T.W., In re

• Decision Date: 05 October 1989
• Docket Number: No. 74143,74143
• Citation: 551 So.2d 1186,14 Fla. L. Weekly 531
• Parties: , 14 Fla. L. Weekly 531 In re T.W., A Minor.
• Court: Florida Supreme Court

Page 1186

551 So.2d 1186

58 USLW 2218, 14 Fla. L. Weekly 531

In re T.W., A Minor.

No. 74143.

Supreme Court of Florida.

Oct. 5, 1989.

Rehearing Denied Dec. 4, 1989.

Ann Marshall-Jones, Crawfordville, for Florida Chapter of Nat. Organization for Women, amicus curiae.

Charlene Miller Carres, Tallahassee, for American Civil Liberties Union Foundation of Florida, Inc., amicus curiae.

Dara Klassel, New York City, for Planned Parenthood Federation of America, Inc., amicus curiae.

Kenneth L. Connor of Connor & Associates, Tallahassee, and Ann-Louise Lohr of Americans United for Life Legal Defense Fund, Chicago, Ill., for A Bi-Partisan Group of Florida Legislators and Florida Right to Life, Inc., amici curiae.

Richard W. Boylston, Tavares, and James Bopp, Jr. and Richard E. Coleson of Brames, McCormick, Bopp & Abel, Terre Haute, Ind., for appellants.

Jerri A. Blair of Carr & Blair, P.A., Leesburg, appellee.

Robert A. Butterworth, Atty. Gen., Gerald B. Curington, Director, General Legal Services, Mitchell D. Franks, Asst. Deputy Atty. Gen., and George L. Waas, Asst. Atty. Gen., Tallahassee, for State of Fla., intervenor.

Richard F. Wolfson, Miami Beach, for American Jewish Congress, Southeast Region, amicus curiae.

SHAW, Justice.

We have on appeal In re T.W., 543 So.2d 837 (Fla. 5th DCA 1989), which declared unconstitutional section 390.001(4)(a), Florida Statutes (Supp.1988), the parental consent statute. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We approve the opinion of the district court and hold the statute invalid under the Florida Constitution.

I.

The procedure that a minor must follow to obtain an abortion in Florida is set out in the parental consent statute ¹ and related rules. ² Prior to undergoing an abortion, a minor must obtain parental consent or, alternatively, must convince a court that she is sufficiently mature to make the decision herself or that, if she is immature, the abortion nevertheless is in her best interests. Pursuant to this procedure, T.W., a pregnant, unmarried, fifteen-year-old, petitioned for a waiver of parental consent under the judicial bypass provision on the alternative grounds that (1) she was sufficiently mature to give an informed consent to the abortion, (2) she had a justified fear of physical or emotional abuse if her parents were requested to consent, and (3) her mother was seriously ill and informing her of the pregnancy would be an added burden. The trial court, after appointing counsel for T.W. and separate counsel as guardian ad litem for the fetus, conducted a hearing within twenty-four hours of the filing of the petition.

The relevant portions of the hearing consisted of T.W.'s uncontroverted testimony that she was a high-school student, participated in band and flag corps, worked twenty hours a week, baby-sat for her mother and neighbors, planned on finishing high school and attending vocational school or community college, had observed an instructional film on abortion, had taken a sex education course at school, would not put her child up for adoption, and had discussed her plans with the child's father and obtained his approval. She informed the court that due to her mother's illness, she had assumed extra duties at home caring for her sibling and that if she told her mother about the abortion, "it would kill her." Evidence was introduced showing that the pregnancy was in the first trimester.

The guardian ad litem was accorded standing and allowed to argue that the judicial bypass portion of the statute was unconstitutionally vague and that parental consent must therefore be required in every instance where a minor seeks to obtain an abortion. The trial court ruled that the judicial bypass provision of the statute was unconstitutional because it failed to make sufficient provision for challenges to its validity, was vague, and made no provision for testimony to controvert that of the minor. The court denied the petition for waiver and required T.W. to obtain parental consent under the remaining provisions of the statute.

