Aid for Women v. Foulston
| Decision Date | 26 July 2004 |
| Docket Number | No. 03-1353-JTM.,03-1353-JTM. |
| Citation | 327 F.Supp.2d 1273 |
| Parties | AID FOR WOMEN, on its own behalf; et. al., Plaintiffs, v. Nola FOULSTON, in her official capacity as District Attorney, 18th Judicial District of Kansas, as representative of a class of all county and district attorneys in the state of Kansas, Defendants. |
| Court | U.S. District Court — District of Kansas |
Bonnie Scott Jones, Simon Heller, New York, NY, Laura B. Shaneyfelt, Hulnick Law Offices, Wichita, KS, for Plaintiffs.
David W. Davies, Stephen O. Phillips, Kansas Attorney Generals, Stephen D. Maxwell, Office of Attorney General — Topeka, Topeka, KS, for Defendants.
This matter comes before the court on plaintiffs' motion for a preliminary injunction (Dkt. No. 4), defendants' motion for judgment on the pleadings (Dkt. No. 45), motion to strike (Dkt. No. 47) and motion to certify a question to the Kansas Supreme Court (Dkt. No. 65). Plaintiffs bring this action seeking to enjoin defendants from enforcing K.S.A. § 38-1522 ("Reporting Statute") to incidents of sexual activity between adolescents under the age of sixteen and persons of similar age in which injury is not reasonably suspected. They request declaratory and injunctive relief under the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983. For the reasons stated below, the court grants plaintiffs' motion for a preliminary injunction (Dkt. No. 4) and denies defendants' motion for judgment on the pleadings (Dkt. No. 45), motion to strike (Dkt. No. 47) and motion to certify a question to the Kansas Supreme Court (Dkt. No. 65).
The court finds the following facts relevant for the purposes of considering plaintiff's motion for a preliminary injunction.
Plaintiffs are licensed professionals required to report child abuse under the Reporting Statute. They include physicians, nurses, social workers, a psychologist and a sexuality educator, who provide confidential health care and counseling services to adolescents in the state of Kansas. In the course of his or her work, each of the individual plaintiffs sometimes becomes aware that an adolescent under the age of 16 is or has been sexually active. Each individual plaintiff sues on his or her own behalf and on behalf of his or her patients under the age of 16 who seek confidential treatment, counseling, or health care.
Plaintiff Aid for Women is a medical practice in Kansas City that provides a range of gynecological services, including abortions. Aid for Women is criminally liable for the acts of its agents within the scope of their authority, K.S.A. § 21-3206, including failure to comply with the reporting statute. Aid for Women sues on its own behalf. Plaintiff Teri Augustus, L.M.S.W., is a Licensed Masters Social Worker who is licensed to practice social work in the state of Kansas. She provides case management and adoption services to children and adolescents at a private child welfare agency in Wichita. Plaintiff Margot Breckbill, R.N., is a registered nurse and childbirth educator. She teaches sexuality education at various agencies and at public and private schools in the Wichita area. She has also worked with pregnant and parenting teens in the Wichita area for the past eighteen years. Plaintiff Tracy Cowles, M.D., is a perinatologist who is licensed to practice medicine in the state of Kansas. She is board certified in obstetrics & gynecology, maternal-fetal medicine and medical genetics. Dr. Cowles provides perinatology services in a private medical practice in Overland Park. Plaintiff Willow Eby, R.N., is a registered nurse who is licensed to practice nursing in the state of Kansas. Ms. Eby provides nursing services at a private medical practice in Wichita that provides abortions and other reproductive health services. Plaintiff Vicki Epp, L.B.S.W., is a Licensed Bachelors Social Worker who is licensed to practice social work in the state of Kansas. She provides case management and other social services to children and adolescents at a private child welfare organization in Newton. Plaintiff Margaret Estrin, M.D., is a board-certified obstetrician-gynecologist who is licensed to practice medicine in the state of Kansas. Dr. Estrin provides a range of obstetrical and gynecological services in a private medical practice in Overland Park. Plaintiff Herbert Hodes, M.D., is a board-certified obstetrician-gynecologist who is licensed to practice medicine in the state of Kansas. His daughter, Plaintiff Traci Nauser, M.D., is also a board-certified obstetrician-gynecologist licensed to practice medicine in the state of Kansas. Dr. Hodes and Dr. Nauser provide a range of obstetrical and gynecological services, including abortions, contraceptives, and treatment of sexually transmitted diseases at their private medical practice in Overland Park. Plaintiff Colleen O'Donnell, R.N.