Poe v. Gerstein

• Decision Date: 18 August 1975
• Docket Number: No. 74-2745,74-2745
• Citation: 517 F.2d 787
• Parties: Paula POE et al., and all others similarly situated, Plaintiffs-Appellees, v. Richard E. GERSTEIN, etc., et al., etc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 787

517 F.2d 787

Paula POE et al., and all others similarly situated Plaintiffs-Appellees, v. Richard E. GERSTEIN, etc., et al., etc., Defendants-Appellants.

No. 74-2745.

United States Court of Appeals, Fifth Circuit.

Aug. 18, 1975.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., J. Robert Olian, Asst. Atty. Gen., Chief Counsel, Miami, Fla., for defendants-appellants.

Roy Lucas, Washington, D. C., Joseph P. Farina, Miami Shores, Fla., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

The state of Florida appeals the judgment of a three-judge district court which declared Fla.Stat.Ann. § 458.22(3) (Supp.1975-76) unconstitutional. We agree that the statute is unconstitutional and we therefore affirm the judgment below.

I.

A pregnant married woman, a pregnant minor (referred to in this litigation by the pseudonyms "Nancy Coe" and "Patricia Noe" respectively), and a physician, Dr. Lynn P. Carmichael, filed a complaint in the United States District Court for the Southern District of Florida challenging the constitutionality of two provisions of the Florida Therapeutic Abortion Act, Fla.Stat.Ann. § 458.22(3) (Supp.1975-76). The plaintiffs sought declaratory and injunctive relief.

In order to receive an abortion in the state of Florida, the statute in question requires:

(a) The written request of the pregnant woman and, if she is married, the written consent of her husband, unless the husband is voluntarily living apart from the wife, or

(b) If the pregnant woman is under eighteen years of age and unmarried, in addition to her request, the written consent of her parent, custodian, or legal guardian must be obtained.

A three-judge district court was convened. In an opinion dated August 13, 1973, the court entered declaratory judgment holding both sections of the statute unconstitutional. Coe v. Gerstein, 376 F.Supp. 695 (S.D.Fla.1973). However, the court did not grant injunctive relief because it anticipated that the state would respect the declaratory judgment. Id. at 699.

The state of Florida appealed the declaratory judgment directly to the Supreme Court; plaintiffs below also appealed, contesting the district court's refusal to issue an injunction. The state's appeal was dismissed for want of jurisdiction, the Court advising that the declaratory judgment was appealable to the court of appeals, Gerstein v. Coe, 417 U.S. 279, 94 S.Ct. 2246, 41 L.Ed.2d 68 (1974), and the district court's refusal to grant an injunction was affirmed, Poe v. Gerstein, 417 U.S. 281, 94 S.Ct. 2247, 41 L.Ed.2d 70 (1974).

The state's appeal of the district court's declaratory judgment is now before this court.

II.

Roe v. Wade, 410 U.S. 113, 153-56, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) held, of course, that the woman's right to an abortion is a "fundamental right," which may be limited only when state interests become "compelling." However, since the Court in that case specifically reserved judgment on the constitutionality of parental consent requirements, ¹ id. at 165, n. 67, 93 S.Ct. 705, we must begin our inquiry as to the constitutionality of the parental consent requirement by assessing the applicability of this fundamental right to minors.

At common law, minors were charges of the family and state, legally unable to act for themselves. See In re Gault, 387 U.S. 1, 17, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The law did not distinguish between the infant and the mature teenager, treating them both as the property of their parents, who could make all decisions affecting them. See Family Planning, Contraception and Voluntary Sterilization: An Analysis of Laws and Policies in the United States, Each State and Jurisdiction 70 (Department of Health, Education & Welfare, Pub. No. (HSA) 74-16001, 1974).

In recent years, the Supreme Court has, at least partially, repudiated this view. Proclaiming that "(n)either the Fourteenth Amendment nor the Bill of Rights is for adults alone," In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967), the Court has concluded that at least some minors are "persons" under the Constitution, and, hence, "possessed of fundamental rights which the State must respect." See Tinker v. Des Moines Community School Dist., 393 U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969).

In spite of these rather broad proclamations, the Court has specifically extended only certain first amendment, ² due process, ³ and equal protection rights ⁴ to minors, addressing these issues primarily in the contexts of the educational system and juvenile court proceedings. Moreover, the Court has often noted that the state's authority over children's activities is broader than over like actions of adults. See, e. g., Ginsberg v. New York, 390 U.S. 629, 636, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 88 L.Ed. 645 (1944). In Ginsberg, for example, the Court permitted the state to prohibit children from viewing material to which an adult would have a constitutional right. And in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), the Court refused to extend the right of jury trial to the adjudicative phase of state juvenile court delinquency proceedings, despite the acknowledgement that "trial by jury in criminal cases is fundamental to the American scheme of justice." Id. at 540, 91 S.Ct. at 1984.

In none of the cases involving minors' rights has the Court proposed a universal analytical framework for the evaluation of the minor's claim. In fact, on at least two occasions, the Court has specifically refused to consider the "totality of the relationship of the minor and the State." See Ginsberg v. New York, 390 U.S. 629, 636, 88 S.Ct. 1274, 1279, 20 L.Ed.2d 195 (1968); In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). As a result, it is possible that either: (1) all fundamental rights apply to minors, but the state may sometimes assert an interest sufficient to justify the state action; or (2) minors do not necessarily have all of the fundamental rights of adults. ⁵

We do not choose between these competing rationales because the Court has consistently adhered to a case by case approach carefully limiting its language and holding to the facts before it in adjudicating minors' rights. We therefore must look to the nature of the right itself in order to determine its availability to minors. In Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Court said that the Constitution guarantees a zone of privacy, but only "fundamental" rights are included within this constitutional guarantee of personal privacy. The Court then concluded that the right of privacy includes the right to an abortion, apparently because of the harm that would occur as a result of its denial:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. Id. at 153, 93 S.Ct. at 727.

While the Court has not spoken with regard to a minor's privacy rights, application of the standard enunciated by the Court in Roe the need for the right and the dire consequences of its denial would certainly dictate the availability of the right to minors. Indeed, it would appear that all of the criteria of Roe apply with even greater force to an unwed pregnant minor: teenage motherhood involves serious consequences including adverse physical and psychological effects upon the minor and her children, the stigma of unwed motherhood, impairment of educational opportunities caused by the need to drop out of school, and numerous other social dislocations. ⁶ The magnitude of the minor's interest in avoiding these consequences suggests that the developmental differences between adults and minors do not warrant denying constitutional protection to the minor's abortions.

We therefore believe that the fundamental right to an abortion applies to minors as well as adults. This indicates only that the precise holding of Roe v. Wade would apply with equal force to minors as well as adults. However, in this case the state relies upon altogether different interests than it did in Roe, and the applicability of that case, therefore, does not necessarily mean that the state cannot enforce parental choices with regard to minors' abortion decisions. Despite the numerous First and Fourteenth Amendment cases, the Supreme Court has yet to decide whether the state may vest the parent with authority to deny his children certain rights. In the cases involving childrens' rights cited heretofore, there has been an express or implied unity of interests between the parent and child, or the consequences of disparate interests were not at issue.

Where fundamental rights are involved, "regulations limiting these rights may be justified only by...