State v. WOMEN'S HEALTH AND COUNSELING SERVICES, INC.

Decision Date09 February 2001
Docket Number No. 1D00-1983, No. 1D00-2106.
Citation852 So.2d 254
PartiesSTATE of Florida, Florida Department of Health, Robert Brooks M.D., in his official capacity as Secretary of the Florida Department of Health, The Agency for Health Care Administration, and Ruben J. King-Shaw, Jr., in his official capacity as Director of the Agency for Health Care Administration, Appellants, v. NORTH FLORIDA WOMEN'S HEALTH AND COUNSELING SERVICES, INC., et al., Appellees. Florida Board of Medicine, John W. Glotfelty, in his official capacity as Chairperson of the Florida Board of Medicine, and the Florida Board of Osteopathic Medicine, Bill Buckhalt, in his official capacity as Director of the Florida Board of Osteopathic Medicine, Appellants, v. North Florida Women's Health and Counseling Services, Inc., et al., Appellees.
CourtFlorida District Court of Appeals

Kenneth W. Sukhia, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tallahassee, for Appellants State of Florida, Department of Health, Robert Brooks, M.D., The Agency for Health Care Administration, and Ruben J. King-Shaw, Jr.

Robert A. Butterworth, Attorney General; John J. Rimes, III, Assistant Attorney General, Tallahassee, for Appellants Florida Board of Medicine, John W. Glotfelty, and the Florida Board of Osteopathic Medicine, Bill Buckhalt.

Bebe J. Anderson and Julie Rikelman of The Center for Reproductive Law & Policy, and Charlene Miller Carres, Tallahassee, for all Appellees; and Dara Klassel of Planned Parenthood Federation of America, Inc, New York, NY, for Appellees Planned Parenthood of Southwest and Central Florida and Planned Parenthood of Northeast Florida.

Stephen C. Emmanuel and John R. Beranek of Ausley & McMullen, Tallahassee, and Thomas A. Horkan, Jr., and Victoria H. Pflug, Tallahassee, for Amicus Curiae Florida Catholic Conference.

BENTON, J.

The Department of Health, the Board of Medicine, the Board of Osteopathic Medicine and the Agency for Health Care Administration (the State) appeal a final judgment granting permanent injunction. The injunction reflects the circuit court's view that, however applied, the Parental Notice of Abortion Act, section 390.01115, Florida Statutes (1999) (the Act), violates the Right to Privacy secured by the Florida Constitution. See Art. I, § 23, Fla. Const. While we do not question the premise that "freedom of choice concerning abortion extends to minors," In re T.W., 551 So.2d 1186, 1193 (Fla.1989), we conclude that the Act's requirement that a reasonable effort be made to inform at least one parent or legal guardian that a minor child will undergo surgical procedures to terminate a pregnancy does not render the Act unconstitutional on its face. Accordingly, we reverse.

I.

The Act provides that a physician must, in most circumstances, notify a parent or legal guardian at least forty-eight hours before terminating a minor's pregnancy.

(a) A termination of pregnancy may not be performed or induced upon a minor unless the physician performing or inducing the termination of pregnancy has given at least 48 hours' actual notice to one parent or to the legal guardian of the pregnant minor of his or her intention to perform or induce the termination of pregnancy. The notice may be given by a referring physician. The physician who performs the termination of pregnancy must receive the written statement of the referring physician certifying that the referring physician has given notice. If actual notice is not possible after a reasonable effort has been made, the physician or his or her agent must give 48 hours' constructive notice.
(b) Notice is not required if:
1. A medical emergency exists and there is insufficient time for the attending physician to comply with the notification requirements. If a medical emergency exists, the physician may proceed but must document reasons for the medical necessity in the patient's medical records;
2. Notice is waived in writing by the person who is entitled to notice;
3. Notice is waived by the minor who is or has been married or has had the disability of nonage removed under s. 743.015 or a similar statute of another state;
4. Notice is waived by the patient because the patient has a minor child dependent on her; or
5. Notice is waived under subsection (4).

