868 F.

2d 459

PLANNED PARENTHOOD LEAGUE OF

MASSACHUSETTS, et al.,
Plaintiffs, Appellants,
v.
Francis X. BELLOTTI, etc., et al., Defendants, Appellees.
No. 88-1221.

United States Court of Appeals,

First Circuit.
Feb. 7, 1989.
Rehearing and Rehearing En Banc Denied March 20, 1989.

John H. Henn with whom Foley, Hoag & Eliot, Boston, Mass., and
Richard H. Pildes, Washington, D.C., were on brief for plaintiffs,
appellants.
Carl Valvo, Asst. Atty. Gen., with whom Gerald Fitzgerald, First Asst.
Atty. Gen., William L. Pardee, and Mary Connaughton, Asst. Attys. Gen.,
Boston, Mass., were on brief for defendants, appellees.
Before COFFIN, BOWNES and BREYER, Circuit Judges.
COFFIN, Circuit Judge.

This is an appeal from a decision of the district court for the District of
Massachusetts to abstain, on Burford1 and Younger2 grounds, from further
entertaining a suit challenging the constitutionality of a Massachusetts statute,
as actually implemented, that regulates abortions. The statute requires a minor
seeking an abortion to obtain parental consent or to persuade a justice of the
superior court that she is either mature enough to make an informed decision to
have an abortion or that such an operation is in her best interests.3

I.
2

Plaintiffs' first challenge to section 12S of M.G.L. ch. 112 began in 1978, when

they sought to enjoin the original version of the statute. After certification to
the Massachusetts Supreme Judicial Court, the United States Supreme Court
struck the provisions that required parental notice of a minor's decision to seek
an abortion, and that granted state judges the authority to withhold consent even
for minors sufficiently mature to make an informed decision. Bellotti v. Baird,
443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ).
Massachusetts amended Sec. 12S to its current form, and plaintiffs renewed
their challenge. We discuss in some detail the relevant history of this second
litigation, now in its ninth year.
3

1. In June of 1980, plaintiffs Planned Parenthood League of Massachusetts

(PPLM), a nonprofit abortion counselling and referral foundation, a medical
clinic, a physician, and an unmarried pregnant minor, on their own behalf and
on behalf of classes certified by the district court (all hereinafter simply PPLM),
brought suit challenging the facial constitutionality of amended Sec. 12S. The
original defendants were the then Attorney General of Massachusetts, Francis
X. Bellotti, the Commissioner of Public Health, and the Suffolk County District
Attorney, representing prosecutors as a class. The district court denied a motion
for preliminary injunction that would have prevented the implementation of
Sec. 12S. Planned Parenthood League v. Bellotti, 499 F.Supp. 215
(D.Mass.1980).

2. In 1981, we reversed the district court's decision not to preliminarily enjoin

the requirements that a minor sign a consent form that included a description of
the fetus and that she wait for 24 hours after signing the form before having an
abortion. We directed that a preliminary injunction issue. We affirmed the
court's refusal to enjoin the provisions of Sec. 12S requiring parental consent or
judicial bypass authorization for abortions, stating that "on a record
undeveloped as to the actual operation of the judicial approval procedure, we
are not prepared to hold that its effects will be so burdensome as to deny due
process of law to minors seeking to use it." Planned Parenthood League v.
Bellotti, 641 F.2d 1106, 1011 (1st Cir.1981) (footnote omitted).4

3. On April 17, 1981, PPLM instituted suit in the Massachusetts Supreme

Judicial Court against the same defendants, facially challenging Sec. 12S on
state grounds, Articles I, II, X and XVI of the Massachusetts Declaration of
Rights. Injunctive relief was denied on April 22 and Sec. 12S became effective
on April 23, 1981. On May 19, 1981, PPLM amended its state complaint to add
an as-applied basis for the challenge and a reques that the Supreme Judicial
Court invoke its general superintendency power over implementation of the
statute.

4. On June 16, 1981, Justice Liacos of the Supreme Judicial Court, acting as a
single justice, propounded guidelines for handling Sec. 12S proceedings in the
superior court, supplementary to the earlier Standing Order No. 12-80 of that
court. (We had earlier reproduced that standing order in an appendix to our
opinion. 641 F.2d at 1025-26.) The state case was transferred to Suffolk
Superior Court. Under an agreed procedure in an order issued by Chief Justice
Morse of that court, statistical records on Sec. 12S cases are maintained and
made available to PPLM. They reflect the number of petitions processed, the
length of time involved, the number of trips a minor must make to the
courthouse, and other facts concerning Sec. 12S cases. Very little activity has
since taken place in this case, which is now on the superior court's suspended
docket.

5. After more than two years, action resumed in federal district court with a
status conference in December, 1983, at which PPLM indicated its intent to
change the focus to an as-applied challenge.5 Defendants then moved for a
more definite statement in February, 1984, and suggested an amended
complaint. On March 26, 1984, PPLM filed a more definite statement,
contending that "the administration and application ... of the parental/judicial
consent requirements of Sec. 12S ... has violated [plaintiff's due process rights]
... in that the procedures in fact afforded ... constitute an undue burden...."

6. Shortly thereafter, PPLM, in April, 1984, moved to amend the federal

complaint, by adding as defendants the Administrative Chief Justice of the trial
court of Massachusetts, the Chief Justice of the superior court department of
the trial court, and the clerk of the Suffolk division of that department. The
Commonwealth had earlier suggested making them parties. PPLM explained
the grounds by saying that the challenge focuses "on the actual workings of the
statute in practice as it is administered and applied by judges and clerks."
PPLM then referred to an attached article by Patricia Donovan in the
November/December 1983 issue of Family Planning Perspectives, describing
the operation of the judicial bypass statutes in Massachusetts, Minnesota, and
Rhode Island, entitled "Judging Teenagers: How Minors Fare When They Seek
Court-Authorized Abortions."6 PPLM then asserted that it relied "in part on the
actions of those judges and clerks, and the relief accorded herein may include
specific relief against judges as a class and clerks as a class."

