source: Caselaw Access Project

author: Justice Souter

license: Public Domain

text:
    UNITED STATES v. LANIER
    No. 95-1717.
    Argued January 7, 1997
    Decided March 31, 1997

      Deputy Solicitor General Waxman argued the cause for the United States. On the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Patrick, Deputy Solicitor General Bender, Paul R. Q. Wolf son, Jessica Dunsay Silver, and Thomas E. Chandler.

      Alfred H. Knight, by appointment of the Court, 519 U. S. 804, argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Marjorie Heins and Steven R. Shapiro; for the NOW Legal Defense and Education Fund et al. by Lynn Hecht Schafran and Martha F. Davis; for the Southern Poverty Law Center et al. by Mary-Christine Sungaila, Gregory R. Smith, J. Richard Cohen, and Brian Levin; and for Vivian Forsythe-Arehie et al. by Catharine A. MacKinnon.

   Justice Souter

delivered the opinion of the Court.

Respondent David Lanier was convicted under 18 U. S. C. § 242 of criminally violating the constitutional rights of five women by assaulting them sexually while Lanier served as a state judge. The Sixth Circuit reversed his convictions on the ground that the constitutional right in issue had not previously been identified by this Court in a case with fundamentally similar facts. The question is whether this standard of notice is higher than the Constitution requires, and we hold that it is.

I

David Lanier was formerly the sole state Chancery Court judge for two rural counties in western Tennessee. The trial record, read most favorably to the jury’s verdict, shows that from 1989 to 1991, while Lanier was in office, he sexually assaulted several women in his judicial chambers. The two most serious assaults were against a woman whose divorce proceedings had come before Lanier and whose daughter’s custody remained subject to his jurisdiction. When the woman applied for a secretarial job at Lanier’s courthouse, Lanier interviewed her and suggested that he might have to reexamine the daughter’s custody. When the woman got up to leave, Lanier grabbed her, sexually assaulted her, and finally committed oral rape. A few weeks later, Lanier inveigled the woman into returning to the courthouse again to get information about another job opportunity, and again sexually assaulted and orally raped her. App. 44-67. On five other occasions Lanier sexually assaulted four other women: two of his secretaries, a Youth Services Officer of the juvenile court over which Lanier presided, and a local coordinator for a federal program who was in Lanier’s chambers to discuss a matter affecting the same court. Id., at 13-43, 67-109.

Ultimately, Lanier was charged with 11 violations of §242, each count of the indictment alleging that, acting willfully and under color of Tennessee law, he had deprived the victim of “rights and privileges which are secured and protected by the Constitution and the laws of the United States, namely the right not to be deprived of liberty without due process of law, including the right to be free from wilful sexual assault.” Id., at 5-12. Before trial, Lanier moved to dismiss the indictment on the ground that § 242 is void for vagueness. The District Court denied the motion.

The trial judge instructed the jury on the Government’s burden to prove as an element of the offense that the defendant deprived the victim of rights secured or protected by the Constitution or laws of the United States:

“Included in the liberty protected by the [Due Process Clause of the] Fourteenth Amendment is the concept of personal bodily integrity and the right to be free of unauthorized and unlawful physical abuse by state intrusion. Thus, this protected right of liberty provides that no person shall be subject to physical or bodily abuse without lawful justification by a state official acting or claiming to act under the color of the laws of any state of the United States when that official’s conduct is so demeaning and harmful under all the circumstances as to shock one’s conscience]. Freedom from such physical abuse includes the right to be free from certain sexually motivated physical assaults and coerced sexual battery. It is not, however, every unjustified touching or grabbing by a state official that constitutes a violation of a person’s constitutional rights. The physical abuse must be of a serious substantial nature that involves physical force, mental coercion, bodily injury or emotional damage which is shocking to one’s conscience].” Id., at 186-187.

The jury returned verdicts of guilty on seven counts, and not guilty on three (one count having been dismissed at the close of the Government’s evidence). It also found that the two oral rapes resulted in “bodily injury,” for which Lanier was subject to 10-year terms of imprisonment on each count, in addition to 1-year terms under the other five counts of conviction, see §242. He was sentenced to consecutive maximum terms totaling 25 years.

A panel of the Court of Appeals for the Sixth Circuit affirmed the convictions and sentence, 33 F. 3d 639 (1994), but the full court vacated that decision and granted rehearing en banc, 43 F. 3d 1033 (1995). On rehearing, the court set aside Lanier’s convictions for “lack of any notice to the public that this ambiguous criminal statute [i. e., § 242] includes simple or sexual assault crimes within its coverage.” 73 F. 3d 1380, 1384 (1996). Invoking general canons for interpreting criminal statutes, as well as this Court’s plurality opinion in Screws v. United States, 325 U. S. 91 (1945), the Sixth Circuit held that criminal liability may be imposed under § 242 only if the constitutional right said to have been violated is first identified in a decision of this Court (not any other federal, or state, court), and only when the right has been held to apply in “a factual situation fundamentally similar to the one at bar.” 73 F. 3d, at 1393. The Court of Appeals regarded these combined requirements as “substantially higher than the ‘clearly established’ standard used to judge qualified immunity” in civil cases under Rev. Stat. § 1979, 42 U. S. C. § 1983. 73 F. 3d, at 1393. Finding no decision of this Court applying a right to be free from unjustified assault or invasions of bodily integrity in a situation “fundamentally similar” to those charged, the Sixth Circuit reversed the judgment of conviction with instructions to dismiss the indictment. Two judges would not have dismissed the felony counts charging the oral rapes but concurred in dismissing the misdemeanor counts, while three members of the court dissented as to all dismissals.

We granted certiorari to review the standard for determining whether particular conduct falls within the range of criminal liability under §242. 518 U. S. 1004 (1996). We now vacate and remand.

II

Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) “willfully” and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States. 18 U. S. C. §242; Screws v. United States, supra. The en banc decision of the Sixth Circuit dealt only with the last of these elements, and it is with that element alone that we are concerned here.

The general language of §242, referring to “the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,” is matched by the breadth of its companion conspiracy statute, §241, which speaks of conspiracies to prevent “the free exercise or enjoyment of any right or privilege secured to [any person] by the Constitution or laws of the United States.” Thus, in lieu of describing the specific conduct it forbids, each statute’s general terms incorporate constitutional law by reference, see United States v. Kozminski, 487 U. S. 931, 941 (1988); United States v. Price, 383 U. S. 787, 797, 805 (1966), and many of the incorporated constitutional guarantees are, of course, themselves stated with some catholicity of phrasing. The result is that neither the statutes nor a good many of their constitutional referents delineate the range of forbidden conduct with particularity.

The right to due process enforced by § 242 and said to have been violated by Lanier presents a case in point, with the irony that a prosecution to enforce one application of its spacious protection of liberty can threaten the accused with deprivation of another: what Justice Holmes spoke of as “fair warning ... in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” McBoyle v. United States, 283 U. S. 25, 27 (1931). “ ‘The . . . principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ ” Bouie v. City of Columbia, 378 U. S. 347, 351 (1964) (quoting United States v. Harriss, 347 U. S. 612, 617 (1954)).

