NATURE OF THE CASE: This case involved the reproductive rights issue of whether a law requiring spousal consent for an abortion is constitutional.

FACTS: Missouri law required the prior written consent of the spouse of a woman seeking an abortion during the first 12 weeks of pregnancy unless the abortion was certified by a licensed physician as necessary to preserve the life of the mother. Danforth (P) opposed that law.

ISSUE: 1) Can the state delegate to a spouse a veto power over abortion which the state itself is prohibited from exercising during the first trimester of pregnancy? 2) Can the State constitutionally impose a parental consent requirement as a condition for an unmarried minor’s abortion during the first 12 weeks of pregnancy?

RULE OF LAW: 1) No. The state cannot delegate to a spouse a veto power over abortion which the state itself is prohibited from exercising during the first trimester of pregnancy. 2) No. The State may not constitutionally impose a parental consent requirement as a condition for an unmarried minor’s abortion during the first 12 weeks of pregnancy.

HOLDING AND DECISION (Blackmun): The state does not have the constitutional authority to give the spouse the unilateral authority to prohibit the wife from terminating her pregnancy. The State may not constitutionally impose a blanket parental consent requirement as a condition for an unmarried minor’s abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision. Such requirements further no significant state interests, whether to safeguard the family unit and parental authority or otherwise, in conditioning an abortion on the consent of a parent with respect to the pregnant minor. As stressed in Roe v. Wade, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

CONCURRING IN PART AND DISSENTING IN PART (White): It does not follow that because the State has no such right the husband should be denied this right or that his interest in his wife’s pregnancy should be denied. A father’s interest in having a child may be unmatched by any other interest in his life.

NATURE OF THE CASE: This was a dispute over the sterilization of a severely mentally impaired adult.

FACTS: Grady was a 19 year old mentally impaired woman with Down’s syndrome. She was unable to read and had only moderate success in writing her name. She had some ability to count low numbers but was frequently unable to speak in complete sentences. She plays games, watches television and takes short walks. She can fold laundry and dust, but she cannot select her own clothes but can dress herself. She is able to bathe herself but needs someone to make sure the water is the right temperature. She can open a can of soup but has difficulty controlling the burner temperature. She is often jovial and friendly and although some of her external features identify her as born with Down’s syndrome, she is not afflicted with physical ailments and her life expectancy is normal.

Grady has no significant understanding of sexual awareness or marriage. If she became pregnant she would be unable to make important decisions and would not be able to care for a baby alone. Grady has been on birth control pills for the last four years and Grady’s parents want to have her sterilized.

The trial judge appointed a guardian ad litem. A dispute arose over the standards the court should apply to authorize sterilization. The judge determined that he would allow the parents to exercise substituted consent for Grady to be sterilized under the doctrine of parens patriae. This involved a five part test: 1) the subject must be incapable of understanding the nature of sexual functions, reproduction, or sterilization; 2) this incapability is in all likelihood permanent; 3) the incompetent is presumably not infertile and not incapable of procreation; 4) procedural safeguards have been implemented including the appointment of a guardian ad litem and a court proceeding; and 5) the applicants have demonstrated a genuine good faith concern for the incompetent rather than their own convenience. This appeal resulted.

ISSUE: Must the court determine if it is in the best interests of an incompetent to undergo sterilization?

RULE OF LAW: Yes. The court must determine if it is in the best interests of an incompetent to undergo sterilization.

HOLDING AND DECISION: Sterilization of incompetents has been the subject of abuse in the past. This decision involves a variety of factors well suited to rational development in judicial proceedings and the court is best suited to evaluate these factors and to reach a fair decision of what is in the incompetent’s best interests.

A court should ensure the exercise of the incompetent’s right in a manner that reflects his or her best interests. The court agreed that the statutes do not apply to this situation and the statutes do not restrict the rights of the court as it has the inherent power of parens patriae to allow the court to make decisions regarding sterilization of incompetents. It was this same power that invoked the decision in the Quinlan case. The exercise of parens patriae is intended to compensate for an incompetent’s inability to exercise her own constitutional rights concerning contraception. If we invoked the standard of necessity as urged by the state, it would infringe upon this fundamental right. We therefore affirm the trial court’s holding that necessity for sterilization need not be shown. However, we are compelled to adopt a stricter standard that the trial court did in order to prevent abuse of this process.

