SUPREME COURT OF NEW JERSEY

48,654
Sat below:
Marguerite T. Simon, P.J. Ch.
Superior Court of New Jersey
Chancery Division
Bergen County
Docket No. BERL-8026-99EM

_________________________________________________________________

Plaintiffs-Appellants,

v.

John Farmer, Attorney General of the State of New Jersey, in his official capacity, and his successors in office; Christine Grant, Commissioner, Department of Health and Senior Services of the State of New Jersey, in her official capacity, and her successors in office; Hon. Richard S. Williams, Director, Administrative Office of the Courts of theState of New Jersey, in his official capacity, and his successors in office,

Defendants-Respondents.

BRIEF OF PLAINTIFFS-APPELLANTS

Lenora M. Lapidus
American Civil Liberties Union of New Jersey Foundation
35 Halsey Street, Suite 4B
Newark, New Jersey 07102
(973) 642-2086

Catherine Weiss
Jennifer Dalven
Julie Sternberg
Reproductive Freedom Project
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, New York 10004
(212) 549-2641

PRELIMINARY STATEMENT

For more than twenty years, New Jersey law has expressly allowed minors who are capable of giving informed consent to obtain all medical care related to their pregnancies, including abortion, without mandatory parental involvement. And, for more than twenty years, pregnant minors have received care from dedicated professionals who have encouraged, but not coerced, young women to involve their parents in their reproductive decisions. Those minors who feel that it is safe to involve a parent in their decision whether to have an abortion have been free to do so; indeed, the majority involve a parent. The more limited group of minors who feel that it is not safe to involve a parent have not been required to take that risk.

The statute allowing minors to consent on their own to health care related to their pregnancies, N.J. Stat. Ann. ß 9:17A-1, Pa27, is one of a series of New Jersey laws that enable minors to consent to a comprehensive range of sensitive health care services, see, e.g., N.J. Stat. Ann. ß 9:17A-4. These longstanding medical emancipation laws reflect an understanding that mandating, as opposed to encouraging, parental involvement in such areas can have serious harmful effects, including delaying and even entirely deterring minors from accessing medical care. In addition, by empowering minors to consent to a wide range of medical services, these laws recognize what the Superior Court also found, that most minors are competent to make informed decisions regarding their health care, and that physicians do not provide medical care without informed consent.

With no factual basis for questioning these two long-held understandings, the Legislature has now singled out abortion and removed it, and it alone, from the list of sensitive medical services that minors may obtain without parental involvement. If the Parental Notification for Abortion Act (the "Act"), L. 1999, C. 145, Pa26-31, takes effect, pregnant minors will no longer be able to terminate their pregnancies unless they first notify a parent or obtain a judicial bypass. Those pregnant minors who choose to have children face no similar requirements. They may continue to make the decision to bear a child, and either become a parent or place their child for adoption, N.J. Stat. Ann. ß 9:2-16, without involving a parent. They may also make all medical decisions concerning their pregnancy and ultimately their child without involving their parents.

By imposing on young women who seek an abortion the requirement that they first notify a parent or obtain a court order, the Act impermissibly infringes on the right of reproductive choice guaranteed by the New Jersey Constitution. And by imposing that requirement on those who choose abortion, but not on pregnant minors who choose to carry their pregnancies to term, the Act manifestly discriminates against pregnant minors on the basis of their decision to terminate their pregnancies. This discrimination infringes on the right to equal protection guaranteed by the New Jersey Constitution. The Superior Court erred in concluding that the Act did not impinge on these fundamental rights, an error resulting largely from the court's mistaken application of a less protective federal standard to determine whether the Act violates the more expansive provisions of the state Constitution.

The Superior Court compounded its error by failing to put the State to its burden of proving that the Act's significant infringements of minors' constitutional rights are justified by a compelling state interest or greater public need. Plaintiffs submitted overwhelming and uncontroverted evidence establishing that the Act hinders, rather than furthers, the State's asserted interests. In response, the State offered not a shred of evidence. Moreover, the State fails even to explain how its asserted interests justify requiring parental notice for minors who choose abortion but not for those who choose to bear children.

Finally, the Superior Court erred in holding that the Act's judicial bypass relieves any unconstitutional burdens the statute might otherwise impose. On the contrary, the evidence shows that, far from curing the Act's constitutional defects, the bypass places myriad, additional roadblocks in the path of minors who need abortions but cannot turn to their parents.

Each of these errors warrants reversal. Because the Act deprives young women seeking abortions in New Jersey of their fundamental, state constitutional rights to privacy and equal protection, and because the State has failed to establish that the Act is justified by a compelling state interest or greater public need, while Plaintiffs have overwhelmingly established otherwise, the Act must be struck as unconstitutional. In so holding, this Court will not stand alone. Courts in other states with similarly broad protections for individual rights have not hesitated to hold similar parental involvement laws unconstitutional. American Academy of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997); In re T.W., 551 So. 2d 1186 (Fla. 1989); Wicklund v. Montana, No. ADV 97-671 (Mont. Dist. Ct. Feb. 11, 1999)(attached as Exhibit A to Plaintiffs-Appellants' Addendum of Unpublished Decisions),⁽¹⁾ appeal dismissed, No. 99-311 (Montana Nov. 26, 1999); Planned Parenthood v. Alaska, No. 3AN-97-6014 (Alaska Super. Ct. Feb. 25, 1998), AdExB, appeal argued, No. S-08580 (Alaska Dec. 6, 1999); North Florida Women's Health & Counseling Serv. Inc. v. Florida, No. 99-3202 (Fla. Cir. Ct. July 26, 1999), AdExC.

Plaintiffs, the American Academy of Pediatrics/New Jersey Chapter, three physicians, and nine health care facilities, filed suit challenging the Act as violative of the New Jersey Constitution and seeking an order preliminarily restraining Defendants from enforcing the Act. On September 23, 1999, the Superior Court, Chancery Division, denied Plaintiffs' request for preliminary restraints. Pa420. Plaintiffs filed an emergency appeal. On September 27, 1999, this Court unanimously stayed the effective date of the Act until further order of the Court, and ordered the expedited proceedings in the Chancery Division. Pa438. On December 13, 1999, the Superior Court issued a decision upholding the Act. Pa440-75. Plaintiffs filed a notice of appeal, and this Court certified the appeal. Pa478-80.

For over two decades before passage of the Act, the law of New Jersey expressly permitted pregnant minors to consent to all "hospital, medical and surgical care related to [their] pregnanc[ies] or [their] child[ren]," without notifying a parent. N.J. Stat. Ann. ß 9:17A-1, Pa27. The Act specifically amends this provision by singling out pregnant minors who choose abortion and requiring them -- and only them -- to notify a parent before they may obtain this medical service. Act ß 1, Pa27.

Parental Notification

The Act prohibits the performance of an abortion on a minor until at least 48 hours after written notice of the procedure has been provided to a parent, in person or by mail. Act ß 5, Pa29. The requirement may also be satisfied if a parent provides a notarized statement of knowledge of the abortion, or accompanies the minor to the facility where the abortion is to be performed. Act ß 6, Pa29; N.J. Admin. Code tit. 8, ß 8:72-2.2(a)(2), Pa38.

Any person who performs an abortion without complying with the Act is subject to civil penalties of up to $5,000, and "shall be liable in a civil action" brought by any parent who is "wrongfully denied notification." Act ß 11, Pa31.

The Act provides only two exceptions to its notice requirement. First, a minor need not notify a parent if the attending physician certifies that the abortion is necessary due to a medical emergency. Act ß 7, Pa29. Otherwise, a minor may be relieved of the requirement only by obtaining a judicial waiver. Act ß 8, Pa29-30.

Judicial Bypass

The Act allows minors to seek a judicial bypass of the parental notification requirement. Act ß 8, Pa29-30. The Administrative Office of the Courts has issued two directives setting forth procedures in the trial court ("Trial Directive"), and in the appellate courts ("Appellate Directive") for minors seeking a judicial bypass.⁽²⁾ Pa42-76.

The Trial Directive requires that a minor make a number of trips to the courthouse in order to pursue a waiver. First, she must file a petition with the Chancery Division, during normal working hours. Pa44(TD II.B.1). The petition may be filed only in the county where the minor resides, where she is being sheltered, or where the abortion is to occur. Pa44(TD II.A). To file a petition, a minor must inform court personnel that she is seeking a judicial waiver of the requirement that she notify a parent of her need for an abortion. Pa45(TD II.C.2). The minor must then be directed to a member of the Judicial Bypass Team, whose duties include assisting the minor in completing the petition. Pa45(TD II.C.2, II.C.3).

Although the Act requires that minors be allowed to proceed anonymously, Act ß 8(c), Pa29, the minor must provide her name, an address, and phone number "to allow the court to contact [her], if necessary." Pa60(TD III.6).

The minor is not appointed an attorney until after the petition is filed. Pa46(TD II.D.2). At that point, a member of the Judicial Bypass Team begins "contact[ing] the next attorney on the list of available counsel." Id. Once an attorney is located, the team member arranges a time for the attorney to consult with the minor. Pa46(TD II.D.3). The team member then contacts a designated judge to schedule the hearing. Pa46(TD II.D.4).

If the minor is unable to wait until a team member can find an "immediately available" attorney and schedule a hearing with the judge, the minor must return to the courthouse to receive, in person, a notice advising her of the time and place of the hearing. Pa46,62(TD II.D.5 & Att. IV).