There are three related manifestations of the fair warning requirement. First, the vagueness doctrine bars enforcement of “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Constr. Co., 269 U. S. 385, 391 (1926); accord, Kolender v. Lawson, 461 U. S. 352, 357 (1983); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Second, as a sort of “junior version of the vagueness doctrine,” H. Packer, The Limits of the Criminal Sanction 95 (1968), the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered. See, e. g., Liparota v. United States, 471 U. S. 419, 427 (1985); United States v. Bass, 404 U. S. 336, 347-348 (1971); McBoyle, supra, at 27. Third, although clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute, see, e. g., Bouie, supra, at 357-359; Kolender, supra, at 355-356; Lanzetta, supra, at 455-457; Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 207 (1985), due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope, see, e. g., Marks v. United States, 430 U. S. 188, 191-192 (1977); Rabe v. Washington, 405 U. S. 313 (1972) (per curiam); Bouie, supra, at 353-354; cf. U. S. Const., Art. I, § 9, cl. 3; id., §10, cl. 1; Bouie, supra, at 353-354 (Ex Post Facto Clauses bar legislatures from making substantive criminal offenses retroactive). In each of these guises, the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.

We applied this standard in Screws v. United States, 325 U. S. 91 (1945), which recognized that the expansive language of due process that provides a basis for judicial review is, when incorporated by reference into §242, generally ill suited to the far different task of giving fair warning about the scope of criminal liability. The Screws plurality identified the affront to the warning requirement posed by employing § 242 to place “the accused ... on trial for an offense, the nature of which the statute does not define and hence of which it gives no warning.” Id., at 101. At the same time, the same Justices recognized that this constitutional difficulty does not arise when the accused is charged with violating a “right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.” Id., at 104. When broad constitutional requirements have been “made specific” by the text or settled interpretations, willful violators “certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment. . . . [T]hey are not punished for violating an unknowable something.” Id., at 105. Accordingly, Screws limited the statute’s coverage to rights fairly warned of, having been “made specific” by the time of the charged conduct. See also Kozminski, supra, at 941 (parallel construction of §241).

The Sixth Circuit, in this case, added two glosses to the made-specific standard of fair warning. In its view, a generally phrased constitutional right has been made specific within the meaning of Screws only if a prior decision of this Court has declared the right, and then only when this Court has applied its ruling in a case with facts “fundamentally similar” to the case being prosecuted. 73 F. 3d, at 1393. None of the considerations advanced in this case, however, persuade us that either a decision of this Court or the extreme level of factual specificity envisioned by the Court of Appeals is necessary in every instance to give fair warning.

First, contrary to the Court of Appeals, see ibid., we think it unsound to read Screws as reasoning that only this Court’s decisions could provide the required warning. Although the Screws plurality gave two examples involving decisions of the Court, their opinion referred in general terms to rights made specific by “decisions interpreting” the Constitution, see 325 U. S., at 104 (plurality opinion), and no subsequent case has held that the universe of relevant interpretive decisions is confined to our opinions. While United States v. Kozminski, 487 U. S. 931 (1988), a case under §241 for violating Thirteenth Amendment rights, did characterize our task as ascertaining the crime charged “by looking to the scope of the Thirteenth Amendment prohibition . . . specified in our prior decisions,” id., at 941, in at least one other case we have specifically referred to a decision of a Court of Appeals in defining the established scope of a constitutional right for purposes of §241 liability, see Anderson v. United States, 417 U. S. 211, 223-227 (1974). It is also to the point, as we explain below, that in applying the rule of qualified immunity under 42 U. S. C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), we have referred to decisions of the Courts of Appeals when enquiring whether a right was “clearly established.” See Mitchell v. Forsyth, 472 U. S. 511, 533 (1985); Davis v. Scherer, 468 U. S. 183, 191-192 (1984); see also id., at 203-205 (Brennan, J., concurring in part and dissenting in part); Elder v. Holloway, 510 U. S. 510, 516 (1994) (treating Court of Appeals decision as “relevant authority” that must be considered as part of qualified immunity enquiry). Although the Sixth Circuit was concerned, and rightly so, that disparate decisions in various Circuits might leave the law insufficiently certain even on a point widely considered, such a circumstance may be taken into account in deciding whether the warning is fair enough, without any need for a categorical rule that decisions of the Courts of Appeals and other courts are inadequate as a matter of law to provide it.

Nor have our decisions demanded precedents that applied the right at issue to a factual situation that is “fundamentally similar” at the level of specificity meant by the Sixth Circuit in using that phrase. To the contrary, we have upheld convictions under § 241 or § 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights. See United States v. Guest, 383 U. S. 745, 759, n. 17 (1966) (prior cases established right of interstate travel, but later case was the first to address the deprivation of this right by private persons); United States v. Saylor, 322 U. S. 385 (1944) (pre-Screws; prior cases established right to have legitimate vote counted, whereas later case involved dilution of legitimate votes through casting of fraudulent ballots); United States v. Classic, 313 U. S. 299, 321-324 (1941) (pre-Screws; prior cases established right to have vote counted in general election, whereas later case involved primary election); see also Screws, 325 U. S., at 106 (stating that Classic met the test being announced).

But even putting these examples aside, we think that the Sixth Circuit’s “fundamentally similar” standard would lead trial judges to demand a degree of certainty at once unnecessarily high and likely to beget much wrangling. This danger flows from the Court of Appeals’ stated view, 73 F. 3d, at 1393, that due process under § 242 demands more than the “clearly established” law required for a public officer to be held civilly liable for a constitutional violation under § 1983 or Bivens, see Anderson v. Creighton, 483 U. S. 635 (1987) (Bivens action); Davis v. Scherer, supra (§1983 action). This, we think, is error.

In the civil sphere, we have explained that qualified immunity seeks to ensure that defendants “reasonably can anticipate when their conduct may give rise to liability,” id., at 195, by attaching liability only if “[t]he contours of the right [violated are] sufficiently clear that a reasonable official would understand that what he is doing violates that right,” Anderson, supra, at 640. So conceived, the object of the “clearly established” immunity standard is not different from that of “fair warning” as it relates to law “made specific” for the purpose of validly applying §242. The fact that one has a civil and the other a criminal law role is of no significance; both serve the same objective, and in effect the qualified immunity test is simply the adaptation of the fair warning standard to give officials (and, ultimately, governments) the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes. To require something clearer than “clearly established” would, then, call for something beyond “fair warning.”

This is not to say, of course, that the single warning standard points to a single level of specificity sufficient in every instance. In some circumstances, as when an earlier case expressly leaves open whether a general rule applies to the particular type of conduct at issue, a very high degree of prior factual particularity may be necessary. See, e. g., Mitchell v. Forsyth, supra, at 530-535, and n. 12. But general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though “the very action in question has [not] previously been held unlawful,” Anderson, supra, at 640. As Judge Daughtrey noted in her dissenting opinion in this case: “ ‘The easiest cases don’t even arise. There has never been ... a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.’” 73 F. 3d, at 1410 (quoting K. H. Through Murphy v. Morgan, 914 F. 2d 846, 851 (CA7 1990)); see also Colten v. Kentucky, 407 U. S. 104, 110 (1972) (due process requirements are not “designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited”); Williams v. United States, 341 U. S. 97, 101 (1951) (holding that beating to obtain a confession plainly violates § 242). In sum, as with civil liability under § 1983 or Bivens, all that can usefully be said about criminal liability under §242 is that it may be imposed for deprivation of a constitutional right if, but only if, “in the light of pre-existing law the unlawfulness [under the Constitution is] apparent,” Anderson, supra, at 640. Where it is, the constitutional requirement of fair warning is satisfied.

Because the Court of Appeals used the wrong gauge in deciding whether prior judicial decisions gave fair warning that respondent’s actions violated constitutional rights, we vacate the judgment and remand the case for application of the proper standard.

It is so ordered.