§ 390.01115(3), Fla. Stat. (1999). Subsection 4 of the Act creates an expedited judicial bypass procedure under which notice to a parent or guardian may be dispensed with in specified circumstances:

(a) A minor may petition any circuit court for a waiver of the notice requirements of subsection (3) and may participate in proceedings on her own behalf. The petition must include a statement that the petitioner is pregnant and notice has not been waived. The court may appoint a guardian ad litem for her. A guardian ad litem appointed under this subsection shall act to maintain the confidentiality of the proceedings. The circuit court shall advise the minor that she has a right to court-appointed counsel and shall provide her with counsel upon her request.
(b) Court proceedings under this subsection must be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly. The court shall rule, and issue written findings of fact and conclusions of law, within 48 hours after the petition is filed, except that the 48-hour limitation may be extended at the request of the minor. If the court fails to rule within the 48-hour period and an extension has not been requested, the petition is granted, and the notice requirement is waived.
(c) If the court finds, by clear evidence, that the minor is sufficiently mature to decide whether to terminate her pregnancy, the court shall issue an order authorizing the minor to consent to the performance or inducement of a termination of pregnancy without the notification of a parent or guardian. If the court does not make the finding specified in this paragraph or paragraph (d), it must dismiss the petition.
(d) If the court finds, by clear evidence, that there is evidence of child abuse or sexual abuse of the petitioner by one or both of her parents or her guardian, or that the notification of a parent or guardian is not in the best interest of the petitioner, the court shall issue an order authorizing the minor to consent to the performance or inducement of a termination of pregnancy without the notification of a parent or guardian. If the court does not make the finding specified in this paragraph or paragraph (c), it must dismiss the petition.
(e) A court that conducts proceedings under this section shall provide for a written transcript of all testimony and proceedings and issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence and the judge's findings and conclusions be maintained. At the hearing, the court shall hear evidence relating to the emotional development, maturity, intellect, and understanding of the minor.
(f) An expedited confidential appeal shall be available, as the Supreme Court provides by rule, to any minor to whom the circuit court denies a waiver of notice. An order authorizing a termination of pregnancy without notice is not subject to appeal.
(g) No filing fees or court costs shall be required of any pregnant minor who petitions a court for a waiver of parental notification under this subsection at either the trial or the appellate level.
(h) No county shall be obligated to pay the salaries, costs, or expenses of any counsel appointed by the court under this subsection.

§ 390.01115(4), Fla.Stat. (1999). The Act was signed into law on June 11, 1999. But for the present litigation, the Act would have been in effect since July 1, 1999. See Ch. 99-322, § 3, at 3422, Laws of Fla. See also Amendments to the Fla. Rules of Civil Procedure, 756 So.2d 27, 27 (Fla. 1999).

II.

Seeking to enjoin enforcement of the Act, physicians who perform abortions, clinics providing abortion services, and women's rights organizations with minor female members filed a complaint (since amended) in circuit court even before the Act was slated to take effect. The plaintiffs also sought a declaratory judgment that the Act was unconstitutional because it violated pregnant minors' constitutional rights to privacy, of equal protection, and of due process, and because it violated abortion providers' due process rights. After a hearing, the circuit court granted the plaintiffs' motion for a temporary injunction on July 27, 1999. The temporary injunction remained in place until the permanent injunction now before us superseded it.

The State appealed first the temporary, then the permanent, injunction. During the pendency of the appeal of the temporary injunction, we relinquished jurisdiction, once the trial on the merits had concluded, so the circuit court could enter final judgment. See generally Fla. R.App.P. 9.130(f). On May 12, 2000, entry of the final judgment granting permanent injunction mooted the State's then pending appeal of the temporary injunction. In the final judgment granting permanent injunction, which we now have for review, the circuit court concluded that, while the Act did not violate equal protection or due process guarantees, state or federal, it did impermissibly infringe on the Right to Privacy guaranteed by the Florida Constitution. See Art. I, § 23, Fla. Const.

III.

Ordinarily only a person or family whose privacy rights are infringed or threatened has standing to assert the rights. See Sieniarecki v. State, 756 So.2d 68, 76 (Fla.2000)

. But a "recognized exception to [the rule against parties asserting the privacy rights of others] applies where enforcement of a challenged restriction would adversely affect the rights of non-parties, and there is no effective avenue for them to preserve their rights themselves." Sieniarecki, 756 So.2d at 76 n. 3. See Eisenstadt v. Baird, 405 U.S. 438, 446, 92 S.Ct....

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