Planned Parenthood Association of Tennessee v. Don Sundquist, Governor of the State of Tennessee ( 2004 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
PLANNED PARENTHOOD OF )
MIDD LE TE NNE SSEE , et al. )
)
Plaintiffs/Appellants, )
) Davidso n Circuit
VS. ) No. 92C-1672
)
DON SUNDQUIST, GOVERNOR )
OF THE STATE OF TENNESSEE, ) Appeal No.
et al., ) 01A01-9601-CV-00052
)
Defendants/Appellees. )
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE HAMILTON GAYDEN, JUDGE
For Plaintiffs/A ppellants : For Defendants/Appellees:
Barry Friedman John Knox Walkup
Vande rbilt Univers ity Attorney General and Reporter
Nashville, Tennessee
Andy D . Bennett
Irwin Venick Associate Chief D eputy
Dobbins & Venick
Nashville, Tennessee Michael W. Catalano
Associate Solicitor General
Elizabeth B. Thompson
Howrey & Simon
Washington, DC For Dr. Anthony Trabue and
Dr. Betty Neff:
Barbara E. Otten
Dara Klassel J. Russell Heldman
Roger K. Evans Franklin, Tennessee
Planned Parenthood Federation of America, Inc.
New York, NY
Louise Melling
Catherine Weiss
American Civil Liberties Foundation
New York, NY
For Am erican Co llege of Ob stetricians and Gynec ologists:
Ann E. Allen
Americ an Colleg e of Obste tricians and G ynecolog ists
Washington, DC
Abby R . Rubenfe ld
Rubenfeld & Associates
Nashville, Tennessee
AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal presents a multifaceted challenge to the constitutionality of
Tennessee’s abortion statutes. After a physician and a clinic in Knoxville were
charged with violating these statutes, two other clinics in Memphis and Nashville,
joined by three physicians, filed suit in the Circuit Court for Davidson County
seeking declaratory and injunctive relief under the Constitution of Tennessee. The
trial court struck down the residency requirement, the waiting period, and the
requirement that physicians inform their patients that an abortion is a major surgical
procedure. After making its own substantive revisions in the statutory text, the trial
court upheld the mandatory hospitalization requirement, the remaining informed
consent requirements, and the newly enacted parental consent requirement. We have
determined that the trial court erred by revising the text of several provisions. We
have also determined that the emergency medical exception enacted by the General
Assembly is unconstitutionally narrow, that the combined effect of the waiting period
and the physician-only counseling requirement places an undue burden on women’s
procreational choice, and that the remaining challenged provisions as construed
herein pass constitutional muster.
I.
Tennessee’s statutes regulating abortions have not developed in a vacuum
during the past twenty-five years. They have been inextricably caught up in the
continuing national debate over the scope of a woman’s freedom to make profoundly
personal decisions concerning whether or not to terminate her pregnancy free from
unwarranted governmental intrusion. The United States Supreme Court’s abortion
jurisprudence has influenced the direction of this debate, and thus, Tennessee’s
abortion statutes must be considered against a national backdrop that takes into
account the federal constitutional principles formulated and applied by the United
States Supreme Court.
In 1973, the United States Supreme Court held that women possess a
fundamental right to decide whether to terminate a pregnancy. This right springs
from their constitutionally protected right of privacy and their liberty interests arising
under the Due Process Clause of the Fourteenth Amendment. See Roe v. Wade, 410
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U.S. 113, 152-55, 93 S. Ct. 705, 726-728 (1973). But as fundamental as these rights
are, the Court also held that they are not absolute or unqualified and that they must
be measured against the State’s important interests in safeguarding health, in
maintaining medical standards, and in protecting potential life. See Roe v. Wade, 410
U.S. at 154, 93 S. Ct. at 727.