       The present § 242 has its roots in portions of three Reconstruction Era Civil Rights Acts, whose substantive criminal provisions were consolidated in a single section in 1874. See 2 Cong. Rec. 827-828 (1874) (describing derivation of consolidated criminal civil rights law from §§ 1 and 2 of the Civil Rights Act of 1866, 14 Stat. 27; §§ 16 and 17 of the Civil Rights Act of 1870,16 Stat. 144; and § 1 of the Civil Rights Act of 1871,17 Stat. 13). Although those statutory forebears created criminal sanctions only for violations of some enumerated rights and privileges, the consolidated statute of 1874 expanded the law’s scope to apply to deprivations of all constitutional rights, despite the “customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance.” United States v. Price, 383 U. S. 787, 803 (1966). Since the 1874 recodification, Congress has revisited § 242 on several occasions, without contracting its substantive scope. See 35 Stat. 1092 (1909) (adding willfulness requirement); 82 Stat. 75 (1968) (enhancing penalties for some violations); 102 Stat. 4396 (1988) (same); 108 Stat. 1970, 2109, 2113, 2147 (1994) (same).

       Thus, we do not address the argument, pressed by respondent, that the actions for which he was convicted were not taken under color of law. The Sixth Circuit discussed that issue only in the original panel opinion, subsequently vacated, but did not reach the question in the en banc decision under review here. To the extent the issue remains open, we leave its consideration in the first instance to the Court of Appeals on remand.

       “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens,” shall be subject to specified criminal penalties.

       Insofar as pertinent: “If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same,” they shall be subject to specified criminal penalties.

       The fair warning requirement also reflects the deference due to the legislature, which possesses the power to define crimes and their punishment. See United States v. Wiltberger, 5 Wheat. 76, 95 (1820); United

        States v. Aguilar, 515 U. S. 593, 600 (1995). See generally H. Packer, The Limits of the Criminal Sanction 79-96 (1968) (discussing “principle of legality,” “that conduct may not be treated as criminal unless it has been so defined by [a competent] authority . . . before it has taken place,” as implementing separation of powers, providing notice, and preventing abuses of official discretion) (quotation at 80); Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189 (1985).

       This process of “making specific” does not, as the Sixth Circuit believed, qualify Screws as “the only Supreme Court case in our legal history in which a majority of the Court seems [to have been] willing to create a common law crime.” 73 F. 3d 1380, 1391 (1996). Federal crimes are defined by Congress, not the courts, Kozminski, 487 U. S., at 939; United States v. Wiltberger, supra, at 95, and Screws did not “create a common Iaw crime”; it narrowly construed a broadly worded Act of Congress, and the policies favoring strict construction of criminal statutes oblige us to carry out congressional intent as far as the Constitution will admit, see Kozminski, supra, at 939; Huddleston v. United States, 415 U. S. 814, 831 (1974); United States v. Morris, 14 Pet. 464, 475 (1840). Nor is §242’s pedigree as an Act of Congress tainted by its birth at the hands of codifiers who arguably made substantive changes in the pre-existing law, see n. 1, supra, as the Sixth Circuit concluded from the statutory history, 73 F. 3d, at 1384-1387. The legislative intent of Congress is to be derived from the language and structure of the statute itself, if possible, not from the assertions of codifiers directly at odds with clear statutory language. See, e. g., United States v. Wells, 519 U. S. 482, 496-497 (1997). Further, the Sixth Circuit’s conclusion that Congress never intended § 242 to extend to “newly-created constitutional rights,” 73 F. 3d, at 1387, is belied by the fact that Congress has increased the penalties for the section’s violation several times since Screws was decided, without contracting its substantive scope, see n. 1, supra.

       We also leave consideration of other issues that may remain open to the Court of Appeals on remand. Several of the arguments tendered by-respondent here are, however, plainly without merit and need not be left open. First, Lanier’s contention that Screws excluded rights protected by the Due Process Clause of the Fourteenth Amendment from the ambit of §242 is contradicted by the language of Screws itself as well as later eases. See Screws v. United States, 325 U. S. 91, 100, 106 (1945); United States v. Price, 383 U. S., at 789, and n. 2,793 (§ 242 is enforcement legislation enacted under §5 of the Fourteenth Amendment and encompasses violations of rights guaranteed under the Due Process Clause). Second, although DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189 (1989), generally limits the constitutional duty of officials to protect against assault by private parties to cases where the victim is in custody, DeShaney does not hold, as respondent maintains, that there is no constitutional right to be free from assault committed by state officials themselves outside of a custodial setting. Third, contrary to respondent’s claim, Graham v. Connor, 490 U. S. 386, 394 (1989), does not hold that all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments; rather, Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.


author: Justice Breyer

text:
    YOUNG et al. v. FORDICE et al.
    No. 95-2031.
    Argued January 6, 1997
    Decided March 31, 1997

      Brenda Wright argued the cause for appellants. With her on the briefs were Barbara R. Armoine, Thomas J. Henderson, Samuel L. Walters, A. Spencer Gilbert III, Laughlin McDonald, and Neil Bradley.

      Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Patrick, Deputy Solicitor General Waxman, and Steven H. Rosenbaum.

      Robert E. Sanders, Assistant Attorney General of Mississippi, argued the cause for appellees. • With him on the brief was Mike Moore, Attorney General.

        Juan Cartagena filed a brief for the Community Service Society of New York et al. as amici curiae urging reversal.

   Justice Breyer

delivered the opinion of the Court.

The question before us is whether § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c (§ 5), requires preclearance of certain changes that Mississippi made in its voter registration procedures — changes that Mississippi made in order to comply with the National Voter Registration Act of 1993. We hold that §5 does require preclearance.

I

A

The National Voter Registration Act

Congress enacted the National Voter Registration Act of 1993 (NVRA), 107 Stat. 77, 42 U. S. C. § 1973gg et seq., to take effect for States like Mississippi on January 1, 1995. The NVRA requires States to provide simplified systems for registering to vote in federal elections, i. e., elections for federal officials, such as the President, congressional Representatives, and United States Senators. The States must provide a system for voter registration by mail, § 1973gg-4, a system for voter registration at various state offices (including those that provide “public assistance” and those that provide services to people with disabilities), § 1973gg-5, and, particularly important, a system for voter registration on a driver’s license application, §1973gg-3. The NVRA specifies various details about how these systems must work, including, for example, the type of information that States can require on a voter registration form. §§ 1973gg-3(c)(2), 1973gg-7(b). It also imposes requirements about just when, and how, States may remove people from the federal voter rolls. §§ 1973gg-6(a)(3), (4). The NVRA adds that it does not “supersede, restrict or limit the application of the Voting Rights Act of 1965,” and that it does not “authoriz[e] or require] conduct that is prohibited by the Voting Rights Act of 1965.” § 1973gg-9(d).

The Voting Rights Act

Section 5 of the Voting Rights Act of 1965 (VRA), among other things, prohibits a State with a specified history of voting discrimination, such as Mississippi, from “enact[ing] or seeking] to administer any . . . practice], or procedure with respect to voting different from that in force or effect on November 1, 1964,” unless and until the State obtains preclearance from the United States Attorney General (Attorney General) or the United States District Court for the District of Columbia. § 1973c. Preclearance is, in effect, a determination that the change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” Ibid. In the language of § 5 jurisprudence, this determination involves a determination that the change is not retrogressive. Beer v. United States, 425 U. S. 130, 141 (1976); 28 CFR § 51.54(a) (1996).

B

The case before us concerns three different Mississippi voting registration systems: The first system, which we shall call the “Old System,” is that used by Mississippi before it tried to comply with the NVRA. The second system, the “Provisional Plan,” is a system aimed at NVRA compliance, which Mississippi tried to implement for about six weeks between January 1, 1995, and February 10, 1995. The third system, the “New System,” is the system that Mississippi put into place after February 10, 1995, in a further effort to comply with the NVRA. We shall briefly explain the relevant features of each system.

