate a two-parent consent requirement.
110 S.Ct. at 2970. Indeed, the plurality would have held that no
bypass is required for a statute that requires parental notice rather than
consent, for a notice requirement "does not give any third party the
legal right to make the minor's decision for her, or to prevent her from
obtaining an abortion should she choose to have one performed." 110
S.Ct. at 2969. Justice O'Connor, in a separate concurrence, concluded
that a two-parent notice requirement with provisions for bypass is
constitutional "because the interference with the internal operation of
the family required by subdivision 2 simply does not exist where the
minor can avoid notifying one or both parents by use of the bypass
procedure." 110 S.Ct. at 2951.

C. Ohio v. Akron Center for Reproductive Health

 In this case, the Supreme Court upheld the adequacy of a

challenged judicial bypass procedure in a statute requiring notice of a
minor's contemplated abortion to one parent, without addressing
whether the one-parent notice requirement would be constitutional
without a bypass procedure.13

 The statute at issue in this case generally requires a physician who

is to perform an abortion on an unemancipated minor to give notice to
a parent, guardian, or custodian of the minor. The minor may instead
seek judicial authorization for her abortion by filing one of three
complaint forms: the first alleging that she is mature and able to make
an informed decision, the second alleging that notice would not be in
her best interests, and the third making both allegations. 110 S.Ct. at
2982. The pleading forms require the minor to sign her full name and
to give the name of her parent, guardian, or custodian at four different
places, although the hearing on her petition and any appeal must be
conducted in a way that will preserve her anonymity, and all records
of the proceedings must be kept confidential. 110 S.Ct. at 2979-80.
In the hearing, the minor may attempt to prove both her maturity and
her best interests only if she chose the pleading form making both
allegations, and she must in any case prove her allegations by clear and
convincing evidence. 110 S.Ct. at 2981-82. The failure of a trial or
appellate court to render a decision on her petition within a specified
time is deemed constructive authorization for the abortion. 110 S.Ct.
at 2981.

 The Supreme Court, in an opinion written by Justice Kennedy,

held that this procedure, at least on its face, meets the standards for
facial constitutionality of parental consent statutes enunciated in Bellotti
v. Baird and therefore necessarily passes constitutional muster in a
parental notice statute. 110 S.Ct. at 2789-90.14 Requiring the minor
to supply identifying information in her petition does not violate the
constitutional requirement of anonymity in a bypass procedure because
the statute requires that the minor's identity be kept confidential. Id.
See Bellotti, 443 U.S. at 644 (bypass must be anonymous).15 While
the provisions establishing three different pleading forms and restricting
the minor to proof of only the allegations specifically made in her
complaint may cause her some initial confusion, they are not facially
unconstitutional because the minor must be provided with counsel at the
hearing on her petition and may move for leave to amend the
pleadings, thereby preserving her right to show both her maturity and
her best interests. 110 S.Ct. at 2982. See Bellotti, 443 U.S. at 647-

48. The requirement that the minor prove her allegations by clear and
    convincing evidence is acceptable because the judicial bypass
    proceeding is ex parte, so that a higher level of proof is justified, and
    because the minor is assisted by counsel. 110 S.Ct. at 2981-82. The
    judicial bypass proceeding is sufficiently expeditious to withstand a
    facial challenge, in the Court's view, even if in a rare case the entire
    procedure might take up to 22 days. 110 S.Ct. at 2980-81.16
    Further, the lack of a court order in cases of "constructive" judicial
    authorization for an abortion would not unconstitutionally deter a
    physician from performing the abortion because the physician could
    obtain documentation from the court to show that constructive
    authorization has occurred. 110 S.Ct. at 2981.17

    For the same reasons, the Court rejected the challengers' claim
    that the procedure as a whole is so unfair as to violate due process on
    its face. 110 S.Ct. at 2982. Finally, the Court held that a state may
    constitutionally impose on a physician a nondelegable duty to give
    parental notice, because the physician has greater ability than a
    nonphysician "to garner and use information supplied by the minor's
    parents" and to advise the parents. 110 S.Ct. at 2983.

