Full opinion text
MILBURN, Circuit Judge. Intervenor-appellant State of Ohio appeals the judgment of the district court declaring Ohio Amended Substitute House Bill 319 (H.B. 319) unconstitutional. H.B. 319, which enacted Ohio Rev.Code §§ 2151.85 and 2505.073 and amended Ohio Rev.Code § 2919.12, requires parental notification by physicians who'intend to perform abortions on unmarried, unemanci-pated women under the age of eighteen. For the reasons that follow, we affirm. I. On March 21, 1986, plaintiffs filed an action challenging the constitutionality of H.B. 319 (attached hereto as Appendix I) which requires that a physician who intends to perform an abortion on an unmarried, unemancipated minor must notify her parents unless one of several exceptions is present. Plaintiffs were the Akron Center for Reproductive Health, a facility which performs abortions on minors; Dr. Max Pierre Gaujean, a physician who performs abortions at the Akron Center; Patty Poe, an unmarried minor who believed she might be pregnant; and Rachel Roe, an unmarried minor living in the home of one of her parents with her two-year-old son. Roe was refused an abortion at the Akron Center because of the imminent operation of H.B. 319. Defendants were Gary Rosen, City Prosecutor for the City of Akron; Lynn Slaby, Prosecuting Attorney for Summit County, Ohio; Anthony Celebrezze, Attorney General of the State of Ohio; and Richard Celeste, Governor of the State of Ohio. Only the State of Ohio, as intervenor, is participating in this appeal. STATUTORY PROVISIONS Section 2919.12 provides that no person shall knowingly perform or induce an abortion upon an unemancipated minor unless one of the following circumstances is present: (1) the person performing the abortion has given at least twenty-four hours actual notice, in person or by telephone, to the parent or guardian of the minor; (2) one of the woman’s parents or her guardian has consented in writing; (3) a juvenile court has issued an order authorizing the minor to proceed with the abortion in the absence of parental notification; or (4) the juvenile court has constructively authorized the minor to consent to the abortion through its inaction. In lieu of parental notification, the statute further provides that notice may be given to a specified sibling, stepparent or grandparent in a limited range of circumstances. The statute also provides that, if the person required to be notified cannot be reached after reasonable effort, the person providing the abortion must give at least forty-eight hours constructive notice by both regular and certified mail to that person. If the person to whom notice is required to be given cannot be reached within the forty-eight hour period, the abortion may proceed. If the person required to be notified under the statute clearly and unequivocally expresses that he or she does not wish to consult with the pregnant minor prior to her abortion, then the abortion may proceed without further delay. For purposes of the statute, there exists a rebuttable presumption that a woman who is unmarried and under the age of eighteen is un-emancipated. The legislation provides that an individual who violates this section for the first time is guilty of a misdemeanor of the first degree, and that a second violation is a felony of the fourth degree. Any individual violating the statute is liable to the pregnant minor and her parent, guardian, or custodian for civil compensatory and exemplary damages. Administrative proceedings may also be instituted for noncompliance. Ohio Rev.Code § 4731.22(C). It is an affirmative defense to liability under the statute if the pregnant minor has provided false information about her age, marital status, emancipation, or name and/or address of the person required to receive notice. This defense may be asserted only if the person providing the abortion “did not otherwise have reasonable cause to believe” the information was false. It is also an affirmative defense that compliance was not possible due to an immediate risk to the life or health of the pregnant woman. The legislation also establishes a procedure through which notification to a parent, guardian, or custodian may be bypassed. This bypass procedure provides that a woman who wishes to have an abortion without notification of her parent, guardian, or custodian may file a complaint in the juvenile court of the county in which she has a residence, in any bordering county, or in the juvenile court of the county in which the facility which would perform the abortion is located. The complaint must contain a statement that the complainant is pregnant, unmarried, unemancipated, under the age of eighteen, and that she wishes to have an abortion without the notification of her parents. The complaint must further contain either or both of the following allegations: (a) that the complainant is sufficiently mature and well enough informed to intelligently decide whether to have an abortion without notification of her parents; (b) that one or both of her parents, her guardian, or custodian has engaged in a pattern of physical, sexual, or emotional abuse against her, or that the notification of her parents is otherwise not in her best interests. The statute further provides that the juvenile court will only rule upon the allegation explicitly pleaded in the complaint. Thus, if the complainant alleges only that she is sufficiently mature and well enough informed to make the decision alone, and the court declines to accept this contention, it must dismiss the complaint without going on to consider whether notification is otherwise not in the complainant’s best interests. Only if the complainant makes both allegations can both be considered. The complainant must prove the allegations in her complaint by clear and convincing evidence, and counsel must be appointed to represent the complainant at the hearing in juvenile court. The statute provides for an expedited procedure to be followed in the bypass proceeding. The hearing must be held not later than the fifth business day after the complaint is filed, and the court must enter judgment immediately after the hearing is concluded. However, if the hearing is not held by the fifth business day after the complaint is filed, the failure to hold the hearing shall be considered a constructive order (“pocket authorization”) permitting the complainant to consent to the performance of the abortion without the notification of her parent. If the court dismisses the complaint, it shall immediately notify the complainant of her right of appeal. Within four days after a notice of appeal is filed, the appeal must be docketed. The appellant shall file her brief within four days after the appeal is docketed, and unless she waives oral argument, the court of appeals shall hear oral argument within five days after the appeal is docketed. Judgment must be entered immediately after the hearing. Upon motion of the appellant and for good cause shown, the court of appeals may shorten or extend any of the maximum times set forth in the statute. If the judgment is not entered within five days after the appeal is docketed, the failure to enter