The Old System. Before 1995, Mississippi administered a voting registration system, which, like the systems of most States, provided for a single registration that allowed the registrant to vote in both federal elections and state elections (i. e., elections for state and local offices). Under Mississippi law, a citizen could register to vote either by appearing personally at a county or municipal clerk’s office or at other locations (such as polling places) that the clerk or his deputy visited to register people to vote. Miss. Code Ann. §§23-15-35, 23-15-37, 23-15-39(6) (1990). Mississippi citizens could also register by obtaining a mail-in registration form available at driver’s license agencies, public schools, and public libraries, among other places, and mailing it back to the clerk. Miss. Code Ann. § 23 — 15—47(2)(a) (Supp. 1996). The law set forth various details, requiring, for example, that a mail-in application contain the name and address of the voter and that it be attested to by a witness, ibid, (although there is some dispute between the parties about whether an application could be rejected for failing to have the witness’ signature). State law also allowed county registration officials to purge voters from the rolls if they had not voted in four years. Miss. Code Ann. §23-15-159 (1990).

The Provisional Plan. In late 1994, the Mississippi secretary of state, with the help of an NVRA implementation committee, prepared a series of voter registration changes designed to ensure compliance with the NVRA. The new voter registration application that was incorporated into the driver’s license form, for example, did not require that the registrant repeat his or her address, nor did it require an attesting witness. The secretary of state provided information and instructions about those changes to voter registration officials and state. agency personnel throughout the State. The secretary of state and the implementing committee assumed — and recommended — that the Mississippi Legislature would change state law insofar as that law might prevent a valid registration under the NVRA’s provisions from counting as a valid registration for a state or local election. And, on that assumption, at least one official in the secretary of state’s office told state election officials to place the name of any new valid applicant under the NVRA on a list that would permit him or her to vote in state, as well as in federal, elections.

Using this Provisional Plan, at least some Mississippi officials registered as many as 4,000 voters between January 1, 1995, and February 10, 1995. On January 25, however, the state legislature tabled a bill that would have made NVRA registrations valid for all elections in Mississippi (by, for example, allowing applicants at driver’s license and other agencies to register on the spot, without having to mail in the application themselves, App. 86, by eliminating the attesting witness signature on the mail-in application, compare, id., at 96,101, with Miss. Code Ann. §23-15-47(3) (Supp. 1996), and by eliminating the optional 4-year purge of nonvoting registrants, replacing it with other methods for maintaining up-to-date voter rolls, App. 87-92,103). Because of the legislature’s failure to change the Old System’s requirements for state election registration, the state attorney general concluded that Provisional Plan registrations that did not meet Old System requirements would not work, under state law, as registration for state elections. State officials notified voter registration officials throughout the State; and they, in turn, were asked to help notify the 4,000 registrants that they were not registered to vote in state or local elections.

The New System. On February 10, 1995, Mississippi began to use what we shall call the New System. That system consists of the changes that its Provisional Plan set forth — but as applied only to registration for federal elections. Mississippi maintains the Old System as the only method for registration for state elections, and as one set of methods to register for federal elections. See App. to Juris. Statement 21a. All other States, we are told, have modified their voter registration rules so that NVRA registration registers voters for both federal and state elections. Brief for United States as Amicus Curiae 4.

C

This case arises out of efforts by Mississippi to preclear, under §5 of the VRA, changes that it made to comply with the NVRA. In December 1994, Mississippi submitted to the United States Attorney General a list of NVRA-implementing changes that it then intended to make. That submission essentially described what we have called the Provisional Plan. The submission contained numerous administrative changes described in two booklets called The National Voter Registration Act, App. 26-43, and the Mississippi Agency Voter Registration Procedures Manual, id., at 51-60. It also included the proposed state legislation necessary to make the Provisional Plan work for state elections as well. Id., at 86-104. Mississippi requested preclearance. Id., at 109-110. On February 1, 1995, the Department of Justice wrote to Mississippi that the Attorney General did “not interpose any objection to the specified changes”— thereby preclearing Mississippi’s submitted changes. App. to Juris. Statement 17a.

As we pointed out above, however, on January 25, about one week before the Attorney General precleared the proposed changes, the state legislature had tabled the proposed legislation needed to make those changes effective for state elections. On February 10, 10 days after the Department precleared the proposed changes, Mississippi officials wrote to voter registration officials around the State, telling them that it “appears unlikely that the Legislature will” revive the tabled bill; that the Provisional Plan’s registration would therefore not work for state elections; that they should write — or help the secretary of state write — to tell those who had registered under that system that they were not registered to vote in state elections; that they should make certain future registrants understand that they would need to register separately to be eligible to vote in state, as well as federal, elections; and that they should develop a system for distinguishing between NVRA and other voters. Id,., at 20a-23a.

On February 16, about two weeks after the Department of Justice sent its preclearance letter, the Department wrote another letter to Mississippi, which made clear that the Department did not believe its earlier preclearance had pre-cleared what it now saw as a new plan. The Department asked the State to submit what it called this new “dual registration and voter purge system” for preclearance. Id., at 24a. The Department added:

“In this regard, we note that while, on February 1,1995, the Attorney General granted Section 5 preclearance to procedures instituted by the state to implement the NVRA, that submission did not seek preclearance for a dual registration and purge system and, indeed, we understand that the decision to institute such a system was not made until after February 1.” Id., at 24a-25a.

Mississippi, perhaps believing that the February 1 preclearance sufficed, made no further preclearance submissions.

D

On April 20, 1995, four private citizens (appellants) brought this lawsuit before a three-judge. District Court. They claimed that Mississippi and its officials had implemented changes in its registration system without preclearance in violation of § 5. The United States, which is an ami-cus curiae here, brought a similar lawsuit, and the two actions were consolidated.

The three-judge District Court granted Mississippi’s motion for summary judgment. It considered the plaintiffs’ basic claim, namely, that the differences between the Provisional Plan and the New System amounted to a change in the administration of Mississippi’s voting registration practice, which change had not been precleared. The court rejected this argument on the ground that the Provisional Plan was a misapplication of state law, never ratified by the State. Since the differences between the New System and the Provisional Plan were attributable to the State’s attempt to correct this misapplication of state law, the court held, those differences were not changes subject to preclearance.

The court also considered a different question, namely, whether the New System differed from the Old System; and whether Mississippi had precleared all the changes that the New System made in the Old. The court held that the Department had (on February 1) precleared the administrative changes needed to implement the NVRA. The court also held that Mississippi did not need to preclear its failure to pass a law that would have permitted NVRA registration to count for state, as well as for federal, elections, as the distinction between state and federal elections was due to the NVRA’s own provisions, not to the State’s changes in voting practices.

The private plaintiffs appealed, and we noted probable jurisdiction. 518 U. S. 1055 (1996). We now reverse.

II

Section 5 of the VRA requires Mississippi to preclear any . . . practice] or procedure with respect to voting different from that in force or effect on November 1, 1964.” 42 U. S. C. § 1973c. The statute’s date of November 1, 1964, often, as here, is not directly relevant, for differences once precleared normally need not be cleared again. They become part of the baseline standard for purposes of determining whether a State has “enact[ed]” or is “seeking] to administer” a “practice or procedure” that is “different” enough itself to require preclearance. Presley v. Etowah County Comm’n, 502 U. S. 491, 495 (1992) (“To determine whether there have been changes with respect to voting, we must compare the challenged practices with those in existence before they were adopted. Absent relevant intervening changes, the Act requires us to use practices in existence on November 1, 1964, as our standard of comparison”). Regardless, none of the parties asks us to look further back in time than 1994, when the Old System was last in effect. The appellants ask us to consider whether Mississippi’s New System amounts to a forbidden effort to implement unprecleared changes either (a) because the New System is “different from” the post-1994 Provisional Plan or (b) because it is “different from” the 1994 Old System. We shall consider each of these claims in turn.