The Court reconciled women’s procreational rights with the State’s interests
in two ways. First, the Court announced that statutes affecting a woman’s right to
decide whether to terminate a pregnancy must be subjected to heightened scrutiny
and should be upheld only when they are narrowly drawn to further a compelling
state interest. See Roe v. Wade, 410 U.S. at 155-156, 93 S. Ct. at 728. Second, the
Court established the trimester framework to govern abortion regulations. During the
first trimester, almost no interference with a woman’s right to decide whether to
terminate a pregnancy was permitted. During the second trimester, the framework
allowed regulations to protect the woman’s health but not to further the State’s
interest in protecting potential life. During the third trimester, when the fetus was
viable, the framework permitted the states to prohibit abortions unless the life or
health of the mother was at stake. See Roe v. Wade, 410 U.S. at 163-66, 93 S. Ct. at
731-33.
Rather than ending the abortion controversy, the Roe v. Wade decision caused
abortion to become one of the most divisive domestic legal issues of our time. See
Planned Parenthood v. Casey, 505 U.S. 833, 995, 112 S. Ct. 2791, 2882 (1992)
(Scalia, J., concurring in the judgment in part and dissenting in part); Webster v.
Reproductive Health Servs., 492 U.S. 490, 559, 109 S. Ct. 3040, 3079 (1989)
(Blackmun, J., concurring in part and dissenting in part); Earl M. Maltz, Abortion,
Precedent, and the Constitution: A Comment on Planned Parenthood of Southeast
Pennsylvania v. Casey, 68 Notre Dame L. Rev. 11, 27 (1992). State legislatures
began to test the limits of the Roe v. Wade decision by enacting various restrictions
on a woman’s right to decide whether to terminate her pregnancy. For its part, the
Court used Roe v. Wade’s strict scrutiny test to strike down a number of these
restrictions.1 But even while it was invalidating state statutes restricting a woman’s
1
See, e.g., Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.
747, 764, 106 S. Ct. 2169, 2180 (1986) (invalidating a requirement of mandatory pre-abortion
counseling by a physician using state-prescribed materials discouraging abortion); City of Akron v.
(continued...)
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right to terminate her pregnancy, the Court also held repeatedly that the states could
favor childbirth over abortion by declining to use public funds or facilities to perform
abortions.2
Tennessee was not unaffected by the Roe v. Wade decision. It too had a statute
on the books, like the Texas statute struck down in Roe v. Wade, that criminalized
abortions except to preserve the life of the mother.3 Realizing that the statute could
not pass constitutional muster, the General Assembly enacted a new statute intended
to comply with Roe v. Wade’s trimester framework.4 However, the General
Assembly limited the right to obtain an abortion under the new statute to women who
could demonstrate that they were bona fide residents of Tennessee.5
During the next five years, the General Assembly increased the punishment for
performing criminal abortions6 and provided for the medical care and custody of
infants born live during an abortion procedure.7 It also established an informed
1
(...continued)
Akron Ctr. for Reproductive Health, 462 U.S. 416, 437-39, 449-51, 103 S. Ct. 2481, 2496-97, 2502-
03 (1983) (invalidating 24-hour waiting periods and requirements that abortions be performed in
hospitals after the first trimester); Planned Parenthood v. Danforth, 428 U.S. 52, 69-71, 74-75, 96
S. Ct. 2831, 2841-42, 2843-44 (1976) (invalidating spousal consent requirements and parental
vetoes).
2
See, e.g., Webster v. Reproductive Health Servs., 492 U.S. 490, 507-11, 109 S. Ct. 3040,
3050-53 (1989); Poelker v. Doe, 432 U.S. 519, 521, 97 S. Ct. 2391, 2392 (1977); Maher v. Roe, 432
U.S. 464, 474, 97 S. Ct. 2376, 2382-83 (1977).
3
See Act of Mar. 23, 1883, ch. 140, 1883 Tenn. Pub. Acts 188 (codified at Tenn. Code Ann.
§ 39-301 (amended 1973)).
