Armstrong v. State

• Citation: 989 P.2d 364,1999 MT 261
• Decision Date: 26 October 1999
• Docket Number: No. 98-066.,98-066.
• Parties: James H. ARMSTRONG, M.D.; Susan Cahill, P.A.; Barbara Polstein, D.O.; Mindy Opper, P.A.; and Blue Mountain Clinic, on behalf of themselves and their patients throughout Montana, the surrounding states and Canada, Plaintiffs and Respondents, v. The STATE of Montana and Joseph P. Mazurek, in his official capacity as Attorney General for the State of Montana and his agents and successors, Defendants and Appellants.
• Court: Montana Supreme Court

989 P.2d 364

1999 MT 261

James H. ARMSTRONG, M.D.; Susan Cahill, P.A.; Barbara Polstein, D.O.; Mindy Opper, P.A.; and Blue Mountain Clinic, on behalf of themselves and their patients throughout Montana, the surrounding states and Canada, Plaintiffs and Respondents, v. The STATE of Montana and Joseph P. Mazurek, in his official capacity as Attorney General for the State of Montana and his agents and successors, Defendants and Appellants.

No. 98-066.

Supreme Court of Montana.

Heard October 15, 1998.

Submitted July 1, 1999.

Decided October 26, 1999.

Joseph P. Mazurek, Attorney General, Clay R. Smith, Solicitor (argued), Helena, Montana, for Appellant.

Janet Benshoof, Simon Heller (argued), Julie F. Kay, The Center for Reproductive Law & Policy, New York, New York; Bruce Measure, Law Offices of Ambrose Measure, Kalispell, Montana, for Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Plaintiffs James H. Armstrong, M.D.; Susan Cahill, P.A.; Barbara Polstein, D.O.; Mindy Opper, P.A.; and Blue Mountain Clinic, filed suit in this matter seeking a determination that § 37-20-103, MCA (1995), and § 50-20-109, MCA (1995), prohibiting physician assistants-certified from performing abortions, violates the privacy, equal protection and bill of attainder provisions of the Montana Constitution. The District Court for the First Judicial District, Lewis and Clark County, granted Plaintiffs' motion for a preliminary injunction, protecting the abortion practice of Armstrong and Cahill. The State appeals. We affirm.

Introduction

Standing

¶ 2 The core constitutional right which is under attack in the case at bar is the fundamental right of individual privacy guaranteed by Article II, Section 10, of the Montana Constitution. Quite simply, the statutory amendments at issue prevent a woman from obtaining a lawful medical procedure — a pre-viability abortion — from a health care provider¹ of her choosing. In so doing, these amendments unconstitutionally infringe a woman's right to individual privacy under Montana's Constitution.

¶ 3 Before we begin our substantive discussion setting forth our rationale for this conclusion, we must first note the obvious. Plaintiffs Armstrong, Cahill, Polstein and Opper are not women who were prevented from obtaining a pre-viability abortion. Rather, they are health care providers who perform such abortion services, or who provide counseling and referrals related to such services. Plaintiff Blue Mountain Clinic, an institutional health care provider, employs Polstein and Opper. In all instances, the plaintiffs brought suit on their own behalf as well as on behalf of their patients. Thus, we are faced with a threshold question: Do the plaintiff health care providers have standing to assert the privacy rights of their women patients? We conclude that they do.

¶ 4 Standing was not raised by the parties. Rather, this case was briefed and argued to the District Court and to this Court on appeal on the basis that the statutory amendments either did or did not violate women's constitutional right to privacy. Presented in that posture, we would, as a general rule, decline to address on appeal an issue not raised by the parties. See Custody of N.G.H. (1998), 1998 MT 212,

¶ 19, 290 Mont. 426, ¶ 19, 963 P.2d 1275, ¶ 19. Standing, however, is an exception to that rule. See Matter of Paternity of Vainio (1997), 284 Mont. 229, 235, 943 P.2d 1282, 1286 (identifying standing as a "threshold requirement of every case"); Rieman v. Anderson (1997), 282 Mont. 139, 144, 935 P.2d 1122, 1125 (stating that objections to standing cannot be waived and may be raised by the court sua sponte).

¶ 5 Moreover, since this case involves important issues of first impression in Montana, our failure to raise and to address standing may leave open to further challenge via that argument the constitutional rights at issue. We are not willing to leave that stone unturned, and, therefore, choose to articulate the rationale which makes it appropriate that we decide this case on the basis that it was presented to us.