A'

First, the appellants and the Government argue that the Provisional Plan, because it was precleared by the Attorney General, became part of the baseline against which to judge whether a future change must be precleared. They add that the New System differs significantly from the Provisional Plan, particularly in its effect on registration for state elections. They conclude that Mississippi had to preclear the New System insofar as it differed from the Provisional Plan.

The District Court rejected this argument on the ground that the Provisional Plan practices and procedures never became part of Mississippi’s voting-related practices or procedures, but instead simply amounted to a temporary misapplication of state law. We, too, believe that the Provisional Plan, in the statute’s words, was never “in force or effect.” 42 U.S. C. § 1973c.

The District Court rested its conclusion upon the fact that Mississippi did not change its state law so as to make the Provisional Plan’s “unitary” registration system lawful and that neither the Governor nor the legislature nor the state attorney general ratified the Provisional Plan. The appellants argue that the simple fact that a voting practice is unlawful under state law does not show, entirely by itself, that the practice was never “in force or effect.” We agree. A State, after all, might maintain in effect for many years a plan that technically, or in one respect or another, violated some provision of state law. Cf. Perkins v. Matthews, 400 U. S. 379, 394-395 (1971) (deeming ward system “in fact ‘in force or effect’ ” and requiring change from wards to at-large elections to be precleared even though ward system was illegal and at-large elections were required under state law (emphasis in original)); City of Lockhart v. United States, 460 U. S. 125, 132-133 (1983) (numbered-post election system was “in effect” although it may have been unauthorized by state law). But that is not the situation here.

In this case, those seeking to administer the Provisional Plan did not intend to administer an unlawful plan. They expected it to become lawful. They abandoned the Provisional Plan as soon as its unlawfulness became apparent, i. e., as soon as it became clear that the legislature would not pass the laws needed to make it lawful. Moreover, all these events took place within the space of a few weeks. The plan was used to register voters for only 41 days, and only about a third of the State’s voter registration officials had begun to use it. Further, the State held no elections prior to its abandonment of the Provisional Plan, nor were any elections imminent. These circumstances taken together lead us to conclude that the Provisional Plan was not “in force or effect”; hence it did not become part of the baseline against which we are to judge whether future change occurred.

B

We nonetheless agree with the appellants and the Government that the New System included changes that must be, but have not been, precleared. That is because the New System contains “practices and procedures” that are significantly “different from” the Old System — the system that was in effect in 1994. And the State has not precleared those differences.

This Court has made clear that minor, as well as major, changes require preclearance. Allen v. State Bd. of Elections, 393 U. S. 544, 566-569 (1969) (discussing minor changes, including a change from paper ballots to voting machines); NAACP v. Hampton County Election Comm’n, 470 U. S. 166, 175-177 (1985) (election date relative to filing deadline); Perkins, supra, at 387 (location of polling places). See also 28 CFR §51.12 (1996) (requiring preclearance of “[a]ny change affecting voting, even though it appears to be minor or indirect . . .”). This is true even where, as here, the changes are made in an effort to comply with federal law, so long as those changes reflect policy choices made by state or local officials. Allen, supra, at 565, n. 29 (requiring State to preclear changes made in an effort to comply with § 2 of the VRA, 42 U. S. C. § 1973); McDaniel v. Sanchez, 452 U. S. 130, 153 (1981) (requiring preclearance of voting changes submitted to a federal court because the VRA “requires that whenever a covered jurisdiction submits a proposal reflecting the policy choices of the elected representatives of the people— no matter what constraints have limited the choices available to them — the preclearance requirement of the Voting Rights Act is applicable”); Lopez v. Monterey County, 519 U. S. 9, 22 (1996) (quoting McDaniel and emphasizing the need to preclear changes reflecting policy choices); Hampton County Election Comm’n, supra, at 179-180 (requiring preclearance of change in election date although change was made in an effort to comply with §5). Moreover, the NVRA does not forbid application of the VRA’s requirements. To the contrary, it says “[njothing in this subchapter authorizes or requires conduct that is prohibited by the” VRA. 42 U. S. C. § 1973gg-9(d)(2). And it adds that “neither the rights and remedies established by this section nor any other provision of this subchapter shall supersede, restrict, or limit the application of the” VRA. § 1973gg-9(d)(l).

Nor does it matter for the preclearance requirement whether the change works in favor of, works against,' or is neutral in its impact upon the ability of minorities to vote. See generally City of Lockhart v. United States, supra (requiring preclearance of a change but finding the change non-retrogressive). It is change that invokes the preclearance process; evaluation of that change concerns the merits of whether the change should in fact be precleared. See Lopez, supra, at 22-25; Allen, supra, at 555, n. 19, 558-559. That is so because preclearance is a process aimed at preserving the status quo until the Attorney General or the courts have an opportunity to evaluate a proposed change. See McCain v. Lybrand, 465 U. S. 236, 243-244 (1984) (Without §5, even successful antidiscrimination lawsuits might “merely resul[t] in a change in methods of discrimination”); South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966) (same); id., at 328 (explaining how the VRA could attack the problems of States going from one discriminatory system to another, by shifting “the advantage of time and inertia” to the potential victims of that discrimination).

In this case, the New System contains numerous examples of new, significantly different administrative practices — practices that are not purely ministerial, but reflect the exercise of policy choice and discretion by Mississippi officials. The system, for example, involves newly revised written materials containing significant, and significantly different, registration instructions; new reporting requirements for local elections officials; new and detailed instructions about what kind of assistance state agency personnel should offer potential NVRA registrants, which state agencies will be NVRA registration agencies, and how and in what form registration material is to be forwarded to those who maintain the voting rolls; and other similar matters. Insofar as they embody discretionary decisions that have a potential for discriminatory impact, they are appropriate matters for review under § 5’s preclearance process.

In saying this, we recognize that the NVRA imposes certain mandates on States, describing those mandates in detail. The NVRA says, for example, that the state driver’s license applications must also serve as voter registration applications and that a decision not to register will remain confidential. 42 U. S. C. §§ 1973gg-3(a)(l), (c)(2)(D)(ii). It says that States cannot force driver’s license applications to submit the same information twice (on license applications and again on registration forms). § 1973gg-3(c)(2)(A). Nonetheless, implementation of the NVRA is not purely ministerial. The NVRA still leaves room for policy choice. The NVRA does not list, for example, all the other information the State may — or may not — provide or request. And a decision about that other information — say, whether or not to tell the applicant that registration counts only for federal elections — makes Mississippi’s changes to the New System the kind of discretionary, nonministerial changes that call for federal VRA review. Hence, Mississippi must preclear those changes.

C

We shall consider Mississippi’s two important arguments to the contrary.

1

The first set of arguments concerns the effect of the Attorney General’s preclearance letter. Mississippi points out that the Department of Justice wrote to the State on February 1,1995, that the Attorney General did "not interpose any objection” to its NVRA changes. App. to Juris. Statement 17a. Hence, says Mississippi, the Attorney General has already precleared its efforts to comply.

