Planned Parenthood of Kansas v. Nixon

• Citation: 220 S.W.3d 732
• Decision Date: 01 May 2007
• Docket Number: No. SC 87321.,SC 87321.
• Parties: PLANNED PARENTHOOD OF KANSAS and Mid-Missouri, Inc., et al., Appellants, v. Jeremiah W. (Jay) NIXON, et al., Respondents.
• Court: United States State Supreme Court of Missouri

220 S.W.3d 732

PLANNED PARENTHOOD OF KANSAS and Mid-Missouri, Inc., et al., Appellants, v. Jeremiah W. (Jay) NIXON, et al., Respondents.

No. SC 87321.

Supreme Court of Missouri, En Banc.

May 1, 2007.

Eve C. Carter, Roger K. Evans, N.Y., NY, Arthur A. Benson, II, Jamie K. Lansford, Kansas City, MO, for Appellants.

Jeremiah W. (Jay) Nixon, Atty. Gen., Michael E. Pritchett, Asst. Atty. Gen., Glenn D. Webb, Asst. Atty. Gen., Jefferson City, Rebecca M. Navarro-McKelvey, Scott Ingram, St. Louis, John L. Patton, Columbia, Randell G. Collins, Kansas City, for Respondents.

Alan V. Hallquist, Hayley E. Hanson, Blackwell Sanders Peper Martin, LLP, Kansas City, MO, David B. Tulchin, Claire E. Hunter, Susan M. Tomaine, Aaron O. Lavine, Sullivan & Cromwell, LLP, N.Y., NY, for Amicus Curiae American Jewish Committee, Americans for Religious Liberty, Association of Reform Rabbis of Greater St. Louis, Disciples for Choice, Disciples for Justice Action, The Ethical Society of St. Louis, National Council of Jewish Women, St. Louis Area Unitarian Universalist Council, St. Louis Rabbinical Association, United Church of Christ St. Louis Association Council, United Synagogue of Conservative Judaism and Women of Reform Judaism.

PER CURIAM.

Planned Parenthood¹ appeals the Jackson County Circuit Court's determination that section 188.250, RSMo Supp.2005, is constitutional as construed by the circuit court.

Section 188.250² creates a civil cause of action against any person who intentionally causes, aids or assists a minor in obtaining an abortion without parental consent or appropriate court order allowing for a judicial bypass of the consent requirement under section 188.028, RSMo Supp.2005.

The circuit court, after a thorough and thoughtful analysis, gave section 188.250 a narrowed construction, holding that the statute "cannot constitutionally reach the giving of information or counseling regarding the reproductive rights and options of minors." The circuit court upheld section 188.250 against Planned Parenthood's other constitutional challenges.

Planned Parenthood appealed directly to this Court, which has exclusive appellate jurisdiction in determining the validity of a Missouri statute. Mo. Const. art. V, sec. 3. As discussed in Sections II and III below, Planned Parenthood has standing to raise these issues and they are ripe for review. As discussed in Section IV, the statute is not violative of the First Amendment, because the phrase "aid or assist" in section 188.250.1 is given a narrowed construction to exclude speech or expressive conduct. In this way, the phrase "aid or assist" does not include the provision of information or counseling, but does include conduct that is not considered speech. Under this narrowed construction, section 188.250 does not violate the First Amendment of the United States Constitution or the comparable free speech guarantee of the Missouri Constitution. As discussed in Section V, Planned Parenthood's vagueness argument is rendered moot by this Court's holding. As discussed in Section VI, the statute does not violate the Commerce Clause or the due process rights of non-Missouri health care providers because it is given a narrowed construction so as not to apply to wholly out-of-state conduct. Finally, as discussed in Sections VII and VIII, the statute does not impose an undue burden on minors seeking abortions, nor does it violate the right to travel of Missouri minors. The judgment is affirmed as modified by this Court.

I. Standard of Review

The constitutionality of a statute is a question of law, the review of which is de novo. Weinschenk v. State, 203 S.W.3d 201, 210 (Mo. banc 2006). A statute's validity is presumed, and a statute will not be declared unconstitutional unless it clearly contravenes some constitutional provision. Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006).