The minor must then appear for her hearing. At the hearing, she bears the high burden of proving by clear and convincing evidence that: (1) she is sufficiently mature to decide whether to have an abortion; (2) there has been a pattern of physical, sexual, or emotional abuse by her parent, guardian, or legal custodian; or (3) notification of a parent is not in her best interests. Act ß 8(d)(1)-(3), Pa30.

If the judge finds a pattern of abuse, the Act requires the judge to report the abuse to the Division of Youth and Family Services ("DYFS"). Act ß 8(d)(2), Pa30. DYFS, in turn, must investigate the complaint and inform the minor's parent of the investigation and the nature of the allegations. See N.J. Admin. Code tit. 10, ßß 10:129A-2.1(a), 10:129A-3.1(a). Through these procedures, a parent may well learn of a minor's pregnancy and abortion.

Unless the minor requests an extension, the Superior Court must rule on the petition within 48 hours of filing, or the petition is deemed granted. Act ß 8(c), Pa29-30. An order granting or denying the petition must be made available to the minor and her attorney at the end of the 48-hour period, but there is no requirement that it be made available at the conclusion of the minor's hearing. Pa48(TD II.G.8). Thus, the minor may need to make yet another trip to the courthouse, as she is required to receive a copy of the order in person. Id.

The Act technically provides for an appeal. Act ß 8(f), Pa30. If the trial judge denies the minor's petition, however, the Act requires that notice of the planned abortion "shall" issue -- providing no exception for minors who decide to appeal the denial or for those who determine that they no longer wish to pursue an abortion in New Jersey. Act ß 8(e), Pa30.

The Act also effectively prevents a minor whose initial petition is denied from filing a second petition, based on changed circumstances, by requiring her to certify that no other court in the state has previously denied her request for a waiver. Pa60(TD III.5).

This Court gives deference to a trial court's findings and reviews them for abuse of discretion. Wheaton v. Smith, 160 N.J. 383, 398 (1999). "Matters of law, on the other hand, are subject to de novo review." Id.

Current Practice and Parental Involvement Without the Act

As the undisputed evidence establishes, even in the absence of a law mandating parental notification, the majority of minors involve a parent in their decision to have an abortion. Op18, Pa457; Pa159-60(Henshaw); 368, 369(Zabin); 243(Kinsler); 218(Johnson). The younger a teenager is, the more likely she is to notify her parents. Op19, Pa458; Pa159-60(Henshaw); 368-69(Zabin); 291(Tumberello); 243(Kinsler); 208-09(Holmes). Indeed, very few of the youngest minors have abortions without involving at least one parent. Pa160(Henshaw). And the majority of minors who do not involve a parent do involve another adult family member or friend in their decision. Id.; Pa243(Kinsler). When appropriate, health care providers in this state encourage teenage patients to involve their parents in their decision. Pa234(Kinsler); 218(Johnson); 402-419(Reply Certs. of Plaintiff-Providers).

Moreover, as the Superior Court found, whether or not a parent is involved, physicians in this state will not provide an abortion for a minor (or any patient) without first obtaining informed consent. Op23-24, Pa462-63 (finding "plaintiff medical providers employ good procedures to obtain consent"); Pa243-44(Kinsler); 291-294(Tumberello); 223(Johnson). The vast majority of teens are capable of understanding their options for dealing with a pregnancy and of making an informed decision. Op23, Pa462 (finding "teenagers are usually able to give informed consent"); Pa96-100(Adler); 244(Kinsler); 293-95(Tumberello); 223(Johnson).

In fact, the risks associated with an abortion, as opposed to childbearing, are few. A woman is more than 20 times more likely to die from continuing her pregnancy through childbirth than she is from a first-trimester abortion, when approximately 90% of all abortions are performed. Pa304(Weiss); 158(Henshaw); 371(Zabin). Continued pregnancy also poses a much greater risk of major medical complications than does abortion. Pa303-09(Weiss); 158-59(Henshaw); 371(Zabin). And abortion produces no significant or long-term adverse psychological effects. 90-96(Adler); Pa372(Zabin).

Effect of Parental Involvement Laws on Level of Parental Involvement in Minors' Abortion Decisions

Those minors who do not voluntarily involve a parent in their abortion decision usually have good reason not to. Pa234-38(Kinsler); 219-20(Johnson); 259-61(Sabino). Some young women do not involve a parent because they fear that disclosure of their sexual activity and pregnancy will lead to abuse. Pa124-25(Esquilin); 160-61(Henshaw); 311-12(Weiss). Many have already suffered abuse at the hands of a parent. Pa122, 124-25 (Esquilin); 259(Sabino).

Other young women have been threatened by their parents with severe repercussions if they were ever to become pregnant -- such as being beaten, thrown out of the house, or cut off financially. Pa259-60(Sabino); 235(Kinsler); 219-20(Johnson); 160(Henshaw). Teens often have good reason to take these threats seriously. Some have witnessed a sister being thrown out of the house when her pregnancy was discovered. 235(Kinsler); 259-60(Sabino). Some are just so desperate that they cannot afford to take the risk. For example, one teenager who sought an abortion in New Jersey had been shuttled among homes because her mother was in jail and her father was not around. She had been sent to live with a family friend, where she was abused by the friend's boyfriend. Finally, she moved in with her grandmother, where she felt safe. But her grandmother had told her that she would have nothing to do with her if she ever became pregnant. Fearing that she would have nowhere left to go, the teen felt she could not turn to her grandmother when she became pregnant. Pa219(Johnson).

Still other minors know that their parents have strong views against abortion and would prevent them from obtaining an abortion if they learned of the pregnancy. Pa235(Kinsler); 160(Henshaw); 220(Johnson). One young woman in Massachusetts, a state with a parental involvement law, refused to tell her parents because they had forced her to carry her previous pregnancy to term, and she did not want that to happen again. Pa260(Sabino).

Some teens refuse to burden parents who are already in distress. One young woman chose not to involve her mother because she feared that her mother, who was overwrought by the recent death of her son, would be unable to cope with the news of her daughter's pregnancy. Pa219(Johnson). Other teens choose not to tell their parents because of other life crises -- the parents are going through a divorce, a family member has a serious illness, or a sibling has been put in jail. Pa259(Sabino); 235-36(Kinsler); 219(Johnson).

Still other minors decline to involve a parent because they have little or no communication with their parents, often because their parents are addicted to drugs or alcohol. In those cases, the young woman frequently acts as the adult in the home, taking care of the household and other family members. These young women see no reason to tell their parents because they know from past experience that their parents will provide no support or guidance. Pa236(Kinsler); 260(Sabino); 296-97(Tumberello).

The concerns of minors about the consequences of involving parents in abortion decisions are, unfortunately, often well-founded. According to one study, a majority of minors reported adverse consequences when their parents learned of their pregnancies without having been voluntarily told by the minor. Pa160-61(Henshaw). The consequences were often those the minor had feared, including being subjected to physical or emotional abuse, and being thrown out of the home. Id.

Experts confirm that minors are often accurate in their assessment of their parents, and are better judges of their parents' reactions than those with no knowledge of the home. Pa125(Esquilin); 260(Sabino); 160-61(Henshaw). One New Jersey clinic director recounts the experience of a school counselor who learned this lesson the hard way. A student confided in the counselor about her pregnancy and decision to have an abortion. He encouraged her to tell her parents, but she declined, explaining that they would not understand. Perhaps believing that parents will always be supportive of their children in times of crisis, the counselor told the parents anyway. Unfortunately, the student was right; her parents threw her out of the house. Pa237(Kinsler).

Whether well founded or not, the fear of adverse consequences drives some minors to take extreme and dangerous measures. Pa161-62(Henshaw); 237-38(Kinsler); 258, 268, 269(Sabino). In one study, 23% of minors said that if parental notification were required, they would forgo a safe and legal abortion. Pa161-62(Henshaw). The results of that study are consistent with the considered opinion of experts who regularly consult with and treat adolescents, and who have concluded that, rather than notify a parent, some minors will either carry to term, attempt a self-induced abortion, seek an illegal abortion, or further delay their abortion and risk their confidentiality by trying to arrange for an abortion in a state that does not require parental involvement. Pa121-22(Esquilin); 237-38(Kinsler); 258, 268, 269(Sabino); 296(Tumberello).

Indeed, one New Jersey health care provider tells the chilling story of a 16-year-old who was desperate to end her pregnancy without her parents' knowledge. Without access to a clinic, she had her boyfriend punch her in the stomach to induce a miscarriage. When she called a crisis hotline, she was hemorrhaging. Despite being told that she could die if she did not get help, and despite the blood loss, she would not go to the hospital unless she was promised that her parents would not be notified. It took almost two hours to convince her to go to the hospital. For that young woman, death was less frightening than having her parents learn of her pregnancy. Pa237-38(Kinsler). For reasons like these, the American Medical Association ("AMA") reports that the desire to maintain secrecy about abortion has been one of the leading reasons for illegal abortion deaths since 1973. Pa161-62(Henshaw); 203(AMA Statement).