The submission that the Attorney General approved, however, assumed that Mississippi’s administrative changes would permit NVRA registrants to vote in both state and federal elections. The submission included a pamphlet entitled The National Voter Registration Act, App. 26-43, which set forth what Mississippi’s submission letter called the State’s “plan to administratively implement NVRA on January 1,1995,” id., at 110. The submission included legislative changes; indeed, Mississippi enclosed in the packet the proposed legislation that would have made a single NVRA registration valid for both federal and state elections. Id., at 86-104. The submission also included forms to be provided NVRA registrants, forms that, by their lack of specificity, probably would have led those voters — and the Attorney General — to believe that NVRA registration permitted them to vote in all elections. Id., at 44-50. These forms — perfectly understandable on the “single registration” assumption — might well mislead if they cannot in fact be used to register for state elections. Cf. City of Lockhart v. United States, 460 U. S., at 131-132 (requiring city to submit “entire system” because “[t]he possible discriminatory purpose or effect of the [changes], admittedly subject to §5, cannot be determined in isolation from the ‘pre-existing’ elements”). Furthermore, the submission included no instructions to voter registration officials about treating NVRA registrants differently from other voters and provided for no notice to NVRA registrants that they could not vote in state elections.

Mississippi replies that, as a matter of logic, one could read its submission, with its explicit indication that the state legislation was proposed, but not yet enacted, as a request for approval of the administrative changes whether or not the state legislature passed the bill. It tries to derive further support for its claim by pointing to Department of Justice regulations that say that the Attorney General will not pre-clear unenacted legislation. 28 CFR §§51.22, 51.35 (1996). As a matter of pure logic, Mississippi is correct. One could logically understand the preclearance in the way the State suggests. But still, that is not the only way to understand it. At a minimum, its submission was ambiguous as to whether (1) it sought approval on the assumption that the state legislature would enact the bill, or (2) it sought approval whether or not the state legislature would enact the bill. Although there is one reference to the possibility of a “dual registration system” in the absence of legislation, App. 72, the submission simply did not specify what would happen if the legislature did not pass the bill, and it thereby created ambiguity about whether the practices and procedures described in the submission would be implemented regardless of what the legislature did. The VRA permits the Attorney General to resolve such ambiguities against the submitting State. McCain, 465 U. S., at 249, 255-257 (burden is on the State to submit a complete and unambiguous description of proposed changes); Clark v. Roemer, 500 U. S. 646, 658-659 (1991) (relying on “presumption that any ambiguity in the scope of the preclearance request must be construed against the [State]” (internal quotation marks and citations omitted)). See also 28 CFR §§ 51.26(d), 51.27(c) (1996) (requiring preclearance submissions to explain changes clearly and in detail). Hence, the Attorney General could read her approval of the submitted plan as an approval of a plan that rested on the assumption that the proposed changes would be valid for all elections, not a plan in which NVRA registration does not qualify the registrant to vote in state elections. We find nothing in the Attorney General’s regulations that forces a contrary conclusion.

Mississippi adds that the Attorney General — if faced with an ambiguity — could have sought more information to clarify the situation, to determine what would happen if the legislature failed to pass the bill, for example. And the Attorney General could then have withheld her approval once she found out what would likely occur. Again, Mississippi is right as to what the Attorney General might have done. See § 51.37(a) (Attorney General may request more information about submissions). Indeed, the United States “acknowledge[s]” that with “the benefit of hindsight,... such a request might have been preferable” to preclearing the submission. Brief for United States as Amicus Curiae 27, n. 14. Still, the law does not require the Attorney General, in these circumstances, to obtain more information. Clark, supra, at 658-659 (The Attorney General is under no duty to investigate voting changes). See also McCain, supra, at 247 (Congress “ ‘acknowledged and anticipated [the] inability of the Justice Department — given limited resources — to investigate independently all changes . . (quoting Perkins, 400 U. S., at 392, n. 10)). And the issue, of course, is not whether she should or should not have issued a preclearance letter on February 1, 1995, but rather ivhat it was that she precleared. Her failure to seek added information makes it more likely, not less likely, that she intended to preclear what she took to be the natural import of the earlier submission, namely, a proposal for a single state/federal registration system.

Finally, Mississippi argues that the Attorney General in fact knew, on February 1,1995, when she issued the preclearance letter that the state legislature would not enact the proposed bill. And it adds that the Attorney General nonetheless approved the submission in order to have in place a precleared unitary system that would serve as a benchmark for measuring whether subsequent changes are retrogressive, thereby permitting the Attorney General to argue that §5 prohibited as retrogressive the dual system which she knew would likely emerge because the legislation failed. In fact, the record is not clear about just what the Department of Justice did or did not know (e. g., whether tabling the bill meant killing it; whether state election law definitely had to be changed). But in any event, the short answer to the argument is that Mississippi’s description of the Department’s motive, if true, would refute its claim that the Attorney General intended to preclear a dual system. Indeed, only two weeks after the February 1 preclearance, the Attorney General wrote to Mississippi stating explicitly her view that its submission had not sought “preclearance for a dual registration and purge system.” App. to Juris. Statement 25a. See McCain, supra, at 255-256 (relying on “such after-the-fact Justice Department statements ... in determining whether a particular change was actually precleared”).

Regardless, the law ordinarily permits the Attorney General to rest a decision to preclear or not to preclear upon the submission itself. Clark, supra, at 658-659; United States v. Sheffield Bd. of Comm’rs, 435 U. S. 110, 136-138 (1978). Tying preclearance to a particular set of written documents themselves helps to avoid the kinds of arguments about meaning and intent that Mississippi raises here — arguments that, were they frequently to arise, could delay expeditious decisionmaking as to the many thousands of requests for clearance that the Department of Justice receives each year. See Clark, supra, at 658-659. In sum, we conclude that the Department of Justice, on February 1, did not preclear the New System.

2

Finally, Mississippi argues that the NVRA, because it specifically applies only to registration for federal elections, 42 U. S. C. § 1973gg-2(a), automatically authorizes it to maintain separate voting procedures; hence § 5 cannot be used to force it to implement the NVRA for all elections. If Mississippi means that the NVRA does not forbid two systems and that § 5 of the VRA does not categorically — without more — forbid a State to maintain a dual system, we agree. The decision to adopt the NVRA federal registration system is not, by itself, a change for the purposes of § 5, for the State has no choice but to do so. And of course, a State’s retention of a prior system for state elections, by itself, is not a change. It is the discretionary elements of the new federal system that the State must preclear. The problem for Mississippi is that preclearance typically requires examination of discretionary changes in context — a context that includes history, purpose, and practical effect. See City of Lockhart v. United States, 460 U. S., at 131 (“The possible discriminatory purpose or effect of the [changes], admittedly subject to §5, cannot be determined in isolation from the ‘pre-existing’ elements of the council”). The appellants and the Government argue that in context and in light of their practical effects, the particular changes and the way in which Mississippi administers them could have the “purpose [or] effect of denying or abridging the right to vote on account of race or color . . . .” 42 U. S. C. § 1973c. We cannot say whether or not that is so, for that is an argument about the merits. The question here is “preclearance,” and preclearance is necessary so that the appellants and the Government will have the opportunity to find out if it is true.

III

We hold that Mississippi has not precleared, and must pre-clear, the “practices and procedures” that it sought to administer on and after Febrüary 10, 1995. The decision of the District Court is reversed, and the case is remanded with instructions for the District Court to enter an order enjoining further use of Mississippi’s unprecleared changes as appropriate. Any further questions about the remedy for Mississippi’s use of an unprecleared plan are for the District Court to address in the first instance. Clark, 500 U. S., at 659-660.

It is so ordered.


author: Per Curiam.

text:
    LAMBERT, GALLATIN COUNTY ATTORNEY v. WICKLUND et al.
    No. 96-858.
    Decided March 31, 1997
   Per Curiam.

Before a minor has an abortion in Montana, one of her parents must be notified. A waiver, or “judicial bypass,” of the notification requirement is allowed if the minor can convince a court that notification would not be in her best interests. The Court of Appeals for the Ninth Circuit struck down Montana’s parental notification law as unconstitutional, holding that the judicial bypass did not sufficiently protect the right of minors to have an abortion. Because the Ninth Circuit’s holding is in direct conflict with our precedents, we grant the petition for a writ of certiorari and reverse.