II. Standing

Before reaching the merits of this case, this Court must address the State's challenges of standing and ripeness. The State contends that Planned Parenthood lacks standing to bring this declaratory judgment suit on its own behalf because it has not been threatened with enforcement and, therefore, lacks injury-in-fact. Planned Parenthood, however, alleges an injury-in-fact for each of the claims it brings on its own behalf. In an action for declaratory judgment, the plaintiff is required to have a legally protectable interest at stake in the outcome of the litigation. Ste. Genevieve School Dist. R-II v. Board of Alderman of the City of Ste. Genevieve, 66 S.W.3d 6, 10 (Mo. banc 2002). "A legally protectable interest exists if the plaintiff is directly and adversely affected by the action in question or if the plaintiff's interest is conferred by statute." Id.

As to its First Amendment and vagueness claims, Planned Parenthood is directly and adversely affected by section 188.250 because it cannot continue providing information and counseling to minors about abortion without risking liability under the statute. Planned Parenthood's legally protectable interest in the outcome of this litigation is its desire to exercise its First Amendment rights to provide advice to women and minors who are seeking abortions without being subjected to civil liability. It has standing to bring the First Amendment and vagueness claims.

As to its Commerce Clause and due process claims, Planned Parenthood alleges an injury-in-fact because it alleges that some of the plaintiffs are located outside of Missouri at the time they aid or assist Missouri minors in obtaining abortions.³ Planned Parenthood's legally protectable interest in the outcome of this litigation is its desire to continue to engage in out-of-state conduct that may aid or assist Missouri minors to obtain an abortion without being subjected to civil liability in Missouri. Planned Parenthood has standing to bring its Commerce Clause and due process claims.

The State further argues that even if Planned Parenthood had standing to bring this action on its own behalf, it does not have standing to bring this action on behalf of its minor patients because it is not a physician and because its interests may be adverse to those of the minor. Due partly to the obstacles of a woman asserting her own abortion rights, "it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision." Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). However, third party standing to challenge abortion restrictions is not limited solely to physicians. Planned Parenthood and other abortion providers have repeatedly been allowed to assert third party standing on behalf of their minor patients. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 899, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 510-18, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 490-93, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 439-41, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (overruled on other grounds, Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 56, 72-75, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1458-63 (8th Cir. 1995). Further, the United States Supreme Court has tacitly allowed Planned Parenthood to sue on behalf of its minor patients in a challenge to Missouri's own parental consent law, section 188.028, RSMo Supp.1982. Ashcroft, 462 U.S. at 490-93, 103 S.Ct. 2517.

The State argues that Planned Parenthood should not have standing because a minor could sue Planned Parenthood under section 188.250 if Planned Parenthood aided or assisted that minor to obtain an abortion without parental consent or judicial bypass. This possibility, the State argues, makes Planned Parenthood's interests adverse to that of the minor's and deprives Planned Parenthood of standing to challenge the statute on behalf of its minor patients. The State does not cite any authority for this argument, and it is unpersuasive. As previously noted, there is extensive precedent allowing abortion providers to challenge abortion statutes on behalf of their patients. Some of these statutes involve the possibility of the patient and the abortion provider being on opposite sides of civil litigation in the event that the statute is violated, yet that possibility has never deprived the abortion provider of standing before. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. at 902-04, 112 S.Ct. 2791 (United States Supreme Court tacitly gave Planned Parenthood standing to sue on behalf of its patients despite the fact that Planned Parenthood and its patients could potentially be on opposite sides of civil litigation if the statute was violated). Likewise, speculation that a minor may sue Planned Parenthood under section 188.250 does not deprive Planned Parenthood of standing to bring this action.

Planned Parenthood has standing to sue on its own behalf and on behalf of its minor patients.

III. Ripeness

The State next argues that the case is not ripe for adjudication because Planned Parenthood has not alleged an attempted enforcement under section 188.250 by the Attorney General, prosecutors, or individuals.

A petitioner must allege a controversy that is ripe for judicial determination to obtain a declaratory judgment. Missouri Health Care Ass'n v. Attorney Gen. of the State of Mo., 953 S.W.2d 617, 621 (Mo. banc 1997). The stated purpose of the declaratory judgment act is to allow parties "to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations." Section 527.120, RSMo 2000. By statute, declaratory judgment actions are to be "liberally construed and...