The Harms of the Judicial Bypass Alternative

The judicial bypass fails entirely to provide an adequate safeguard for minors who cannot notify a parent, and itself causes further harm. As an initial matter, some minors who desire an abortion will be too frightened or embarrassed by the prospect of going to court to think of it as a viable option. Pa269 (Sabino); 238-39(Kinsler); 127(Esquilin). This reality can have tragic consequences. One young teenager in Massachusetts, who became pregnant after being raped by her mother's boyfriend, felt that she could not turn to her mother. Upon learning that in order to have an abortion she would have to tell her mother or go to court, however, she decided that she simply could not face a judge and told her mother. After hearing what had happened, the teen's mother called her a "slut" and threw her out of the house. Pa269(Sabino).

Many minors who are abused by a parent, and who therefore often have the most to fear from parental notification and are in greatest need of a waiver, will be particularly reluctant to go to court for a bypass. Because of the secrecy that shrouds abuse, they will avoid going to court rather than risk revealing the abuse, particularly when they learn that the Act requires reporting to DYFS. Pa127, 128(Esquilin).

For minors who do gather the courage to seek a bypass, the process will compromise their confidentiality in myriad ways and delay their abortions. Confidential phone calls, which the minor must make to learn about the procedure and to coordinate with whoever might help her, pose tremendous obstacles for young women. Making even a single call poses a threat to minors who need to keep their pregnancies from their parents. These minors must await a time when their parents are away and often hang up abruptly when their parents return earlier than expected. Typically, they cannot receive return calls at home from strangers without arousing suspicion. Pa262-63(Sabino); 224-25(Johnson); 240(Kinsler). Many minors are forced to call from friends' homes or to use pay phones in the school hallway with little or no privacy, and with only minutes to speak between classes. Pa263(Sabino); 224-25(Johnson). At every step, they risk detection.

Moreover, the Trial Directive requires minors to file the petition, to be given the Notice of Hearing, to attend the hearing, and to be given the order granting or denying the petition, all in person. Pa44, 46, 48 (TD II.B.1, II.D.5, II.G.8). Even if she is lucky enough to accomplish all this in two trips, rather than four, each additional trip increases the risk of disclosure and significant delay, as it adds to the number of phone calls, transportation arrangements, unexplained absences, and hours spent in a courthouse. Pa261, 263-64, 266-67, 272-73(Sabino); 239-40(Kinsler); 129-30(Esquilin); 250-51(Martin). Even in states with systems in place to help minors through the process, minors' identities and purpose become known as they proceed through the bypass, see Pa267(Sabino); 250-51(Martin), and young women are often delayed in obtaining an abortion for two weeks to a month, Pa261, 266(Sabino). As explained below, this delay increases risks to their health.

For each trip, minors must risk their confidentiality and delay their abortions as they wait for a time when they can safely miss school or be away from home without arousing suspicion. Some of the trips must be made on weekdays, when minors are required to be in school and their absences are most likely to be noticed and reported. Pa263-64, 266-67(Sabino); 225-26(Johnson); 250(Martin). For example, upon learning of one minor's intended absence to attend a bypass hearing, a school principal in Massachusetts removed the student from class, drove her home, and informed her mother of both her pregnancy and her desire for an abortion. At the insistence of her mother, that young woman carried her pregnancy to term. Pa266-67(Sabino).

Arranging transportation for each of the trips poses added difficulties for many minors. Many minors do not have drivers' licenses and public transportation is spotty or non-existent from some areas. Pa239-40(Kinsler); 225(Johnson); 264(Sabino). Thus, many minors will be forced to reveal their secret to others to obtain help in getting to court, and their abortions will be delayed as a result of their dependence on others to make the numerous trips. Pa264-65(Sabino). Other minors who cannot disclose their plans or have no one to aid them will be forced to resort to drastic measures, such as driving without a license or hitchhiking. Pa265(Sabino). One young woman from Massachusetts, for example, missed the only bus from her town to the courthouse because of morning sickness. Determined not to miss the hearing, she hitchhiked forty miles, something she had never done before. Id. The steps minors take are a testament to the strength of their conviction that they must preserve their confidentiality.

Even those who can get to court undetected face threats to their confidentiality. Minors must seek a bypass in the county where they reside, where they are sheltered, or where their abortion is to occur. Pa44(TD II.A). Yet minors risk discovery by someone they know each time they go to court in their home county. Pa267(Sabino); 250-51(Martin); 239(Kinsler). In Massachusetts, one young woman was sitting in a court corridor when her sister's civics class came through; another encountered her godmother, who was employed as a court officer. Pa267(Sabino). In Minnesota, a pregnant teen was identified by members of an anti-abortion group as she sat in the courthouse corridor waiting for her bypass hearing. After searching school yearbooks and finding her name, they sent a letter to her parents. Pa250-51(Martin). Because minors cannot explain their presence in the courthouse, particularly during school hours, once they are seen, their secret is exposed. Pa264, 267(Sabino); 250-51(Martin).

For many minors, particularly when their pregnancies have progressed beyond 14 weeks, filing in a county where the provider is located may require them to make several long trips. Only three known facilities in New Jersey, outside of a hospital, provide abortions after 14 weeks. Pa240(Kinsler). Minors traveling long distances to reach these providers face tremendous difficulty getting away and arranging transportation simply to have their abortion. Forcing them to make additional trips will delay their abortions and will put an abortion beyond the reach of some. Pa164(Henshaw); 241(Kinsler); 227-28(Johnson); 367-68 (Zabin); 313(Weiss); 298(Tumberello).

Finally, the bypass process takes a tremendous emotional toll. The Act forces young women who cannot turn to a parent to appear in court and to discuss the most personal of matters in front of strangers. They do so knowing that the very course of their lives may hinge on their ability to persuade the judge to grant a bypass. Pa268(Sabino); 252-53(Martin).

Because it takes minors time to gather the courage to notify a parent, to work their way through the bypass system, or to travel out of state for an abortion, the Act forces minors to delay their abortions. Pa239-40(Kinsler); 261, 272(Sabino); 162-63(Henshaw); 367(Zabin); 312(Weiss); 297(Tumberello). Although abortion is safe, the risk of both major complications and death increases significantly with each passing week after eight weeks' gestation. Pa303-04, 312(Weiss); 158-59(Henshaw).

Delay has other implications as well. As a woman's pregnancy progresses, the cost of an abortion increases sharply, rising from $300-330 for an abortion before 14 weeks' gestation, to $550-695 at 16 weeks, to $850-995 at 20 weeks. Pa227-28(Johnson); 298(Tumberello); 241(Kinsler). In addition, in New Jersey, after 14 weeks' gestation, the number of physicians who perform abortions declines sharply. Pa164(Henshaw); 227(Johnson); 240(Kinsler); 313(Weiss). The increased cost, combined with the need to travel to the few physicians who provide this service, make the abortion more difficult, if not impossible, for some minors to obtain. Pa164(Henshaw); 241(Kinsler); 227-28(Johnson); 313(Weiss); 298(Tumberello).

For minors, the impact of added delay is especially pronounced. Minors already tend to seek later abortions than adults for many reasons, including their difficulty recognizing their pregnancy, given irregular menstrual cycles; the problems they face arranging the abortion without arousing the suspicion of parents or others; and the difficulty they have raising the funds for an abortion and arranging transportation to the clinic. Pa163-64(Henshaw); 298(Tumberello); 313(Weiss); 367(Zabin); 227(Johnson).

The Act would force some minors -- including those who experience significant delays, those who are too afraid to notify a parent or use the bypass, and those whose parents, once notified, obstruct their choice -- to carry their pregnancies to term. Pa162-63, 164, 166(Henshaw); 227-28(Johnson); 238, 241(Kinsler); 273(Sabino); 313(Weiss). Forced childbearing is an intimate and terrible violation for any woman, but it has especially severe consequences for minors. First, it increases the risks to their lives and health. Pa303-09(Weiss); 158-59 (Henshaw); 371 (Zabin).

In addition, the majority of adolescents who bear children suffer severe adverse social and economic consequences. Pa372-73(Zabin); 164(Henshaw). Nationally, over 80% of these young mothers end up in poverty. Pa164(Henshaw). Few complete high school or go on to college and graduate school. Id.; 373, 375(Zabin). Minors who carry an unwanted pregnancy to term are also more likely than those who terminate unwanted pregnancies to experience negative psychological effects. Pa372, 376-77(Zabin). The children of teen mothers suffer as well: they have a greater risk of health problems at birth and in childhood and reduced chances of success in education and family formation, than do children born to older women. Pa309(Weiss); 373-74(Zabin); 165(Henshaw).

ARGUMENT

I. The Superior Court Erred in Holding That the Act Does Not Violate the Fundamental Right to Privacy Guaranteed by the New Jersey Constitution.

By conditioning a minor's exercise of the right to terminate her pregnancy on the notification of her parent or her ability to obtain a court order, the Act strips her of the right to make for herself the fundamental decision whether or not to bear a child. The Act thereby infringes on her right to privacy guaranteed by Article I, paragraph 1, of the New Jersey Constitution. The overwhelming, and uncontroverted, evidence presented in this case establishes that this significant intrusion on minors' fundamental rights is not justified by any compelling state interest. The Act thus violates the right to privacy. The Superior Court erred in holding otherwise.

A. The New Jersey Constitution Protects Certain Individual Liberties Independently of and More Broadly Than the Federal Constitution.