4
See Act of May 14, 1973, ch. 235, 1973 Tenn. Pub. Acts 901 (codified at Tenn. Code Ann.
§ 39-301 (Supp. 1973)). This statute permitted abortions performed during the first three months
of pregnancy with the woman’s consent and pursuant to the medical judgment of her attending
physician. See Tenn. Code Ann. § 39-301(e)(1). It also permitted abortions after three months but
before viability if they were performed in a hospital with the woman’s consent and pursuant to the
medical judgment of the woman’s physician. See Tenn. Code Ann. § 39-301(e)(2). Finally, the
statute permitted abortion during viability if the requirements of Tenn. Code Ann. § 39-301(e)(2)
were met and if the woman’s physician certified in writing to the hospital and the district attorney
general that the abortion was necessary to preserve the life or health of the mother. See Tenn. Code
Ann. § 39-301(e)(3).
5
See Tenn. Code Ann. § 39-301(f).
6
See Act of Mar. 1, 1974, ch. 471, 1974 Tenn. Pub. Acts 156 (codified at Tenn. Code Ann.
§ 39-301(c) (Supp. 1974)).
7
See Act of Mar. 20, 1978, ch. 811, 1978 Tenn. Pub. Acts 925 (codified at Tenn. Code Ann.
§§ 39-306, -307 (Supp. 1978)).
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consent procedure and imposed a waiting period before abortions could be
performed.8
The first judicial challenge to Tennessee’s abortion statutes was filed in the
United States District Court for the Western District of Tennessee when Planned
Parenthood of Memphis attacked the residency requirement enacted in 1973 and the
informed consent and waiting period requirements enacted in 1978. The United
States District Court permanently enjoined the enforcement of the residency
requirement and continued the temporary injunction against enforcing the waiting
period. See Planned Parenthood of Memphis v. Blanton, No. 78-2310 (W.D. Tenn.
July 14, 1978). In 1979, the General Assembly enacted new informed consent and
waiting period requirements designed to respond to the constitutional challenges
involved in the pending federal litigation.9 It also established a parental notification
procedure for minors seeking an abortion10 and placed restrictions on research and
experimentation on aborted fetuses.11
Within months after the enactment of the 1979 amendments to the abortion
statutes, the Chancery Court for Davidson County temporarily enjoined the
enforcement of the informed consent and waiting period requirements. After the
Attorney General declined to defend the parental notification procedure, the chancery
court also found that it was unconstitutional. See Planned Parenthood of Nashville,
Inc. v. Alexander, No. 79-843-II (Davidson Chan. Oct. 19 & 24, 1979) (no appeal
filed). Approximately one and one-half years later, the federal district court in
Memphis permanently enjoined the enforcement of the 1978 waiting period statute.
See Planned Parenthood of Memphis v. Alexander, No. 78-2310 (W.D. Tenn. Mar.
23, 1981).
8
See Act of Mar. 23, 1978, ch. 847, 1978 Tenn. Pub. Acts 1078 (codified at Tenn. Code Ann.
§ 39-302(d) (Supp. 1978)).
9
See Act of Apr. 30, 1979, ch. 287, 1979 Tenn. Pub. Acts 590 (codified at Tenn. Code Ann.
§ 39-302 (Supp. 1979)).
10
See Act of May 10, 1979, ch. 334, 1979 Tenn. Pub. Acts 762 (codified at Tenn. Code Ann.
§ 39-302(f) (Supp. 1979)).
11
See Act of Apr. 19, 1979, ch. 183, 1979 Tenn. Pub. Acts 317, (codified at Tenn. Code Ann.
§ 39-308 (Supp. 1979)).