the judgment shall.be considered a constructive order authorizing the appellant to consent to the performance of the abortion without notice to her parent. The statute further provides that each hearing must be conducted in a manner that will preserve the anonymity of the complainant. All records must be kept confidential, and the court shall not notify the complainant’s parent or guardian that she is pregnant or that she wishes to have an abortion. DISTRICT COURT’S CONCLUSIONS On April 22, 1986, the district court filed its memorandum and order enjoining enforcement of the statute. Akron Center for Reproductive Health v. Rosen, 633 F.Supp. 1123 (N.D.Ohio 1986). After disposing of procedural arguments not relevant to the pending appeal, the district court proceeded to the merits of the constitutional claims presented by the plaintiffs. The district court recognized that the constitution is not violated by a statute which requires notice to the parents of immature, dependent minors seeking abortions. However, the district court went on to conclude that a bypass procedure is constitutionally mandated in order that notification is not required to be given to the parents of mature minors or minors whose best interests do not include parental intervention. The district court concluded that the bypass procedure contained in the Ohio statute was constitutionally deficient for several reasons; viz., the “constructive order” provision, which allows an abortion to be performed without parental notification when the court fails to act in a timely manner, was unconstitutionally vague; the statutory requirement that the notice be given by the physician, as opposed to some other responsible individual, unduly burdened the minor woman’s right of access to an abortion; and the “clear and convincing evidence ” standard of proof constituted an impermissible burden on the right of access to an abortion. Likewise, the pleading requirements contained in the Ohio legislation were found defective because they have the effect of precluding juvenile court judges from making all findings of fact required by controlling precedent. The district court further found that the length of time required to complete the bypass procedure was impermissibly long and that the statute’s confidentiality provision was inadequate to protect the rights of the minor complainants. However, the district court rejected the plaintiffs’ arguments that the twenty-four hour postnotification waiting period constituted an impermissible burden on the right to seek an abortion. Finally, the district court rejected the argument that each complainant must be provided with court-appointed counsel on appeal. In summary, the district court concluded: [Tjhere are numerous constitutional defects with the waiver procedure established in section 2151.85 and section 2505.73. To repeat, the provisions (1) establishing constructive authorization; (2) requiring the physician to perform the notice; (3) mandating that a minor prove her maturity or that notification is not in her best interests by “clear and convincing evidence”; and (4) preventing juvenile court judges from making both findings required by Bellotti II in all cases, are unconstitutional. In addition, the waiver procedure unconstitutionally fails to ensure (5a) expedition and (5b) confidentiality. 633 F.Supp. at 1144. Because the district court concluded that the unconstitutional provisions could not be severed from the remaining portions of the statute, enforcement of the statute was enjoined in its entirety. The State of Ohio appeals, arguing that the parental notification legislation enacted by the Ohio legislature does not unduly burden a minor woman’s constitutional right to seek an abortion. II. A. The Supreme Court has recognized that a woman possesses a fundamental constitutional right to seek an abortion. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973). At the outset, the Court appeared hostile to the notion that any party other than the expectant mother and her physician should be a party to the abortion decision. See Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Nevertheless, the Supreme Court has recognized that, under certain circumstances, parental intervention is appropriate when the abortion decision is made by a minor. Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights. The Court indeed, however, long has recognized that the State has somewhat broader authority to regulate the activities of children than of adults. Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788 (1976) (citations omitted). Thus, a state may restrict a minor’s constitutional right to an abortion if such restriction is supported by a significant state interest. Id. at 75, 96 S.Ct. at 2843.- The Court has continued to struggle with the extent to which parental intervention.' into a minor’s abortion decision is constitutionally permissible. The statute at issue in Danforth required parental consent for-an abortion in all cases in which the pregnant woman was unmarried, and under the age of eighteen, unless the abortion was medically necessary to preserve the life of the mother. 428 U.S. at 72, 96 S.Ct. at 2842. The Court struck down the statute, concluding that “the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy, regardless of the reason for withholding the consent.” Id. at 74, 96 S.Ct. at 2843. The Court cautioned, however, that its holding was not tantamount to a declaration that an unmarried minor has an absolute right to receive an abortion without parental intervention. We emphasize that our holding that [the Missouri consent statute] is invalid does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy. The fault with [the statute] is that it imposes a special-consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor’s termination of her pregnancy and does so without a sufficient justification for the restriction. 428 U.S. at 75, 96 S.Ct. at 2844. The Court’s decision clearly emphasizes the premise that the Missouri statute was constitutionally deficient because it gave a third party an absolute right to veto the decision of a minor and her physician that an abortion was appropriate, regardless of the reason for that veto. The significance of a parental veto was reemphasized by the Court in the companion case of Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976) (“Bellotti I”), decided the same day as Danforth. In Bellotti I, the Court was asked to consider the constitutionality of a Massachusetts statute containing the following provision: If the mother is less than eighteen years of age and has not married, the consent of both the mother and her parents is required [before an abortion will be performed]. If one or both of the mother’s parents refuse such consent, consent may be obtained by order of a judge of the Superior Court for good cause shown, after such hearing as he deems necessary. Such hearing will not require the appointment of a guardian for the mother. 