State v. Koome, 42645

• Decision Date: 07 January 1975
• Docket Number: No. 42645,42645
• Citation: 84 Wn.2d 901,530 P.2d 260
• Parties: STATE of Washington, Respondent, v. A. Frans KOOME, Appellant.
• Court: Washington Supreme Court

Page 901

84 Wn.2d 901

530 P.2d 260

STATE of Washington, Respondent, v. A. Frans KOOME, Appellant.

No. 42645.

Supreme Court of Washington, En Banc.

Jan. 7, 1975.

Raymond J. Lee, Everett, Roy Lucas, Washington, D.C., for appellant.

Stanley E. Stone, Renton, Christopher T. Bayley, Pros. Atty., King County, Sharon A. Finegold, Deputy Pros. Atty., Seattle, for respondent.

UTTER, Associate Justice.

Appellant, Dr. A. Frans Koome, was charged with performing an abortion on an unmarried minor woman without first obtaining the consent of her parents as required in RCW 9.02.070(a). His sole defense at trial was that the statute, insofar as it gives parents or guardians the unlimited power to overrule their daughter's decision to have a legal abortion, is unconstitutional. The trial court rejected that claim. We reverse.

In July, 1972, a young woman, 16 years old, unmarried, pregnant, and for some 18 months a ward of the King County Juvenile Court, petitioned that court for an order allowing her to have an abortion. Her parents and her temporary guardian, Catholic Children's Services, who had refused to consent to the operation, opposed the petition. A hearing was held at which considerable testimony and argument was presented, and after which the court entered the requested order authorizing the abortion.

The parent then petitioned this court for a writ of certiorari reviewing the order, and an immediate stay pending that review. The stay was granted, in effect suspending the consent to the abortion that the Juvenile Court had given, and Dr. Koome was advised of that fact. In spite of the stay, however, he performed the operation on August 15, 1972. For so contravening this court's order, he was subsequently held in contempt. In re Koome, 82 Wash.2d 816, 514 P.2d 520 (1973).

Dr. Koome's later criminal conviction for the same act, which is before us in this case, was under RCW 9.02.070, which reads in pertinent part:

A pregnancy of a woman not quick with child and not more than four lunar months after conception may be lawfully terminated under RCW 9.02.060 through 9.02.090 only: (a) with her prior consent and, if married and residing with her husband or unmarried and under the age of eighteen years, with the prior consent of her husband or legal guardian, respectively, . . .

We hold that this statute too broadly encumbers the right of unmarried minor women to choose to terminate pregnancy, and unjustifiably discriminates between similarly situated groups of women in terms of their right to obtain a legal abortion. In so doing, we follow the unanimous decisions of the two three-judge federal courts and two lower state courts which have reviewed similar statutes. Coe v. Gerstein, 376 F.Supp. 695 (S.D.Fla. 1973), appeal dismissed, 417 U.S. 279, 94 S.Ct. 2246, 41 L.Ed.2d 68 (1974); Doe v. Rampton, 366 F.Supp. 189 (D.Utah 1973); Jones v. Smith, 278 So.2d 339 (Fla.App.1973), cert. denied, 415 U.S. 958, 94 S.Ct. 1486, 39 L.Ed.2d 573 (1974); In re P.J., 2 Family Planning Population Reporter 57 (D.C.Super.Ct. Family Div.1973).

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the United States Supreme Court held that 'the Fourteenth Amendment's concept of personal liberty and restrictions upon state action' contains a right of privacy which 'is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.' Roe v. Wade, Supra at 153, 93 S.Ct. at 727. Following a long line of its cases the court characterized this right, like others involving control of one's reproductive functions, as 'fundamental.' Roe at page 155, 93 S.Ct. 705; Cf., Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 453--454, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632, 39 L.Ed.2d 52, 94 S.Ct. 791 (1974).

The Roe and Doe decisions held that state statutes which denied or conditioned the right of adult women to choose abortion were inadequately justified, and consequently violative of due process. Roe at page 164, 93 S.Ct. 705. Those cases did not present the court with the question of the constitutionality of parental and spousal consent requirements such as those of RCW 9.02.070(a). See Roe v. Wade, Supra at 165 n. 67, 93 S.Ct. 705. But they established principles for analysis of state action affecting the right of any woman to terminate an unwanted pregnancy which clearly control our decision in this case. Application of these principles compels the conclusion that the parental consent requirement of RCW 9.02.070(a) unduly infringes upon the right of privacy implicit in the fourteenth amendment to the Constitution of the United States and article 1, section 3 of the Washington State Constitution.