¶ 6 In the context of challenges to government action, we have stated that the following criteria must be satisfied to establish standing: (1) The complaining party must clearly allege past, present or threatened injury to a property or civil right; and (2) the alleged injury must be distinguishable from the injury to the public generally, but the injury need not be exclusive to the complaining party. See Olson v. Department of Revenue (1986), 223 Mont. 464, 470, 726 P.2d 1162, 1166

(concluding that the appellants lacked standing to challenge the constitutionality of statutes requiring county residency to run for county office, or obtain a hunting or fishing license, where the record reflected that they had not attempted to run for office or obtain hunting or fishing licenses); Lee v. State (1981), 195 Mont. 1, 7, 635 P.2d 1282, 1285 (concluding that the appellant, as a licensed Montana motorist, was directly affected by 55-mile-an-hour speed limit law, and therefore had standing to challenge its constitutionality although the law generally applied to all motorists).

¶ 7 Although we followed Lee in Helena Parents v. Lewis & Clark County (1996), 277 Mont. 367, 922 P.2d 1140, we also extensively relied on numerous United States Supreme Court decisions in articulating whether a parents' organization had standing to challenge a county and school district's investment practices that allegedly violated state law. In concluding that the organization had standing, we effectively broadened the second prong of the above two-part rule to include harm that is common to the general public but that can still affect the individual taxpayer in ways that are not common to the public. See Helena Parents, 277 Mont. at 371-74,

922 P.2d at 1142-44 (citing Warth v. Seldin (1975), 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343; Flast v. Cohen (1968), 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947; Virginia v. American Booksellers Ass'n (1988), 484 U.S. 383, 392-93, 108 S.Ct. 636, 642-43, 98 L.Ed.2d 782; United States v. SCRAP (1973), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254; Sierra Club v. Morton (1972), 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636).

¶ 8 The case at bar — involving constitutional issues related to abortion and privacy — presents a standing question of first impression in Montana. It is one which does not fit precisely within the parameters of the broadened two-part rule set out above. Specifically, the standing question can be phrased as: Where governmental regulation directed at health care providers impacts the constitutional rights of women patients, may a health care provider litigate the infringement of these rights on behalf of the women or must the women aggrieved assert their own rights?

¶ 9 Finding no relevant authority in Montana on this question we again turn, as we did in Helena Parents, to federal case law. The federal courts have thoroughly addressed and resolved whether the special relationship between a physician and patient afford the former standing to litigate the constitutional rights of the latter. See Singleton v. Wulff (1976), 428 U.S. 106, 117-18, 96 S.Ct. 2868, 2875-76, 49 L.Ed.2d 826

(concluding that based on the "closeness of the relationship," physicians have standing to maintain, on behalf of their women patients, a suit challenging the constitutionality of certain Missouri abortion laws). See also Cruzan v. Director, Missouri Dep't of Health (1990), 497 U.S. 261, 340 n. 12, 110 S.Ct. 2841, 2884 n. 12, 111 L.Ed.2d 224 n. 12 (Stevens, J., dissenting) (stating that the United States Supreme Court has "recognized that the special relationship between patient and physician will often be encompassed within the domain of private life protected by the Due Process Clause," and citing Griswold v. Connecticut (1965), 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510, and Roe v. Wade (1973), 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147). See also Planned Parenthood of Central Missouri v. Danforth (1976), 428 U.S. 52, 59, 96 S.Ct. 2831, 2836, 49 L.Ed.2d 788 (noting that once the lower court deemed physicians had standing to bring suit on behalf of patients, it was "unnecessary to determine whether Planned Parenthood also had standing").

¶ 10 It is especially noteworthy that the federal courts have not refrained from according to physicians, threatened with the personal risk of prosecution, standing to challenge abortion restrictions by asserting the rights of their patients. The holding and analysis in Singleton unequivocally established that right three years after the Court decided Roe v. Wade. Citing prior case law where physicians had been allowed to assert the rights of their patients, the Singleton Court stated:

A woman cannot safely secure an abortion without the aid of a physician, and an impecunious woman cannot easily secure an abortion without the physician's being paid by the State. The woman's exercise of her right to an abortion, whatever its dimension, is therefore necessarily at stake here. Moreover, the constitutionally protected abortion decision is one in which the physician is intimately involved. See Roe v. Wade, 410 U.S. [at] 153-156, 93 S.Ct. [at] 726-728. Aside from the woman herself, therefore, the physician is uniquely qualified to litigate the constitutionality of the State's interference with, or discrimination against, that decision . . . .

For these reasons, we conclude that it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision. . . .

Singleton, 428 U.S. at 117-18, 96 S.Ct. at 2875-76.

¶ 11 Even the concurring-dissenting justices in Singleton (who disagreed with part of the Supreme Court's decision on the facts of the case) nevertheless conceded the correctness of the Court's analysis and holding...