428 U.S. at 134-35, 96 S.Ct. at 2860. The Supreme Court refused to address the merits of the case, concluding that abstention was appropriate in order to provide the Massachusetts Supreme Judicial Court with an opportunity to construe the statute in a manner consistent with Danforth. Three years later, the Court was required to answer the question upon which it deferred decision in Bellotti I. In Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (“Bellotti II”), the Supreme Court considered whether the Massachusetts statute as construed by the Massachusetts Supreme Judicial Court im-permissibly burdened the right of a minor to obtain an abortion. In construing the Massachusetts statute, the Massachusetts Supreme Judicial Court concluded that it required parents to consider only the best interests of their daughter in determining whether she should be permitted to have an abortion. The statutory provision allowing a minor to seek judicial consent required consent to be granted if found to be in the minor’s best interests. In considering whether to grant consent notwithstanding parental objections, the judge was required to disregard all considerations not based exclusively upon the minor’s best interests. Even if the judge in a judicial consent proceeding concluded that the minor was capable of making an informed decision regarding abortion (i.e., that the minor was “mature”), the judge was entitled to withhold consent if he determined that, notwithstanding her maturity, the best interests of the minor would not be served by an abortion. Armed with this construction, the Court proceeded to consider whether the Massachusetts statute would survive constitutional challenge. The plurality opinion, written by Justice Powell, recognized once again that a minor is entitled to constitutional rights, although those rights are not necessarily coequal with the rights of an adult. Three reasons were said to justify this conclusion: the peculiar vulnerability of children, their inability to make critical decisions in an informed, mature manner, and the importance of the parental role in child rearing. Id. at 634, 99 S.Ct. at 3043. The plurality further recognized that, in enacting its statutory provision, Massachusetts had attempted to reconcile the constitutional right recognized in Roe with the interest of the State in encouraging an unmarried pregnant minor to seek the advice of her parents in making an abortion decision. Thus, the relevant inquiry was whether the Massachusetts statute provided “for parental notice and consent in a manner that does not unduly burden the right to seek an abortion.” 443 U.S. at 640, 99 S.Ct. at 3046. In making this determination, the plurality opinion emphasized: The abortion decision differs in important ways from other decisions that may be made during minority. The need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, require a state to act with particular sensitivity when it legislates to foster parental involvement in this matter. Id. at 642, 99 S.Ct. at 3047. The starting place for the analysis was the Court’s earlier decision in Danforth. After reemphasizing that the State may not allow a parent or guardian an absolute veto over a minor’s abortion decision, the plurality concluded that if the State should decide to require a pregnant minor to obtain parental consent, it is also required to provide an alternative authorization procedure. A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained. In sum, the procedure must ensure that the provision requiring parental consent does not in fact amount to the “absolute, and possibly arbitrary, veto” that was found impermissible in Danforth. 443 U.S. at 643-44, 99 S.Ct. at 3048 (footnote omitted). The plurality concluded that the Massachusetts statute was constitutionally deficient for two reasons. First, the statute required parents to be notified of any attempt by the minor to receive judicial consent to have an abortion. The Court struck down this provision after concluding that every minor must be given the opportunity to go directly to court without first consulting or notifying her parents. The second constitutional deficiency identified by the plurality was that the statute allowed a state court judge to refuse consent to a mature minor if he concluded that the abortion was not in her best interests. The plurality concluded that once a minor has established her maturity, a court is powerless to withhold authorization even though it may believe the procedure is not in the minor’s best interests. [I]f the minor satisfies a court that she has attained sufficient maturity to make a fully informed decision, she then is entitled to make her abortion decision independently. [Thus, the State of Massachusetts] cannot constitutionally permit judicial disregard of the abortion decision of a minor who has been determined to be mature and fully competent to assess the implications of the choice she has made. Id. at 650, 99 S.Ct. at 3052 (footnote omitted). It is important to note that Justice Powell’s opinion in Bellotti II received the votes of only four justices. Four other justices, concurring in the judgment, concluded that the statute was constitutionally deficient under Danforth. “[N]o minor in Massachusetts, no matter how mature and capable of informed decisionmaking, may receive an abortion without the consent of either both her parents or a superior court judge. In every instance, the minor’s decision to secure an abortion is subject to an absolute third-party veto.” Bellotti II, 443 U.S. at 653-54, 99 S.Ct. at 3053 (Stevens, J., concurring in the judgment). Because an absolute third-party veto was found unconstitutional in Danforth, the four concurring justices concluded that this narrower rationale should be utilized to strike down the Massachusetts statute. Although Justice Powell’s opinion in Bellotti II is only a plurality, it has become the standard by which parental intervention statutes are analyzed. See City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (“Akron I”). The Supreme Court first considered the constitutionality of a parental notification (as opposed to a parental consent) statute in H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981). At issue in Matheson was a Utah statute which required the physician to notify, if possible, the parents of a minor upon whom an abortion was to be performed. The Court concluded that neither the individual plaintiff, nor any of the members of the class she represented, alleged that they were mature enough to make the abortion decision independently or that parental notification was not in their best interests. Accordingly, the only issue before the Court was whether a mere notification requirement violated the constitutional rights of an immature dependent minor. The Court held that it did not. The Supreme Court once again considered the constitutionality of a parental intervention municipal ordinance in Akron I, 462 U.S. at 416, 103 S.Ct. at 2485. In Akron I, the Court affirmed in part and reversed in part the judgment of this court in Akron Center for Reproductive Health v. City of Akron, 651 F.2d 1198 (6th Cir.1981). Under consideration in Akron I were two provisions of an Akron ordinance regarding parental notice and consent. Section 1870.