Indeed, this Court has emphasized that "[w]hen the United States Constitution affords our citizens less protection than does the New Jersey Constitution, we have not merely the authority to give full effect to the State protection, we have the duty to do so." State v. Hempele, 120 N.J. 182, 196 (1990). This duty stems from the nature of our federalist system:

In our federal system, state constitutions have a significant role to play as protectors of individual rights and liberties. This role derives its character from the freedom of state courts to move beyond the protections provided by federal doctrine and from the distinctive character of state courts and state constitutions. . . . The present function of state Constitutions is as a second line of defense for those rights protected by the federal Constitution and as an independent source of supplemental rights unrecognized by federal law.

B. The New Jersey Constitution Protects the Right of Reproductive Choice Independently of and More Broadly Than the Federal Constitution.

All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

N.J. Const. art. 1, par. 1. As this Court has recognized, "[b]y declaring the right to life, liberty and the pursuit of safety and happiness, Art. 1, par. 1 protects the right of privacy." Right to Choose, 91 N.J. at 303; see also In re Quinlan, 70 N.J. 10, 40-41 (1976).

The right to privacy safeguards personal decisions that "bear[] so vitally upon . . . matter[s] of deep personal privacy [as to]. . . be considered an integral aspect of the . . . right of all people to enjoy and pursue their individual well-being and happiness." Grady, 85 N.J. at 250 (internal quotations omitted). This Court was the first in the nation, for example, to hold that the right to privacy encompasses the right of an individual to make a personal choice as to whether to continue life-sustaining medical treatment. Quinlan, 70 N.J. at 38-41. This landmark ruling confirmed that the right to privacy under the New Jersey Constitution encompasses the right of an individual to control her body and the course of her life. See Grady, 85 N.J. at 249 (discussing Quinlan).

This Court has also long held that a critical component of the right to control one's body and life is the right to sexual and procreative autonomy, as well as the right to make the life-altering and intimate decision whether to become a parent. In State v. Saunders, 75 N.J. at 220, for example, this Court held that a statute banning all sexual relations between men and unmarried women violates New Jersey's right to privacy because it impeded personal decision-making regarding intimate human relationships. Likewise, in Grady, this Court held that the privacy right encompasses the right to sterilization, as "[a] decision to be sterilized is . . . a part of an individual's personal right to control her own body and life." 85 N.J. at 249. The Grady Court emphasized as a "fundamental concept" that every individual has "the right . . . to make a free choice about his reproductive capacity." Id. at 263 n.9.⁽⁴⁾

The rights to control one's body, to exercise fundamental personal autonomy, and to decide whether to become a parent converge in the New Jersey Constitution's heightened protection of a woman's right to choose to terminate her pregnancy. Thus, in Right to Choose, this Court held that New Jersey's right to privacy "encompasses one of the most intimate decisions in human experience, the choice to terminate a pregnancy or bear a child. This intensely personal decision is one that should be made by a woman in consultation with trusted advisors, such as her doctor, but without undue government interference." 91 N.J. at 306.

The state constitutional right to reproductive choice is broader than the federal constitutional right. In Right to Choose, for example, this Court invalidated a statutory provision that denied Medicaid coverage for medically necessary abortions where coverage was otherwise provided for medically necessary prenatal care and childbirth services. The Court thus respectfully diverged from the United States Supreme Court's earlier ruling that the government's refusal to fund medically necessary abortions on par with medically necessary childbirth services did not infringe women's right to privacy under the federal Constitution. Harris v. McRae, 448 U.S. 297, 312-18 (1980). Similarly, even after the United States Supreme Court decided that the federal Constitution permitted states to ban elective abortions in city-owned hospitals, see Poelker v. Doe, 432 U.S. 519 (1977), New Jersey courts continued to hold that quasi-public hospitals receiving financial support from local governments must provide elective first-trimester abortions. See Doe v. Bridgeton Hospital Ass'n, Inc., 160 N.J. Super. 266, 271 (1978) (holding Poelker irrelevant to earlier, contrary decision by New Jersey Supreme Court in Doe v. Bridgeton Hospital Ass'n, 71 N.J. 478 (1976)); cf. Right to Choose, 91 N.J. at 304 (citing Doe for proposition that New Jersey Constitution recognizes right to abortion independent of federal Constitution).

Nor is the New Jersey Constitution's broad protection of the right to reproductive choice reserved for adult women alone. Minors are "persons protected by the . . . New Jersey Constitution[]," State ex rel. T.L.O., 94 N.J. 331, 340 (1983), reversed on other grounds sub nom. New Jersey v. T.L.O., 469 U.S. 325 (1985), and in particular by the "natural and unalienable rights" afforded to "[a]ll persons" under Article 1, paragraph 1 (emphasis added). See Lungren, 940 P.2d at 814 (looking in part to state constitution's provision of inalienable rights to "[a]ll people" in holding that privacy right extends to minors); T.W., 551 So. 2d. at 1193 (same); Planned Parenthood v. Alaska, No. 3AN-97-6014, slip op. at 12 (same), AdExB.

Indeed, given the importance of the right to decide whether or not to have a child, and the severe consequences of denying the right, it must extend to minors as well as adult women. As the California Supreme Court explained:

[B]ecause the decision whether to continue or terminate her pregnancy has such a substantial effect on a pregnant minor's control over her personal bodily integrity, has such serious long-term consequences in determining her life choices, is so central to the preservation of her ability to define and adhere to her ultimate values regarding the meaning of human existence and life, and (unlike many other choices) is a decision that cannot be postponed until adulthood, we conclude that a minor who is pregnant has a protected privacy interest under the [state] Constitution in making the decision whether to continue or to terminate her own pregnancy . . . .

The Superior Court erred in failing to give full effect to this Court's precedents demanding especially rigorous protection for reproductive choice under the New Jersey Constitution. Acknowledging only equivocally that New Jersey's right to privacy "may be broader than the federal right," Op14, 30, Pa453, 469 (emphasis added), the lower court went on to apply the federal "undue burden" test to assess the Act's validity, id. 15-31, Pa454-70. Yet, consistent with its holdings that the state Constitution provides heightened protection for privacy, this Court has held time and again that reproductive rights are subject to a more demanding standard under the New Jersey Constitution than under the federal Constitution. See, e.g., Right to Choose, 91 N.J. at 309-310 (New Jersey Constitution requires a more persuasive showing of public need to justify infringement of the right to privacy than is required under the federal test); Grady, 85 N.J. at 248-49 (same); Saunders, 75 N.J. at 216-17 (same). To apply the federal, undue burden test is thus to vitiate the broader state constitutional right to reproductive choice.

Rather than applying this less protective level of scrutiny, the lower court was obligated to apply the standard applicable to privacy claims under the New Jersey Constitution. Specifically, the Superior Court should have first determined whether the fundamental right to privacy has been infringed, and then assessed whether that infringement can be justified by a compelling state interest supported by a "more persuasive showing" than is required under the federal Constitution. See Right to Choose, 91 N.J. at 306, 309-10; Saunders, 75 N.J. at 217.

C. The Act Infringes on the Fundamental Right to Privacy Guaranteed by the New Jersey Constitution.

As to those young women who relent and notify their parents, the evidence shows that they are a small fraction of those affected. Providers in New Jersey already encourage those minors who can safely do so to involve a parent. See, e.g., Pa234(Kinsler); 218(Johnson). For most minors who, despite this encouragement, are unwilling to turn to their parents, no law can change their minds. See Pa165(Henshaw); 268-69(Sabino); 370(Zabin). Of those who do inform their parents against their better judgment, the evidence shows that some will suffer the very harms -- including physical and psychological abuse, eviction from the home, and coercion to carry to term -- that they anticipated. Pa160-61 (Henshaw); 269 (Sabino); 237 (Kinsler). Indeed, even in non-abusive homes, the evidence shows that for some families, forced communication will be worse than no communication at all, leading to incidents of coercion or damaging the parent-child relationship. Pa370(Zabin); 236-37(Kinsler); see also Lungren, 940 P.2d at 829. And, even if some minors are motivated by the Act to tell their parents and relieved to find them supportive -- a possibility the State posits, but presents no evidence to support -- any benefit to those few minors cannot outweigh the significant harm to the majority of minors affected by the Act.⁽⁷⁾

Based on the experience in other states, a much larger fraction of affected minors will seek a judicial bypass. Pa269(Sabino). The Superior Court reasoned that, so long as the bypass conforms to federal constitutional standards, the Act imposes no "undue burden." Op28-31, Pa467-70. Plaintiffs dispute that the bypass meets even federal standards, infra Point III, but to focus exclusively on the issue of conformity with these minimum standards is to miss the larger point. The evidence in this case demonstrates the obvious: that pregnant teenagers are humiliated and traumatized by having to appear in court and discuss the most intimate details of their lives with complete strangers, one of whom, the judge, will determine the very course of their future. Pa268(Sabino); 251, 252-53(Martin); 239(Kinsler). The evidence also confirms that, regardless of the procedures in place, forcing teens to obtain a judicial waiver requires them to make phone calls, arrange transportation, make excuses for additional absences, and appear at the courthouse -- all of which will delay their abortions, increasing the risk to their health, and will, in many cases, lead to the very parental notice they needed to avoid. Supra pp. 16-20; see also Lungren, 940 P.2d at 829.

Moreover, minors who use the bypass will suffer these ordeals for no reason. The Superior Court found Plaintiffs' submissions "probative in determining that teenagers are usually able to give informed consent and that plaintiff medical providers employ good procedures to obtain consent." Op23-24, Pa462-63. As Judge Martin, who has heard more than 600 bypass petitions, candidly explains, the court appearance adds nothing but anxiety and medically risky delay to the otherwise sound process through which minor patients, in consultation with medical providers, obtain safe abortions. Pa248-59, 252-53(Martin); see also 269(Sabino); Lungren, 940 P.2d at 829.