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In 1982 the General Assembly recodified the abortion statutes without
substantive change. See Tenn. Code Ann. §§ 39-4-201, -208 (1982). Six years later,
it established a new parental consent procedure.12 In 1989, the General Assembly
provided for expedited appellate review of judicial decisions to forego parental
consent.13 During the same session, the General Assembly again recodified the
abortion statutes but this time made substantive changes in the law. It replaced the
1988 parental consent procedures with the parental notification procedures originally
enacted in 1979 that had been invalidated by the Davidson County Chancery Court
ten years earlier.14 The Tennessee Supreme Court later determined that the General
Assembly’s recodification of the 1979 parental notification procedures repealed the
1988 parental consent procedures by implication. See Planned Parenthood Ass’n of
Nashville, Inc. v. McWherter, 817 S.W.2d 13, 16 (Tenn. 1991).
The United States Supreme Court’s adherence to the trimester framework in
Roe v. Wade began to waver as the years passed. In 1989, three justices concluded
that it was unsound in principle and unworkable in practice, see Webster v.
Reproductive Health Servs., 492 U.S. 490, 518, 109 S. Ct. 3040, 3056 (1989); one
justice advocated overruling Roe v. Wade outright, see Webster v. Reproductive
Health Servs., 492 U.S. at 532, 109 S. Ct. at 3064 (Scalia, J., concurring in part and
concurring in the judgment); while another justice implied that Roe v. Wade should
be reexamined at a proper time. See Webster v. Reproductive Health Servs., 492 U.S.
at 525-26, 109 S. Ct. at 3060-61 (O’Connor, J., concurring in part and concurring in
the judgment). This movement away from the trimester framework prompted the
author of the majority opinion in Roe v. Wade to declare that a woman’s right to
terminate a pregnancy was not “secure.” See Webster v. Reproductive Health Servs.,
12
See Act of Apr. 28, 1988, ch. 929, 1988 Tenn. Pub. Acts. 868 (codified at Tenn. Code Ann.
§§ 37-10-301, -307 (Supp. 1988)). The United States District Court for the Middle District of
Tennessee held that this statute was unconstitutional. See Planned Parenthood Ass’n of Nashville,
Inc. v. McWherter, 716 F. Supp. 1064 (M.D. Tenn. 1989). However, the United States Court of
Appeals for the Sixth Circuit later vacated this decision after the Tennessee Supreme Court held that
the 1988 parental notification statutes had been repealed by implication. See Planned Parenthood
Ass’n of Nashville, Inc. v. McWherter, 945 F.2d 405, 1991 WL 193471 (6th Cir. 1991) (Sept. 30,
1991) (unpublished table decision).
13
See Act of May 24, 1989, ch. 412, 1989 Tenn. Pub. Acts 697 (codified at Tenn. Code Ann.
§ 37-10-304(g) (Supp. 1989)); Tenn. S. Ct. R. 24.
14
See Act of May 24, 1989, ch. 591, 1989 Tenn. Pub. Acts 1169 (codified at Tenn. Code Ann.
§§ 39-15-201, -208 (Supp. 1989)). Compare Tenn. Code Ann. § 39-15-202(f) (Supp. 1989) with
Tenn. Code Ann. § 39-4-202(f) (1982).
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492 U.S. at 537, 109 S. Ct. at 3067 (Blackmun, J., concurring in part and dissenting
in part).
The occasion for re-examining Roe v. Wade arrived in 1992 in a case
challenging the Pennsylvania Abortion Control Act. In a splintered decision in which
the justices issued five separate opinions, seven members of the court chose to
abandon Roe v. Wade’s trimester framework and strict scrutiny standard. The same
four justices who had earlier signaled their dissatisfaction with the Roe v. Wade
decision concluded that a woman’s decision to terminate her pregnancy was not “a
‘fundamental right’ that could be abridged only in a manner which withstood ‘strict
scrutiny’.” Planned Parenthood v. Casey, 505 U.S. 833, 953, 112 S. Ct. 2791, 2860
(1992) (Rehnquist, C.J., concurring in the judgment and dissenting in part). Three
other justices rendered a rare joint opinion in which they reaffirmed the “essential
holding” of Roe v. Wade, see Planned Parenthood v. Casey, 505 U.S. at 846, 112 S.