-C, is a registered nurse licensed by the state of Kansas to practice nursing. Ms. O'Donnell is employed by Dr. Hodes's and Dr. Nauser's medical practice, where she provides a range of nursing services within their obstetrical and gynecological practice. Plaintiff Stacey Morgan, D.O., is a doctor of osteopathy who is licensed to practice medicine in the state of Kansas. Dr. Morgan is board certified in family practice. She provides a range of medical services in a private practice in Overland Park. Plaintiff Beth McGilley, Ph.D., is a clinical psychologist who is licensed to practice psychology in the state of Kansas. Dr. McGilley provides individual and group counseling services in her private practice in Wichita. Plaintiff Trina Wheeler, L.M.S.W., is a Licensed Masters Social Worker who is licensed to practice social work in the state of Kansas. Ms. Wheeler provides a variety of social work services to students of a public high school in Wichita. Plaintiff Sherman Zaremski, M.D., is a physician licensed to practice medicine in the state of Kansas. He is board certified in internal medicine. Dr. Zaremksi provides abortions, family planning, and other health services at Aid for Women. He also provides abortions and other services at another private medical practice in Wichita.
Defendant Nola Foulston is the District Attorney for the 18th Judicial District of Kansas. She is charged with prosecuting violations of the reporting statute in her district. She is sued in her official capacity and as a representative of the class of all Kansas county and district attorneys. On January 7, 2004, the court certified a defendant class consisting of all county and district attorneys in the state of Kansas. (Dkt. No. 60). The class members are responsible for prosecuting violations of the Reporting Statute. Defendant Foulston is the named representative for the class. All defendants are sued in their official capacity.
The Reporting Statute is entitled "Reporting of certain abuse or neglect of children; persons reporting; reports, made to whom; penalties for failure to report or interference with making of a report." The Reporting Statute provides:
(a) When any of the following persons has reason to suspect that a child has been injured as a result of physical, mental or emotional abuse or neglect or sexual abuse, the person shall report the matter promptly as provided in subsection (c) or (e): Persons licensed to practice the healing arts or dentistry; persons licensed to practice optometry; persons engaged in postgraduate training programs approved by the state board of healing arts; licensed psychologists; licensed masters level 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; chief administrative officers of medical care facilities; licensed marriage and family therapists; licensed clinical marriage and family therapists; licensed professional counselors; licensed clinical professional counselors; registered alcohol and drug abuse counselors; persons licensed by the secretary of health and environment to provide child care services or the employees of persons so licensed at the place where the child care services are being provided to the child; licensed social workers; firefighters; emergency medical services personnel; mediators appointed under K.S.A. 23-602 and amendments thereto; juvenile intake and assessment workers; and law enforcement officers. The report may be made orally and shall be followed by a written report if requested. When the suspicion is the result of medical examination or treatment of a child by a member of the staff of a medical care facility or similar institution, that staff member shall immediately notify the superintendent, manager or other person in charge of the institution who shall make a written report forthwith. Every written report shall contain, if known, the names and addresses of the child and the child's parents or other persons responsible for the child's care, the child's age, the nature and extent of the child's injury (including any evidence of previous injuries) and any other information that the maker of the report believes might be helpful in establishing the cause of the injuries and the identity of the persons responsible for the injuries.
(b) Any other person who has reason to suspect that a child has been injured as a result of physical, mental or emotional abuse or neglect or sexual abuse may report the matter as provided in subsection (c) or (e).
(c) Except as provided by subsection (e), reports made pursuant to this section shall be made to the state department of social and rehabilitation services. When the department is not open for business, the reports shall be made to the appropriate law enforcement agency. On the next day that ...
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