Next, based on the experience in other states, an equally large proportion of minors affected by the Act -- indeed in some states almost a third of all minors seeking abortions -- will travel out of state to avoid both the dangers they anticipate from hostile parental involvement and the trauma of a court appearance. Pa268(Sabino); 121-22(Esquilin). Other minors will resort to drastic and perilous measures such as self-induced or illegal abortions. Pa162-63, 164, 166(Henshaw); 227-28(Johnson); 238, 241(Kinsler); 273(Sabino); 313(Weiss).

Finally, the undisputed evidence reveals that -- whether they are coerced by their parents, delayed by the bypass process, or simply too frightened or ashamed to tell a parent or seek a bypass -- the Act will force some minors to carry unwanted pregnancies to term. Pa162-63, 164, 166(Henshaw); 227-28(Johnson); 238, 241(Kinsler); 273(Sabino); 313(Weiss). These young women will then have been irrevocably deprived of their constitutional right to decide whether and when to bear a child.

Confronted with similar evidence, the California Supreme Court held:

The statute significantly intrudes upon . . . privacy by denying a pregnant minor the ability to obtain a medically safe abortion on her own, and instead requiring her to secure parental consent or judicial authorization in order to obtain access to the medical care she needs to terminate her pregnancy safely. In this respect, the statute denies a pregnant minor, who believes it is in her best interest to terminate her pregnancy rather than have a child at such a young age, control over her own destiny. In addition, the statutory requirement that the minor obtain parental consent or judicial authorization will delay the minor's access to a medically safe abortion in many instances, and thereby will increase, at least to some extent, the health risks posed by an abortion. Finally, in some instances, a minor who does not wish to continue her pregnancy but who is too frightened to tell her parents about her condition or go to court may be led by the statutory restrictions to attempt to terminate the pregnancy herself or seek a "back-alley abortion" -- courses of conduct that in the past have produced truly tragic results -- or, alternatively, to postpone action until it is too late to terminate her pregnancy, leaving her no choice but to bear an unwanted child.

Lungren, 940 P.2d at 817. "[S]uch consequences," the Court concluded, "represent a most significant intrusion on the minor's protected privacy interest." Id. at 817-18. The Supreme Court of Florida, and lower courts in Montana and Alaska, looking to their state constitutions, have reached the same conclusion.⁽⁸⁾

Based on both the law guaranteeing heightened privacy protections under the New Jersey Constitution and the evidence demonstrating grave harms to the majority of pregnant minors whom the Act would affect, this Court should likewise conclude that the Act infringes minors' right to reproductive choice.

D. No Compelling State Interest Justifies the Infringement of Minors' Privacy Rights.

1. The Superior Court Erred in Failing To Require the State To Prove That the Act Furthers a Compelling State Interest.

This Court has made clear that where constitutional rights are at issue, the judiciary has an obligation to look beyond the mere assertion of "findings" by the legislature. See, e.g., Washington Nat'l Ins. Co. v. Bd. of Review, 1 N.J. 545, 554 (1949) ("[C]are must be exercised that the efficacy of these constitutional guaranties shall not be whittled away by indulging in unwarranted presumptions of a factual basis for the legislation."). As this Court has explained:

"[T]o say that [the legislature's] findings of fact may be made conclusive where constitutional rights of liberty and property are involved, although the evidence clearly establishes that these findings are wrong and constitutional rights have been invaded, is to place those rights at the mercy of [the legislature] and seriously to impair the security inherent in our judicial safeguards."

. . . .

In determining the reasonableness of such a regulation . . . it is therefore necessary for this court to examine the proofs offered in support of the regulation.

Lakewood Exp. Serv. v. Bd. of Public Utility Comm'rs, 1 N.J. 45, 52-53 (1948) (quoting St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 52 (1936)).

Thus, the State is required not only to articulate a compelling governmental interest but also to show that there is a "real and substantial relationship" between the legislation and the governmental purpose which it purportedly serves. Taxpayers Ass'n, 80 N.J. at 43-44. In considering whether the State has met its burden, the Court must "carefully examine the factual bases" for the claim that the legislation "in fact serve[s] those specific ends." State v. Miller, 83 N.J. 402, 414-15 (1980); see also Saunders, 75 N.J. at 218-19 (state's asserted interests in preventing the spread of venereal disease and in decreasing the number of children born out-of-wedlock were not served by law prohibiting "fornication").

Again, the California Supreme Court's decision is illustrative. In deciding whether that state's parental consent law served any compelling state interest, the court declined the state's invitation to ignore the evidence and to rely instead on legislative findings: "[W]hen a statute impinges upon a constitutional right, legislative findings with regard to the need for, or probable effect of, the statutory provision cannot be considered determinative for constitutional purposes." Lungren, 940 P.2d at 824; see also id. at 825 n.26. Accordingly, the court held that it "must go beyond the legislative findings accompanying the statute to determine whether [the parental consent law] can be sustained . . . on the basis of the state's interests." Id. at 825.

By taking the Legislature's findings at face value, the Superior Court disregarded its duty to examine the basis for legislative action that infringes on important individual rights. Although it is decidedly not their burden to do so, Plaintiffs presented extensive evidence proving that the interests asserted by the State are hindered, rather than served, by the Act. In response, the State proffered not a single piece of evidence. Failing even to address whether the interests asserted by the State were in fact served by the Act, the Superior Court mistakenly held that these interests were sufficient to justify the impairment of minors' right to reproductive choice.

2. The Interests Asserted by the State Cannot Justify the Infringement of Minors' Fundamental Rights Given the Other Important Decisions That New Jersey Law Allows Minors To Make Without Parental Involvement.

The State's contention that a parental notice requirement for abortion is necessary to protect the welfare of minors and their parents and families is belied by its rejection of any such requirement for minors who choose to carry their pregnancies to term. Despite the serious and often complicated medical decisions to be made, Pa305-10(Weiss), the law deems minors who choose to carry their pregnancies to term mature enough to consent to all medical care for themselves and ultimately for their children, N.J. Stat. Ann. ß 9:17A-1, Pa27. Similarly, despite the assured impact on the minor, her parents, and her family, she alone may decide to bring a new child into the family, or to place her child for adoption. N.J. Stat. Ann. ß 9:2-16. Only if the young woman wants to terminate her pregnancy does the Legislature deem her too immature and treat her decision as having such grave implications for her health, her future, and her family that she cannot act independently. Act ß 3, Pa27-28.

Confronting a similar, fundamentally inconsistent statutory scheme, the Florida Supreme Court explained:

In light of this wide authority that the state grants an unwed minor to make life-or-death decisions concerning herself or an existing child without parental consent, we are unable to discern a special compelling interest on the part of the state . . . in protecting the minor only where abortion is concerned. . . . Although the state does have an interest in protecting minors, "the selective approach employed by the legislature evidences the limited nature of the . . . interest being furthered."

[T]he state's contention that the imposition of a parental consent requirement in the abortion context was necessary in order to protect the physical, emotional, or psychological health of the minor and to preserve the parent-child relationship was belied by the numerous, analogous circumstances in which [the state] authorized a pregnant minor to obtain medical care, or to make equally significant decisions affecting herself and her child, without parental consent.

Lungren, 940 P.2d at 826; see also Wicklund, No. ADV 97-671, slip op. at 8-13, AdExA.

Here, too, the State's treatment of minors who carry to term -- its recognition of their ability and need to make important, potentially life-altering decisions without notifying a parent -- evidences the weakness of its asserted interests. Such frail and inconsistently respected interests cannot outweigh minors' constitutional rights.

3. The Undisputed Evidence Shows That the Act Is Not Necessary To Serve any Compelling State Interest.

a. The Act Harms, Not Protects, Minors' Health.

The unrefuted evidence proves that the Act cannot be justified as necessary to protect minors' physical, psychological, or emotional health. In fact, the evidence shows that adolescents who choose abortion encounter fewer medical risks, and are at least as emotionally and psychologically healthy as adolescents who carry their pregnancies to term.

Abortion is extremely safe. Pa303-04(Weiss); 158-59(Henshaw); 371(Zabin); Op22, 23, Pa461-62. The risks of both death and major medical complications are many times higher for women who carry to term than for women who choose abortion. Pa303-09(Weiss); 158-59(Henshaw); 371(Zabin). Given the relative safety of abortion, the State simply cannot justify -- as a matter of medical necessity -- requiring minors to notify their parents of their decisions to terminate their pregnancies, when no such requirement is imposed on those who carry to term.⁽⁹⁾

The evidence also demonstrates that the Act cannot be justified as necessary to protect minors' emotional and psychological health. As the American Psychological Association concluded after an exhaustive review of the literature, terminating an unwanted pregnancy poses little psychological hazard. Pa90-96(Adler). In fact, the most common reaction after abortion is relief. Pa90(Adler); 372(Zabin). Nor is there any evidence that adolescents are at a greater risk of negative psychological effects from abortion than are adult women. Pa93-96(Adler); 372(Zabin). And minors who do not involve their parents in their decision to have an abortion are as comfortable with their decision as those who do consult with their parents. Pa369(Zabin); 151(AAP Statement).