Ct. at 2804 (O’Connor, Kennedy, & Souter, JJ.), but also replaced the trimester
framework with an undue burden standard in which the viability of the unborn child
plays a prominent role. See Planned Parenthood v. Casey, 505 U.S. at 876-77, 112
S. Ct. at 2820-21 (O’Connor, Kennedy, & Souter, JJ.).
Based on the facts before it, the Court unanimously upheld the Pennsylvania
statute’s definition of “medical emergency.” However, retreating from its earlier
decisions in Thornburgh v. American College of Obstetricians and Gynecologists,
476 U.S. 747, 106 S. Ct. 2169 (1986) and City of Akron v. Akron Ctr. for
Reproductive Health, 462 U.S. 416, 103 S. Ct. 2481 (1983), the Court upheld (1) an
informed consent procedure that required giving women truthful, nonmisleading
information about the nature of the procedure, the attendant health risks as well as
those of childbirth, and the gestational age of the fetus, (2) a requirement that
physicians provide pre-abortion counseling, and (3) a requirement of a 24-hour
waiting period before an abortion could be performed. The Court also upheld a one-
parent consent requirement for minors that included an adequate judicial bypass
procedure. The only provision that the Court struck down, by a narrow majority of
a single vote, was Pennsylvania’s spousal notification requirement.
In the meantime, the controversy over Tennessee’s abortion statutes began to
take concrete form in 1992. After a grand jury in Knoxville indicted a clinic and a
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physician for performing an abortion on a minor who was more than three months
pregnant, the statutes’ opponents filed suit in the Chancery Court for Knox County
challenging the statutes’ constitutionality.15 Less than three weeks after the Planned
Parenthood v. Casey decision, Planned Parenthood Association of Nashville, Inc. and
Memphis Planned Parenthood, Inc. filed suit in the Circuit Court for Davidson
County seeking a declaration that six provisions of the abortion laws were
unconstitutional and requesting an injunction against their enforcement.16 Later, they
filed an amended complaint adding three physicians as plaintiffs who were seeking
to represent themselves and their patients.
The trial court conducted a five-day bench trial in October and November
1992. During the course of the next sixteen months, the trial court issued three
opinions containing its findings with regard to the constitutionality of the challenged
statutes. Specifically, the trial court found that the following four provisions were
unconstitutional: the residency requirement in Tenn. Code Ann. § 39-15-201(d), the
waiting period in Tenn. Code Ann. § 39-15-202(d), the waiting period for minors in
Tenn. Code Ann. § 39-15-202(f), and the requirement in Tenn. Code Ann. § 36-15-
202(b)(4) that women be informed that an abortion is a “major surgical procedure.”
The trial court also determined that Tenn. Code Ann. § 39-15-201(a) and Tenn. Code
Ann. § 39-15-201(b)(2) were not unconstitutionally vague. Finally the trial court
upheld the remaining challenged provisions after “broadly construing” or “salvaging”
them by importing terms into the statutory text that had not been included by the
General Assembly.
In November 1994, this court dismissed the first appeal in this case for lack of
a final order and remanded the case for further proceedings. While the case was
pending in the trial court, the General Assembly revived the parental consent
requirement originally enacted in 1988 and codified at Tenn. Code Ann. §§ 37-10-
15
This suit was later transferred to the Chancery Court for Davidson County where it was
stayed and held in abeyance pending the outcome of this litigation. See Emancipation v. McWherter,
No. 92-2221-II (Davidson Chan. Order filed April 21, 1993).
