Doe v. Pickett, Civ. A. No. 79-3222-H.

• Decision Date: 30 November 1979
• Docket Number: Civ. A. No. 79-3222-H.
• Citation: 480 F. Supp. 1218
• Parties: Jane DOE, Individually and on behalf of all others similarly situated, Plaintiff, v. George E. PICKETT, M.D., MPH, Director of the West Virginia Department of Health; William Neale, M.D., Director of the Cabell-Huntington Health Center; and Ellen Richardson, Defendants.
• Court: U.S. District Court — Southern District of West Virginia

480 F. Supp. 1218

Jane DOE, Individually and on behalf of all others similarly situated, Plaintiff, v. George E. PICKETT, M.D., MPH, Director of the West Virginia Department of Health; William Neale, M.D., Director of the Cabell-Huntington Health Center; and Ellen Richardson, Defendants.

Civ. A. No. 79-3222-H.

United States District Court, S. D. West Virginia, Huntington Division.

November 30, 1979.

Daniel F. Hedges, Charleston, W. Va., for plaintiff.

Chauncey H. Browning, Atty. Gen. of W. Va., Gregory W. Bailey, Asst. Atty. Gen. of W. Va., Charleston, W. Va., for defendants.

MEMORANDUM ORDER

HADEN, District Judge.

This is an action against certain medical care providers and the state agency for their policy of denying birth control and family planning services, including information, contraceptive supplies, medical examination, physical consultation, prescriptions, counseling, and referral for medical procedures to persons under the age of eighteen years who do not have their parental consent. The plaintiff challenged this practice as violative of Title X of the Public Health Service Act, 42 U.S.C. § 300, Titles IV, XIX and XX of the Social Security Act, 42 U.S.C. § 601 et seq., 42 U.S.C. § 1396a et seq., and 42 U.S.C. § 1397 et seq., as well as the First and Ninth Amendments of the United States Constitution.

The jurisdiction of this Court is properly invoked pursuant to 28 U.S.C. § 1343. There is no significant question of substantiality of the constitutional questions raised by the plaintiff. Moreover, jurisdiction is properly invoked pursuant to 28 U.S.C. § 1331 in that the interest of the named plaintiff in her own health is sufficient to satisfy the requirement relative to jurisdictional amount. At the time of the filing of this action, the plaintiff moved that her true identity not be revealed and that she be permitted to maintain this action under the assigned name of "Jane Doe", which motion was granted by the Court.

First, the Court declines to certify a class composed of all individuals under the age of eighteen in the State of West Virginia who seek family planning services. Neither the pleadings, stipulation of facts nor the representations of counsel sufficiently establish that the policy of the West Virginia State Department of Health, with respect to family planning services to minors uniformly results in the denial of such services. Furthermore, the Court recognizes that members of a class of minors of a child bearing age vary in maturity and their ability to make informed decisions.

The facts in this proceeding are not in dispute. Plaintiff is a sixteen-year-old female who, on the 23rd day of May, 1979, went to the Cabell-Huntington Health Center in Huntington, West Virginia, requesting certain birth control information and family planning services, and was so denied on the basis that she was under the age of eighteen years and did not have written parental consent. Said health center from which the plaintiff sought services had a policy of refusing to provide any family planning services, including information, contraceptive supplies, medical examination, physician consultation, prescriptions, counseling, referrals for pregnancy termination or other medical procedures, to any person under the age of eighteen years who did not have parental consent. Such denials are pursuant to a policy articulated in an informal opinion letter from the Office of the West Virginia Attorney General and adopted by the State Department of Health. Said policy has the effect of denying family planning services to minors lacking parental consent unless the child is emancipated. The State asserts that this has been pursued in order to avoid the possibility of civil liability of health care providers providing such services without parental notice and consent.

The plaintiff contends such denial of family planning services is in contravention of Title X of the Public Health Service Act and Titles IV, XIX and XX of the Social Security Act, and the plaintiff's First, Ninth and Fourteenth Amendment rights. The defendants argue that common law tort principles prohibit the provision of such services without parental consent, that the statutory and implementing regulatory rights were not violated, and that the First, Ninth and Fourteenth Amendments rights of the plaintiff do not extend to family planning services.