                                 III
    
       Effect on Existing and Proposed Maryland Law
    

    The holding of Hodgson is that a state may not constitutionally
    require notice to both parents unless it provides a bypass procedure —
    that is, an alternative procedure by which the minor may obtain an
    abortion without notice. The holding of Akron Center is that, if a
    bypass procedure is required for a notice requirement, the procedure
    is constitutional only if it meets the criteria enumerated by Justice
    Powell for the plurality in Bellotti v. Baird, 443 U.S. at 643-44 — that
    is, if the procedure allows any minor to avoid parental notice upon
    showing that she is mature and capable of making the abortion decision
    independently or that the abortion would be in her best interests, and
    if the procedure is confidential and expeditious.

    We have previously noted that last year's decision in Webster v.
    Reproductive Health Services "is the precursor of a new constitutional
    doctrine on abortion, one that will be markedly more open to state
    regulation than the doctrine of Roe and its progeny." 74 Opinions of
    the Attorney General 3, 14 (1989). That anticipated new doctrine has
    not yet been enunciated. To the contrary, the decisions in Hodgson
    and Akron Center essentially reaffirm the legal rules established in
    Bellotti v. Baird, City of Akron v. Akron Center for Reproductive
    Health, 462 U.S. 416 (1983), and Planned Parenthood Ass'n of Kansas
    City, Mo. v. Ashcroft, 462 U.S. 476 (1983), at least as applied to a
    two-parent notice requirement. See 70 Opinions of the Attorney
    General 3, 8-11 (1985) (discussing cases).

    We are unable to predict, on the basis of these cases, whether in
    a future case the Supreme Court may conclude that a statute like HG
    §20-103, requiring notice to only one parent, must include a bypass
    procedure. As the majority pointed out in Hodgson, no opinion in any
    of the earlier cases concerning parental notice or consent requirements
    has focused on a possible distinction between two-parent and one-parent
    requirements in this regard. Nonetheless, notwithstanding the holding
    in Hodgson that a two-parent notice requirement is constitutional only
    if it includes a bypass procedure, Chief Justice Rehnquist and Justices
    Kennedy, White, and Scalia might well hold that a one-parent notice
    requirement is valid even without a bypass procedure. See Hodgson,
    110 S.Ct. at 2961 (Kennedy, J., dissenting in part) (bypass procedure
    not necessary when state requires notice rather than consent). Cf
    Akron Center, 110 S.Ct. at 2978-79 (leaving open question whether
    notice statutes must contain bypass procedure).18

    Whether a majority would join in such a holding, however, is not
    at all clear. Justice Stevens's concurrence and Justice Blackmun's
    dissent (joined by Justices Brennan and Marshall) in Akron Center both
    express the view that some bypass mechanism is necessary to validate
    a one-parent notice requirement. See 110 S.Ct. at 2985 (opinion of
    Blackmun, J.) and 2984 (opinion of Stevens, J.). See also Hodgson,
    110 S.Ct. at 2957 (Marshall, J., dissenting in part) (notice requirement
    with judicial bypass is unconstitutional because it gives parents or judge
    effective veto over decision of pregnant woman and her physician).

    Justice O'Connor's view on this issue simply cannot be
    ascertained. In Hodgson she concluded that a two-parent notice
    requirement is constitutional only if it includes a bypass procedure. In
    Akron Center she joined a majority opinion that went no further than
    to sustain the adequacy of an existing bypass procedure. In neither
    case did she offer any comment to indicate whether she would conclude
    that a bypass is necessary for a one-parent notice requirement. Nor
    have her opinions in prior cases concerning parental consent or notice
    requirements given any indication of her views in this regard. See
    Planned Parenthood Ass'n Kansas City, Mo. v. Ashcroft, 462 U.S. at
    505 (O'Connor, J., concurring in judgment in part) (one-parent consent
    requirement with bypass imposes no undue burden on minor's right to
    abortion); City of Akron v. Akron Center for Reproductive Health, 462
    U.S. 469-70 (O'Connor, J., dissenting) (Court should abstain from
    ruling on parental notification requirement when statute had not yet
    been construed by state courts).

    Under these circumstances, we cannot assume that the
    constitutionality of a one-parent notice requirement should be tested
    under any standard different from that which we applied in the past.
    See 74 Opinions of the Attorney General 3, 16 (1989) (speculation
    about possible future holdings of Supreme Court "is not a sufficient
    basis on which to go beyond the limits of the law today").19 See
    generally Rodriguez de Quijas v. Shearson/American Express, Inc., 109
    S.Ct. 1917, 1921-22 (1989) ("If a precedent of this Court has direct
    application in a case, yet appears to rest on reasons rejected in some
    other line of decisions, the [lower courts] should follow the case which
    directly controls, leaving to this Court the prerogative of overruling its
    own decisions.").