Prima facie, the constitutional rights of minors, including the right of privacy, are coextensive with those of adults. Where minors' right have been held subject to curtailment by the state in excess of that permissible in the case of adults it has been because some peculiar state interest existed in the regulation and protection of children, not because the rights themselves are of some inferior kind. Prince v. Massachusetts, 321 U.S. 158, 168--170, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Ginsberg v. New York,390 U.S. 629, 638, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). In some other cases minors' rights have been differentiated from those of adults because of a fundamental difference in the nature of the particular state interaction with juveniles. McKeiver v. Pennsylvania, 403 U.S. 528, 547--550, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Lewis, 51 Wash.2d 193, 316 P.2d 907 (1957); Estes v. Hopp, 73 Wash.2d 263, 438 P.2d 205 (1968).

Several courts have upheld minors' privacy rights where no such special context or state interest existed. E.g., Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970), Coe v. Gerstein, Supra; Doe v. Rampton, Supra, 366 F.Supp. at 202--203; Merriken v. Cressman, 364 F.Supp. 913 (E.D.Pa.1973). Recognition of the equal status of the rights of minors seems particularly necessary with regard to the privacy rights involved here. In Roe, 410 U.S. at page 153, 93 S.Ct. at 727, Justice Blackmun emphasized that the right to terminate pregnancy was made vital in part by the potential dangers and difficulties of childbearing:

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.

Virtually every one of these problems and risks is magnified where the pregnant woman is underage. See Note, The Minors' Right to Abortion and the Requirement of Parental Consent, 60 Va.L.Rev. 305, 307--08 (1974); Pilpel, Minors' Rights to Medical Care, 36 Albany L.Rev. 462--63 (1972), and authorities cited therein.

We do not learn from the opinion in Roe v. Wade, Supra, the age of plaintiff Roe, the pregnant woman who enjoyed the 'fundamental', 'personal right of privacy' . . . recognized by the Supreme Court. But we do know that a pregnant woman under 18 years of age cannot, under the law, be distinguished from one over 18 years of age in reference to 'fundamental', 'personal', constitutional rights.

Coe v. Gerstein, Supra, 376 F.Supp. at 698.

Subjection of a minor woman's decision to terminate an unwanted pregnancy to absolute and potentially arbitrary parental veto clearly constitutes a substantial burden on her rights similar to those held unconstitutional in Roe and Doe. The State argues, however, that the impact of the consent requirement is mitigated by the possibility of juvenile court intervention under RCW 13.04.010(12) in cases of parental caprice. The availability of such relief is problematical at best. The consent requirement is only effective where the abortion is not necessary to preserve the mother's life, and it is not established that jurisdiction will lie under RCW 13.04.010(12) absent such exigent circumstances. Under similar provisions it has been held that absent imminent danger to the minor's life, courts should not so intervene. In re Hudson, 13 Wash.2d 673, 126 P.2d 765 (1942); In re Green, 448 Pa. 338, 292 A.2d 387 (1972).

Even if juvenile court intervention were established and automatic, the delays and costs inherent in litigation themselves would comprise an unworkable burden. Minor women unwilling to add litigation against their parents to their already acute personal difficulties would gain little from the possibility of court intervention. And even those who were sufficiently determined to go to court would find the costs of publicity, delay and anxiety substantial. Hearings imposing just such costs were held impermissible in Doe v. Bolton, Supra, 410 U.S. at 197--199, 93 S.Ct. 739. See also Doe v. Rampton, Supra 366 F.Supp. at 203.

The question then becomes whether the statute's abridgment of fundamental rights is justified by some 'compelling state interest' which it furthers. If it is not its impact constitutes a violation of due process. Roe v. Wade, Supra, 410 U.S. at 155, 164, 93 S.Ct. 705. Coe v. Gerstein, Supra 376 F.Supp. at 697. Roe and Doe make clear that, at least during the first trimester of pregnancy, state interests in...