The Court concludes that the policy of the West Virginia Department of Health as applied by the Cabell-Huntington Health Center not to extend family planning services to the plaintiff is contrary to the federal statutes and implementing regulations alleged by the plaintiff. It is elementary that the states are not, unless otherwise indicated by the applicable federal legislation, empowered to add additional eligibility requirements to federally funded programs for the provision of services and benefits, e. g., King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972); Lascaris v. Shirley, 420 U.S. 730, 95 S.Ct. 1190, 43 L.Ed.2d 583 (1975). The State, in requiring parental consent with respect to the expenditure of monies under these federal programs, is imposing additional eligibility requirements not contemplated or articulated in the statutory or regulatory framework of such programs.

Defendant's policy is most clearly in contravention of the rights afforded plaintiff under Title X of the Public Health Service Act, 42 U.S.C. § 300, et seq. The Act and implementing regulations provide for a comprehensive program of family planning services to all persons desiring such services and a requirement of parental involvement inhibits the fulfillment of this goal. The congressional purpose behind Title X of the Public Health Service Act was to make "comprehensive voluntary family planning services readily available to all persons desiring such services." Congressional Declaration of Purpose, Pub.L. 91-572 § 2(1); Hist. Note, 42 U.S.C. § 300; "to enable public and nonprofit private entities to plan and develop comprehensive programs of family planning services." Decl. of Purpose, supra, at § 2(4); and "to develop and make readily available information (including educational materials) on family planning and population growth to all persons desiring such information." Decl. of Purpose, supra, at § 2(5).

Title X regulations require that projects receiving such funding must provide, among other things, all appropriate medical services,¹ social services, including counseling and referral,² information relative to the effective usage of contraceptive devices and practices,³ and make all appropriate referral arrangements.⁴ This language indicates that both Congress and DHEW intended projects receiving Title X grants to provide complete and appropriate family planning services and referrals. The program guidelines for Title X projects clarify the comprehensive nature of such services.⁵ The implementing regulations further make it clear that such family planning services are to be made available without regard to discrimination based upon age. 42 C.F.R. § 59.6(a)(2). The requirement of parental consent as a condition to the provision of these family planning services to a minor clearly thwarts the Act's comprehensive goals as well as the proscription of age discrimination. Minors have a very significant interest in access to family planning information and professional judgment in order that they can make informed decisions with respect to their lives. With the rising incidence of medical problems such as venereal disease, pregnancy and drug abuse, often the result of behavior at odds with parental wishes, access to counseling, medical advice and other family planning services without parental involvement is essential if the purposes of the family planning title of the Public Health Service Act are to be achieved.

Likewise, the Social Security Act and implementing regulations proscribe a requirement of notice to or consent of parents as a condition of the provision of family planning services. The Social Security Act requires participating states to provide family planning:

for the development of a program, for each appropriate relative and dependent child receiving aid under the plan . . for preventing or reducing the incidence of births out of wedlock and otherwise strengthening family life, and for implementing such program by assuring that in all appropriate cases (including minors who can be considered to be sexually active) family planning services are offered to them and are provided promptly . . . to all individuals voluntarily requesting such services.

42 U.S.C. § 602(a)(15).

Family planning services must be made available to:

those individuals wishing such services, specifically including medical contraceptive services (diagnosis, treatment, supplies, and followup) . . . Such services must be available without regard to marital status, age, or parenthood. Individuals must be assured choice of method and there must be arrangements with varied medical resources so that individuals can be assured choice of source of service . . .

45 C.F.R. § 220.21 (emphasis added).

Moreover, for all eligible women under twenty-one, the Social Security Act mandates a comprehensive program of Early and Periodic Screening, Diagnosis and Treatment (EPSDT). This program imposes on the states an affirmative obligation to see that minors actually receive necessary treatment and medical services. See 42 U.S.C. § 603(g), Medical Assistance Manual, Part 5, Section 5-70-00 (MSA-PRG 21) (1973). Any parental consent requirement severely undercuts the goal of EPSDT. A parental consent requirement for a minor to receive family planning services, therefore, conflicts with Title IV A as well as the EPSDT mandate.

Defendant's policy is also in conflict with Title XIX. The opening ...