People v. Rosburg

Decision Date04 February 1991
Docket NumberNo. 89SA458,89SA458
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jean ROSBURG and Barbara Parker, Defendants-Appellants.
CourtColorado Supreme Court

Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Sherrie D. Vincent, James M. Humes, Asst. Attys. Gen., Regulatory Law Section, Denver, for plaintiff-appellee.

Derry Beach Adams, Sears & Associates, Colorado Springs, for defendant-appellant Jean Rosburg.

Edward A. Gleason, Brian G. Eberle, Colorado Springs, for defendant-appellant Barbara Parker.

Justice MULLARKEY delivered the Opinion of the Court.

This case involves an appeal of a trial court's order permanently enjoining appellants Jean Rosburg and Barbara Parker from practicing midwifery without a license as prohibited by sections 12-36-106(1)(f) and 12-36-106(2), 5 C.R.S. (1985). 1 The midwives argued to the trial court that section 12-36-106(1)(f) unconstitutionally infringed the right of privacy of pregnant women to choose their method of childbirth and that the section was unconstitutionally vague. The trial court ruled that the midwives did not have standing to assert the privacy right of pregnant women 2 and that section 12-36-106(1)(f) was not unconstitutionally vague. The midwives appealed to this court pursuant to section 13-4-102(1)(b), 6A C.R.S. (1987).

On appeal the midwives again contend that they have standing to assert pregnant women's constitutional right to privacy and that section 12-36-106(1)(f) violates pregnant women's privacy right. Alternatively, the midwives argue that the classification of licensed nurse-midwives versus lay midwives created by section 12-36-106(1)(f) violates the midwives' right to equal protection of the law. The midwives also argue on appeal that section 12-36-106(1)(f) is unconstitutionally vague.

We agree with Rosburg and Parker that they have standing in this case to assert the privacy right of pregnant women. We disagree, however, that the prohibition against practicing midwifery without a license infringes a privacy right of pregnant women. We hold that section 12-36-106(1)(f) does not violate the midwives' equal protection right because the prohibition of lay midwifery bears a rational relationship to the state's legitimate interest in protecting the health of the pregnant woman and her child. We also hold that section 12-36-106(1)(f) is not unconstitutionally vague.

I.

To have standing to assert the rights of third parties not before the court, the parties before the court must demonstrate injury to themselves sufficient to guarantee concrete adverseness. People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 368 (Colo.1985); State Bd. for Community Colleges v. Olson, 687 P.2d 429, 435 (Colo.1984); Augustin v. Barnes, 626 P.2d 625, 628 (Colo.1981). In addition, at least one of the following factors must be present: (1) a substantial relationship between the parties before the court and the third parties; (2) the difficulty or improbability of the third parties in asserting an alleged deprivation of their rights; or (3) the need to avoid dilution of third-party rights in the event that standing is not permitted. Seven Thirty-Five East Colfax, Inc., 697 P.2d at 368; Olson, 687 P.2d at 435; Augustin, 626 P.2d at 628. These factors function as prudential limitations on third-party standing. The parties purporting to assert the rights of the parties not before the court also must be able to show that "the particular constitutional ... provision underlying the claim creates a right or interest [in the parties not before the court] that has been arguably abridged by the challenged governmental action." Seven Thirty-Five East Colfax, Inc., 697 P.2d at 368-69 n. 26 (quoting Olson, 687 P.2d at 435).

The standing of a vendor of goods or services to assert the constitutional rights of customers where the challenged statutory sections are addressed to the vendor is well-established. See, e.g., Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Seven Thirty-Five East Colfax, Inc., 697 P.2d at 368. The injury-in-fact required to ensure concrete adverseness is satisfied in such situations because the legal duties created by the challenged statutory sections are addressed to the vendors. The vendor therefore must choose between conforming to the statute, with consequent economic injury, or disobeying the statute, with possible civil or criminal sanctions. Seven Thirty-Five East Colfax, Inc., 697 P.2d at 368 (discussing Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451). Thus, Rosburg and Parker, as the vendors of their midwife services, are sufficiently adverse to assure effective presentation of the issues. Id. at 368 (citing Olson, 687 P.2d at 440).

