Benson v. McKee

• Decision Date: 04 May 2022
• Docket Number: 2020-66-Appeal.,PC 19-6761
• Citation: 273 A.3d 121
• Parties: Michael BENSON et al. v. Daniel MCKEE, in his official capacity as Governor for the State of Rhode Island, et al.
• Court: Rhode Island Supreme Court

273 A.3d 121

Michael BENSON et al.

v.Daniel MCKEE,¹ in his official capacity as Governor for the State of Rhode Island, et al.

No. 2020-66-Appeal.

PC 19-6761

Supreme Court of Rhode Island.

May 4, 2022

Thomas M. Dickinson, Esq., Diane Messere Magee, Esq., for Plaintiffs.

Michael W. Field, Assistant Attorney General, Andrea M. Shea, Special Assistant Attorney General, for Defendants.

Present: Suttell, C.J., Goldberg, and Robinson, JJ.

Justice Goldberg, for the Court.

This case came before the Supreme Court on January 27, 2022, on appeal by the plaintiffs, Michael Benson; Nichole Leigh Rowley; Nichole Leigh Rowley, as parent and next friend of Baby Roe; Jane Doe; Jane Doe, as parent and next friend of Baby Mary Doe; and Catholics for Life, Inc., dba Servants of Christ for Life (collectively plaintiffs).² The plaintiffs appeal from a Superior Court judgment following the grant of a motion to dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure brought by the defendants—Daniel McKee, in his official capacity as Governor for the State of Rhode Island; Dominick J. Ruggerio, in his official capacity as President of the Rhode Island Senate; Joseph Shekarchi, in his official capacity as Speaker of the Rhode Island House of Representatives; Peter F. Neronha, in his official capacity as Attorney General for the State of Rhode Island; and Francis McCabe, in his official capacity as Clerk of the Rhode Island House of Representatives (collectively defendants).

The plaintiffs contend on appeal, essentially, that the trial justice committed reversible error by (1) dismissing their claims based on lack of standing; (2) reaching the merits of the case; and (3) shifting the burden of proof to plaintiffs.³ For the reasons stated in this opinion, we affirm the judgment of the Superior Court in all respects.⁴

The case before us involves a monumentally controversial issue as reflected in a deep and enduring societal divide. This Court appreciates the sensitive nature of the controversy surrounding the issue of the right to abortion, and we acknowledge the genuine concerns of the parties and amici in this case.⁵

Facts and Travel

In Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the United States Supreme Court recognized that "the right of personal privacy includes the abortion decision" and declared that "the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn." Roe , 410 U.S. at 154, 158, 93 S.Ct. 705. Following Roe , the United States District Court for the District of Rhode Island declared unconstitutional Rhode Island's criminal-abortion statute that prohibited abortions, except when necessary to preserve the life of the mother. See Women of Rhode Island v. Israel , No. 4605, slip op. at 3, 4 (D.R.I. Feb. 7, 1973); Rhode Island Abortion Counseling Service v. Israel , No. 4586, slip op. at 3, 4 (D.R.I. Feb. 7, 1973); see also Doe v. Israel , 358 F. Supp. 1193, 1195-96 (D.R.I. 1973). See generally Compiler's Notes to G.L. 1956 §§ 11-3-1 – 11-3-5 (Reenactment of 2002). That statute, among other things, criminalized the acts of "[p]rocuring, counseling, or attempting miscarriage[,]" § 11-3-1, as enacted by G.L. 1872, ch. 228, § 23, as well as any "[a]dvertising or selling services or drugs to procure miscarriage."⁶ Section 11-3-4, as enacted by P.L. 1915, ch. 1219, § 2.

Soon after, the Rhode Island General Assembly hastily enacted another criminal-abortion statute set forth in the same chapter and title as the first version, designated as §§ 11-3-1 through 11-3-3, maintaining the same language, but inserting new language in §§ 11-3-4 and 11-3-5 (the criminal-abortion statute). See P.L. 1973, ch. 15, § 2. This version of § 11-3-4 declared that "human life commences at the instant of conception and that said human life * * * is a person within the * * * meaning of the fourteenth amendment of the constitution of the United States[.]" Section 11-3-4, as enacted by P.L. 1973, ch. 15, § 2. The United States District Court again found these sections unconstitutional on their face, see Doe , 358 F. Supp. at 1199, and the United States Court of Appeals for the First Circuit agreed with that decision. See Doe v. Israel , 482 F.2d 156, 159 (1st Cir. 1973).