In 1995, Montana enacted the Parental Notice of Abortion Act. The Act prohibits a physician from performing an abortion on a minor unless the physician has notified one of the minor’s parents or the minor’s legal guardian 48 hours in advance. Mont. Code Ann. §50-20-204 (1995). However, an “unemancipated” minor may petition the state youth court to waive the notification requirement, pursuant to the statute’s “judicial bypass” provision. § 50-20-212 (quoted in full in an appendix to this opinion). The provision gives the minor a right to court-appointed counsel, and guarantees expeditious handling of the minor’s petition (since the petition is automatically granted if the youth court fails to rule on the petition within 48 hours from the time it is filed). §§ 50-20-212(2)(a), (3). The minor’s identity remains anonymous, and the proceedings and related documents are kept confidential. §50-20-212(3).

If the court finds by clear and convincing evidence that any of the following three conditions are met, it must grant the petition and waive the notice requirement: (i) the minor is “sufficiently mature to decide whether to have an abortion”; (ii) “there is evidence of a pattern of physical, sexual, or emotional abuse” of the minor by one of her parents, a guardian, or a custodian; or (iii) “the notification of a parent or guardian is not in the best interests of the [minor].” §§ 50-20-212(4), (5) (emphasis added). It is this third condition which is at issue here.

Before the Act’s effective date, respondents — several physicians who perform abortions, and other medical personnel — filed a complaint seeking a declaration that the Act was unconstitutional and an order enjoining its enforcement. The District Court for the District of Montana, addressing only one of respondents’ arguments, held that the Act was unconstitutional because the third condition set out above was too narrow. According to the District Court, our precedents require that judicial bypass mechanisms authorize waiver of the notice requirement whenever “the abortion would be in [the minor’s] best interests,” not just when “notification would not be in the minor’s best interests.” App. to Pet. for Cert. 17a (emphasis in original) (citing Bellotti v. Baird, 443 U. S. 622, 640-642 (1979) (plurality opinion)). Three days before the Act was to go into effect, the District Court enjoined its enforcement.

The Court of Appeals affirmed, stating that it was bound by its prior decision in Glick v. McKay, 937 F. 2d 434 (CA9 1991). See Wicklund v. Salvagni, 93 F. 3d 567, 571-572 (CA9 1996). Glick struck down Nevada’s parental notification statute which, like Montana’s statute here, allowed a minor to bypass the notification requirement if a court determined that the notification would not be in the minor’s best interests. The court’s conclusion was based on its analysis of our decisions in Bellotti v. Baird, supra, and Ohio v. Akron Center for Reproductive Health, 497 U. S. 502 (1990).

In Bellotti, we struck down a statute requiring a minor to obtain the consent of both parents before having an abortion, subject to a judicial bypass provision, because the judicial bypass provision was too restrictive, unconstitutionally burdening a minor’s right to an abortion. 443 U. S., at 647 (plurality opinion); id., at 655-656 (Stevens, J., concurring in judgment). The Court’s principal opinion explained that a constitutional parental consent statute must contain a bypass provision that meets four criteria: (i) allow the minor to bypass the consent requirement if she establishes that she is mature enough and well enough informed to make the abortion decision independently; (ii) allow the minor to bypass the consent requirement if she establishes that the abortion would be in her best interests; (iii) ensure the minor’s anonymity; and (iv) provide for expeditious bypass procedures. Id., at 643-644 (plurality opinion). See also Akron, 497 U. S., at 511-513 (restating the four requirements).

In Akron, we upheld a statute requiring a minor to notify one parent before having an. abortion, subject to a judicial bypass provision. We declined to decide whether a parental notification statute must include some sort of bypass provision to be constitutional. Id., at 510. Instead, we held that this bypass provision satisfied the four Bellotti criteria required for bypass provisions in parental consent statutes, and that a fortiori it satisfied any criteria that might be required for bypass provisions in parental notification statutes. Critically for the case now before us, the judicial bypass provision we examined in Akron was substantively indistinguishable from both the Montana judicial bypass provision at issue here and the Nevada provision at issue in Glick. See 497 U. S., at 508 (summarizing Ohio Rev. Code Ann. § 2151.85 (1995)). The judicial bypass provision in Akron allowed a court to waive the notification requirement if it determined by clear and convincing evidence “that notice is not in [the minor’s] best interests” (not that an abortion is in her best interests). 497 U. S., at 508 (emphasis added) (citing § 2151.85(A)(4)). And we explicitly held that this provision satisfied the second Bellotti requirement, that “the procedure must allow the minor to show that, even if she cannot make the abortion decision by herself, ‘the desired abortion would be in her best interests.’” 497 U. S., at 511 (quoting Bellotti, supra, at 644).

Despite the fact that Akron involved a parental notification statute, and Bellotti involved a parental consent statute; despite the fact that Akron involved a statute virtually identical to the Nevada statute at issue in Glick; and despite the fact that Akron explicitly held that the statute met all of the Bellotti requirements, the Ninth Circuit in Glick struck down Nevada’s parental notification statute as inconsistent with Bellotti:

“Rather than requiring the reviewing court to consider the minor’s ‘best interests’ generally, the Nevada statute requires the consideration of “best interests” only with respect to the possible consequences of parental notification. The best interests of a minor female in obtaining an abortion may encompass far more than her interests in not notifying a parent of the abortion decision. Furthermore, in Bellotti, the court expressly stated, ‘[i]f, all things considered, the court determines that an abortion is in the minor’s best interests, she is entitled to court authorization without any parental involvement.’ Bellotti, 443 U. S. at 648 (emphasis added). Therefore, the Nevada statute impermissibly narrows the Bellotti 'best interests’ criterion, and is unconstitutional.” 937 F. 2d, at 439.

Based entirely on Glide, the Ninth Circuit in this case affirmed the District Court’s ruling that the Montana statute is unconstitutional, since the statute allows waiver of the notification requirement only if the youth court determines that notification — not the abortion itself — is not in the minor’s best interests. 93 F. 3d, at 572.

As should be evident from the foregoing, this decision simply cannot be squared with our decision in Akron. The Ohio parental notification statute at issue there was indistinguishable in any relevant way from the Montana statute at issue here. Both allow for judicial bypass if the minor shows that parental notification is not in her best interests. We asked in Akron whether this met the Bellotti requirement that the minor be allowed to show that “the desired abortion would be in her best interests.” We explicitly held that it did. 497 U. S., at 511. Thus, the Montana statute meets this requirement, too. In concluding otherwise, the Ninth Circuit was mistaken.

Respondents (as did the Ninth Circuit in Glick) place great emphasis on our statement in Akron, that “[t]he statute requires the juvenile court to authorize the minor’s consent where the court determines that the abortion is in the minor’s best interest.” 497 U. S., at 511 (emphasis added) (citing Ohio Rev. Code Ann. § 2151.85(C)(2) (Supp. 1988)). But since we had clearly stated that the statute actually required such authorization only when the court determined that notification would not be in the minor’s best interests, it is wrong to take our statement to imply that the statute said otherwise. Rather, underlying our statement was an assumption that a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interests, as the context of the opinion, the statutory language, and the concurring opinion all make clear.

Respondents, echoing the Ninth Circuit in Glick, claim that there is a constitutionally significant distinction between requiring a minor to show that parental notification is not in her best interests, and requiring a minor to show that an abortion (without such notification) is in her best interests. See Brief in Opposition 12-13; 937 F. 2d, at 438-439. But the Montana statute draws no such distinction, and respondents cite no Montana state-court decision suggesting that the statute permits a court to separate the question whether parental notification is not in a minor’s best interest from an inquiry into whether abortion (without notification) is in the minor’s best interest. As with the Ohio statute in Akron, the challenge to the Montana statute here is a facial one. Under these circumstances, the Ninth Circuit was incorrect to assume that Montana’s statute “narrow[edj” the Bellotti test, 937 F. 2d, at 439, as interpreted in Akron.