-05(A) was a parental notification requirement which provided that no physician could perform an abortion on an unmarried pregnant woman under the age of eighteen without first having given twenty-four hours actual notice to one of her parents, or if the parent could not be reached after reasonable effort, seventy-two hours constructive notice by certified mail to the last known address of the parent. Section 1870.05(B) was a parental consent provision prohibiting abortion upon a woman under the age of fifteen without the informed written consent of one of her parents. This court struck down section 1870.-05(B), the parental consent provision, on the authority of Danforth. We concluded that, because the ordinance provided a blanket veto over the minor’s decision to have an abortion, it could not withstand constitutional challenge. With regard to the notification provisions contained in section 1870.05(A), we concluded that, under Matheson, supra, a parental notification statute is valid insofar as it applies to immature minors or minors who are unable to establish that their best interests are not served by parental intervention. Because none of the plaintiffs before this court were mature or emancipated minors or minors claiming that notification would not be in their best interests, we refused to find section 1870.05(A) facially unconstitutional. The Supreme Court affirmed this court’s determination that the parental consent requirement for minors under fifteen was unconstitutional. Akron I, 462 U.S. at 441-42, 103 S.Ct. at 2498-99. Because the statute did not create an opportunity for case-by-case evaluation of maturity of pregnant minors, the statute could not withstand scrutiny under Bellotti II. The Supreme Court did not consider the constitutionality of the parental notification provision for women under the age of eighteen. 462 U.S. at 439 n. 29, 103 S.Ct. at 2497 n. 29. Thus, the provision most like the one to be considered in the present case was not considered by the Supreme Court in Akron I. In Planned Parenthood Assoc, of Kansas City v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983), a sharply divided court upheld a parental consent statute. Justice Powell and Chief Justice Burger concluded that because the statute contained a bypass procedure which could be construed consistently with Bellotti II, the statute was constitutionally adequate. Dissenting Justices O’Connor, White, and Rehnquist concluded that the consent statute was constitutional because it imposed no undue burden on the minor’s decision to have an abortion. Justices Blackmun, Brennan, Marshall, and Stevens concluded that the statute on its face gave either a minor’s parents or a judge an absolute veto over the abortion decision and thus was unconstitutional under Danforth. Although the parental consent provision at issue in Ashcroft was upheld, the precise rationale for the determination is less than clear. The issues in the present case are significantly different from those considered in the governing Supreme Court precedent. Unlike the consent provisions at issue in Danforth, Bellotti II, Akron I, and Ashcroft, the statute under consideration in the present case requires only parental notification. Thus, the threat of an absolute veto is arguably absent. But see Indiana Planned Parenthood Affiliates Assoc. v. Pearson, 716 F.2d 1127, 1132 (7th Cir.1983) (“parental involvement brought about by either consent or notification statutes may result in similar efforts by parents to block the abortion”). Likewise, this case is not governed by the Supreme Court’s decision in Matheson, as the plaintiffs in the present ease have alleged that they are mature, and that parental notification is not in their best interests. Thus, the precise issue which a majority of the Court in Matheson declined to consider is now before us. Specifically, we must now consider whether a judicial bypass proceeding is mandated when the statute at issue requires only parental notification. We must also consider whether Bel-lotti II presents the appropriate framework for such a bypass proceeding, and, if so, whether the Ohio statute before us complies with the mandate of Bellotti II. In Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir.1985), the Seventh Circuit was presented with a challenge to an Illinois statute requiring that parents be notified of a minor’s decision to have an abortion. Relying on its earlier decision in Pearson, 716 F.2d at 1127, the court held that a parental notification statute could withstand constitutional scrutiny only if it provided a bypass procedure consistent with the Supreme Court’s decision in Bellotti II. This result is entirely consistent with the Supreme Court’s observation in Akron I that a parental notification requirement would be unconstitutional in the case of a mature minor. 462 U.S. at 441 n. 31, 103 S.Ct. at 2498 n. 31. Hartigan was affirmed by an equally divided Supreme Court in a memorandum decision entered on December 14, 1987. Hartigan v. Zbaraz, — U.S. -, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987). This disposition leaves “the principle of law presented by the case ... unsettled.” Laird v. Tatum, 409 U.S. 824, 838, 93 S.Ct. 7, 15, 34 L.Ed.2d 50 (1972) (memorandum of Rehnquist, J.); see also Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 73 n. 8, 97 S.Ct. 2264, 2271 n. 8, 53 L.Ed.2d 113 (1977). Nevertheless, we conclude that the state possesses an interest sufficient to justify the imposition of a parental notification requirement when an immature, dependent minor seeks an abortion. Matheson, 450 U.S. at 413, 101 S.Ct. at 1173. Consistent with Hartigan, we further conclude that such a requirement cannot be supported in the case of a mature minor or a minor whose best interests do not include parental notification of the abortion deeision. Accordingly, we hold that a parental notification statute must provide a bypass procedure that is consistent with the dictates of Bellotti II. We further conclude that the bypass procedure established by Amended Substitute House Bill 319 does not comply with the standards established in Bellotti II and its progeny, and we therefore affirm the judgment of the district court enjoining enforcement of the statute in its entirety. III. The district court found several distinct aspects of the Ohio statute to be constitutionally deficient. They will be discussed seriatim. A. Requirement that the Physician Effectuate Notification The Ohio statute provides that the person who will perform the abortion must notify the minor’s parent of her decision. The district court held that this provision unduly burdens a minor’s right to seek an abortion, and we agree. This court decided a similar issue in Akron I, in which we struck down a statutory provision requiring the attending physician to perform preabortion counseling. [T]he practice of all three plaintiff clinics has been for the counseling to be conducted by persons other than the doctor who performs the abortion. In the absence of a showing that the state’s compelling interest in maternal health would be served by a requirement that such counseling be done by the attending physician, this section is invalid. 