7. On June 29, 1984, defendants moved to dismiss the action against the two
judicial defendant classes, characterizing the amended complaint as a
"dangerous challenge to the core of state governance," in which the district
court is asked to "sit in judgment on the manner in which individual state

judges are deciding particular section 12S cases," with "the spectacle of state
judges being cross-examined as to their reasons not only for deciding cases but
even for their most casual trial utterances and gestures" and the possibility of a
federal judge being asked to issue "detailed rules of conduct" for state judges.
In their brief, the issue was starkly described: "Can a federal court ever sit as a
superjudge over an entire state system?" Then followed the elaboration of five
bases for dismissing the complaint as to the judges: (1) no complaint was made
of the actions, individual or supervisory, of the two judicial defendants; (2)
there is no case or controversy, there being no basis for monetary relief and no
real and immediate threat to plaintiffs; (3) there is both an adequate and a
superior remedy at law within the Massachusetts court system; (4) there should
be abstention under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87
L.Ed. 1424 (1943), or Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d
669 (1971); and (5) dismissal can rest on Colorado River Water Conservation
District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976),
to avoid duplicative litigation.
10

8. On August 22, 1984, PPLM filed its opposition, asserting that it sought only
to strike down a statute being implemented in an unconstitutional manner by
enjoining its enforcement, not an injunction against violation of individual
minors' civil rights or an injunction ordering state judges and clerks to do better.
It contemplated proving its case by the statistical data being gathered under the
order of Chief Justice Morse, by transcripts, and by testimony from a lawyers'
referral panel supplying counsel to Sec. 12S petitioners. The opposition
proceeded to contest each of the five bases of dismissal asserted by the state.
With this opposition was filed an affidavit of PPLM's counsel asserting that its
investigation had developed information concerning the need for the volunteer
legal panel, statistical data on abortions and births, statistical data on the
processing of Sec. 12S petitions, data as to the ages of minor petitioners,
information on recusals, information reported by the volunteer legal panel
concerning hostile judges, data on out-of-state clinics performing abortions on
Massachusetts minors, data on court caseloads, information on psychological
trauma, and other impacts on minors undergoing Sec. 12S proceedings.

II.
11

On February 11, 1985, the district court issued its opinion dismissing the
complaint as to the "judicial defendants," the two administrative justices of the
superior court and the Suffolk County clerk. Planned Parenthood League v.
Bellotti, 608 F.Supp. 800 (D.Mass.1985). The court observed that all of
defendants' theories supporting dismissal centered on the foundation question:
"whether a federal court may 'sit as a superjudge over an entire state judicial

system?' " Id. at 803. The court noted PPLM's argument that it did not
contemplate specific injunctive relief against individual state judges, but rather
"a declaration that the judicial court system ... is unconstitutional as applied"
and "injunctive relief against class defendants responsible for enforcing Section
12S." Id. at 804.
12

The court went on to say that its concern with federalism issues was not
"determined by whether or not injunctive relief will issue against a state judge."
Id. The court deemed that a federalism concern was triggered not by the relief
sought but by the nature of PPLM's attack against "the process through which
this state statute is administered." Id. at 805 (emphasis in original). Citing
Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), it
characterized PPLM's objective as a " 'federal intrusion into the state process.' "
608 F.Supp. at 805.

13

The court found comity concerns at two levels. First, noting the particularly
strong interest states have in the integrity of their own judicial systems, id. at
806, the court saw the subject matter of the suit as the manner in which superior
court judges and clerks process Sec. 12S petitioners, i.e., an action directed at
"maladministration." Id. at 807, 809-10. It viewed the focus of the suit as
internal operations, raising issues such as "which superior court judges are
'defacto unavailable' to hear minors' abortion petitions and how long a clerk
should take to process a Section 12S petition." Id. at 810. Therefore, it
reasoned, the Supreme Judicial Court, with its own supervisory power, should
hear the evidence and possibly take remedial measures.

14

The court's second level of inquiry arose from PPLM's institution of what it
called "an ongoing parallel state proceeding." Id. at 805. It noted first that
federalism requires "that federal courts recognize a state judiciary's ability to
decide identical issues in an ongoing case in the state system." Id. at 806. It
then added, obviously aware that PPLM's state suit concerned only state
constitutional issues but that amendment was possible, that "[t]here is no
question that Planned Parenthood may raise arguments under the federal
constitution as well...." Id. at 807. The court therefore concluded that "Burford
abstention is particularly fitting for this case," id. at 808, fearing that refusing to
abstain "would steer this Court perilously close to 'a form of monitoring of the
operation of state court functions that is antipathetic to established principles of
comity.' " Id. at 812 (quoting O'Shea v. Littleton, 414 U.S. 488, 501, 94 S.Ct.
669, 679, 38 L.Ed.2d 674 (1974)).

15

A motion to reconsider by PPLM was denied. Over a year later, on April 4,

1986, the Commonwealth moved to dismiss the complaint against the

remaining defendants or, in the alternative, for a protective order barring PPLM
from any discovery involving the former judicial defendants. It relied
principally on the court's prior decision. PPLM opposed the motion in a lengthy
memorandum criticizing the application of Burford and any blanket prohibition
against discovery. Accompanying this was another affidavit of counsel, setting
forth the table of contents of a lengthy listing of proposed findings of facts,
dated May 16, 1986, compiled after a five-week trial in a similar parental
notification/judicial bypass case, Hodgson v. Minnesota, 648 F.Supp. 756
(D.Minn.1986).7 In that trial, the six Minnesota judges who had heard 90
percent of the judicial bypass cases testified, none identifying any positive
effects of the law. Counsel averred that PPLM's evidence of delay would be in
the form of statistical data, and evidence of the number of judges actually
available, including evidence that plaintiffs "are reasonable in declining to
appear before a small number of additional judges." No discovery from judges
was said to be needed.
16