16
Specifically, the plaintiffs challenged the requirement in Tenn. Code Ann. § 39-15-
201(c)(2) that abortions “after three (3) months, but before viability of the fetus” be performed in
“a hospital as defined in § 68-11-201”; the prohibition against attempting to procure a miscarriage
in Tenn. Code Ann. § 39-15-201(b)(2); the residency requirement in Tenn. Code Ann. § 39-15-
201(d); the requirement in Tenn. Code Ann. § 39-15-202(b), (c) that a physician provide state-
mandated pre-abortion information; the waiting period required by Tenn. Code Ann. § 39-15-202(d);
and the parental notification procedure in Tenn. Code Ann. § 39-15-202(f) (Supp. 1989).
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301, -307 and repealed the parental notification requirement in Tenn. Code Ann. §
39-15-202(f).17 Upon being notified of this legislative development, the trial court
initially observed that the revival of the parental consent statutes might render moot
its decision concerning the constitutionality of the parental notification procedure in
Tenn. Code Ann. § 39-15-202(f). Even though the plaintiffs specifically declined to
amend their complaint to challenge the parental consent statutes and requested a
ruling on the constitutionality of Tenn. Code Ann. § 39-15-202(f), the trial court
entered another order in July 1995 upholding the constitutionality of the new parental
consent procedure in Tenn. Code Ann. §§ 37-10-301, -307. The trial court entered
an amended final order and judgment in August 1995.
II.
We will first address a threshold matter concerning the plaintiffs’ standing to
challenge the requirement in Tenn. Code Ann. § 39-15-201(c)(2) that abortions
performed after the first three months of pregnancy must be performed in a hospital.
The State asserts that the plaintiffs do not have standing because neither Planned
Parenthood clinic currently offers second trimester abortions. The plaintiffs respond
in two ways. First, they assert that the plaintiff physicians have standing to challenge
the hospitalization requirement on behalf of themselves and their patients. Second,
they point out that the Nashville Planned Parenthood clinic has been considering
offering second trimester abortions because of “the paucity of those services available
in Middle Tennessee.”
Standing is a judge-made doctrine used to determine whether a party is entitled
to judicial relief. See Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976);
Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov’t, 842 S.W.2d
611, 615 (Tenn. Ct. App. 1992). It requires the court to determine whether the party
seeking relief has a sufficiently personal stake in the outcome to warrant the exercise
of the court’s power. See Browning-Ferris Indus., Inc. v. City of Oak Ridge, 644
S.W.2d 400, 402 (Tenn. Ct. App. 1982). The primary focus of a standing inquiry is
17
See Act of May 26, 1995, ch. 458, 1995 Tenn. Pub. Acts 799 (codified at Tenn. Code Ann.
§§ 37-10-301, -307 (1996 & Supp. 1997)).
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on the party, see Valley Forge Christian College v. Americans United for Separation
of Church and State, 454 U.S. 464, 484, 102 S. Ct. 752, 765 (1982), not the
likelihood of success of the party’s claim. See Warth v. Seldin, 422 U.S. 490, 500,
95 S. Ct. 2197, 2206 (1975); Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 1952
(1968).
As a general rule, parties must assert their own rights and interests and not the
rights and interests of third parties in order to have standing. See Warth v. Seldin,
422 U.S. at 499, 95 S. Ct. at 2205. Thus, litigants ordinarily establish their standing
by demonstrating that they have sustained some actual or threatened injury, that the
injury was caused by the challenged conduct, and that the injury is one for which a
judicial remedy is available. See In re Petition of Youngblood, 895 S.W.2d 322, 326
(Tenn. 1995); Tennessee Envtl. Council v. Solid Waste Disposal Control Bd., 852
S.W.2d 893, 896 (Tenn. Ct. App. 1992); Metropolitan Air Research Testing Auth.,
Inc. v. Metropolitan Gov’t, 842 S.W.2d at 615. However, the courts may also grant
a litigant standing to assert the rights of third parties (jus tertii) when the litigant has
suffered its own direct injury-in-fact and when the concomitant rights of third parties
would be diluted or adversely affected by the proceeding. See Craig v. Boren, 429
U.S. 190, 195, 97 S. Ct. 451, 455-56 (1976).