651 F.2d at 1207. The Supreme Court upheld this determination. We are not convinced ... that there is as vital a state need for insisting that the physician performing the abortion, or for that matter any physician, personally counsel the patient in the absence of a request. The State’s interest is in ensuring that the woman’s consent is informed and unpressured; the critical factor is whether she obtains the necessary information and counseling from a qualified person, not the identity of the person from whom she obtains it_ [W]e believe that it is unreasonable for a state to insist that only a physician is competent to provide the information and counseling relevant to the informed consent. 462 U.S. at 448-49, 103 S.Ct. at 2502 (footnote omitted). Similarly, in the present case, the state’s interest is in insuring that immature, un-emancipated minors or minors whose best interests require notification have an adequate opportunity for parental intervention. The state has made no showing that this interest is advanced by requiring the attending physician, as opposed to another qualified, responsible person, to effectuate notification. Under these circumstances, we conclude that the requirement that the physician effectuate the notification constitutes an undue burden upon the minor plaintiffs right to seek an abortion. B. Pleading Requirement As discussed above, Bellotti II requires that a bypass procedure must be incorporated in a parental intervention statute in order that minors who are mature or minors whose best interests do not include parental intervention may avoid the intervention requirement. The State of Ohio has developed a pleading requirement which governs the manner in which this determination is made. A minor who wishes to initiate a bypass proceeding may choose one of three complaint forms. Complaint Form A contains the statement that “complainant alleges that she is sufficiently mature and well enough informed to intelligently decide whether or not to terminate the pregnancy by abortion.” J.A. at 149. Complaint Form B contains the allegation that notification of the complainant’s parent or guardian would not be in her best interests. J.A. at 151. Complaint Form C contains both allegations. If the complainant files Complaint Form A, the juvenile court considers only the issue of maturity. If the juvenile court is unable to conclude that the complainant is sufficiently mature to make the decision without notifying her parents, the court will dismiss the complaint without otherwise considering whether notifying the parent is in the minor’s best interests. Similarly, if the complainant files Complaint Form B, the court will consider only the issue of whether terminating the pregnancy without parental notification is in the minor’s best interests, and will not consider the issue of whether the complainant is mature enough to make the decision without parental intervention. Only if the complainant files Form C is the court permitted to consider both Form A and Form B issues under the framework created by Bellotti II. No statute imposing or construing a similar pleading requirement in the abortion context has been cited by the parties or discovered in the course of our own research. Nevertheless, we believe that this requirement burdens the minor’s right to receive an abortion by increasing the risk that she will be deprived of an effective opportunity to establish that she is entitled to proceed with an abortion in the absence of parental intervention. Because the State of Ohio has offered no legitimate reason for imposing the pleading requirement, we agree with the district court that this provision cannot withstand constitutional scrutiny. In Bellotti II, Justice Powell indicated that a minor in a bypass proceeding is entitled to show either that she is mature enough to make the abortion decision alone or that parental intervention is not in her best interests. If the complainant fails to satisfy the court that she is sufficiently mature, “she must be permitted to show that an abortion nevertheless would be in her best interests.” 443 U.S. at 647, 99 S.Ct. at 3050. Obviously, the complainant is not in a position to determine whether the juvenile court will be persuaded as to her maturity until long past the pleading stage. Moreover, the State of Ohio has presented no legitimate justification for imposing its pleading requirement which, in our view, is a “procedural trap.” Indeed, it advances the absurd contention that “[a]ny minor claiming to be mature and well enough informed to independently make such an important decision as an abortion should also be mature enough to file her complaint under [the appropriate subsection].” State of Ohio’s Brief at 43. We believe that this attempt to justify the statute’s procedural maze cannot withstand even the most cursory examination. Accordingly, we affirm the district court’s conclusion that the pleading requirement established by section 2151.85(C) constitutes an undue burden upon the right to an abortion. C. Standard of Proof The Ohio statute requires the minor complainant to establish that she is mature or that notification is not in her best interests by clear and convincing evidence. The district court concluded that this standard imposed an undue burden upon the minor’s right to seek an abortion. The appropriate standard of proof to be utilized in a proceeding of this nature is a question of first impression. However, the Supreme Court has carefully articulated general rules to be considered in assessing the constitutionality of the standard of proof in a proceeding which could result in the deprivation of a protected liberty or property interest. The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision. Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (quoting In Re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)). In considering whether the standard of proof utilized in a given proceeding complies with due process, a court must consider three factors: “the private interests affected by the proceeding; the risk of error created by the State’s chosen procedure; and the countervailing government interest supporting use of the challenged procedure.” Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982); see also Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). In the present case, the mature minor’s interest in exercising her constitutional right to proceed with an abortion without parental intervention is substantial. As discussed above, a woman’s right to obtain a first trimester abortion is a fundamental one to be exercised by the pregnant woman upon the advice of her attending physician. Roe, 410 U.S. at 164, 93 S.Ct. at 732. Even when the pregnant woman is a minor, intervention may be justified only upon the showing of a substantial state interest. Danforth, 428 U.S. at 73, 96 S.Ct. at 2843; Pearson, 716 F.2d at 1133. The uniquely private and personal nature of this decision has been consistently recognized by the Supreme Court. See, e.g., Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 764-68, 106 S.Ct. 2169, 2181-82, 90 L.Ed.2d 779 (1986). To support its requirement of the heightened standard of proof, the State of Ohio asserts interests in the facilitation of parental involvement in child rearing. See Bellotti II, 443 U.S. at 638, 99 S.Ct. at 3045. However, the State of Ohio’s argument misperceives the purpose of the bypass requirement. As plaintiffs correctly argue, the bypass procedure is not designed to facilitate parental involvement. Rather, it is designed to ensure that a minor who is sufficiently mature or whose best interests do not include parental notification is free to exercise her fundamental right to seek an abortion without the burden imposed by parental intervention. The State’s interests in facilitating parental involvement may be legitimately vindicated only after a determination that the minor is immature or that her best interests are not served by parental notification. See Hartigan, 768 F.2d at 1532. Thus, the only possible interest that the State may assert in formulating the specific requirements for the bypass proceeding is to ensure that the proceeding is fair and yields a reliable result. The creation of such a procedure will allow the mature minor to proceed without parental intervention, thus preserving the privacy that is the essence of this fundamental right. See Thornburgh, 476 U.S. at 764-68, 106 S.Ct. at 2181-82. At the same time, a fair and reliable procedure permits the State to vindicate its interests in ensuring that minors who are not mature do not proceed with such an important decision in the absence of parental consultation. Having so identified the competing interests, we conclude that the risk of erroneous deprivation of the mature minor’s constitutional right to proceed without parental intervention is significantly increased by the imposition of the clear and convincing standard of proof. Our conclusion in this regard is bolstered by the Supreme Court’s observation that the clear and convincing standard of proof has generally been employed “to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma.’ ” Santosky, 455 U.S. at 756, 102 S.Ct. at 1396 (quoting Addington, 441 U.S. at 425, 99 S.Ct. at 1809) (emphasis supplied). In the present case, the Ohio statute has the effect of placing the primary allocation of the risk of error upon the minor complainant, the precise individual whose fundamental liberty interest is at stake. We agree with the district court that the imposition of this heightened standard of proof unduly burdens the minor plaintiff’s right to seek an abortion, and thus cannot withstand constitutional scrutiny. D. Confidentiality Justice Powell’s opinion in Bellotti II requires that the bypass procedures contained in a parental intervention statute “must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity_” 443 U.S. at 644, 99 S.Ct. at 3048. In the present case, the district court held that the Ohio statute fails to ensure the requisite degree of privacy. We agree. Section 2151.85(F) provides in relevant part: Each hearing under this section shall be conducted in a manner that will preserve the anonymity of the complainant. The complaint and all other papers and records that pertain to an action commenced under this section shall be kept confidential and are not public records under section 149.43 of the revised code. Section 2505.073(B) provides: All proceedings [on appeal from the denial of a judicial bypass] shall be conducted in a manner that will preserve the anonymity of the appellant on appeal. All papers and records that pertain to an appeal under this section shall be kept confidential and not public records under section 149.43 of the revised code. The complaint form instructs the minor that she is entitled to proceed under a pseudonym, although she must sign her real name and give an address where the court can contact her throughout the bypass proceeding unless she is represented by an attorney. “The issue in this case, whether the statute’s provisions specifically provide for, and thus assure, anonymity during a waiver of notice hearing, has received little attention.” Hartigan, 763 F.2d at 1542. The issue was cursorily addressed by the Supreme Court in Ashcroft, 462 U.S. at 491 n. 16, 103 S.Ct. at 2525 n. 16. The Missouri statute under consideration in Ashcroft permitted the minor to use her initials on the petition. This measure was sufficient, in the court’s view, to assure the petitioner’s confidentiality. Id. In American College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283 (3d Cir.1984), aff'd on other grounds, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), the Court enjoined enforcement of Pennsylvania’s parental consent statute pending state promulgation of regulations to ensure that the bypass proceeding be conducted with anonymity. The Court cautioned that, in order to withstand constitutional scrutiny, “the alternative judicial procedure must be an established and practical avenue and may not reljr solely on generally stated principles of availability, confidentiality, and form.” 737 F.2d at 297. Similarly, in Hartigan, 763 F.2d at 1542-44, the court enjoined enforcement of the notification statute pending promulgation of rules assuring confidentiality in the bypass proceeding. Because the statute failed to contain “any specific provisions to assure the minor’s anonymity at the waiver hearing,” Id. at 1543, and because the statute did not provide for disposition of documents following completion of the hearing, the Seventh Circuit concluded that it could not be enforced as written. In Planned Parenthood Ass’n of Atlanta v. Harris, 670 F.Supp. 971 (N.D.Ga.1987), the court concluded that the anonymity provisions contained in the Georgia statute were insufficient. Although the rules allowed the petition to be styled using only the minor’s initials, she was required to sign her full name at the end of the petition and was also required to provide her Social Security number and date of birth. The Georgia rules further did not provide for the sealing of such records. Accordingly, the court concluded that the minor’s confidentiality was not sufficiently preserved. Similarly, in American College of Obstetricians and Gynecologists v. Thorn-burgh, 656 F.Supp. 879 (E.D.Pa.1987), the court considered the adequacy of rules promulgated by the Pennsylvania Supreme Court to assure confidentiality in the bypass proceedings. Because the rule could be interpreted to require the minor complainant to sign her real name to the petition, the court held that there was an insufficient guarantee of anonymity. Although we agree with the district court that the State of Ohio has taken “laudable steps toward complying with the Bellotti IPs anonymity requirement,” we believe, as did the district court, that the minor’s anonymity is not sufficiently preserved. 