On July 11, 1986, the district court issued a second opinion, recapping the
substance of its first opinion. It reasoned that pursuing the litigation against the
non-judicial defendants would open the door to the "same intrusive factual
record," and that PPLM envisioned "a much more detailed administrative
order" than a simple declaration of unconstitutionality. It saw the issues as
involving only the internal operations of the state court, and concluded that
Burford abstention was still the proper course. To this ground of decision it
added abstention on the basis of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746,
27 L.Ed.2d 669 (1971). It recognized that this was not a typical Younger case,
since it was not being asked to interfere with state-initiated judicial
proceedings. But the court felt that it was being asked to interfere with state
court practices, as in Parker v. Turner, 626 F.2d 1 (6th Cir.1980) (affirming
district court's abstention where plaintiffs sought to compel state judges to
afford due process in future contempt proceedings).

III.
17

We have set forth in detail the background of claims, party characterizations of

claims, amendments, court interpretations of the relief sought and implications
thereof, and disavowals and clarifications of PPLM. We have done so because
our analysis of what we deem to be the proper approach to abstention can be
made only in light of that background in all its confusion, complexity, and
stridency.

18

We begin that analysis by clarifying the issues before us. We view the district
court's decision to abstain under Burford as implicating three separate comity

concerns. First, and most basic, was the concern about the nature of plaintiffs'
complaint. The district court was troubled not only by the prospect of an
improper remedy, but by what it saw as an entirely improper case, one seeking
federal judicial review of the process through which the commonwealth has
chosen to administer its statute. The core concern here is a federal court's
responsibility to avoid usurping a state's authority to supervise its own
administrative body, in this case the state judiciary as it implements regulations
of minors' abortions.
19

Second, the court seemed concerned about the intrusion into the state judiciary
that would occur because of the plaintiffs' discovery and other efforts to
develop a factual record. Although not expressly stated, we surmise a realistic
fear on the court's part that plaintiffs would seek to document their complaints
by indiscriminately questioning or subpoenaing Massachusetts judges in pursuit
of useful testimony. In the Hodgson case in Minnesota, on which plaintiffs
relied, judges presented extensive testimony (apparently voluntary) in support
of the plaintiffs' case. Third, the court pointed to the ongoing litigation in state
court, which it deemed a "parallel" proceeding.

20

As we did in our recent opinion in Bath Memorial Hospital v. Maine Health

Care Finance Commission, 853 F.2d 1007, 1009 (1st Cir.1988), we take note of
"the Supreme Court's admonition that 'abstention from the exercise of federal
jurisdiction is the exception, not the rule,' Moses H. Cone Memorial Hospital v.
Mercury Construction Corp., 460 U.S. 1, 14 [103 S.Ct. 927, 936, 74 L.Ed.2d
765] (1983) (quoting Colorado River, 424 U.S. at 813 [96 S.Ct. at 1244] )."
Indeed, the exception is further described in Colorado River as "an
extraordinary and narrow exception to the duty of a District Court to adjudicate
a controversy properly before it." 424 U.S. at 813, 96 S.Ct. at 1244.

21

The abstention issue posed here is whether the litigation necessarily implies an
involvement in the administration of the internal affairs of the Massachusetts
courts so unseemly for a federal court as to encroach on principles of comity
and federalism. As we see the issue, the word "necessarily" is of critical
importance. It flows from these principles that abstention is the exception, not
the rule. This means to us that a federal judge, while being as sensitive to
important state interests and as wary of intruding in internal state affairs as was
the district court in this case, will also endeavor to see if the legitimate
objectives of the litigation can be pursued without treading on those state
interests and internal affairs. If they cannot be so pursued, abstention should be
invoked; but if the case can so be managed that fears of unseemly intrusion can
be dispelled, abstention should be refused.

22

In short, a federal judge has a difficult institutional role to play. He or she

cannot safely base a decision on how either party characterizes a case but must
do an independent analysis. Otherwise, abstention decisions could be based on
the rhetoric of an advocate rather than on the essential nature of a case. In this
case we suspect that this may have happened. In retrospect both sides seem to
have contributed. Although PPLM framed its general objectives in conventional
terms, alleging that "procedures in fact ... constitute an undue burden"
(plaintiffs' more definite statement) and that the challenge "focuses on the
actual workings of the statute in practice as it is administered and applied by
judges and clerks" (explanation of grounds for amending complaint), it also
held out the possibility of "specific relief against judges as a class and clerks as
a class." Although PPLM later, in its motion to reconsider the district court's
first opinion, "clarified" its motion to amend by disclaiming any intention to
seek equitable relief against judges, this came after defendants' superheated
motion to dismiss.

23

In that motion, the Commonwealth held out the specter of having a federal
court determine which state judges were so hostile as to be de facto unavailable,
preside over cross-examinations of state judges as to not only their reasons but
even "their most casual trial utterances and gestures," and issue "an injunction
mandating specific and detailed rules of conduct for Superior Court judges."

24

In retrospect it would have helped the court to make a sound abstention

decision if PPLM had, at the outset of its as-implemented attack, given the
court in more revealing terms a clearer idea of what its case would be.
Nevertheless, the court had available to it before its first decision indications of
the kinds of issues that would be raised and the nature of evidence that would
be adduced:

25 the question of delay, the court was aware of the steady accumulation of
--On
statistical data on the processing of Sec. 12S petitions, under Chief Justice Morse's
order. This would be available to PPLM in the state proceeding; there would seem to
be no insuperable obstacle to its availability in the instant case.
26 Donovan article attached to PPLM's memorandum supporting its motion to
--The
amend indicated that data was available concerning use of the Sec. 12S procedure
by minorities, and the rise in the use of abortion clinics in neighboring states.
27 reservoir of volunteer lawyers secured through the lawyers' referral panel, in
--The
addition to minors themselves, was an obvious source of testimony concerning
experiences in Sec. 12S proceedings, including accessibility, delay, continuances,
length, the demeanor of judges, and the trauma of petitioners.

