441 F.3d 1101 (10th Cir. 2006), 04-3310, Aid for Women v. Foulston

Docket Nº:04-3310.
Citation:441 F.3d 1101
Party Name:AID FOR WOMEN, on its own behalf, Teri Augustus, L.M.S.W., Margot Breckbill, R.N., Tracy Cowles, M.D., Willow Eby, R.N., Vicki Epp, L.B.S.W., Margaret Estrin, M.D., Herbert Hodes, M.D., Traci Nauser, M.D., Colleen O'Donnel, R.N-C., Staci Morgan, D.O., Beth McGilley, Ph.D., Trina Wheeler, L.M.S.W., and Sherman Zaremski, M.D., on behalf of themselves
Case Date:January 27, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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441 F.3d 1101 (10th Cir. 2006)

AID FOR WOMEN, on its own behalf, Teri Augustus, L.M.S.W., Margot Breckbill, R.N., Tracy Cowles, M.D., Willow Eby, R.N., Vicki Epp, L.B.S.W., Margaret Estrin, M.D., Herbert Hodes, M.D., Traci Nauser, M.D., Colleen O'Donnel, R.N-C., Staci Morgan, D.O., Beth McGilley, Ph.D., Trina Wheeler, L.M.S.W., and Sherman Zaremski, M.D., on behalf of themselves and their adolescent patients and clients under the age of sixteen, and as representatives of a class of similarly situated individuals, Plaintiffs-Appellees,


Nola FOULSTON, in her official capacity as District Attorney, 18th Judicial District of Kansas, and as representative of a class of all county and district attorneys in the state of Kansas, and Phill Kline, acting in his official capacity as Attorney General of the State of Kansas, Defendants-Appellants.

American Academy of Family Physicians, American Medical Association, American Medical Women's Association, American Nurses Association, American Psychiatric Association, American Society for Adolescent Psychiatry, Kansas Chapter of the American Academy of Pediatrics, Kansas Medical Society, Kansas Psychiatric Society, Kansas Public Health Association, Kansas Section of District VII of the American College of Obstetricians and Gynecologists, Kansas State Nurses Association, National Association of Social Workers and Its Kansas Chapter, Society for Adolescent Medicine, Amici Curiae.

No. 04-3310.

United States Court of Appeals, Tenth Circuit.

Jan. 27, 2006

Order Filed March 16, 2006

Appeal from the United States District Court for the District of Kansas, D.C. No. 03-01353-JTM

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Stephen O. Phillips, Assistant Attorney General, (Phill Kline, Attorney General, with him on the briefs), Topeka, KS, for Defendants-Appellants.

Laura B. Shaneyfelt, Hulnick Law Offices, Wichita, KS, and Bonnie Scott Jones and Simon Heller, Center for Reproductive Rights, New York, NY, for Plaintiffs-Appellees.

Margaret A. Dale, Proskauer Rose LLP, New York, NY, filed an amicus brief on behalf of the American Academy of Family Physicians, et al., in support of Plaintiffs-Appellees.

Before EBEL and PORFILIO, Circuit Judges, and HERRERA, District Judge. [*]


The Court, on its own motion, has amended the Order and Judgment filed January 27, 2006, nunc pro tunc to that date. In addition, we direct publication.

The amended opinion is attached to this order.

The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no judge in regular active service on the court requested that the court be polled on the en banc request, that petition is also denied.

EBEL, Circuit Judge.

A Kansas statute requires doctors, teachers, and other individuals to notify

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the state government whenever they have "reason to suspect" injury to a minor resulting from, inter alia, sexual abuse. Failure to report is a misdemeanor. In 2003, the Kansas Attorney General issued an opinion stating that any sexual activity by a minor younger than sixteen is inherently injurious and that the reporting statute therefore requires the persons listed in the statute to file a report whenever they have reason to suspect that a minor has been involved in sexual activity. Various professionals subject to the statute thereafter brought this suit, claiming that mandatory reporting of minors' voluntary sexual activity with persons of similar ages violates the minors' constitutional privacy rights. The district court below issued a preliminary injunction against enforcement of the reporting statute in the context of voluntary sexual activity between adolescents of similar age. Defendants-Appellants appeal that decision, and we vacate the preliminary injunction and remand.1


A. The Reporting Statute

Kansas law declares that

[i]t is the policy of this state to provide for the protection of children who have been subject to physical, mental or emotional abuse or neglect or sexual abuse by encouraging the reporting of suspected child abuse and neglect [and by] insuring the thorough and prompt investigation of these reports.

