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Sanctity Of Life

AUL’s Kagan File: The “Marshall Dissents” Memo, Part II

May 31, 2010

Also see Part 1

On Wednesday we looked at Thurgood Marshall’s dissent in Beal v. Doe[1] and Maher v. Roe.[2] In those cases, Justice Marshall wanted to mandate taxpayer funded abortions.  Studying the jurisprudence of Justice Marshall is important because he was one of Elena Kagan’s mentors and she described his constitutional interpretation as “a thing of glory”[3] because he thought the role of the court was to “show a special solicitude for the despised and disadvantaged.”[4] While that may be admirable in the abstract, the reality of Justice Marshall’s decisions concerning abortion bears further scrutiny.

Today, we look at Justice Marshall’s dissent in a case concerning a Utah parental notification statute, H.L. v. Matheson.[5] In Matheson, the Court upheld the requirement that a physician “[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is performed, if she is a minor.”[6] The Court held, “a statute setting out ‘mere requirement of parental notice’ does not violate the constitutional rights of an immature, dependent minor.”[7]

Justice Marshall, however, dissented on the grounds that the parental notification requirement “unquestionably burdens the minor’s privacy right,”[8] and was not “closely tailored”[9] to serve any significant legislative purpose.[10] Marshall made the following rather extreme arguments against the Utah notification law:

-         The parental notification requirement is an “obstacle…so onerous as to bar the desired abortions,”[11] and it “effectively cancels her right to avoid disclosure of her personal choice.”[12]

-         The parental notification requirement is unfair to minors whom “oppose parental notice and seek instead to preserve the fundamental, personal right to privacy.”[13]

-         The parental notification law would not give doctors more information about their patient because “[i]t seems doubtful that a minor mature enough to become pregnant and to seek medical advice on her own initiative would be unable or unwilling to provide her physician with information crucial to the abortion decision.”[14]

-         Marshall would have struck down the Utah law despite acknowledging that the parental notification requirement might improve consultation between parent and child.[15]

-         Finally, Marshall dismissed the state’s claim that the law would help in “protecting parental authority and family integrity”[16] by stating that “parental authority deserves de minimus [minimal] legal reinforcement where the minor’s exercise of a fundamental right is burdened.”[17]


Abortion regulations like parental notification have been shown to reduce abortions.[18] The Utah law was a reasonable abortion restriction that did not affect the ability of a minor to procure an abortion.  Yet, Justice Marshall was firmly against it and all parental notification laws.  He was disdainful of parental oversight of underage minor children in the context of abortion.

If President Obama was sincere about finding “common ground”[19] with those in the pro-life movement, then reasonable restrictions on abortion should be something a Supreme Court justice would uphold.  Elena Kagan must answer questions about whether she agrees with her mentor’s opposition to parental notification requirements.

SOURCE: Americans United for Life

Americans United for Life Blog

Robust Resources on this and other Kagan insight is available on the Americans United for Life website. Sign up for their newsletter to keep up with this fast moving issue.

[1] Beal v. Doe, 432 U.S. 438 (1977).


[2] Maher v. Roe, 432 U.S. 464 (1977).

[3] Elena Kagan, For Justice Marshall, 71Tex L. Rev. 1125, 1130.

[4] Id. at 1129.

[5] H.L. v. Matheson, 450 U.S. 398 (1981).

[6] Id. at 400.

[7] Id. at 409.

[8] Id. at 441.

[9] Id. at 442.

[10] Id. at 443, 445, 447.

[11] Id. at 441.

[12] Id. at 437.

[13] Id.

[14] Id. at 443.

[15]See Matheson, 450 U.S. at 447.  Marshall’s repeated critiques of waiting-period laws suggest he would not uphold a requirement that there be a time requirement between the notice and the abortion.

[16] Id. at 449.

[17] Id. at 449.

[18] See Cartoof, Virginia and Lorraine Klerman. 1986. “Parental Consent for Abortion: Impact of the Massachusetts Law.” American Journal of Public Health 76: 397-400;  Joyce, Theodore, Robert Kaestner, and Silvie Coleman. 2006. “Changes in Abortions and Births and the Texas Parental Involvement Law.” The New England Journal of Medicine 354: 1031-1038.


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