604 P.2d 907 (Utah 1979), 16249, H L v. Matheson

Docket Nº:16249.
Citation:604 P.2d 907
Opinion Judge:MAUGHAN, Justice:
Party Name:H--- L---, on behalf of herself and all others similarly situated, Plaintiff and Appellant, v. Honorable Scott M. MATHESON, individually and in his capacity as Governor of the State of Utah, and Honorable Robert B. Hansen, individually and in his capacity as Attorney General of the State of Utah, Defendants and Respondents.
Attorney:David S. Dolowitz of Parsons, Behle & Latimer, Salt Lake City, for plaintiff and appellant. Robert B. Hansen, Atty. Gen., Joseph P. McCarthy, Paul M. Tinker, Asst. Attys. Gen., Salt Lake City, for defendants and respondents.
Case Date:December 06, 1979
Court:Supreme Court of Utah
 
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604 P.2d 907 (Utah 1979)

H--- L---, on behalf of herself and all others similarly

situated, Plaintiff and Appellant,

v.

Honorable Scott M. MATHESON, individually and in his

capacity as Governor of the State of Utah, and Honorable

Robert B. Hansen, individually and in his capacity as

Attorney General of the State of Utah, Defendants and Respondents.

No. 16249.

Supreme Court of Utah.

December 6, 1979

Probable Jurisdiction Noted Feb. 25, 1980.

See 100 S.Ct. 1077.

David S. Dolowitz of Parsons, Behle & Latimer, Salt Lake City, for plaintiff and appellant.

Robert B. Hansen, Atty. Gen., Joseph P. McCarthy, Paul M. Tinker, Asst. Attys. Gen., Salt Lake City, for defendants and respondents.

MAUGHAN, Justice:

Plaintiff, seeking declaratory and injunctive relief, initiated this action for the purpose of having Section 76-7-304(2) declared unconstitutional and to enjoin the enforcement thereof. The trial court found the

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provision constitutionally valid, and plaintiff appeals therefrom. The judgment is affirmed. All statutory references are to the 1953 Utah Code Annotated, as amended.

Plaintiff, a fifteen year old girl, alleged she was pregnant with an unwanted child. She asserted she was in her first trimester of pregnancy. She claimed she did not wish to inform her parents of her condition, and she believed it to be in her best interests not to impart such information to her parents. She averred, she was determined to secure an abortion after consultation with her counselor.

Plaintiff consulted her physician. He advised her, under Section 76-7-304(2), he could not and would not perform the abortion, without first notifying her parents.

Section 76-7-304, provides:

To enable the physician to exercise his best medical judgment, he shall:

(1) Consider all factors relevant to the well-being of the woman upon whom the abortion is to be performed including, but not limited to,

(a) Her physical, emotional and psychological health and safety,

(b) Her age,

(c) Her familial situation.

(2) Notify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor or the husband of the woman, if she is married.

This provision is part of the criminal code, as provided in Section 76-7-314(3). Such may be punishable by imprisonment for a term not exceeding one year, as provided in Section 76-3-204(1); together with a fine not exceeding $1,000, pursuant to Section 76-3-301(3).

Plaintiff proceeded in a class action, asserting the statute constituted an invasion of privacy of each member of the class, whom she represented. Specifically, she claimed the right of privacy encompassed the right to have an abortion, particularly in the first trimester of pregnancy, free from regulation or interference by the State of Utah. She urged the statute unconstitutionally infringed the right of privacy and thus violated the Fourteenth Amendment of the Constitution of the United States. She further asserted the statute was an overly broad regulation, which interfered with her right to consult freely with her treating physician, and to secure treatment, where appropriate, in the effectuation of an abortion without any compelling State interest in such regulation.

In its order denying a temporary restraining order, the trial court found plaintiff had made no special showing of detriment which might result if her parents were notified except for plaintiff's allegations she did not wish to inform her parents, and believed it was in her best interests to withhold this information. The trial court further found the identity of the parents was known or could be easily ascertained by the consulting physician. The trial court concluded, while a State may not regulate or interfere with the decision of an adult woman, and that of her physician, to terminate an unwanted pregnancy during the first trimester, there was no binding decision, which precluded a State from enacting a legislative provision requiring a physician to notify the parents of a minor prior to performing an abortion.

The trial court entered a judgment, dismissing plaintiff's action. The trial court found plaintiff was unmarried, fifteen years of age, resided at home, was a dependent of her parents, and was in the first trimester of her pregnancy at the time her complaint was filed. The Court further ruled plaintiff was an appropriate representative to represent the class she purported to represent. The trial court interpreted Section 76-7-304(2) as requiring the treating physician to notify, if it be physically possible, viz., if he knows or can determine the identity of the parents of a minor, and he is physically able to notify them, that he do so prior to the performance of an abortion upon a minor. The trial court ruled, as thus interpreted, the statute was valid and did not unconstitutionally restrict the right

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of privacy of a minor to secure an abortion, or to enter into a doctor-patient relationship.

On appeal, plaintiff contends Section 76-7-304(2), as interpreted by the trial court, violates the Fourteenth Amendment of the Constitution of the United States. She urges, in the first trimester, the State cannot interfere at all with the fundamental interest of the pregnant woman in making an abortion decision in consultation with her physician. In the alternative, plaintiff contends this overly-broad regulation of the exercise of constitutionally protected rights can be so construed as to be valid. Specifically, plaintiff urges the term "if possible" be interpreted as conferring on the physician and patient the discretion to determine if medically, socially, psychologically, and physically it would be appropriate to notify the minor's parents.

In Roe v. Wade 1 the Court ruled the right of privacy, found in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, is broad enough to encompass a woman's decision as to whether to terminate her pregnancy. This right of personal privacy, including the abortion decision is not unqualified and must be considered against state interests in regulation. However, a regulation limiting a fundamental right may be justified only by a compelling state interest. Furthermore, such legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.

The Court ruled in Roe v. Wade, 2 with respect to the stage prior to approximately the end of the first trimester, "(T)he attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State."

It further held the State may place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The Court stated:

. . . The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional are available. 3

In the companion case of Doe v. Bolton 4 the Court ruled the abortion determination, so far as the physician is concerned, is made in the exercise of his best clinical judgment in the light of all the attendant circumstances. The physician may range farther afield wherever his medical judgment, properly and professionally exercised, so dictates and directs him. His "medical judgment may be exercised in the light of all factors physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient. All these factors relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman."

The aforecited factors, which the physician may consider in making his best medical judgment were incorporated in subsection (1) of Section 76-7-304, the challenged statute. The notification provision of subsection (2) is substantially and logically related to the factors in subsection (1), for it is the parent of the minor, who would frequently possess additional information, which might prove invaluable to the physician

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in exercising his "best medical judgment." The notification provision merely gives the parents the option to respond and to consult with the physician and child. The statute does not confer a veto-power on anyone to overrule the determination of the doctor and his patient. 5

Neither the Roe nor the Doe decision considered the issue of a pregnant minor seeking an abortion. In Planned Parenthood of Central Missouri v. Danforth 6 the Court ruled the State may not impose a blanket provision, requiring the consent of a parent or person in Loco parentis as a condition for abortion of an unmarried minor during the first twelve...

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