28 statistics on the number of Sec. 12S applications, initial denials, and reversals
--The
on appeal seem to be readily available.
29

PPLM's opposition to defendants' first motion to dismiss represented that

investigation had been made in all of the above areas. Ten supporting exhibits
were attached. The kinds of evidence that might be expected in the asserted asapplied constitutional attack were further revealed in PPLM's opposition to
defendants' second motion to dismiss, i.e., the proposed findings of fact
submitted in the Hodgson case.

30

PPLM's offerings show that its basic objective is to achieve a holding that the
Massachusetts Sec. 12S process of obtaining consent for minors' abortions is, in
its actual workings, unconstitutional. This remedy is a permissible one to
pursue in federal court. Indeed this case is a paradigm of the kind of class
action, civil rights case that characterizes our era. Challenging a state's
approach to the sensitive question of regulating abortions of minors within the
constraints set by the Supreme Court is of the same broad genre of cases as
those involving prisoners' rights, public housing, desegregation, and drug
testing. In all of these, whenever a federal court finds violations of
constitutional rights, whether by individual state officials or by laws and
ordinances, state interests are affected. In virtually all such cases, the way in
which state courts treat future cases is affected.

31

If plaintiffs succeed, what will occur is not an ongoing intermeddling with the
state judiciary but a prohibition of an unconstitutional process. As we said in
Bath Memorial Hospital, 853 F.2d at 1013:

32 threatened interference [in Burford and other such cases] did not consist merely
The
of the threat that the federal court might declare the entire state system
unconstitutional; that sort of risk is present whenever one attacks a state law on
constitutional grounds in a federal court.... Rather, in our view, abstention in the
Burford line of cases rested upon the threat to the proper administration of a
constitutional state regulatory system. The threat was that the federal court might, in
the context of the state regulatory scheme, create a parallel, additional, federal
'regulatory review' mechanism, the existence of which would significantly increase
the difficulty of administering the state regulatory scheme.
33

What PPLM seeks here is not for the federal court to tinker with Massachusetts'
scheme of regulating minors' abortions, but for the court to dismantle it.

34

We recognize that the parties discuss the possibility that a holding of

unconstitutionality could rest on a specific, remediable deficiency. Defendants

raise the alarum that this sort of finding might open the door to the imposition
of intrusive rules of conduct. Our view, however, is that in such a situation, the
defect would be remedied not by the federal court imposing its will but by the
Massachusetts legislature itself, which took just such a step in amending Sec.
12S in 1980. 1980 Mass.Acts. ch. 240.
35

Regarding comity concerns raised by possible discovery or testimony of

superior court judges, PPLM's evidentiary offerings demonstrate that this case
can be managed so as to avoid inappropriate intrusions into the internal
operations of the state judiciary. As a small part of the whole, plaintiffs will
likely seek to introduce testimony as to the number of judges who, though not
having recused themselves from Sec. 12S cases, have in the past been so hostile
that attorneys and their minor clients avoided them. Such evidence appears at
best relevant to delay in processing petitions, a fact that can be proven directly
by statistics. It appears that plaintiffs can make their case without subjecting
any state judges to the rigors of extensive discovery, and without
indiscriminately summoning them into court.8

36

We therefore hold that the district court gave insufficient weight to its
obligation to assess the essential nature of the litigation to see whether its
proper objectives could be attained without the intrusion into internal
operations of the state judiciary. We see no reason, on this record, why this
lawsuit cannot be so managed. We have in mind our observations in another
case where a district judge had demonstrated his acute sensitivity to state
concerns:

37
[F]ederal
courts are frequently called upon to weigh the strength of state interests,
and the care with which the state has crafted the means to vindicate those interests,
against the resulting burdens on individual rights. We do not think it can fairly be
said that in so doing they have consistently either undervalued or overvalued the
state interests at issue. The efforts of the district court in this case to identify possible
sources of state-federal friction demonstrate an acute sensitivity to the federalism
concerns underlying Pullman. We are confident that this same sensitivity will enable
the court on remand, to focus on assessing the relevant conditions without being
distracted by what the court determines to be extraneous considerations and
overbroad assumptions.
38

Guiney v. Roache, 833 F.2d 1079, 1085 (1st Cir.1987).

39

We briefly address the third reason given by the district court for its Burford
abstention decision--the existence of state court proceedings, wherein PPLM

might amend its complaint and raise its federal issues. The fact is that at present
the state and federal proceedings are not identical. At most, they are parallel-each is bottomed on the law of its forum. As we have recently stated, "the
simple existence of parallel state proceedings is not a reason to abstain. There is
no special circumstance here, such as a special federal statutory policy favoring
a single forum, as there was in Colorado River, 424 U.S. at 817-21 [96 S.Ct. at
1246-48]." Bath Memorial Hosp., 853 F.2d at 1015. Where a plaintiff
bifurcates state and federal claims in order to preserve a federal forum for
federal claims as envisioned by Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), weighing the
availability of the state forum as an additional ground for abstention seems
particularly inappropriate. See Cuesnongle v. Ramos, 835 F.2d 1486, 1497 (1st
Cir.1987).9 More importantly, if a federal court could abstain on the basis of
the possibility that a state proceeding could be made to present a federal issue,
the abstention "exception" recognized by Colorado River would quickly
metamorphose into the rule. See Guiney, 833 F.2d at 1079.
40

