State v. Presidential Women's Center, SC04-2186.

• Decision Date: 06 April 2006
• Docket Number: No. SC04-2186.,SC04-2186.
• Citation: 937 So.2d 114
• Parties: STATE of Florida, etc., et al., Appellants, v. PRESIDENTIAL WOMEN'S CENTER, et al., Appellees.
• Court: Florida Supreme Court

Page 114

937 So.2d 114

STATE of Florida, etc., et al., Appellants, v. PRESIDENTIAL WOMEN'S CENTER, et al., Appellees.

No. SC04-2186.

Supreme Court of Florida.

April 6, 2006.

Rehearing Denied August 10, 2006.

Charles J. Crist, Jr., Attorney General, Christopher M. Kise, Solicitor General, Louis F. Hubener, Chief Deputy Solicitor General, John J. Rimes, III, Senior Assistant Attorney General, and James A. Peters, Special Counsel, Tallahassee, FL, for Appellants.

Marshall J. Osofsky of Moyle, Flanigan, Katz, Raymond and Sheehan, P.A., West Palm Beach, FL; Bebe J. Anderson and Nan Strauss of Center for Reproductive Rights, New York, NY; and Barry M. Silver, Boca Raton, FL, for Appellees.

Mathew D. Staver, Erick W. Stanley, Anita, L. Staver, Rena M. Lindevaldsen and Lindsey F. Martin of Liberty Counsel, Longwood, FL, and Teresa Stanton Collett, Profession of Law, University of St. Thomas School of Law, Minneapolis, MN, on behalf of Christian Medical Association and Catholic Medical Association; Jo Ann Barone Kotzen of Kotzen Law, West Palm Beach, FL on behalf of American College of Obstetricians and Gynecologists, Florida Section (ACOG-FS); and Donna Lee, New York, NY on behalf of Florida Association of Planned Parenthood Affiliates, Planned Parenthood of Southwest and Central Florida, Planned Parenthood of South Palm Beach and Broward Counties, Planned Parenthood of the Palm Beach and Treasure Coast Area, Planned Parenthood of Collier County, Planned Parenthood of North Central Florida, American Civil Liberties Union of Florida, and American Civil Liberties Union Reproductive Freedom Project, for Amici Curiae.

LEWIS, J.

We have on appeal State v. Presidential Women's Center, 884 So.2d 526 (Fla. 4th DCA 2004), in which the Fourth District Court of Appeal declared section 390.0111 of the Florida Statutes invalid. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we reverse the district court's decision and remand for further proceedings.

BACKGROUND

In 1997, the Florida Legislature enacted subsection 390.0111, Florida Statutes, titled the "Woman's Right to Know Act" (hereinafter "the Act"). See ch. 97-151, § 1, Laws of Fla. The Act essentially prohibits termination of pregnancy procedures from being performed or induced unless either the referring physician or the physician performing the procedure first obtains informed and voluntary written consent from the patient. See § 390.0111(3), Fla. Stat. (2005).¹

Respondents (collectively "Presidential") filed a complaint in the Fifteenth Judicial Circuit Court alleging that the Act violates the Florida and United States Constitutions. After a hearing, the trial court issued a temporary injunction enjoining enforcement of the Act. The Fourth District affirmed. See State v. Presidential Women's Ctr., 707 So.2d 1145 (Fla. 4th DCA 1998).

Presidential subsequently moved for the entry of a summary judgment, specifically asserting that subsection (3)(a)(1) of the Act violates the right to privacy under the Florida Constitution and is unconstitutionally vague under the due process clauses of the Florida and United States Constitutions. The trial court agreed with Presidential, held that the Act was unconstitutional on its face, granted Presidential's motion, and entered the summary judgment requested. On appeal, the Fourth District affirmed the trial court's order in full. See State v. Presidential Women's Ctr., 884 So.2d 526 (Fla. 4th DCA 2004) (hereinafter Presidential).