Moreover, far from protecting adolescents, the Act actually puts minors' health at risk. Whether they inform their parents against their better judgment, use the judicial bypass, travel out of state for an abortion, resort to illegal methods, or carry an unwanted pregnancy to term, they face the severe health risks associated with abuse, abandonment, trauma, delayed abortion, septic abortion, or forced childbearing. Supra Point I.C. Thus, as the American Academy of Pediatrics has concluded, "[t]here is no rational basis for policies that put barriers in the way of an adolescent's selection of abortion because of concerns about physical or psychological consequences." Pa152(AAP Statement); Lungren 940 P.2d at 829 (parental involvement law will impede, not advance, state interests).

b. The Act Is Not Necessary To Protect Minors from Making Uninformed Decisions Regarding Their Pregnancies.

The undisputed evidence in this case amply supports this conclusion. Empirical studies demonstrate that "adolescents do not differ from adults in their ability to understand and reason about treatment alternatives," including abortion. Pa96-100(Adler) (quoting American Psychological Association); 378(Zabin). Providers in New Jersey uniformly attest to the capacity of minor patients to make informed decisions regarding abortion, fully cognizant of the nature of the procedure, its risks, and the alternatives. Pa293-95(Tumberello); 244(Kinsler); 223(Johnson); 210-11(Holmes); 310-11(Weiss). Likewise, judges hearing bypass petitions in other states overwhelmingly find the minors who come before them sufficiently mature and well informed to consent to the procedure on their own. Pa252(Martin); Pa257(Sabino)(all but two of the 15,000 bypass petitions filed in Massachusetts in the past 18 years have been granted -- 98% on maturity grounds).

Thus, the Act is not necessary to ensure that minors' decisions are informed. Although minors in New Jersey have been obtaining abortions without mandatory parental involvement for over 20 years, the State has not offered evidence of a single adverse consequence. As the California Supreme Court concluded:

[T]he overwhelming majority of minors who become pregnant have the requisite maturity and capacity to give informed consent to an abortion, and . . . the interests of those relatively few pregnant minors who do not have the capacity to provide informed consent remain fully protected . . . because a physician may not perform any medical procedure, including an abortion, unless he or she determines that the patient is capable of giving (and has given) informed consent.

Lungren, 940 P.2d at 828.

c. The Act Does Not Serve the State's Interests in Fostering the Family Structure or Protecting Parental Rights.

Even if a state interest in family integrity or parental rights could justify singling out minors who choose abortion, which it cannot, there is no evidence to show that the Act serves these interests. Indeed, the evidence shows otherwise. As the American Academy of Pediatrics has found, "Credible reviews of available data conclude that there is no evidence that mandatory parental involvement results in the benefits to the family intended by the legislation. No studies show that forced disclosure results in improved parent-child relationships, improved communication, or improved satisfaction with the decision about pregnancy outcome." Pa151 (footnotes omitted). This is so because, as the California Supreme Court found, "the primary determinant of whether a pregnant minor will consult her parent or parents is the quality of the parent-child relationship that existed before the minor became pregnant, and not the presence or absence of [a parental involvement law]." Lungren, 940 P.2d at 829. In fact, such laws are simply ineffectual in compelling unwilling teenagers to involve their parents. Supra pp. 11, 31-32; see also Pa151(AAP Statement).

Moreover, the evidence shows that the Act will actually harm families. As the California Supreme Court found, "to the extent [the Act] were to cause a pregnant minor from an abusive or potentially abusive family to [involve a parent], the statute would endanger the minor by leading her to place herself at physical or mental risk and would exacerbate the instability and dysfunctional nature of the family relationship." Lungren, 940 P.2d at 829; see also Pa370-71(Zabin); 127-29 (Esquilin); 236-37(Kinsler). A law with such results cannot be said to foster the family structure or to enhance parental rights.

Because the State has failed to meet its burden of proving that a compelling state interest justifies the significant intrusion on minors' constitutional rights, the Act violates the state constitutional guarantee of privacy. The Superior Court's decision should therefore be reversed and the Act declared unconstitutional.

II. The Superior Court Erred in Holding That the Act Does Not Violate Minors' Right to Equal Protection of the Laws Guaranteed by the New Jersey Constitution.

The Act treats two groups of pregnant minors differently depending on how they choose to exercise their fundamental, state constitutional right to reproductive choice. Adolescents who choose to terminate their pregnancies must notify a parent or obtain a judicial waiver. Adolescents who decide to continue their pregnancies may do so independently. The Act thus discriminates between two similarly situated groups. Because no state interest justifies this discrimination, the Act violates the New Jersey Constitution's guarantee of equal protection. The Superior Court erred in holding otherwise. Op34-35, Pa473-74.

A. New Jersey Broadly Guarantees Equal Protection.

The right to equal protection of the laws, like the right to privacy, is guaranteed by Article I, paragraph 1 of the New Jersey Constitution. Right to Choose, 91 N.J. at 304-05; Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 79 (1978). This right protects against "the unequal treatment of those who should be treated alike," Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985), and ensures that "no person or class of persons shall be denied the protection of the laws enjoyed by other persons or classes of persons in their lives, liberty and property, and in the pursuit of happiness," Peper, 77 N.J. at 79 (internal quotations omitted).

New Jersey's right to equal treatment is more expansive than its federal counterpart, particularly when a statutory classification infringes on the fundamental right of reproductive choice. See Right to Choose, 91 N.J. at 310. Reflecting that enhanced protection, this Court applies a balancing test that safeguards equality even more closely than does the federal constitutional standard. See, e.g., Taxpayers Ass'n, 80 N.J. at 43 (rejecting "mechanical approach[]" of federal equal protection analysis and holding that "where an important personal right is affected by governmental action, this Court often requires the public authority to demonstrate a greater 'public need' than is traditionally required in construing the federal constitution"). This balancing test requires consideration of "the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction." Greenberg, 99 N.J. at 567. "[T]he more personal the right, the greater the public need must be to justify governmental interference with the exercise of that right." George Harms Constr. Co. v. New Jersey Turnpike Auth., 137 N.J. 8, 29 (1994). Where, as here, the right at issue "encompasses one of the most intimate decisions in human experience," Right to Choose, 91 N.J. at 306, the restriction must advance a public need of the highest order.

B. The Act Infringes the Equal Protection Rights of Minors Who Need Abortions.

The right to choose whether to have an abortion . . . is a fundamental right of all pregnant women, including those entitled to Medicaid reimbursement for necessary medical treatment. As to that group of women, the challenged statute discriminates between those for whom medical care is necessary for childbirth and those for whom an abortion is medically necessary.

The Act now at issue is no different. Here, as in Right to Choose, the State discriminates against those who seek to terminate their pregnancies and in favor of those who choose to continue their pregnancies. Here, as in Right to Choose, this discrimination "impinges on the fundamental right of a woman to control her body and her destiny." 91 N.J. at 306. See also Planned Parenthood v. Alaska, No. 3AN-97-6014 CT, slip op. at 19 (striking parental consent law as violative of equal protection), AdExB; Wicklund, No. ADV 97-671, slip op. at 14 (same), AdExA. Such discrimination may not be imposed in the private arena of procreative choice.

C. The State Failed To Justify the Act's Discrimination Against Minors Who Choose Abortion.

In order to justify the Act's discrimination between minors who choose abortion and those who elect to carry to term, the State must demonstrate that some greater public need justifies the differential treatment of these two classes. See Right to Choose, 91 N.J. at 308.⁽¹⁰⁾ In this context, it is not sufficient for the state to posit that the benefit of mandating parental involvement against the will of the minor outweighs the significant intrusion on a minor's right to reproductive choice (although the evidence refutes even this assertion, supra Point I.D.). In order to justify an equal protection violation, the State must show a compelling public need to mandate parental or judicial involvement in a minor's decision to have an abortion, but not in her decision to have a baby.⁽¹¹⁾

The Superior Court erred in failing to hold the State to its burden. The State has not offered a rational, let alone compelling, reason for the Act's discrimination. First, the State's interest in protecting minors' physical and emotional health provides no justification. In part because continued pregnancy and childbirth are more medically risky than abortion, Pa303-08(Weiss); 158-59 (Henshaw), minors who choose to continue their pregnancies must monitor their health more closely, and make more complicated medical decisions, than those who have abortions. Pa308-11 (Weiss). Dr. Gerson Weiss, Chief of Obstetrics and Gynecology at a leading New Jersey Hospital, gives the example of a pregnant teen who normally needs medications to control her epilepsy or her depression, but whose medications are contraindicated during pregnancy:

Such an adolescent essentially has three choices: she may stop taking her medication, putting her own health in jeopardy; she may keep taking her medication, putting her fetus at risk; or she may choose to terminate her pregnancy and continue her medication. Currently, the law allows adolescents to make any one of these decisions. If the Act takes effect, however, an adolescent will still be able to choose the first two options without consulting a parent. It is only if she chooses to keep taking her medication and to terminate her pregnancy that she will be forced to involve a parent.

Pa311. In the words of Dr. Weiss, "Such a discriminatory scheme it entirely without basis -- medical or otherwise." Id.