    The Court's willingness to approve, at least on its face, the
    complex procedure at issue in Akron Center may be a reflection of an
    increased openness to state regulation of abortion. See 74 Opinions of
    the Attorney General 3, 14 (1989). Nonetheless, nothing in either
    Akron Center or Hodgson changes any of the standards we have
    previously applied to Maryland's existing parental notice law or to the
    revisions of that law proposed in the last session of the General
    Assembly. Until the Supreme Court clearly enunciates a new rule of
    law, we must continue to rely on existing precedent indicating that any
    parental notice requirement must include a bypass procedure meeting
    the standards of Bellotti v. Baird. Accordingly, we adhere to our
    previous conclusions regarding HG §20-103, Senate Bill 356 (1990),
    and Senate Bill 836 (1990).

                              IV
    
                         Conclusion
    

    In sum, we conclude that neither Hodgson v. Minnesota nor Ohio
    v. Akron Center For Reproductive Health has changed the standards for
    determining the constitutionality of parental notification requirements
    in abortion laws. Hence, HG §20-103 is still unenforceable, and the
    more restrictive parental notice requirement proposed in Senate Bill
    836 (1990) would also be presently unenforceable if it had been
    enacted. However, the notice requirement proposed in Senate Bill 356
    (1990), because it would have been consistent with current
    constitutional standards, would be enforceable if it had been enacted.

                                         J. Joseph Curran, Jr.
                                         Attorney General
    
                                         C. J. Messerschmidt
                                         Assistant Attorney General
    

Jack Schwartz
Chief Counsel
Opinions & Advice

Editor's Note:

The parental notification provision discussed in this opinion was

amended by Chapter 1 (Senate Bill 162) of the Laws of Maryland
1991.

1
Unlike the Minnesota law at issue in Hodgson, HG §20-103 would be
satisfied by notice to only one parent; unlike both that law and the Ohio law
at issue in Akron Center, HG §20-103 does not impose a waiting period after
notice. 74 Opinions of the Attorney General 19, 25 (1989). See also Part II
below.

2
The statute at issue in City of Akron required the consent of one parent
to the performance of an abortion on a minor under the age of 15. 462 U.S.
at 422 n.4. See also 462 U.S. at 439 n. 29 (parental notice provision relating
to minors 15 to 18 not challenged in Supreme Court). The city urged
validation of the statute on the ground that a minor could seek authorization
for an abortion from the juvenile court. 462 U.S. at 441. However, the
Supreme Court noted that, even if the state law governing juvenile
proceedings was applicable, that law required notice to the minor's parents of
the filing of a petition, "a requirement that in the case of a mature minor
would be unconstitutional." 462 U.S. at 441 n. 31.

3
During the last session of the General Assembly, Assistant Attorney
General Kathryn M. Rowe pointed out a potential additional shortcoming of
HG §20-103. If a minor seeks an abortion, the physician determines that
parental notice is required, and the minor then decides not to have an
abortion, the statute does not prohibit the physician from notifying her parent
or guardian of her initial decision. Because a bypass procedure must assure
the minor of anonymity, Ms. Rowe concluded that a specific guarantee of
confidentiality in this situation may be constitutionally required. Letter to
Delegate Peter Franchot at 4 n.3 (March 15, 1990); letter to Senator Walter
M. Baker at 4 (March 9, 1990). With this conclusion we concurred. Letter
from J. Joseph Curran, Jr., Attorney General, to Delegate Timothy F.
Maloney at 3-4 (March 23, 1990).

4
This letter concurred in advice previously given to different members
of the General Assembly by Assistant Attorney General Kathryn M. Rowe.
Letter to Senator John A. Cade (March 19, 1990); letter to Delegate Peter
Franchot (March 15, 1990); and letter to Senator Walter M. Baker (March 9,
1990).

5
"Responsible parent" would have been defined as a "parent who has
legal responsibility for a pregnant minor." Id. (proposed HG §20-103(a)(5)).