All three of the prudential limitations placed on third-party standing also are present in vendor-customer cases such as this. In these cases, the constitutional rights of the customers are "inextricably bound up" with the activity of the vendor prohibited by the statute. Id. at 368 (quoting Olson, 687 P.2d at 440). Because the challenged statute imposes a duty on the vendor and not the customer, it is improbable that the customers will assert the alleged deprivation of their rights. Moreover, this court previously has held that in such cases "the danger that the constitutional rights of third parties would be diluted or adversely affected should [the vendor's] challenge fail is sufficient to confer standing upon the [vendor] to assert the rights of its customers." Id. at 368 (citing Carey, 431 U.S. at 684, 97 S.Ct. at 2015).

The crucial issue is whether Rosburg and Parker can show, for the purpose of third-party standing, that the alleged injury to pregnant women is to a legally protected interest. Rosburg and Parker must demonstrate that pregnant women have a constitutional right to privacy that arguably has been abridged by the prohibition against the unlicensed practice of midwifery in section 12-36-106(1)(f). The midwives base their claim solely on the federal constitution.

This court has recognized a fundamental privacy right encompassed by the liberty interest protected by the due process clause of the United States Constitution. See, e.g., Seven Thirty-Five East Colfax, Inc., 697 P.2d at 369. We also have pointed out that "[w]hile the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage, procreation, contraception, family relationships, and child rearing and education.' " Id. at 369 (citations omitted). Neither this court nor the United States Supreme Court has addressed the issue of the application of this privacy right to childbirth. Cf. Seven Thirty-Five East Colfax, Inc., 697 P.2d at 368-69 n. 26 (vendors of obscene material had standing to assert the rights of customers privately to possess obscene materials, but vendors did not have standing to assert the rights of customers to purchase obscene materials because the United States Supreme Court explicitly had held that there was no constitutional right to the means of acquisition and distribution of obscene materials).

In addition, we previously have conferred standing on the grounds that an alleged injury implicated a legally protected interest without resolving whether the alleged injury, on the merits, constituted an injury to a legally protected interest. See Olson, 687 P.2d at 440 (conferring third-party standing on a teacher to assert the First Amendment rights of students because the teacher "ha[d] sufficiently demonstrated, at least for the purpose of third party standing," that the termination of funding for a student newspaper infringed on the first amendment rights of students, and remanding for proceedings on the merits of the claim); Conrad v. City and County of Denver, 656 P.2d 662, 668 (Colo.1982) (holding that the alleged injury to plaintiffs challenging the inclusion of a creche among the Christmas decorations at the Denver City and County Building was to a legally protected interest, and remanding the case to the trial court to determine whether a principal or primary effect of the display was to advance the Christian religion); Dodge v. Department of Social Services, 198 Colo. 379, 600 P.2d 70 (1979) (holding that citizen taxpayers had established that their alleged injury was to a legally protected interest because they averred that an allegedly wrongful expenditure of funds violated the Colorado Constitution and that the expenditure was not authorized by statute, but remanding to the trial court for resolution of the merits of plaintiffs' arguments). See also Augustin, 626 P.2d at 629, 630 (holding that a party had third-party standing because "the nature of the constitutional violation asserted by petitioners on behalf of [the third parties], that is, the right to privacy, [was] such that standing [was] appropriate," and then resolving whether the third parties' right to privacy was violated in the case).

We also note that public policy favors the recognition of third party standing in a case like this where the challenged law imposes a duty on the party who is before the court. Denying the dutyholder standing to assert the rights of third parties would encourage a fortuitous pattern of results. The statute at issue would impose a duty on the dutyholder if no third party previously had challenged the statute but the statute no longer would impose the duty if a third party previously had challenged the statute. See Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 432-33 n. 51 (1974). 3 Conferring standing on Rosburg and Parker to raise and fully argue the issue of whether the prohibition violates pregnant women's privacy right also enables us fully to...

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