Similarly, notwithstanding the Legislature's "finding," Act ß 3, Pa27-28, the unrebutted scientific evidence shows that terminating an unwanted pregnancy poses virtually no psychological risk. Pa90, 93, 95, 96, (Adler); Pa372 (Zabin). Indeed, the research reveals that minors who terminate their pregnancies are as psychologically healthy as, if not healthier than, those who bear children. Pa376-77(Zabin).⁽¹²⁾

Second, if a minor needs protection against her own immaturity in deciding to end a pregnancy, she must surely have an even greater need for protection against her own immaturity in deciding to bear a child. Bearing a child will alter the course of a young woman's life as few other decisions ever will. Moreover, adolescent childbearing threatens significant and long-lasting negative consequences, including an increased risk of poverty and diminished educational prospects. Pa372-74(Zabin); Pa164-65(Henshaw).

Striking down Montana's parental notice law as violative of equal protection, the court noted the inherent contradiction in the state's argument: "[T]he minor who is presumed by the Act to be too immature to decide to have an abortion will, if she continues her pregnancy, become the mother of an infant, fully responsible for its life and for decisions about its medical and other care, without statutory requirements for parental involvement." Wicklund, No. ADV 97-671, slip op. at 14-15, AdExA; see also Planned Parenthood v. Alaska, No 3AN-97-6014 CT, slip op. at 21 (the "legislative interest which . . . concern[s] . . . minors['] . . . ability to make mature decisions, appl[ies] to both classifications equally. Minors faced with pregnancies have to make informed decisions regardless of the decision at which they finally arrive"), AdExB.

Finally, the other interests asserted by the State -- in fostering the family structure and in protecting the rights of parents to rear their children -- also fail to justify the discrimination. If the minor decides to have a baby -- to be raised perhaps in her parents' home, with the emotional and financial burdens falling at least partly on them -- the strains on the family unit may be far more substantial than if the young woman had decided to have an abortion. Nor do parents have any greater "right" to involvement in their daughter's decision to have an abortion than they do in her decision to have a baby. As the Alaska court explained:

With respect to the legislatively enunciated interests of protecting the family structure and protecting the rights of parents to rear their children who are members of their household, these same interests are at stake whether the minor seeks the consent of her parents to have an abortion or whether she seeks the consent of her parents to carry a pregnancy to term. The decision to have an abortion is a very significant and important decision. But similarly, the decision to have a child, to raise the child or to put the child up for adoption, are also significant and important decisions for both the minor and for her family.

Planned Parenthood v. Alaska, No 3AN-97-6014 CT, slip op. at 21-22, AdExB.⁽¹³⁾

Thus, none of the interests asserted by the State explains, let alone justifies, the differential treatment of pregnant minors based on how they plan to exercise their fundamental right of reproductive choice. Nevertheless, the Superior Court held that the discrimination was justified:

The State's interest in medical care for pregnancy and childbirth would focus on the health of the minor and her child rather than focusing on the choice made by the pregnant mother. The pregnant mother can make a choice of medical decisions regarding her health and the health of her child. Yet, the different considerations between making those medical decisions and making the affirmative life-altering choice between termination of a pregnancy or carrying to term are sufficient to justify the different treatment where the statute is as narrowly drawn as here.

Op34-35, Pa473-74. The court thus suggests that minors considering abortion make a "life-altering choice," while those who plan to carry to term merely make "medical decisions." This is simply not the case. Every pregnant woman has two options: she may decide to have an abortion or she may decide to continue the pregnancy and bear a child. Either way, she must make medical decisions. And, either way, she must make a life-altering choice.

Because no state interest justifies the Act's discrimination against minors who seek to terminate their pregnancies, the Act violates New Jersey's equal protection guarantee. Accordingly, the Superior Court's decision should be reversed and the Act declared unconstitutional.

III. The Superior Court Erred in Upholding the Act's Bypass Provisions.

A. The Act Fails To Provide a Confidential and Expeditious Means of Bypassing the Parental Notice Requirement.

The bypass procedure must also work quickly enough to enable a minor to effectuate her decision to have an abortion. See Bellotti II, 443 U.S. at 644. A pregnant teenager seeking an abortion is in a race against time. E.g., Bellotti II, 443 U.S. at 642. Unless she can obtain a bypass quickly, the decision whether to terminate a pregnancy "will be made by default with far-reaching consequences." Id. at 643. Respecting both the constitutional and biological imperatives involved, courts have consistently invalidated parental involvement laws that fail to ensure that a minor can obtain a ruling expeditiously. See, e.g., Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1111 (5th Cir. 1997); Zbaraz, 763 F.2d at 1541; Indiana Planned Parenthood Affiliates Ass'n. v. Pearson, 716 F.2d 1127, 1134-37 (7th Cir. 1983).

Despite these requirements, the Act and AOC Directives completely fail to protect a minor's need for confidentiality and swift action.

1. Pregnant Minors Seeking a Waiver Will Have To Risk Their Confidentiality and Delay Their Abortions.

Once the team member finds an attorney and arranges a time and place for the attorney to consult with the minor, the team member will then attempt to contact a designated judge to schedule the hearing. Pa46(TD II.D.3, 4). The minor must receive notice of the hearing in person. Pa46(TD II.D.5).

The minor must therefore choose between waiting for the team member to find an attorney and for the court to set a hearing date (thus prolonging her absence from school or home and increasing the risk that her purpose is detected) or leaving and returning later to learn the identity of her lawyer and the date and time of her hearing in person. Whichever option she chooses, the minor must then return to court a second or third time for the hearing itself. See generally Pa47(TD II.G). Finally, because there is no requirement that the court issue its decision immediately after the hearing, the minor may need to return to court for the third or fourth time to receive in person a copy of the judge's order. See Pa48(TD II.G.8).

Requiring minors to make two to four trips to the courthouse and to spend significant time waiting there threatens their confidentiality and will delay their abortions. For each trip, the minor must invent a new excuse to be absent from school or home, thus increasing the risk that someone will become suspicious and learn of her plans. Pa264, 266-67(Sabino); 225-26(Johnson); 250(Martin). In order not to arouse suspicion, a minor may have to space her trips to the courthouse, further postponing her abortion. Pa264, 266-67(Sabino). Arranging the transportation for each trip may also compromise her confidentiality and delay her abortion. Pa264-66(Sabino); 240(Kinsler); 225(Johnson). The Trial Directive's requirements of multiple in-person appearances would thus make the bypass completely unworkable for many minors.

The deficiencies of the bypass procedure are compounded by the restriction on venue. Venue may "be laid either in the county where the minor resides, in the county where the abortion is proposed to occur, or in the county where the minor is being sheltered." Pa44(TD II.A).⁽¹⁴⁾ Some minors, however, cannot go to the court in their home county once, let alone two to four times, without risking discovery by someone they know. See Pa267(Sabino); 250(Martin). Once they are seen, their secret will almost certainly be revealed because they have no other explanation for being in the courthouse. Pa267(Sabino); 250(Martin).

The provision allowing minors to file in the county where the abortion provider is located does not solve these problems. Particularly for minors whose pregnancies have progressed beyond 14 weeks, making several trips to the courthouse in what may well be a distant county is simply not possible. Pa240-41(Kinsler); 264-66(Sabino); 313(Weiss); 227-28(Johnson); 164(Henshaw).

Moreover, the petition's requirement that minors provide the court with an address and telephone number "that will allow the court to contact [them]," Pa60(TD, Attach. III, 6), directly jeopardizes their confidentiality. Most minors who cannot notify a parent of their abortion also cannot risk a call or letter home from the court regarding their bypass petition. The undisputed evidence shows that most of these minors cannot leave a phone number where they can be reached because calls from strangers, or worse, court employees, will arouse their parents' suspicion. Pa263(Sabino); 224-25(Johnson); 127(Esquilin).

2. The Act's Reporting Requirement Compromises the Confidentiality of Pregnant Minors Who Are Abused.

In order to pass constitutional muster, a parental involvement statute must contain a confidential alternative to parental notice for abused minors. In Hodgson v. Minnesota, 497 U.S. 417 (1990), the United States Supreme Court considered a parental notice statute that contained an exception for minors who had been reported as victims of abuse or neglect. The Court held that the exception was constitutionally insufficient because the report would trigger an investigation by the child welfare agency. The parent who was the subject of the investigation had a right to notice of the investigation and access to the record of the investigation. 497 U.S. at 460. In her controlling, concurring opinion, Justice O'Connor thus concluded that the "exception to notification for minors who are victims of neglect or abuse is, in reality, a means of notifying the parents." Id.⁽¹⁵⁾ The abuse exception was, therefore, "less than effectual." Id. See also Planned Parenthood v. Miller, 63 F.3d 1452, 1461 (8th Cir. 1995) (exception to parental notification law for reported cases of abuse held insufficient in part because reporting "sometimes result[s] in parental notification, even if after-the-fact.").

The New Jersey Act suffers from the same defect. The Act requires that a judge's finding of abuse in a bypass proceeding be reported to DYFS. Act ß 8(d)(2), Pa30. Upon receiving a complaint of abuse, DYFS must investigate the allegations and inform the minor's parent that allegations have been made, what the allegations are, and that an investigation will be conducted. See N.J. Admin. Code tit. 10, ßß 10:129A-2.1(a), 10:129A-3.1(a). Through these processes, a minor's parent may well discover her pregnancy and abortion.

Consider, for example, a case of sexual abuse. Where a pregnant minor discloses to a judge in a bypass hearing that her father sexually molests her, and that her pregnancy is the result of that abuse, the Act requires the judge to report the finding of abuse. Act ß 8(d)(2), Pa30. DYFS must then investigate and inform the minor's father of the allegation that he has sexually abused his daughter. See N.J. Admin. Code tit. 10, ßß 10:129A-2.1(a), 10:129A-3.1(a). If child-protective proceedings or criminal charges ensue, there is no question that he would learn the details of his daughter's pregnancy and abortion, as these facts would be part of the evidence against him. Thus, the Act's reporting provision for abused minors will often function, "in reality, [as] a means of notifying the parents." Hodgson, 497 U.S. at 460; see also Pa129(Esquilin).