6
In light of the unstable state of the law regarding abortion restrictions,
however, we advised that we would not recommend a veto of the bill on the
ground that it was "clearly unconstitutional." Letter from J. Joseph Curran,
Jr., at 4. This letter concurred in advice given with respect to an earlier
version of the same proposal by Assistant Attorney General Kathryn M.
Rowe. Letter to Senators Barbara Hoffman and Paula C. Hollinger and
Delegates Samuel I. Rosenberg and Patricia R. Sher at 8-9 (February 26,
1990).

7
A provision requiring a judge to consider essentially the same factors
in determining a minor's maturity or best interests was upheld in Planned
Parenthood Ass'n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476 (1983).
However, the statute at issue in that case had been construed to require
judicial authorization of the abortion if, on the basis of the evidence regarding
"the emotional development, maturity, intellect and understanding of the
minor," the court found that she was mature. 462 U.S. at 493.

8
Justice Scalia, writing separately in both cases, again urged that Roe be
overruled, as he had in Webster v. Reproductive Health Services. See
Hodgson, 497 U.S. , 110 S.Ct. at 2960-61 (concurrence in judgment in
part and dissent in part). Akron Center, 497 U.S. , 110 S.Ct. at 2984
(concurrence).

9
The Court thus affirmed in all respects the decision of the United States
Court of Appeals for the Eighth Circuit. See 853 F.2d 1452 (8th Cir. 1988).

10
The bypass provision in the Minnesota law requires the judge to
authorize the abortion if the judge finds the minor to be mature and capable
of giving informed consent or finds that an abortion without notification to her
parents would be in her best interest. The judge must make written "specific
factual findings and legal conclusions supporting the decision and shall order
a record of the evidence to be maintained including the judge's own findings
and conclusions." Both at the trial and appellate levels, the proceedings must
be confidential and expeditious, without filing fees, and with a guardian ad
litem or court-appointed counsel available to the young woman. Both trial
and appellate courts must be available for the filing of bypass petitions or
appeals at all times. 110 S.Ct. at 2933 n.9.

11
Justice Marshall, joined by Justices Brennan and Blackmun, concurred
in this part of the majority opinion "on the understanding that the opinion
does not dispute that a minor's liberty interest alone outweighs the interest of
the second parent in shaping a child's values and life styles, regardless of the
interest of the first parent." 110 S.Ct. at 2951 n.1 (Marshall, J.,
concurring).

12
Six members of the Court, Chief Justice Rehnquist and Justices
Stevens, O'Connor, Kennedy, White, and Scalia, also held that the 48-hour
waiting period following notice to the minor's parents is constitutional. 110
S.Ct. at 2944 (opinion of Stevens, J.) and 2969 (opinion of Kennedy, J.)

13
The Court thus declined to review the conclusion of the United States
Court of Appeals for the Sixth Circuit that a bypass procedure is
constitutionally required in this situation and reversed the Sixth Circuit's
conclusion that the particular procedure enacted by Ohio is inadequate. See
Akron Center For Reproductive Health v. Slaby, 854 F.2d 852 (6th Cir.
1988).

14
The majority pointed out, and Justice Stevens's concurrence
emphasized, that the Ohio law had not yet been applied in any case. Because
it was challenged as unconstitutional on its face, the challengers "must show
that 'no set of circumstances exists under which the Act would be valid.'"
110 S.Ct. at 2980-81 (quoting Webster v. Reproductive Health Services, 492
U.S. at 542 (O'Connor, J., concurring)).

15
Although the Court acknowledged that "[c]onfidentiality differs from
anonymity," it concluded that the distinction has no constitutional significance
in the context of procedures for judicial bypass of parental notification. Id.

16
The lower courts had held that the potential for proceedings to stretch
to this period rendered the bypass procedure unconstitutional. The Supreme
Court expressed doubt about the lower courts' calculation of the time, turning
as it did on their construction of the word "days" to mean business days
rather than calendar days. 110 S.Ct. at 2989.

17
This documentation would take the form of a date-stamped copy of the
minor's complaint and a docket sheet for the case showing no entry of a court
order. 110 S.Ct. at 2989 (Blackmun, J. dissenting).

18
In these two cases, Justice Stevens drew a somewhat different
distinction. He concluded that a two-parent notice or consent requirement is
unconstitutional even if it includes a bypass procedure but that a one-parent
notice or consent requirement is constitutional so long as it includes a bypass
procedure.

19
Still less, of course, would it be appropriate for us to speculate on the
possible views of an as-yet-unconfirmed Supreme Court nominee.