As for abstention on the basis of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746,
27 L.Ed.2d 669 (1971), the district court realized that there was no stateinitiated proceeding, criminal or civil, to enjoin. Cf. Simopoulos v. Virginia
State Board of Medicine, 644 F.2d 321 (4th Cir.1981) (Younger abstention
appropriate in light of concurrent state license revocation proceedings based on
criminal prosecution of doctor for violation of abortion regulation). Rather, it
based its decision on the assumption that it was being asked to interfere directly
with state court practices. As discussed above, such interference will not occur
here because of the remedy sought. Thus, the district court erroneously relied
on Parker v. Turner, 626 F.2d 1 (6th Cir.1980), where the federal court was
asked in effect to monitor "the manner in which state juvenile judges conducted
contempt hearings in non-support cases," id. at 8, and on O'Shea v. Littleton,
414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1973), where the federal court was
expected to see to it that a county magistrate and judge stopped their practices
in setting bonds arbitrarily, imposing harsher than usual sentences, and
requiring payment for jury trials for black plaintiffs. Under the defendants'
characterization of the nature of this litigation, accepted by the court, these
authorities might be applicable. But these cases were not statutory challenges,
and thus the acceptable remedy of invalidating the statute was not available.
O'Shea, 414 U.S. at 500, 94 S.Ct. at 678; Parker, 626 F.2d at 6. The instant
case challenges the statute as unconstitutional. This is therefore not a case
threatening interference with ongoing state proceedings or practices.

IV.
41

At this juncture we take note of the two branches of PPLM's challenge to Sec.

41

At this juncture we take note of the two branches of PPLM's challenge to Sec.
12S. One, as we have related, is the claim that "The procedures in fact afforded
... constitute an undue burden." This specific claim has been part of the case
since March 26, 1984 with the filing of a more definite statement. The other
claim was tangentially referred to a year later in an affidavit of counsel
supporting a motion for reconsideration of the district court's dismissal of the
complaint against the judicial defendants. This was the contention that Sec. 12S
"cannot be shown by defendants actually to have served the goal of
encouraging parental consultation." A year after that, in June 1986, in counsel's
affidavit supporting opposition to defendants' motion to dismiss the case as to
all remaining defendants, PPLM elaborated on this contention by asserting that
"defendants will be unable to carry their burden of proving that the statute ...
actually furthers any compelling state interests." By the time of oral argument,
this contention received at least equal or greater prominence to that given the
"undue burden" argument.

42

We shall assume, without deciding, that the issue whether the actual workings
of Sec. 12S really do serve the state's compelling interests was properly and
timely raised. The thrust of plaintiffs' assertion is that the two-parent consent
requirement in operation contradicts rather than promotes intrafamilial
communication. Plaintiffs assert that in many cases a minor fears that one
parent will disapprove of her decision to seek an abortion. Because Sec. 12S
requires consent of both parents, the minor therefore elects to tell neither parent
of her predicament, and instead seeks judicial approval. According to this
argument, a one-parent consent requirement would more successfully advance
the state interests while reducing the burden upon minors' constitutional rights.

43

We hold, however, that an operational challenge based on an inadequate state

interest is not open to PPLM. It seems clear to us, after a careful rereading of
Bellotti II, a decision that dealt with the precise procedure now before us, that a
majority of the Court has made a clear and final policy declaration that the twoparent consent procedure serves the compelling state interests of encouraging a
mature decision regarding abortion and encouraging parental involvement.

44 guiding role of parents in the upbringing of their children justifies limitations

[T]he
on the freedoms of minors. The State commonly protects its youth from adverse
governmental action and from their own immaturity by requiring parental consent to
or involvement in important decisions by minors. But an additional and more
important justification for state deference to parental control over children is that "
[t]he child is not the mere creature of the State; those who nurture him and direct his
destiny have the right, coupled with the high duty, to recognize and prepare him for
additional obligations."

***
45
46

Unquestionably, there are many competing theories about the most effective
way for parents to fulfill their central role in assisting their children on the way
to responsible adulthood. While we do not pretend any special wisdom on this
subject, we cannot ignore that central to many of these theories, and deeply
rooted in our Nation's history and tradition, is the belief that the parental role
implies a substantial measure of authority over one's children.

47

443 U.S. at 637-38, 99 S.Ct. at 3045 (citation and footnote omitted) (quoting
Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed.
1070 (1925)).

48

These passages indicate that, at least in part, it is the preservation of the

authority of each parent that forms the compelling interest in regulating minors'
abortions. This theme has resounded repeatedly in City of Akron v. Akron
Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d
687 (1983), Planned Parenthood Association v. Ashcroft, 462 U.S. 476, 103
S.Ct. 2517, 76 L.Ed.2d 733 (1983), and H.L. v. Matheson, 450 U.S. 398, 101
S.Ct. 1164, 67 L.Ed.2d 388 (1981). The Court of Appeals for the Eighth
Circuit, sitting en banc and dealing with a two-parent notice requirement--not
precisely covered in Bellotti II--held that these decisions had foreclosed an
empirical attack. Hodgson v. Minnesota, 853 F.2d 1452, 1462-65 (8th
Cir.1988) (en banc). We agree.

49

The Court could so broadly identify a compelling state interest or so tentatively

validate the procedures used to further that interest that its pronouncement on a
facial challenge would not foreclose an operational challenge. In such a case,
the Court's initial determination might be open to revision based on
subsequently marshalled empirical evidence. We do not think such a case is
before us. Specifically addressing the two-parent requirement, the Bellotti II
plurality indicated:

50

We are not persuaded that, as a general rule, the requirement of obtaining both
parents' consent unconstitutionally burdens a minor's right to seek an abortion....
At least when the parents are together and the pregnant minor is living at home,
both the father and mother have an interest--one normally supportive--in
helping to determine the course that is in the best interest of a daughter.... As
every pregnant minor is entitled in the first instance to go directly to the court
for a judicial determination without prior parental notice, consultation, or
consent, the general rule with respect to parental consent does not unduly

burden the constitutional right.

