96-858.ZC Concurring

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SUPREME COURT OF THE UNITED STATES
MARTIN D. LAMBERT, GALLATIN COUNTY
ATTORNEY v. SUSAN WICKLUND et al.
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 96-858. Decided March 31, 1997

Justice Stevens, with whom Justice Ginsburg and
Justice Breyer join, concurring in the judgment.
We assumed in Ohio v. Akron Center for Reproductive
Health, 497 U. S. 502 (1990) (Akron II), that a young
woman's demonstration that an abortion would be in her
best interest was sufficient to meet the requirements of
the Ohio statute's judicial bypass provision. In my view,
that case requires us to make the same assumption
here. Whether that is a necessary showing is a question
we need not reach.
In Akron II, we upheld a statute authorizing a judicial
bypass of a parental notice requirement on the under-
standing that Ohio Rev. Code Ann. 2151.85(C)(2) (1995)
required the juvenile court to authorize the procedure
whenever it determined that -the abortion is in the
minor's best interest,- id., at 511. Given the fact that
the relevant text of the Montana statute at issue in this
case, Mont. Code Ann. 50-20-212(5)(b) (1995), is essen-
tially identical to the Ohio provision, coupled with the
fact that the Montana Attorney General has advised us
that -the best interests standard in 50-20-212(5)(b) [is]
either identical to or substantively indistinguishable
from the best interests- provision construed in Akron II,
Pet. for Cert. 7, it is surely appropriate to assume that
the Montana provision also requires the court to author-
ize the minor's consent whenever the abortion is in her
best interests. So understood, the Montana statute is
plainly constitutional under our ruling in Akron II.
Because the Court of Appeals erroneously construed the
statute in a manner that caused that court to hold the
statute unconstitutional, I agree with the majority that
the judgment below should be reversed.
While a showing that an abortion is in a young
woman's best interest is therefore sufficient to satisfy
the Montana judicial bypass provision as we understood
an analogous statute in Akron II, I do not think the
Court need address whether the Montana statute can be
properly understood to make such a demonstration a
necessary requirement. My colleagues suggest that the
statute requires a minor -to show that abortion without
notification is in her best interests,- ante, at 6 (emphasis
omitted). To the extent this language indicates that a
young woman must demonstrate both that abortion is in
her best interest and that notification is not, I think
that question is best left for another day. I note,
however, that the plain language of the statute makes
passably clear that a showing that notification is not in
the minor's best interest is alone sufficient. See Mont.
Code Ann. 50-20-212(5)(b) (1995) (-[t]he court shall
issue an order authorizing the petitioner to consent to
an abortion without the notification of a parent . . . if
the court finds, by clear and convincing evidence, that
. . . the notification of a parent . . . is not in the best
interests of the petitioner-).
Although I therefore do not agree with all of the
Court's reasoning, I concur in the majority's view that
the judgment of the Court of Appeals must be reversed.