Planned Parenthood v. Sundquist

• Citation: 38 S.W.3d 1
• Parties: PLANNED PARENTHOOD OF MIDDLE TENNESSEE, et al. v. Don SUNDQUIST, Governor of the State of Tennessee, et al.
• Decision Date: 15 September 2000
• Court: Supreme Court of Tennessee

38 S.W.3d 1

PLANNED PARENTHOOD OF MIDDLE TENNESSEE, et al. v. Don SUNDQUIST, Governor of the State of Tennessee, et al.

Supreme Court of Tennessee, at Nashville.

September 15, 2000.

COPYRIGHT MATERIAL OMITTED

Barry Friedman, Vanderbilt University School of Law, Irwin Venick, Nashville, TN; Elizabeth B. McCallum, Washington, DC; Barbara E. Otten, Dara Klassel, and Roger K. Evans, Planned Parenthood Federation of America, Inc., Louise Melling and Catherine Weiss, American Civil Liberties Foundation Reproductive Freedom Project, New York, NY, for appellant, Planned Parenthood of Middle Tennessee, et al.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Andy D. Bennett, Chief Deputy Attorney General; and Michael W. Catalano, Associate Solicitor General, for appellees, Don Sundquist, Governor of the State of Tennessee, et al.

Miranda Schiller and Ilyssa M. Birnbach, New York, NY, and Dianna Baker Shaw, Nashville, TN, for Amicus Curiae, American College of Obstetricians and Gynecologists.

Kevin H. Theriot, Panama City Beach, FL; Larry L. Crain, Brentwood, TN; and Gary S. McCaleb, Scottsdale, AZ, for Amicus Curiae, Tennessee Right to Life.

Elizabeth Cavendish and Scott Grogan, Washington, DC, and Ann Martin, Nashville, TN, for Amici Curiae, The National Abortion and Reproductive Rights Action League, The NARAL Foundation, The League of Women Voters of Tennessee, The Tennessee Task Force Against Domestic Violence, and the National Council of Jewish Women.

Paul Benjamin Linton, Northbrook, IL, and Clinton W. Watkins, Brentwood, TN, for Amici Curiae, Members of the Tennessee General Assembly.

Keith Jordan, Nashville, TN, and J. Thomas Smith, Franklin, TN, for Amicus Curiae, Dr. Kent Jones, et al., on Behalf of the Tennessee Physicians Resource Council.

OPINION

ANDERSON, C.J., delivered the opinion of the court, in which DROWOTA, BIRCH, and HOLDER, JJ., joined.

This is an appeal from the Circuit Court for Davidson County, which applied an undue burden standard and struck down as unconstitutional the provisions of Tennessee's criminal abortion statutes requiring that physicians inform their patients that "abortion in a considerable number of cases constitutes a major surgical procedure," Tenn.Code Ann. § 39-15-202(b)(4) (1997), and mandating a two-day waiting period requirement, § 39-15-202(d)(1). The trial court upheld the second trimester hospitalization requirement, § 39-15-201(c)(2), the remaining informed consent requirements, § 39-15-202(b)(1)-(3), (b)(5)-(c), and the medical emergency exceptions, § 39-15-202(d)(3), (g). The Court of Appeals reversed the judgment of the trial court in part and affirmed in part. The Court of Appeals upheld the following provisions as not imposing an undue burden: the waiting period requirement, based upon the facts of this case, the second trimester hospitalization requirement, and, except for the "major surgical procedure" provision, the remaining informed consent requirements. We granted application for permission to appeal those issues of first impression. We specifically hold that a woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution. We further hold that the right is inherent in the concept of ordered liberty embodied in our constitution and is therefore fundamental. Accordingly, the statutes regulating this fundamental right must be subjected to strict scrutiny analysis. When reviewed under the correct standard, we conclude that none of the statutory provisions at issue withstand such scrutiny. The Court of Appeals' judgment is therefore affirmed in part and reversed in part.

We granted this appeal to review the constitutionality of Tennessee's abortion statutes, which restrict the circumstances under which a woman may obtain an abortion and impose criminal liability upon physicians who fail to comply with the statutory restrictions and requirements. After our review of the record and applicable authority, we conclude that the Court of Appeals erred in failing to apply the appropriate standard under the Tennessee Constitution. We conclude that a woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution. As this right is inherent in the concept of ordered liberty embodied in the Tennessee Constitution, we conclude that the right to terminate one's pregnancy is fundamental. The standard we have traditionally applied to fundamental rights requires that statutes regulating fundamental rights be subjected to strict scrutiny analysis. Moreover, when reviewed under the strict scrutiny standard, we conclude that none of the statutory provisions at issue withstand such scrutiny. The Court of Appeals' judgment is therefore affirmed in part and reversed in part.