Undaunted, in 1975 the Legislature enacted another abortion-related statute, G.L. 1956 § 11-23-5, as enacted by P.L. 1975, ch. 231, § 1 (the quick child statute), criminalizing the willful killing of an unborn "quick child[,]" defined as "an unborn child whose heart is beating, who is experiencing electronically-measurable brain waves, who is discernibly moving, and who is so far developed and matured as to be capable of surviving the trauma of birth with the aid of usual medical care and facilities available in this state." Section 11-23-5(c), as enacted by P.L. 1975, ch. 231, § 1. After a successful challenge in federal court in which the statute was declared unconstitutional, the case ultimately was dismissed on appeal in the circuit court due to lack of standing. See Rodos v. Michaelson , 396 F. Supp. 768, 778 (D.R.I. 1975), rev'd , 527 F.2d 582, 584, 585 (1st Cir. 1975).⁷

Similarly, in 1997 the General Assembly enacted a new statute to prohibit partial birth abortion. See G.L. 1956 chapter 4.12 of title 23, as enacted by P.L. 1997, ch. 76, § 2. A year later, the United States District Court for the District of Rhode Island declared that statute unconstitutional, and the circuit court affirmed that decision. See Rhode Island Medical Society v. Whitehouse , 66 F. Supp. 2d 288, 294-95 (D.R.I. 1999), aff'd , 239 F.3d 104 (1st Cir. 2001).

In 2019 the General Assembly enacted the Reproductive Privacy Act, G.L. 1956 chapter 4.13 of title 23 (the RPA), effectively granting a right to abortion in line with Roe , and repealing certain statutes otherwise prohibiting abortion in this state that were flatly unconstitutional.⁸ See P.L. 2019, ch. 27, §§ 1–2, 4–7. The plaintiffs initiated this action in the Superior Court on June 19, 2019, seeking to halt the passage of House Bill 5125 Substitute B, which later became the RPA; the trial justice denied plaintiffs’ request for injunctive relief. Upon passage, plaintiffs filed an amended complaint seeking to challenge the General Assembly's authority to enact the RPA, and also seeking a declaration of their legal rights and status under certain statutes that were repealed by the RPA. In response, defendants filed a motion to dismiss pursuant to Rule 12(b)(6), which the trial justice granted. The plaintiffs timely appealed.

Standard of Review

"The sole function of a motion to dismiss is to test the sufficiency of the complaint." Gannon v. City of Pawtucket , 200 A.3d 1074, 1077 (R.I. 2019) (quoting Narragansett Electric Company v. Minardi , 21 A.3d 274, 277 (R.I. 2011) ). "When we review the grant of a motion to dismiss pursuant to Rule 12(b)(6), we apply the same standard as the hearing justice." Chase v. Nationwide Mutual Fire Insurance Company , 160 A.3d 970, 973 (R.I. 2017) (quoting Tri-Town Construction Company, Inc. v. Commerce Park Associates 12, LLC , 139 A.3d 467, 478 (R.I. 2016) ). "A motion to dismiss may be granted only when it is established beyond a reasonable doubt that a party would not be entitled to relief from the defendant under any set of conceivable facts that could be proven in support of its claim." Id. (quoting Tri-Town Construction Company, Inc. , 139 A.3d at 478 ).

Under this standard, this Court confines its review "to the four corners of the complaint, assume[s] that the allegations set forth are true, and resolve[s] any doubts in favor of the [complainant]." Chase , 160 A.3d at 973 (quoting Tri-Town Construction Company, Inc. , 139 A.3d at 478 ). "There is, however, a narrow exception for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs’ claim; or for documents sufficiently referred to in the complaint." Id. (quoting Alternative Energy, Inc. v. St. Paul Fire and Marine Insurance Company , 267 F.3d 30, 33 (1st Cir. 2001) ).

Analysis

The plaintiffs allege that at this stage of litigation an "identifiable trifle is enough for standing," quoting Kenneth C. Davis, Standing: Taxpayers and Others , 35 U. Chi. L. Rev. 601, 613 (1968), and that all of these plaintiffs have claims of status and constitutional guarantees. The plaintiffs also claim that the trial justice erroneously reached the merits. In the alternative, they contend that the General Assembly did not have the constitutional authority to enact the RPA after (1) the repeal of the continuing powers clause in article 6, section 10 of the Rhode Island Constitution, which, they argue, stripped the General Assembly of its plenary powers,⁹ and (2) based on the restrictive language concerning abortion set forth in article 1, section 2 of our constitution, which includes the state's constitutional guarantees of equal protection and due process, but provides that "[n]othing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof." R.I. Const., art. 1, § 2 ; see R.I. Const., art. 6, § 10, repealed by 2003 R.I. Acts & Resolves 189-193.

The defendants argue that plaintiffs are without standing to bring these claims because they do not allege an injury-in-fact and have failed to present some legal hypothesis that would entitle them to real and articulable relief.¹⁰ The defendants claim that the General Assembly had the authority to enact the RPA because the repeal of the continuing powers clause in the state constitution is of no moment to the Legislature's authority to enact law. They also contend that a careful reading of article 1, section 2 clearly reveals that the restrictive sentence upon which plaintiffs rely does not restrain the General Assembly from enacting the RPA because that sentence is confined to article 1, section 2.

In deciding whether a party has standing to maintain...