It is ultimately the duty of the court and not the parents to determine the need for sterilization. Custody, care, and nurturing of the child first resides with the parents, however the reproductive right is a personal right to the individual and ultimately that decision belongs to the child. The court must therefore establish that sterilization is in the best interests of the incompetent person. We agree with the appointment of a guardian ad litem and allowing the full opportunity to make independent investigation and a full ability to present evidence at hearing and to represent his client zealously. The trial court must also have the power to appoint experts if needed. The trial judge if possible should meet with the subject to obtain his own impressions of competency. The trial judge must find that the individual lacks capacity to make a decision about sterilization and that the incapacity will not change in the foreseeable future.

There must be clear and convincing proof that sterilization is in the best interests. The court should consider the possibility of the person becoming pregnant, that the person will experience trauma or damage if she becomes pregnant and even such damage from the sterilization, the likelihood that she will engage in sex or be exposed to situations in which sex could be forced upon her, the inability of the person to understand contraception and reproduction, the feasibility of less drastic medical procedures that will alleviate the problem, the wisdom of waiting for imposing the process, the ability of the person to care for a child, the possibility of medical advancements and the good faith of those seeking the procedure.

DISPOSITION: Remanded for reconsideration under the stricter standards as specified in the opinion.

NATURE OF THE CASE: This was a dispute over the state regulation of the sale of contraceptives.

FACTS: New York had a law that imposed criminal penalties on the sale or distribution of any type of contraceptive to a minor under the age of 16, or the advertising or display of over-the-counter nonprescription contraceptives. The law required that sales of over-the-counter nonprescription contraceptives be made by licensed pharmacists only.

ISSUES: 1) May a state ban the advertising of nonprescription over-the-counter contraceptives, prohibit sales of contraceptives to minors under 16 years of age, and require that sales be made by licensed pharmacists only? 2) Under what circumstances can a state action infringing upon a fundamental liberty interest be justified? 3) How extensive is the right to privacy for procreation?

RULE OF LAW: 1) A state may not ban the advertising of nonprescription over-the-counter contraceptives, prohibit sales to minors under 16 years of age, or require that sales be made by licensed pharmacists only. 2) Any state action infringing upon a fundamental liberty interest can be justified only by a compelling state interest and must be narrowly drawn to express only the legitimate state interests at stake. 3) The right to privacy for procreation extends to those areas of life necessary and proper to exercise those rights.

HOLDING AND DECISION (Brennan): Restrictions on the distribution of contraceptives clearly burden the freedom of to make decisions with respect to contraception. Nothing in the record suggests that pharmacists are particularly qualified to give advice on the merits of different non-medical contraceptives, or that such advice is more necessary to the purchaser of contraceptive products than to consumers of other nonprescription items. The court held that since a state may not impose a blanket prohibition or requirement of parental consent on the choice of a minor to terminate her pregnancy, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is a fortiori foreclosed.

DISPOSITION: Affirmed.

Concurring (White): The State has not demonstrated that the prohibition against distribution of contraceptives to minors measurably contributes to the deterrent purposes, which the State advances as justification for the restriction.

Concurring (Powell): A requirement of prior parental consent is merely one illustration of permissible regulation in this area. As long as parental distribution is permitted, a State should have substantial latitude in regulating the distribution of contraceptives to minors.

Concurring (Stevens): I would not leave open the question of whether there is a significant state interest in discouraging sexual activity among unmarried persons under 16 years of age. It is frivolous to claim that a minor has the constitutional right to put contraceptives to their intended use, notwithstanding the combined objection of both parents and the State.

Dissent (Rehnquist): There comes a point when the endless and ill considered extension of principles originally formulated in quite different cases produces such an indefensible result that no logic chipping can possible make the fallacy of the result more obvious.

FACTS: Under a Minnesota statute, no abortion could be performed on a woman under the age of 18 until at least 48 hours after both parents had been notified. The required notice was mandatory unless a physician at an abortion clinic or other facility certified that an immediate abortion was necessary to prevent the death of the woman, or unless both parents in writing consented to the abortion, or the minor was a victim of parental abuse or neglect. The United States Supreme Court granted cert.

ISSUE: Is the requirement of notice to both a minor’s parents prior to an abortion reasonably related to legitimate state interests?

RULE OF LAW: No. The requirement of notice to both a minor’s parents prior to an abortion is not reasonably related to legitimate state interests.

The court held that the requirement that a minor wait 48 hours after notification of a single parent is proper, and the requirement that both parents be notified does not reasonably further any legitimate state interest.

Concurring in part and Dissenting in part (O’Connor): The statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests. Only half the minors in the State of Minnesota reside with both biological parents. A third lives with only one parent.

Concurring in part and Dissenting in part (Kennedy): The statute requires that if the two parent notice requirement is invalidated, the pregnant minor must get a court order permitting the abortion to proceed. This portion of the statute was sustained.