I. PROCEDURAL BACKGROUND

The abortion statutes at issue in this appeal are codified at Tenn.Code Ann. §§ 39-15-201 and -202 (1997). Among other things, these statutes mandate that second trimester abortions be performed in a hospital, § 201(c)(2) (the second trimester hospitalization requirement); that the "attending physician" inform the patient of statutorily prescribed information, § 202(b), and (c) (the informed consent and physician only counseling requirements); that after receiving this information, the patient must wait a mandatory two-day period before returning to the attending physician, signing a consent form, and obtaining the abortion, § 202(d)(1) (the mandatory waiting period requirement); and, finally, that medical emergency exceptions to the two-day waiting period requirement and the informed consent requirements are permitted when the patient's life would otherwise be in danger, § 202(d)(3), and (g) (the medical emergency exceptions).¹

Plaintiffs, including Planned Parenthood Association of Nashville, Inc., Memphis Planned Parenthood, Inc., Washington Hill, M.D., Peter Cartwright, M.D., and Frank Boehm, M.D., hereinafter "Planned Parenthood", filed suit in the Davidson County Circuit Court seeking declaratory and injunctive relief under both the state and federal constitutions. Planned Parenthood alleged that certain provisions of Tennessee's criminal abortion statutes, including those listed above, violate a woman's rights to liberty, privacy, procreational autonomy, due process, equal protection of the laws, freedom of travel, freedom of conscience, and freedom of speech under article I, §§ 1, 2, 3, 7, 8, 19, 27 and article XI, §§ 8, 16 of the Tennessee Constitution; and article I, § 8; article IV, § 2; and, the Fourteenth Amendment to the United States Constitution.

Planned Parenthood argued at trial that this Court's decision in Davis v. Davis, 842 S.W.2d 588, 600 (Tenn.1992), recognized that the right to procreational autonomy is a fundamental right and that, consequently, Tennessee's criminal abortion statutes cannot be upheld because they are not narrowly tailored to further compelling state interests. The State argued that Davis should be abandoned in light of the United States Supreme Court's abortion decision in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In the Casey joint opinion, the "strict scrutiny" constitutional standard of review announced in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the standard most protective of fundamental constitutional rights, was abandoned, and the "undue burden standard," a standard which affords states broader powers to enact regulatory legislation, was adopted. Casey, 505 U.S. at 878, 112 S.Ct. at 2821 (joint opinion of O'Connor, Kennedy, and Souter, JJ.)

The trial court applied the undue burden standard and struck down the waiting period requirement, Tenn.Code Ann. § 39-15-202(d)(1), and the informed consent subsection requiring that physicians inform their patients that "abortion in a considerable number of cases constitutes a major surgical procedure," § -202(b)(4). The trial court, however, upheld the second trimester hospitalization requirement, the remaining informed consent requirements, and the medical emergency exceptions.²

The Court of Appeals expressed the view that our description of the nature and scope of the right of procreational autonomy in Davis was based "exclusively on decisions of the United States Supreme Court,"³ and that Planned Parenthood v. Casey's undue burden standard is consistent with the right of procreational privacy recognized in Davis. The Court of Appeals found that Casey's undue burden standard "appropriately balances a woman's right to procreational autonomy with the State's significant interest in protecting maternal health and potential human life" and adopted the undue burden standard.

The Court of Appeals concluded that the following provisions are unconstitutional for imposing an undue burden: the residency requirement, Tenn.Code Ann. § 39-15-201(d); the informed consent subsection requiring that the attending physician inform the woman that "abortion in a considerable number of cases constitutes a major surgical procedure," Tenn.Code Ann. § 39-15-202(b)(4); the medical emergency exceptions, Tenn.Code Ann. § 39-15-202(d)(3), (g); and the attending physician counseling requirement, when combined with the waiting period requirement, Tenn.Code Ann. §§ 39-15-202(b), (d)(1). The Court of Appeals upheld the following provisions as not imposing an undue burden: the waiting period requirement, based upon the facts of this case, Tenn.Code Ann. § 39-15-202(d)(1), the second trimester hospitalization requirement, Tenn.Code Ann § 39-15-201(c)(2), and the remaining informed consent provisions, Tenn.Code Ann. § 39-15-202(b)(1)(3), (b)(5)-(c).

We granted permission to appeal these issues of first impression.

II. DEVELOPMENT OF THE LAW REGULATING ABORTIONS

Tennessee has regulated the practice of abortions by statute since at least 1883, when all abortions were illegal except to preserve...