Kan. Stat. Ann. § 38-1521. Kansas therefore requires that whenever certain specified professionals have "reason to suspect that a child has been injured as a result of physical, mental or emotional abuse or neglect or sexual abuse," they shall "report the matter promptly" to the state government. Id. § 38-1522 (the "reporting statute"). Those who are required to make such reports include

[p]ersons licensed to practice the healing arts or dentistry; . . . licensed psychologists; . . . licensed clinical psychotherapists; licensed professional or practical nurses examining, attending or treating a child under the age of 18; teachers, school administrators or other employees of a school which the child is attending; . . . licensed professional counselors; licensed clinical professional counselors; . . . licensed social workers; . . . juvenile intake and assessment workers; and law enforcement officers.

Id. § 38-1522(a). "Willful and knowing failure to make a report required by this section" is a misdemeanor. Id. § 38-1522(f).

"Sexual abuse," as used in the reporting statute, is defined in relevant part as "any act committed with a child which is described in article 35, chapter 21 of the Kansas Statutes Annotated." Id. § 38-1502(c). The referenced article 35 criminalizes a wide range of sexual activity, including voluntary sexual activity.2 Thus,

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all sexual activity described in article 35—whether voluntary or involuntary—that involves participants younger than 16 years old constitutes "sexual abuse" under Kansas law.

B. Reporting Policies

The reports required by the reporting statute usually must be made to the Kansas Department of Social and Rehabilitation Services ("SRS"). Id. § 38-1522(c).3 The SRS's Policy and Procedure Manual states that it is the SRS's policy to "screen out," or not accept for investigation and assessment, those reports that do not require further investigation. Specifically, section 1361 of the Manual states that a report of abuse or neglect should be screened out where the "[r]eport concerns 'lifestyle' issues that do not directly harm a child or place a child in likelihood of harm." In a "Practice Note" to section 1361, the Manual lists several situations where the "[i]nformation indicates . . . lifestyle issues which do not directly harm children or place them in imminent danger of harm," and which therefore should be screened out. One of the listed situations is "[m]utual sexual exploration of age-mates (no force, power differential, or incest issues)."4 Thus, when a report of suspected sexual abuse required by the reporting statute provides evidence only of "mutual sexual exploration by age-mates"—and where there is no evidence of force, a power differential, or incest—as a matter of internal SRS policy the report "will not be accepted for investigation and assessment."5

C. Attorney General Opinions

Two relevant Kansas Attorney General opinions have analyzed the reporting statute.6 In 1992, Attorney General Stephan issued an opinion noting that "when an unmarried child under 16 years of age is pregnant, sexual abuse (as statutorily defined) has occurred, absent artificial insemination." Kan. Att'y Gen. Op. 92-48. However, he noted that the reporting statute "does not require reporting of all suspected child abuse; it requires reporting in situations where there is 'reason to suspect the child has been injured' as a result of abuse." Id. attorney General Stephan then opined that although a "

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pregnant, unmarried minor may very likely display signs of emotional, physical or mental injuries which should be reported[,] ...we do not believe that pregnancy of an unmarried minor necessarily constitutes injury." Id. Thus, Attorney General Stephan concluded that

[w]hether a particular minor in a particular case has been injured as a result of sexual intercourse and a resulting pregnancy must be determined on a case-by-case basis. The fact of pregnancy certainly puts one on notice that sexual abuse (as statutorily defined) has probably occurred, and requires persons listed in [the reporting statute] to investigate further whether the child has suffered injury, physical or emotional, as a result of such activity. If there is reason to suspect that the child has been injured, that person is then required to report such suspicions and the reasons therefore.


In 2003, Attorney General Kline issued a conflicting opinion. Although he acknowledged the 1992 opinion, he concluded that it was in error: "by focusing on the pregnancy of an unmarried girl under 16 years of age, the office [in 1992] failed to look at the State's clearly articulated position that the act of rape, whether forcible or 'statutory,' is an act that is inherently injurious and harmful." Kan. Att'y Gen. Op. 03–17. Thus, after reaffirming that any sexual intercourse with a minor is sexual abuse as a matter of law, Attorney General Kline opined that "injury as a result of sexual abuse should be inferred as a matter of law whenever sexual intercourse, whether voluntary or involuntary, has occurred with a child under the age of 16." Id. (emphasis added). Attorney General Kline recognized the broad reach of his opinion:

[In addition to where] a doctor [is] called upon to perform an abortion for a girl under the age of 16 years[,] . . . [o]ther situations that might trigger a mandated reporter's obligation, because sexual activity of a minor becomes known, include a teenage girl...

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