The State has appealed the Fourth District's decision, and we have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

ANALYSIS

Our standard of review in the instant proceeding is de novo. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001) (stating that a trial court's ruling on a motion for summary judgment posing a pure question of law is subject to de novo review). However, in considering the constitutionality of subsection (3)(a)(1) of the Act, we adhere to the settled principle that "[w]hen two constructions of a statute are possible, one of which is of questionable constitutionality, the statute must be construed so as to avoid any violation of the constitution." Indus. Fire & Cas. Ins. Co. v. Kwechin, 447 So.2d 1337, 1339 (Fla.1983); see also Hiers v. Mitchell, 95 Fla. 345, 116 So. 81, 84 (1928) (noting that "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter").

We begin our analysis by noting that the Act is fundamentally an informed consent statute. Under the doctrine of informed consent, a physician has an obligation to advise his or her patient of the material risks of undergoing a medical procedure. See Thomas v. Berrios, 348 So.2d 905, 907 (Fla. 2d DCA 1977). Unless a person knows the risks and dangers of such a procedure, "a `consent' does not represent a choice and is ineffectual." Bowers v. Talmage, 159 So.2d 888, 889 (Fla. 3d DCA 1963). The doctrine of informed consent is well recognized, has a long history, and is grounded in the common law and based in the concepts of bodily integrity and patient autonomy. We agree with the well-articulated view that:

Under a free government, at least, the free citizen's first and greatest right, which underlies all others—the right to the inviolability of his person; in other words, the right to himself—is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise, and prescribe (which are at least necessary first steps in treatment and care), to violate, without permission, the bodily integrity of his patient by a major or capital operation, placing him under an anaesthetic for that purpose, and operating upon him without his consent or knowledge. 1 Kinkead on Torts, § 375, states that general rule on this subject as follows: The patient must be the final arbiter as to whether he will take his chances with the operation, or take his chances of living without it.

Chambers v. Nottebaum, 96 So.2d 716, 719 (Fla. 3d DCA 1957) (internal quotation marks omitted) (quoting Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 14-15 (1905)); see also Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 269, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) ("`[N]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.' This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment.") (citation omitted) (quoting Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891)). As this Court stated in 1990:

[E]veryone has a fundamental right to the sole control of his or her person. As Justice Cardozo noted seventy-six years ago:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body....

An integral component of self-determination is the right to make choices pertaining to one's health, including the right to refuse unwanted medical treatment....

... The issue involves a patient's right of self-determination and does not involve what is thought to be in the patient's best interests.

More is involved in respect for self-determination than just the belief that each person knows what's best for him- or herself.... Even if it could be shown that an expert (or a computer) could do the job better, the worth of the individual, as acknowledged in Western ethical traditions and especially in Anglo-American law, provides an independent—and more important—ground for recognizing self-determination as a basic principle in human relations, particularly when matters as important as those raised by health care are at stake.

In re Guardianship of Browning, 568 So.2d 4, 10 (Fla.1990) (citations omitted).

The State of Florida has further codified the doctrine of medical informed consent generally in section 766.103 of the Florida Statutes.² Moreover, the Florida Legislature has enacted statutes that have application and govern the concept of informed consent in specific contexts. See, e.g., § 458.324, Fla. Stat. (2005) (breast cancer); § 458.325, Fla. Stat. (2005) (electroconvulsive and psychosurgical procedures); § 945.48, Fla. Stat. (2005) (inmates receiving psychiatric treatment).

The termination of a pregnancy is unquestionably a medical procedure and we conclude that, as with any other medical procedure, the State may require physicians to obtain informed consent from a patient prior to terminating a pregnancy. This basic premise is without dispute in this litigation. No legitimate reason has been advanced to support a theory that physicians who perform these procedures should not have an obligation to notify their patients of the risks and alternatives to the procedure. Further, we do not view those patients requesting this medical procedure to be less concerned than patients having other medical treatments with regard to the risks and alternatives of that medical procedure, or such information as being less pertinent to an informed patient's decision to undergo or not undergo the procedure. Therefore, it is reasonable to conclude that if the informational requirements of subsection 3(a)(1) are comparable to those of the common law and other Florida informed consent statutes implementing the common law, this subsection which addresses informed consent certainly may have no constitutional prohibition or generate the need for an analysis on the issue of constitutional privacy.

In considering whether the informational requirements of subsection (3)(a)(1) are analogous to...