The district court found that the statute's judicial alternative to parental consent was unconstitutionally vague, permitting arbitrary denial of a petition, and noted the following defects: failure to provide for a record hearing, lack of guidelines relative to admissible evidence, a brief forty-eight-hour time limit, and failure to provide for appointed counsel for an indigent minor. The court declared the entire statute invalid, quashed the trial court's order requiring parental consent, and ordered the petition dismissed. The guardian ad litem appealed to this Court. The Florida Attorney General was granted permission to appear as amicus curiae. The guardian filed a number of motions to block the abortion but was unsuccessful and T.W. lawfully ended her pregnancy, which would normally moot the issue of parental consent.

Because the questions raised are of great public importance and are likely to recur, we accept jurisdiction despite T.W.'s abortion. See Holly v. Auld, 450 So.2d 217 (Fla.1984). Preliminarily, we find that the appointment of a guardian ad litem for the fetus was clearly improper. The attorney general alone has standing to pursue this appeal. ³

It cannot be doubted that the constitutional integrity of the laws of Florida is a matter in which the State has great interest, or that the State is a proper, but not necessary, party to any determination of the constitutionality of any state statute. Since many constitutional challenges are raised in a trial court which can be simply disposed of as obviously meritless, it would be futile for the Attorney General to defend each statute against all constitutional challenges at the trial level. However, where the trial court finds a statute to be unconstitutional, it is proper that the Attorney General appear on appeal to defend the statute.

State ex rel. Shevin v. Kerwin, 279 So.2d 836, 837-38 (Fla.1973).

The seminal case in United States abortion law is Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). There, the Court ruled that a right to privacy implicit in the fourteenth amendment embraces a woman's decision concerning abortion. Autonomy to make this decision constitutes a fundamental right and states may impose restrictions only when narrowly drawn to serve a compelling state interest. The Court recognized two important state interests, protecting the health of the mother and the potentiality of life in the fetus, and ruled that these interests become compelling at the completion of the first trimester of pregnancy and upon viability of the fetus (approximately at the end of the second trimester), respectively. Thus, during the first trimester, states must leave the abortion decision to the woman and her doctor; during the second trimester, states may impose measures to protect the mother's health; and during the period following viability, states may possibly forbid abortions altogether. Although the workability of the trimester system and the soundness of Roe itself have been seriously questioned in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), the decision for now remains the federal law. Subsequent to Roe, the Court issued several decisions dealing directly with the matter of parental consent for minors seeking abortions. See Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); City of Akron v. Akron Center for Reproductive Health Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion); Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976).

To be held constitutional, the instant statute must pass muster under both the federal and state constitutions. Were we to examine it solely under the federal Constitution, our analysis necessarily would track the decisions noted above. However, Florida is unusual in that it is one of at least four states having its own express constitutional provision guaranteeing an independent right to privacy, see Note, Toward a Right of Privacy as a Matter of State Constitutional Law, 5 Fla.St.U.L.Rev. 632, 691 (1977) (others include Alaska, California, and Montana), ⁴ and we opt to examine the statute first under the Florida Constitution. If it fails here, then no further analysis under federal law is required.

As we noted in Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985), the essential concept of privacy is deeply rooted in our nation's political and philosophical heritage. Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting), eloquently expressed the fundamental and wide-ranging "right to be let alone":

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect.... They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men.

Pursuant to this principle, the United States Supreme Court has recognized a privacy right that shields an individual's autonomy in deciding matters concerning marriage, procreation, contraception, family relationships, and child rearing and education. Roe, 410 U.S. at 152-53, 93 S.Ct. at 726-27. It is this general right to privacy that protects against the public disclosure of private matters. Nixon v. Administrator of General Servs., 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). The Court, however, has made it clear that the states, not the federal government, are the final...