51

443 U.S. at 649, 99 S.Ct. at 3051. Plaintiffs interpret this language, as did the
district court in Hodgson, to leave open the question whether a state may
require the consent of both parents when only one has an active role in raising
the minor. We read Bellotti II, however, to hold that a state may require both
parents' consent so long as a proper judicial bypass is available.

52

We find support for our interpretation in Justice Powell's directive that where
one parent consents, his or her support be given "great, if not dispositive,
weight" in judicial consent proceedings. 443 U.S. at 649 n. 29, 99 S.Ct. at 3051
n. 29. This suggests that a majority of the Court10 envisioned that the judicial
bypass cures the possible overbreadth of the two-parent consent requirement,
that is, its application where both parents are not active in raising the child.
Coupled with the exemption in Sec. 12S for divorced, non-custodial parents,
we believe the state interests here are not subject to the broad attack envisioned
by plaintiffs.

53

PPLM's other claim, however, cannot at this juncture be dismissed as a matter

of law.11 As we indicated earlier in this litigation, "a requirement unduly
burdensome in operation will be struck down even if not clearly invalid on its
face." Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1011 (1st
Cir.1981). It was as to the "undue burden" part of the constitutional calculus
that Justice Powell in Bellotti II left open the possibility of a future operational
challenge.12 We grant that plaintiffs' burden to demonstrate unconstitutionality
as applied is a considerable one in the aftermath of the Court's indication in
Bellotti II that such a statute is facially valid. More than occasional frustration,
discomfort, and inconvenience would have to be shown. To use the language of
the district court in Hodgson, apparently approved by the court of appeals en
banc, the success of an operational attack in this context requires proof of a
"systemic failure to provide a judicial bypass option in the most expeditious,
practical manner." 648 F.Supp. at 777.

V.
54

We conclude that this case may proceed without unduly interfering with the
Massachusetts judicial system, and that abstention is therefore inappropriate
under either the Burford or Younger line of cases.

55

The judgment is vacated and the case is remanded for further proceedings.

56

BREYER, Circuit Judge (dissenting).

56

BREYER, Circuit Judge (dissenting).

57

As I understand appellants' present, primary challenge to the Massachusetts

abortion-consent statute, it does not call for federal court abstention, but neither
does it require further district court hearings.

58

The Massachusetts statute requires an unmarried minor seeking an abortion

either to obtain her parents' consent or to obtain the permission of a judge, who
must grant permission if he finds either that the minor is "mature and capable of
giving informed consent," or that an "abortion ... would be in her best interests."
Mass.Gen.Laws Ann. ch. 112, Sec. 12S (West 1983) (emphasis added.) The
Supreme Court, in Planned Parenthood v. Bellotti, 443 U.S. 622, 99 S.Ct. 3035,
61 L.Ed.2d 797 (1979) (Bellotti II ), wrote that such a statute is constitutional.
But, appellants now argue the Court wrote this without the benefit of a record
that would show how such a statute worked in practice. They want to compile a
factual record in the district court and obtain court findings of fact that, in their
view, will show that the statute unconstitutionally burdens the right of a minor
to choose to have an abortion.

59

The panel would remand this case to permit the appellants to present the
evidence that appellants hope will lead to these findings--and a consequent
holding of unconstitutionality. After reviewing the facts that appellants hope to
establish, I would not remand this case, for I do not believe those facts, even if
established, could lead the Supreme Court to change its Bellotti II statement
that such a statute is constitutional.

60

To understand why I reach this conclusion, one should first consider precisely
what appellants hope to show. The majority's summary, drawn from an article
that appellants attached to their court papers, indicates they wish to show the
following:

61

(1) Of 62 superior court judges, 10 have recused themselves [from abortion

cases] and approximately 1/4 of the remainder are avoided for reasons of
hostility; sometimes many of the latter are sitting in the same county;

62

(2) Courts are not open evenings or weekends; the difficulty in scheduling
particular judges requires 2 or more trips by a minor, with delays of 2 to 4 days
in obtaining an abortion being common;

63

(3) Judicial authorizations are sought by few minority applicants;

64

(4) Any decrease in Massachusetts abortions seems to be accounted for by

64

(4) Any decrease in Massachusetts abortions seems to be accounted for by

visits to clinics in neighboring New Hampshire and Maine;

65

(5) Consultation with parents does not seem to be either stimulated by Sec. 12S
or helpful;

66

(6) The hearings are often rituals, the minors being well coached, and 'maturity'
being difficult to judge in a brief session; and

67

(7) Of 1,571 applications for abortion between 1981 and 1983, only 7 were
denied and 5 of these denials were overturned on appeal.

68

See Panel Opinion, at 461 n. 6. Appellants believe that findings of this sort will
show that the statute's judicial approval requirements unreasonably intimidate
minors, while at the same time, given the overwhelming approval rate, the
statute serves no significant 'screening' function.

69

Next, one should examine the proceedings in the Eighth Circuit case, Hodgson
v. Minnesota, 648 F.Supp. 756 (D.Minn.1986), rev'd in part, 853 F.2d 1452
(8th Cir.1988). The plaintiffs in Hodgson created the very kind of factual record
that plaintiffs seek to establish here. See Panel Opinion at 463. The district
court, after hearing evidence, made findings of fact at least as favorable to
plaintiffs as any that plaintiffs here hope to establish. It found, for example, that
the

70
experience
of going to court for a judicial authorization produces fear and tension in
many minors. Minors are apprehensive about the prospect of facing an authority
figure who held in his hands the power to veto their decision to proceed without
notifying one or both parents. Many minors are angry and resentful at being required
to justify their decision before complete strangers. Despite the confidentiality of the
proceeding, many minors resent having to reveal intimate details of their personal
lives to these strangers. Finally, minors are left feeling guilty and ashamed about
their lifestyle and their decision to terminate their pregnancy. Some mature minors
and some minors whose best interests it is to proceed without notifying their parents
are so daunted by the judicial proceeding that they forego the bypass option and
either notify their parents or carry to term. Some minors are so upset by the bypass
proceeding that they consider it more difficult than the medical procedure itself.
Indeed, the anxiety resulting from the bypass proceeding may linger until the time of
the medical procedure and thus render the latter more difficult than necessary.
71