633 F.Supp. at 1143. In our view, the most significant defect is that the minor is required to sign her full name at the end of the petition and to provide an address where she can be reached unless she is represented by an attorney. We further conclude that the remaining provisions regarding confidentiality amount to nothing more than the mere precatory language found offensive in Thornburgh and Hartigan, supra. Accordingly, we believe these concerns support the district court’s conclusion that the waiver provision is constitutionally defective because it fails to ensure that the minors who use it will be protected with sufficient anonymity. However, we are not in full agreement with the district court’s conclusions regarding certain other provisions of the Ohio statute and their effect upon the complainant’s right to anonymity. Specifically, the district court believed that the venue provisions contained in the Ohio statute deprive the complainant of anonymity. Section 2151.85(A) provides that the bypass proceeding may be initiated: [I]n the juvenile court of the county in which [complainant] has a residence or a legal settlement, in the juvenile court of any county that borders to any extent the county in which she has a residence or legal settlement, or in the juvenile court of the county in which the hospital, clinic, or other facility in which the abortion would be performed or induced is located.... The district court concluded that “[t]he venue provisions prevent [complainant] from going to a county where she might be assured of anonymity.” 633 F.Supp. at 1144. We disagree. The venue provisions contained in the Ohio statute permit the minor who fears disclosure of her activities to travel to any county in the state to initiate a bypass proceeding and to have the abortion performed. Under these circumstances, we cannot conclude that the venue provisions are in themselves constitutionally defective. See Harris, 670 F.Supp. at 992; Margaret S. v. Treen, 597 F.Supp. 636, 652 (E.D.La.1984). The district court also expressed concern that the minor complainant’s right to anonymity would be compromised by the operation of Ohio Rev.Code § 2151.421 (Page Supp.1985) which requires attorneys and other professionals to report incidents of child abuse or neglect discovered during the course of their professional responsibilities. This possible infringement upon the iñinor plaintiff’s right to anonymity has been cured by an amendment to the statute. See Ohio Rev.Code § 2151.421 (Page Supp.1987). Finally, the district court concluded that the statute’s anonymity provisions were insufficient because, when read in connection with Ohio Juv.R. 16 and 2(16) and Ohio Rev.Code § 2151.28 (Page 1976), they would require the minor’s parent to be notified of the impending bypass proceeding. Such a construction would be patently unconstitutional. See Akron I, 462 U.S. at 441 n. 31, 103 S.Ct. at 2498 n. 31. Bellotti II, 443 U.S. at 647, 99 S.Ct. at 3050 (“[E]very minor must have the opportunity —if she so desires — to go directly to a court without first consulting or notifying her parents.”). We believe Ohio courts would construe the provisions so that the specific would govern the general, and thus any conflict would be avoided. See Acme Eng’g Co. v. Jones, 150 Ohio St. 423, 83 N.E.2d 202 (1948); CADO Business Sys. v. Board of Educ., 8 Ohio App.3d 385, 457 N.E.2d 939 (1983); see also Tamele v. Brinkman, 30 Ohio Misc. 49, 284 N.E.2d 210 (1972). In sum, while we do not completely agree with the district court’s evaluation of certain discrete aspects of the anonymity provisions contained in the Ohio bypass proceeding, we conclude that the district court was correct in holding that the confidentiality provision is insufficient to comply with the dictates of Bellotti II. Accordingly, the judgment of the district court enjoining operation of the statute on this ground is affirmed. E. Expedition The plurality opinion in Bellotti II mandates that the bypass proceeding be held with “sufficient expedition to provide an effective opportunity for an abortion to be obtained.” 443 U.S. at 644, 99 S.Ct. at 3048. The Ohio statute under consideration in the present case contemplates a procedure that will span a maximum of twenty-two days. The district court con-eluded that the time frame is too long to comply with the dictates of Bellotti II. As indicated above, the term “expediency” in Bellotti II was defined only in terms of the preservation of an effective opportunity for an abortion to be obtained. Only once has the Supreme Court expanded upon this definition. In Ashcroft, the Supreme Court analyzed the expeditiousness of the bypass proceeding created by Missouri law. As to expedition of appeals, § 188.028.2(6) provides in relevant part: “The notice of intent to appeal shall be given within twenty-four hours from the date of issuance of the order. The record on appeal shall be completed and the appeal shall be perfected within five days from the filing of notice to appeal. Because time may be of the essence regarding the performance of the abortion, the supreme court of this state shall, by court rule, provide for expedited appellate review of cases appealed under this section.” We believe this section provides the framework for a constitutionally sufficient means of expediting judicial proceedings. Immediately after the effective date of this statutory enactment, the District Court enjoined enforcement. No unemancipated pregnant minor has been required to comply with this section. Thus, to this point in time, there has been no need for the State Supreme Court to promulgate rules concerning appellate review. There is no reason to believe that Missouri will not expedite any appeal consistent with the mandate in our prior opinions. 462 U.S. at 491 n. 16, 103 S.Ct. at 2525 n. 16. The parties in the present case agree that the framework created by Missouri law at the time of the Ashcroft decision envisioned a process spanning sixteen or seventeen days (depending upon whether the minor filed her notice of appeal on the day of the decision or the following day) plus a period of sufficient expedition at both the trial level and the appellate level during which the decision would be made. The precise time limits for these periods of sufficient expedition were to be governed by rules promulgated by the Missouri Supreme Court. Thus, the Supreme Court in Ashcroft did not define the constitutionally permissible outer limits of a time frame that is sufficiently expedient under Bellotti II. Rather, the Court merely assumed that the State of Missouri would promulgate rules consistent with the need for expedition. Conversely, in the present ease, no such flexibility exists. Instead, we are faced with a bypass procedure spanning twenty-two days, arguably almost a week longer than the procedure envisioned by Missouri law. The court below, and other courts considering this issue, have recognized that minors often do not learn of their pregnancies until a late stage in the first trimester. “Studies show that the problem [of delay] is particularly acute for pregnant minors, who are more likely to seek abortions at a later stage of gestation than are older women. Nationally, over half of the abortions obtained by adolescents are performed at 9 or more weeks of gestation.” Thornburgh, 656 F.Supp. at 887. The Supreme Court has recognized that “prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Roe, 410 U.S. at 164, 93 S.Ct. at 732. As the pregnancy advances, the state’s interests in protecting maternal health and “the potentiality of human