Because the reasons given by the District Court and the Ninth Circuit for striking down the Act are inconsistent with our precedents, we grant the petition for a writ of certiorari and reverse the judgment of the Ninth Circuit.

It is so ordered.

APPENDIX TO PER CURIAM OPINION

Mont. Code Ann. §50-20-212 (1995):

“(1) The requirements and procedures under this section are available to minors and incompetent persons whether or not they are residents of this state.
“(2) (a) The minor or incompetent person may petition the youth court for a waiver of the notice requirement and may participate in the proceedings on the person’s own behalf. The petition must include a statement that the petitioner is pregnant and is not emancipated. The court may appoint a guardian ad litem for the petitioner. A guardian ad litem is required to maintain the confidentiality of the proceedings. The youth court shall advise the petitioner of the right to court-appointed counsel and shall provide the petitioner with counsel upon request.
“(b) If the petition filed under subsection (2)(a) alleges abuse as a basis for waiver of notice, the youth court shall treat the petition as a report under 41-3-202. The provisions of Title 41, chapter 3, part 2, apply to an investigation conducted pursuant to this subsection.
“(3) Proceedings under this section are confidential and must ensure the anonymity of the petitioner. All proceedings under this section must be sealed. The petitioner may file the petition using a pseudonym or using the petitioner’s initials. All documents related to the petition are confidential and are not available to the public. The proceedings on the petition must be given preference over other pending matters to the extent necessary to ensure that the court reaches a prompt decision. The court shall issue written findings of fact and conclusions of law and rule within 48 hours of the time that the petition is filed unless the time is extended at the request of the petitioner. If the court fails to rule within 48 hours and the time is not extended, the petition is granted and the notice requirement is waived.
“(4) If the court finds by clear and convincing evidence that the petitioner is sufficiently mature to decide whether to have an abortion, the court shall issue an order authorizing the minor to consent to the performance or inducement of an abortion without the notification of a parent or guardian.
“(5) The court shall issue an order authorizing the petitioner to consent to an abortion without the notification of a parent or guardian if the court finds, by clear and convincing evidence, that:
“(a) there is evidence of a pattern of physical, sexual, or emotional abuse of the petitioner by one or both parents, a guardian, or a custodian; or
“(b) the notification of a parent or guardian is not in the best interests of the petitioner.
“(6) If the court does not make a finding specified in subsection (4) or (5), the court shall dismiss the petition.
“(7) A court that conducts proceedings under this section shall issue written and specific findings of fact and conclusions of law supporting its decision and shall order that a confidential record of the evidence, findings, and conclusions be maintained.
“(8) The supreme court may adopt rules providing an expedited confidential appeal by a petitioner if the youth court denies a petition. An order authorizing an abortion without notice is not subject to appeal.
“(9) Filing fees may not be required of a pregnant minor who petitions a court for a waiver of parental notification or appeals a denial of a petition.”

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 understanding 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,” 497 U. S., 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 essentially 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 authorize 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 297-298 (emphasis deleted). 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) (“The 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.

       Section 50-20-204 provides in relevant part: “A physician may not perform an abortion upon a minor or an incompetent person unless the physician has given at least 48 hours’ actual notice to one parent or to the legal guardian of the pregnant minor or incompetent person of the physician’s intention to perform the abortion.... If actual notice is not possible after a reasonable effort, the physician or the physician’s agent shall give alternate notice as provided in 50-20-205.” Section 50-20-205 provides for notice by certified mail. The notice requirement does not apply if “a medical emergency exists and there is insufficient time to provide notice.” §50-20-208(1).

       “ ‘Emancipated minor’ means a person under 18 years of age who is or has been married or who has been granted an order of limited emancipation by a court... .” § 50-20-203(3).

       See Bellotti, 443 U. S., at 654, n. 1 (Stevens, J., concurring in judgment) (“[T]his case [does not] determin[e] the constitutionality of a statute which does no more than require notice to the parents, without affording them or any other third party an absolute veto”).

       See 497 U. S., at 517 (“if she can demonstrate that her maturity or best interests favor abortion without notifying one of her parents”); id.., at 522 (Stevens, J., concurring in part and concurring in judgment) (“Although it need not take the form of a judicial bypass, the State must provide an adequate mechanism for cases in which the minor is mature or notice would not be in her best interests” (emphasis added)); Ohio Rev. Code Aim. § 2151.85(C)(2) (1994) (“[I]f the court finds, by clear and convincing evidence,... that the notification of the parents, guardian, or custodian of the [minor] otherwise is not in the best interest of [the minor], the court shall issue an order authorizing the [minor] to consent to the performance or inducement of an abortion without the notification of her parents, guardian, or custodian”). See also Hodgson v. Minnesota, 497 U. S. 417, 497 (1990) (Kennedy, J., concurring in judgment in part and dissenting in part) (interpreting Minnesota judicial bypass procedure which requires minor to show that “an abortion . . . without notification of her parents, guardian, or conservator would be in her best interests,” Minn. Stat. § 144.343(6) (1988) (emphasis added), as authorizing exemption from strictures of parental notification scheme in “those cases in which ... notification of the minor’s parents is not in the minor’s best interests” (emphasis added)).

      Our reading of the statute in Akron II appropriately recognized that the two inquiries at issue here — whether an abortion is in a young woman’s best interest, and whether notifying a minor’s parents of her desire to obtain an abortion is in her best interest — are sometimes linked. For example, if a judge finds after careful assessment of all the circumstances that the abortion a young woman seeks would be in her best interest, and determines that notifying her parents is both opposed by the young woman and would likely cause her to be deterred from pursuing the treatment decision that would serve her best, then parental notification is assuredly not in her best interest. Under such circumstances, the proper course for the trial judge would be to permit the abortion without notification.


author: Per Curiam. Justice Stevens,

text:
    IN RE VEY
    No. 96-8005.
    Decided April 14, 1997
   Per Curiam.

Pro se petitioner Eileen Vey seeks leave to proceed in forma pauperis and requests this Court to issue a writ of habeas corpus vacating her 13-year-old convictions.

This is not Vey’s first filing in this Court. In the past 6V2 years, she has filed 11 petitions for certiorari, 12 petitions for extraordinary relief, and 2 applications for bail. All of these have been denied. For the first 14 of those submissions, we granted her motions to proceed informa pauperis. Since then, we have five times denied her leave to proceed in forma pauperis under this Court’s Rule 39.8.

We again deny petitioner’s motion to proceed in forma pauperis. Her various allegations are supported by nothing other than her own conclusory statements that they are true. Petitioner is allowed until May 5, 1997, within which to pay the docketing fees required by Rule 38 and to submit her petition in compliance with Rule 33.1. In light of her history of frivolous, repetitive filings, we direct the Clerk of the Court not to accept any further petitions for extraordinary writs from petitioner unless she first pays the docketing fee required by Rule 38 and submits her petition in compliance with Rule 33.

We enter the order barring future in forma pauperis filings for the reasons discussed in Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam).

It is so ordered.

Justice Stevens,

dissenting.

For reasons previously stated, see Martin v. District of Columbia Court of Appeals, 506 U. S. 1, 4 (1992) (Stevens, J., dissenting), and cases cited, I respectfully dissent.

      Rule 39.8 provides: “If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ is frivolous or malicious, the Court may deny a motion for leave to proceed informa pauperis.”