648 F.Supp. at 763-64. The district court also found that the "effective length of
the delay [that the statutory procedure created] may reach a week or more" in

many cases. Id. at 765. It found that during one period, out of 3,573 judicial
approval petitions filed in Minnesota courts, 6 petitions were withdrawn before
decision, 9 were denied, and 3,558 were granted. Id. The district court drew a
factual conclusion of the sort that plaintiffs urge here; it said that the statute
"fails to serve the State's asserted interest in fostering intra-family
communication and protecting pregnant minors." Id. at 775.
72

The important point about Hodgson is what the court did next. Despite these
findings, the court did not say the statute was unconstitutional (except in two
respects not relevant for present purposes). Rather, the district court said that
the statute was constitutional. Its reason was simply that the Supreme Court
had indicated in Bellotti II and Planned Parenthood Association v. Ashcroft,
462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983), that statutes of the sort at
issue (here and in Hodgson ) are constitutional.

73

The Eighth Circuit, sitting en banc, held that the entire statute was
constitutional. It reversed (by a divided vote) the district court's findings of
unconstitutionality in respect to two special parts of the statute. I can find no
indication that any judge of that appellate court disagreed with the district court
about the statute's basic constitutionality.

74

In my view, the Eighth Circuit is correct. There is no point in permitting

appellants to prove the general facts about the statute's operation that they seek
to prove, facts that amount to a showing that court hearings themselves may
inhibit many minors from seeking permission for an abortion, that the hearings
involve several days' delay, and that the process leads to nearly universal court
approval of minors' petitions for abortions. There is no point because, assuming
plaintiffs can make such a showing, I still do not see how one could reconcile a
holding that the statute is unconstitutional with Bellotti II. In Bellotti II the
Court held that the state may regulate abortions for minors, that no third party,
such as a parent, may have a categorical "veto" over a decision to have an
abortion, but that a judge may review a decision (though the judge may
withhold permission only if the minor is immature and the abortion is not in her
best interest). 443 U.S. at 633-51, 99 S.Ct. at 3042-52. Justice Powell
specifically stated that this very statute "satisfies constitutional standards in
large part," though it "falls short in two respects." 443 U.S. at 651, 99 S.Ct. at
3052. These "two respects" are not now present in the (amended) statute before
us.

75

I conclude that the matter is not perfectly clear. That is because, in a footnote,
Justice Powell added the following:

76
Intervenors
take issue with the Supreme Judicial Court's assurances that judicial
proceedings will provide the necessary confidentiality, lack of procedural burden,
and speed of resolution. In the absence of any evidence as to the operation of judicial
proceedings under Sec. 12S ... we must assume that the Supreme Judicial Court's
judgment is correct.
77

443 U.S. at 645 n. 25, 99 S.Ct. at 3049 n. 25. This footnote, however, seems to
me to refer to challenges to the manner in which Massachusetts implements its
statute, whether, for example, its procedural rules are adequate or (perhaps)
whether the courts follow them in practice. And, these challenges seem
appropriately brought, in the first instance, before the Massachusetts courts.
The footnote, in my view, does not refer to a challenge to the statute itself based
upon the view that the very existence of this judicial approval proceeding
improperly burdens the minor's right to choose an abortion. That is to say, the
footnote refers to delays of more than 2 to 4 days, and to burdens other than the
psychological burden inherent in the fact of the proceeding itself. That even
expeditious judicial proceedings might take several days, that their very
existence might intimidate minors, that those most likely to feel intimidated are
those least able to cope effectively with the judicial system, all would seem
fairly obvious from the outset. And, had the Court intended to leave open the
possibility that this type of showing would lead to a change of mind about the
statute, it would not have said so explicitly that the statute was constitutional;
or, at least, the footnote would have made this possibility more apparent. I also
note that appellants nowhere explain how their proposed factual showing is
designed to bring about a "judicial approval" system that is significantly less
intimidating or more useful. Yet, the Court's opinions in Bellotti II lead me to
think it virtually inconceivable that the Court believes the Constitution requires
a state to permit even immature minors to choose an abortion without anyone's
(neither parent's nor judge's) consent.

78

I recognize a degree of ambiguity in the footnote, and I recognize the

possibility that the Supreme Court could change its mind about this statute. It is
also true that factual records, as in the instance of school desegregation,
sometimes help produce a change of mind. Yet, before courts spend the
considerable time, effort, and resources involved in building records of
"legislative fact" not specific to the particular case at issue, there must be more
reason than is present here to believe the law is different from, or about to
become different from, what the Supreme Court has previously stated.
Otherwise, it seems more expeditious for a lower court simply to point out that,
on the present state of the law, the factual proof would not change the legal
result. Those challenging the law may submit to courts of appeals, and then to
the Supreme Court, the facts they wish to show by means of statements in their

briefs or references to articles, or appropriate appendices. The appropriate

courts can then make clear whether the factual showing could make a legal
difference. This is not an area of the law where significant challenges to prior
precedent are likely to escape the Court's attention.
79