life” represented by the fetus -justify greater state regulation. Id. at 164, 93 S.Ct. at 732. Accordingly, time lost during the first trimester is especially critical. In Thornburgh, 656 F.Supp. at 887-88, the court held that a bypass proceeding taking twenty-three days unduly infringed upon the minor’s right to obtain an abortion. Because a minor who would be forced to pursue an appeal process consuming twenty-three days might well be pushed into the second trimester of her pregnancy, the court concluded that the twenty-three day procedure was unconstitutional. Similarly, in Glick v. McKay, 616 F.Supp. 322, 326 (D.Nev.1985), the court concluded that a bypass proceeding which could last for three weeks “raises serious questions of the statute’s constitutionality because time lost in the first trimester is crucial.” Accordingly, enforcement of the statute was enjoined. Cf Harris, 670 F.Supp. at 971 (statute containing time frame similar to one at issue in present case upheld). We agree with the district court and the courts in Thornburgh and Glick that time lost during the first trimester is, indeed, crucial. Although the Ohio legislature has made a commendable attempt to provide an expedited proceeding for the determination of maturity, we conclude that the possible twenty-two day delay established by House Bill 319 unduly burdens the minor’s right to obtain an abortion. F. The “Pocket Authorization” Provision The Ohio statute provides that if the juvenile court fails to hold a hearing on the complainant’s petition within five business days after it is filed, the minor is entitled to proceed with the abortion without parental notification. Similarly, if the court of appeals does not act upon the petition within five days after the appeal is docketed, the minor is entitled to proceed without parental notification or judicial authorization. The district court struck down these provisions on the ground that they are unconstitutionally vague. Because we believe that the constructive order provisions unduly burden the minor’s right to obtain an abortion, we affirm the judgment of the district court insofar as it found these provisions to be constitutionally deficient. In Glick, 616 F.Supp. at 325-26, the court preliminarily enjoined enforcement of a provision substantially identical to the ones at issue in the present case. [T]he provision for a “pocket approval” puts the physician in a difficult position. If the district court does nothing, authorization for the physician to perform the abortion is deemed to have been granted. The physician is subjected to liability if the abortion is performed without authorization, but the physician has nothing tangible to rely upon to prove compliance with the law. In the case of “pocket approval,” no record is made of the authorization. Id. at 325 (citation omitted). We agree with the court in Glick that a “pocket approval” provision “puts the physician in a difficult position,” and we go a step further and hold that the operation of this procedure places an undue burden upon the minor’s right to seek an abortion. We recognize that the “pocket approval” provisions were ostensibly inserted into the statute in order to protect the minor’s right to an expedient disposition of her petition. Nevertheless, we believe that the practical effect of such a provision is to frustrate that right. The minor entitled to avail herself of the “pocket approval” provision is left with nothing tangible to show the physician in support of her authority to proceed in the absence of parental or express judicial authorization. Given the severe penalties imposed upon a physician who performs an abortion without adequate authorization, we believe it is clear that a physician would be unwilling to proceed under such circumstances. The resulting confusion can only facilitate delay at a time when each passing day pushes the minor complainant closer to the end of the first trimester. Accordingly, we conclude that the “pocket approval” provisions contained in the Ohio statute are unduly burdensome. G. Twenty-Four Hour Waiting Period and Appointment of Counsel on Appeal In the proceedings below, the district court rejected plaintiffs’ argument that the twenty-four hour postnotification waiting period is unconstitutional. Furthermore, the district court rejected the argument that the statute is constitutionally deficient because it fails to provide for the appointment of counsel on appeal. Although plaintiffs request that we reverse the district court’s holding on these issues, we note that they have failed to perfect a cross-appeal. This court has held that “filing a notice of cross-appeal is jurisdictional where an appellee wishes to attack part of a final judgment in order to enlarge his rights or reduce those of his adversary.” SEC v. Youmans, 729 F.2d 413, 415 (6th Cir.), cert. denied, 469 U.S. 1034, 105 S.Ct. 507, 83 L.Ed.2d 398 (1984); see also Ford Motor Credit Co. v. Aetna Casualty & Sur. Co., 717 F.2d 959 (6th Cir.1983). It is true that a party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the right of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below. United States v. American Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087 (1924). In the present case, plaintiffs attempt to “enlarge their own rights” by asking this court to strike down statutory provisions upon which the district court has placed its imprimatur. In the absence of a cross-appeal, we are powerless to do so. IV. In conclusion, our review of the Ohio statute in light of the governing Supreme Court precedent convinces us that the district court was correct in holding that: (1) a Bellotti II bypass procedure is required in statutes providing for parental notification when a minor seeks an abortion; and (2) the bypass procedure created by Ohio law is constitutionally deficient in that it requires the attending physician to effectuate the notification; that it contains a burdensome pleading requirement for which no legitimate justification is advanced; that it imposes on the minor an unduly burdensome standard of proof; that it fails to sufficiently preserve the minor’s right to confidentiality and expediency; and that it contains “pocket approval” provisions which are unduly burdensome. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED. APPENDIX I 1985 Session Laws — Full Text AMENDED SUBSTITUTE HOUSE BILL NO. 319 Act Effective Date: 3-24-86 Date Passed: 11-20-85 Date Approved by Governor: Becomes law without governor’s signature Date Filed: 12-23-85 File Number: 125 Chief Sponsor: LUEBBERS General and Permanent Nature: Per the Director of the Ohio Legislative Service Commission, this Act’s section numbering of law of a general and permanent nature is complete and in conformity with the Revised Code. To amend sections 149.43, 2305.11, 2919.-12, and 4731.22 and to enact sections 2151.85 and 2505.073 of the Revised Code to specify that before an abortion can be performed or induced upon an unmarried, unemancipated woman under 18 years of age, either notification must be given to the woman’s parent, guardian, or custodian, notification must be given to a specified stepparent, grand