The United States Supreme Court has specifically accorded physicians standing
to challenge the constitutionality of abortion statutes on behalf of their patients.
Recognizing the closeness of the physician-patient relationship, the fact that a woman
cannot safely procure an abortion except from a physician, and the difficulties facing
women who wish to assert their own claims, the Court concluded that a “physician
is uniquely qualified to litigate the constitutionality of the State’s interference with,
or discrimination against, [a woman’s decision to terminate her pregnancy].”
Singleton v. Wulff, 428 U.S. 106, 117, 96 S. Ct. 2868, 2875 (1976).
The ability of a physician to perform an abortion in a clinic rather than a
hospital affects a woman’s exercise of her right to decide whether to terminate her
pregnancy. In this case, both the physicians and the clinics have demonstrated a
concrete legal interest in the enforcement of the restriction because (1) they risk
criminal prosecution if they ignore it and (2) the medical director of the Planned
Parenthood clinic in Nashville intends to begin providing abortions at the clinic after
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the first three months of pregnancy if the current restriction is invalidated. See Akron
Ctr. for Reproductive Health v. City of Akron, 479 F. Supp. 1172, 1214-15 (N.D.
Ohio 1979), aff’d in part and rev’d in part on other grounds, 462 U.S. 416, 103 S.
Ct. 2481 (1983) (finding standing when a clinic director expressed a desire to perform
abortions after the first trimester). Based on this record, we find that both the Planned
Parenthood plaintiffs and the physician plaintiffs have standing to challenge the
hospitalization requirement in Tenn. Code Ann. § 39-15-201(c)(2).
III.
We turn next to the role that courts should play in litigation challenging the
constitutionality of a state statute. In this case, the trial court undertook to “salvage”18
the statute by broadly interpreting several of its challenged provisions. By doing so,
the trial court exceeded its proper role in at least three instances and thereby usurped
prerogatives exclusively within the province of the General Assembly.
A.
The trial court manifested a keen interest throughout the proceedings in
reconciling Tenn. Code Ann. §§ 39-15-201, -202 with current medical practice. It
appointed experts in accordance with Tenn. R. Evid. 70619 and aggressively
questioned the witnesses concerning their understanding of proper medical practice.
The trial court frequently signaled its intention to propose revisions to the abortion
statutes to conform them to the standards of the American College of Obstetricians
and Gynecologists20 and to reconcile them with the advances in medical science
occurring since the statutes were first enacted.21
18
In a memorandum elaborating on its first opinion, the trial court observed that “each
provision of the statute which was salvaged by the Court is obviously enforceable only as interpreted
by the Court in the preceding opinion.”
19
The trial court designated four physicians as court-appointed experts in accordance with
Tenn. R. Evid. 706. The two physicians who testified in support of the statutes’ constitutionality had
tried unsuccessfully to intervene as parties before the trial. The two physicians who opposed the
statutes were experts retained by the Planned Parenthood plaintiffs.
20
See American College of Obstetricians & Gynecologists, Standards for Obstetric-
Gynecologic Services (7th ed. 1989) (“ACOG Standards”).
21
Specifically, the trial court recommended that the General Assembly (1) amend the
definition of “hospital” in Tenn. Code Ann. § 39-15-201(c)(2) to include ambulatory surgical centers
(continued...)
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In its opinions, memoranda, and orders, the trial court eventually altered the
wording and meaning of two portions of Tenn. Code Ann. § 39-15-201 and six
portions of Tenn. Code Ann. § 39-15-202. It construed the phrase “first three (3)
months of pregnancy” in Tenn. Code Ann. § 39-15-201(c)(1) to mean “first trimester”
or “fourteen (14) weeks from the first day of a woman’s last menstrual period or
twelve (12) weeks from conception.” The trial court also construed the word
“hospital” in Tenn. Code Ann. § 39-15-201(c)(2) to include “ambulatory surgical
center” for abortions performed up to eighteen weeks from a woman’s last menstrual
period.
