Planned Parenthood v Sunquist

• Decision Date: 15 September 2000
• Docket Number: 96-00060
• Parties: PLANNED PARENTHOOD OF MIDDLE TENNESSEE, ET AL. v. DON SUNDQUIST, GOVERNOR OF THE STATE OF TENNESSEE, ET AL.IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE October 1999 Session
• Court: Tennessee Supreme Court

PLANNED PARENTHOOD OF MIDDLE TENNESSEE, ET AL. v DON SUNDQUIST, GOVERNOR OF THE STATE OF TENNESSEE, ET AL.

No. M1996-00060-SC-R11-CV

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

October 1999 Session

September 15, 2000

Appeal by Permission from the Court of Appeals, Middle Section Circuit Court for Davidson County No. 92C-1672

Hamilton V. Gayden, Jr., Judge

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.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed in

Part and Reversed in Part; Case Remanded to Trial Court.

Barry Friedman, Vanderbilt University School of Law, Nashville, Tennessee; Irwin Venick, Nashville, Tennessee; Elizabeth B. McCallum, Washington, D.C.; Barbara E. Otten, Dara Klassel, and Roger K. Evans, PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., New York, New York; Louise Melling and Catherine Weiss, AMERICAN CIVIL LIBERTIES FOUNDATION REPRODUCTIVE FREEDOM PROJECT, New York, New York, attorneys for the 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, attorneys for the appellees, Don Sundquist, Governor of the State of Tennessee, et al.

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

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

Elizabeth Cavendish and Scott Grogan, Washington, D.C., and Ann Martin, Nashville, Tennessee, attorneys 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, Illinois, and Clinton W. Watkins, Brentwood, Tennessee, attorneys for Amici Curiae, Members of the Tennessee General Assembly.

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

E. RILEY ANDERSON, C. J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined. WILLIAM M. BARKER, J., filed a dissenting opinion.

OPINION

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).¹The State chose not to defend the constitutionality of the residency requirement, and the trial court struck it as unconstitutional. Regarding the provisions regulating minors' abortions, Tenn. Code Ann. 39-15-202(f) contained a parental notification requirement, a waiting period requirement, and a medical emergency exception to these requirements when necessary "to preserve the life or health" of the pregnant minor, -202(f). While the case was pending in the trial court, however, the General Assembly repealed the parental notification requirement. _202(f). See 1995 Tenn. Pub. Acts, ch. 458. The General Assembly replaced the parental notification requirement with the parental consent requirement, now Tenn. Code Ann. 37_10_301 through _307. The Court of Appeals concluded that 39-15-202(f) had been repealed by implication and refused to express an opinion regarding the constitutionality of Tenn. Code Ann. 37_10_301 through _307. Plaintiffs did not challenge the provisions relating to post_viability abortions.

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...