Finally, I note that appellants, in the district court, raised a fundamentally

different type of challenge to the Massachusetts law, a challenge that they seem
to press somewhat less forcefully in this court. In the district court they seemed
to say that even if the Massachusetts statute is itself constitutional,
Massachusetts has not applied its law in a constitutional way; they seemed to
say that Massachusetts judges, for example, did not correctly follow
Massachusetts' own law, as embodied in its statute, its Standing Order, Planned
Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, Appendix 2
(1st Cir.1981), and in Justice Liacos' modification of that Standing Order, Panel
Opinion at 460-461. Alternatively, lower Massachusetts courts may not have
given the words in these legal documents constitutionally permissible
interpretations. Insofar as appellants raise these kinds of claims (and I must
admit I am not certain they are still doing so), the district court was right to
abstain in light of the "comity" considerations that the district court set forth. It
seems inappropriate for a federal district court, in the present circumstance, to
hold a fact based hearing on the question of whether Massachusetts judges are
systematically violating Massachusetts' own law (e.g., by harassing minors
seeking an abortion) rather than requiring these appellants to raise such issues
in the state proceedings where they are already parties, thereby leaving to the
Massachusetts Supreme Judicial Court the job of administering its own judicial
system. Cf. Middlesex County Ethics Committee v. Garden State Bar
Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (abstention
appropriate because challenged state procedures for discipline of attorneys are
"judicial in nature"); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d
376 (1977) (abstention appropriate because challenged state statutory contempt
procedures are process "through which [the state] vindicates the regular
operation of its judicial system"); Louisiana Power & Light Company v. City of
Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) (abstention
appropriate because eminent domain proceedings are "special and peculiar,"
and "intimately involved with sovereign prerogative"); see also Colorado River
Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47
L.Ed.2d 483 (1976) (while suit challenging state allocation of water is not
barred by abstention doctrine, "several factors" counsel against concurrent
federal jurisdiction). Insofar as appellants' challenge turns on interpretations of
Massachusetts law, Railroad Commission of Texas v. Pullman Co., 312 U.S.
496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), counsels abstention.

80

For these reasons I would affirm the judgment of the district court.

Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943)

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.ED.2d 669 (1971)

Mass.Gen.Laws Ann. ch. 112, Sec. 12S (West 1983), enacted on June 5, 1980,
provides in relevant part as follows:
If a pregnant woman is less than eighteen years of age and has not married, a
physician shall not perform an abortion upon her unless he first obtains both the
consent of the pregnant woman and that of her parents, except as hereinafter
provided.... If a pregnant woman less than eighteen years of age has not married
and if one or both of her parents or guardians refuse to consent to the
performance of an abortion, or if she elects not to seek the consent of one or
both of her parents or guardians, a judge of the superior court department of the
trial court shall, upon petition, or motion, and after an appropriate hearing,
authorize a physician to perform the abortion if said judge determines that the
pregnant woman is mature and capable of giving informed consent to the
proposed abortion or, if said judge determines that she is not mature, that the
performance of an abortion upon her would be in her best interests.

Our decision issued on February 9, 1981; rehearing was denied on April 15,
1981

The district court recognized the conversion of the case into an as-applied
challenge, referring to it as such in its Memorandum and Order of July 11, 1986

In this article the author makes the following points concerning the operation of
the Massachusetts statute:
1) of 62 superior court judges, 10 have recused themselves and approximately
one fourth of the remainder are avoided for reasons of hostility; sometimes
many of the latter are sitting in the same county;
2) courts are not open evenings or on weekends; the difficulty in scheduling
particular judges requires two or more trips by a minor, with delays of two to
four days in obtaining an abortion being common;
3) judicial authorizations are sought by few minority applicants;
4) any decrease in Massachusetts abortions seems to be accounted for by visits

to clinics in neighboring New Hampshire and Maine;

5) consultation with parents does not seem to be either stimulated by Sec. 12S
or helpful;
6) the hearings are often rituals, the minors being well coached, and "maturity"
being difficult to judge in a brief session;
7) of 1,571 applications for abortion between 1981 and 1983, only 7 were
denied and 5 of these denials were overturned on appeal.
7

The proposed findings, occupying over 139 pages, were wide ranging,
including the effect of the law on delay and the dangers of delay, the effect on
deterrence, the traumatic effects of the parent notification law, and the lack of
any positive contribution to family communication or minors' decisionmaking
The Minnesota district court eventually held that the parent notification
requirement was unconstitutional and the judicial bypass requirement so
interdependent that it, too, must be struck. A panel of the court of appeals
affirmed. 827 F.2d 1191 (8th Cir.1987). The decision and opinion were
subsequently vacated and withdrawn, and the decision of the district court
reversed. 853 F.2d 1452 (8th Cir.1988) (en banc).

We do not hold that all questioning of state judges is inappropriate. Yet we

recognize that questioning state judges in federal proceedings regarding their
official conduct raises comity concerns, Dennis v. Sparks, 449 U.S. 24, 31 n. 7,
101 S.Ct. 183, 188 n. 7, 66 L.Ed.2d 185 (1980), and may be inappropriate
where other sources are available. We leave it open to the district court to
determine when, and if, the presentation of plaintiffs' case oversteps the
boundaries of propriety

This is not to say that the availability of a state forum for federal claims is
irrelevant: if no state forum were available, this would militate against
abstention

10

No opinion in Bellotti II garnered the support of a majority of the Court.

However, Justice White's dissent makes it clear that he would go farther than
the three justices joining Justice Powell in upholding regulations of minors'
abortions, including parental consent requirements. We therefore view Justice
Powell's opinion as representing the views of a majority of the Court for present
purposes

11

We note that to date extensive pretrial proceedings have focused on the nature
of the claim (shifting from a facial to an operational challenge), the identity of

the defendants, and the federal suit's relation to the state court challenge.
Plaintiffs' efforts have been directed in recent proceedings toward addressing
abstention challenges. We are not confident that the extent of the factual record
plaintiffs hope to develop at trial has been fully defined. We express no view as
to whether, once it is, it will be sufficient as a matter of law
12

See 443 U.S. 622, 645 n. 25, 99 S.Ct. 3035, 3049 n. 25 ("In the absence of any
evidence as to the operation of judicial proceedings under Sec. 12S ... we must
assume that [judicial proceedings will provide confidentiality, lack of
procedural burden, and speed]")