Child abuse is deplorable. But abused minors will avoid the courtroom altogether -- or will conceal the abuse thus appearing "dissembling or incoherent" and jeopardizing their opportunity to obtain a waiver -- once they learn that the abuse will be reported. Pa127-29(Esquilin). Then, in addition to continuing to suffer abuse, they will continue to be pregnant, in some cases as a result of that abuse. Teenagers in this situation grow desperate. Pa121-22(Esquilin). Perhaps more than any other young women, they need recourse to confidential abortions. The Act impermissibly deprives them of such recourse.

3. The Act Compromises Pregnant Minors' Confiden-tiality By Requiring Notice To Issue After an Adverse Trial Court Decision.

Remarkably, while the implementing regulations appeared perhaps to address this issue, Prb61 n.32 (brief below), the Superior Court nonetheless held that once a petition is denied, "notice must be given according to the Act," even as it also found that a minor "may then file an expedited and confidential appeal." Op3, Pa442-33 (emphasis added). In short, the lower court interpreted the Act to require that notice issue when a petition is initially denied, while failing to recognize, let alone rectify, the problem that a minor would then have no reason or opportunity to take a confidential appeal.

B. The Act, with the Trial Directive, Impermissibly Restricts Minors from Obtaining a Bypass When It Would Be in Their Best Interest.

The Trial Directive also impermissibly obstructs minors in obtaining a waiver of the parental notice requirement even when it would be in their best interest. The bypass petition requires a minor to certify that "[n]o court in this state has denied a request by [her] for a waiver of the statutory parental notification requirement for this pregnancy." Pa60 (TD, Attach. III, 5). The petition thus prohibits a minor -- or at least would lead many minors to conclude that they are forbidden -- from submitting a new petition after an initial denial, even when the minor's circumstances have significantly changed. Minors may need to file a second petition for any number of reasons. For instance, episodes of violence or emotional abuse may occur after a minor's petition has been denied -- unfortunately creating precisely the "clear and convincing evidence" to support a finding of abuse, or that parental notification would not be in the minor's best interests, that a judge may have found lacking in the minor's earlier petition. The Trial Directive thereby forecloses a minor from obtaining relief even when an abortion without parental notification would be in her best interest, in direct violation of the requirements of Bellotti II, 443 U.S. at 644, and of the more stringent New Jersey Constitution.

In sum, the Act's judicial bypass provisions contain numerous requirements which together create an insurmountable obstacle for pregnant minors seeking a waiver of the parental notification requirement. Because a minor must successfully complete each step before she can obtain a waiver, it is the cumulative effect of all the threats to her confidentiality, and the total delay that results from the process as a whole, that make it unworkable and therefore unconstitutional. The lower court failed to address any of the individual problems with the bypass procedure -- let alone the combined effect of these problems. It therefore failed to recognize that the Act, in conjunction with the Directives, lacks a constitutionally sound alternative to parental notification and so must be invalidated.

CONCLUSION

For all of these reasons, Plaintiffs respectfully ask this Court to reverse the judgment of the Superior Court, declare the Act unconstitutional, and permanently enjoin its enforcement.

Lenora M. Lapidus
American Civil Liberties Union
of New Jersey Foundation
35 Halsey Street, Suite 4B
Newark, NJ 07102
(973) 642-2086

*Application for admission pro hac vice pending.

___________________________________________________________________

1. All unpublished decisions are contained in Plaintiffs-Appellants' Addendum and are cited as AdEx__.

2. The Trial Directive is cited as TD and the Appellate Directive as AD.

3. See, e.g., State v. Norman, 151 N.J. 5, 25 (1997) (same as to right to counsel); Right to Choose v. Byrne, 91 N.J. 287, 300-310 (1982) (equal protection and privacy); In re Grady, 85 N.J. 235, 249 (1981) (privacy); State v. Baker, 81 N.J. 99, 112-114, 114 n.10 (1979) (privacy and due process); State v. Saunders, 75 N.J. 200, 216-17 (1977) (privacy); Taxpayers Ass'n of Weymouth Township, Inc. v. Weymouth Township, 80 N.J. 6, 43 (1976) (equal protection); Southern Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151, 174-75 (1975) (equal protection and due process).

4. Although this Court decided Quinlan, Grady, and Saunders under both the state and federal Constitutions, in all three cases the United States Supreme Court had yet to decide the issue presented. Moreover, this Court recognizes the validity of these holdings under the state Constitution. See, e.g., Greenberg v. Kimmelman, 99 N.J. 552, 571-72 (1985); Right to Choose, 91 N.J. at 303.

5. It is because the right to obtain an abortion is both consti-tutionally protected and "effectively expires in a matter of weeks from the onset of pregnancy," Bellotti v. Baird, 443 U.S. 622, 642 (1979) (plurality opinion), that this Court should reject analogies to the other disabilities of minority, such as denials of the "right to contract, to sue and be sued, to serve on a jury, marry, adopt children, execute a will and pass title to real property" upon which the Superior Court mistakenly relied. Op15, Pa453.

Although it is undoubtedly true, as the lower court noted, that in some contexts, "the State may impose limitations in order to protect against minors' immaturity," id., such considerations are relevant to evaluating the strength of the State's asserted interests in the Act. Infra Point I.D. These considerations, however, do not diminish the constitutional protection of minors' right to privacy. See, e.g., Lungren, 940 P.2d at 814; Planned Parenthood v. Alaska, No. 3AN-97-6014 CT, slip op. at 14, AdExB.

6. For this reason, the American Academy of Pediatrics, the American Medical Association, and the Society for Adolescent Medicine, among others, oppose mandatory parental involvement laws. See Pa149-54,202-206.

7. The Superior Court properly declined the State's invitation to apply a standard of review, drawn from United States v. Salerno, 481 U.S. 739, 745 (1987), under which the Act would be sustained if it had even one constitutional application. Op6-9, Pa445-48. The overwhelming majority of federal courts of appeal to have considered the question have likewise rejected this standard as inadequately protective of even the lesser federal constitutional right to reproductive choice. Id. (collecting cases).

8. T.W., 551 So. 2d at 1194 (invalidating Florida's parental consent law); see also North Florida, No. 99-3202, slip op. at 6, (enjoining Florida's newly-enacted parental notice law), AdExC; Wicklund, No. ADV 97-671, slip op. at 5-8, (invalidating parental notice law under Montana Constitution, although United States Supreme Court had earlier upheld law against federal constitutional challenge, Lambert v. Wicklund, 520 U.S. 292 (1997)), AdExA; Planned Parenthood v. Alaska, No. 3AN-97-6014 CT, slip op. at 15 (invalidating parental consent law), AdExB.

9. Two of the Legislature's other "findings" -- that parents may possess information essential to the treatment of the minor and may better insure that she receives adequate medical attention after her abortion, Act ß 3, Pa 28, are also insufficient in light of the fact that abortion is far safer than childbearing. Moreover, the evidence shows that minors seeking abortions give accurate medical histories and are responsible about obtaining follow-up care. Pa292-93, 295-96 (Tumberello); 223-24 (Johnson); 210-12 (Holmes).

10. See also, e.g., Matthews v. Atlantic City, 84 N.J. 153, 173 (1980) (striking residency requirement for candidates that applied only to some municipalities as violative of equal protection because state failed to justify application of requirement to some municipalities but not others); Taxpayers Ass'n, 80 N.J. at 43 (explaining that, to justify equal protection violation, interest asserted by government must be furthered by differential treatment).

11. By way of analogy, consider a curfew ordinance requiring that all minors be off the streets by 10 p.m. Such an ordinance would be constitutionally suspect because of the infringement on minors' protected liberty interests, but the State might assert what it considered compelling interests -- perhaps including the alleged well-being of children and families -- to justify the restriction. Now consider a curfew ordinance requiring that African-American minors be off the streets by 10 p.m. The State could never justify such an ordinance by reference merely to the alleged well-being of children and families. Rather, the State would have to explain why the ordinance imposed a necessary restriction on African-Americans but on no others. Likewise, in this case, the State must demonstrate a compelling interest in parental involvement for minors seeking abortions but not for minors who plan to bear children.

12. The research also shows that teens who chose abortion did as well as, and usually better than, those who bore children in terms of education, economic well-being, and the incidence of repeat pregnancies. Pa374-78(Zabin).

13. It is no answer to say that when a young woman decides to carry her pregnancy to term, her parents will learn of the pregnancy eventually, by virtue of its increasing obviousness. By the time a young woman's pregnancy is showing enough to betray her secret, it is often too late for any alternative decision to be effectuated.

14. Filing "in the county where the minor is being sheltered" appears to be of extremely limited utility. Although it is unclear what "being sheltered" means, it appears to apply only to minors who are living in a county other than where they "reside."

15. Justice O'Connor's opinion in Hodgson controls on the question of the legal sufficiency of the statute because no single rationale commanded a majority of the Court and her opinion provided the narrowest ground for the holding. See Marks v. United States, 430 U.S. 188, 193 (1977).

Copyright 2000, The American Civil Liberties Union