The trial court construed the requirement in Tenn. Code Ann. § 39-15-202(b)
that the woman be “orally informed by her attending physician” of certain statutorily
required information to permit physicians to “personally provide the mandated
information or personally confirm with the patient that she has been given the
information.” The trial court also interpreted Tenn. Code Ann. § 39-15-202(b)(5) to
require physicians to respond to a patient’s request for information by providing a list
of services and agencies “reasonably known” to them. In addition, the trial court
removed the word “or” between Tenn. Code Ann. § 39-15-202(b)(5) and -202(b)(6),
construed the phrase “parents or legal guardians” in Tenn. Code Ann. § 39-15-
202(f)(1) to mean “parent or legal guardian,” and construed the word “health” in
Tenn. Code Ann. § 39-15-202(f)(2)(B) to include “psychological” health. Finally,
the trial court interpreted the word “life” in the medical emergency exception in Tenn.
Code Ann. § 39-15-202(h) (Supp. 1989)22 to mean “life and health.”
B.
The constitutional doctrine of separation of powers shapes the courts’ power
to construe statutes that have come under constitutional attack. See Ashe v. Leech,
653 S.W.2d 398, 401 (Tenn. 1983); Peay v. Nolan, 157 Tenn. 222, 234, 7 S.W.2d
815, 818 (1928). Tenn. Const. art. II, § 3 vests all legislative authority in the General
21
(...continued)
and (2) amend the judicial bypass provision in the parental notification statute to require a second
physician’s opinion. The trial court was also prepared to appoint one of the State’s expert witnesses
to prepare a “model code relating to informed consent for abortions in Tennessee.”
22
Tenn. Code Ann. § 39-15-202(h) (Supp. 1989) is currently codified at Tenn. Code Ann. §
39-15-202(g) (1997) as a result of the repeal of Tenn. Code Ann. § 39-15-202(f) in 1995.
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Assembly, and Tenn. Const. art. II, § 2 prohibits the other two departments of
government from exercising legislative power. The General Assembly’s legislative
power is limited only by the federal and state constitutions. See Williams v. Carr,
218 Tenn. 564, 578, 404 S.W.2d 522, 529 (1966); Smiddy v. City of Memphis, 140
Tenn. 97, 104-05, 203 S.W. 512, 514 (1918).
The General Assembly, not the courts, is responsible for the formulation of the
state’s public policy that is not already embodied in the state and federal
constitutions. See Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717 (Tenn. 1997);
Cary v. Cary, 937 S.W.2d 777, 781 (Tenn. 1996); Cooper v. Nolan, 159 Tenn. 379,
386, 19 S.W.2d 274, 276 (1929); Cavender v. Hewitt, 145 Tenn. 471, 475, 239 S.W.
767, 768 (1922). Thus, when the constitutionality of a statute has been called into
question, the courts must first ascertain the purpose and effect of the statute and then
must determine whether the statute conforms to the applicable constitutional
requirements. See Peay v. Nolan, 157 Tenn. at 235, 7 S.W.2d at 818. The courts will
invalidate a statute only when it clearly contravenes either the state or the federal
constitution. See Holly v. City of Elizabethton, 193 Tenn. 46, 53, 241 S.W.2d 1001,
1004-05 (1951); Soukup v. Sell, 171 Tenn. 437, 441, 104 S.W.2d 830, 831 (1937).
A constitutional challenge does not give the courts license to second-guess the
General Assembly’s policy judgments or to import their own views into the statutory
text. See National Broiler Marketing Ass’n v. United States, 436 U.S. 816, 827, 98
S. Ct. 2122, 2130 (1978). Nor may the courts review the statute’s wisdom, necessity,
expediency, or desirability. See Nashville Mobilephone Co. v. Atkins, 536 S.W.2d
335, 340 (Tenn. 1976); Dennis v. Sears, Roebuck & Co., 223 Tenn. 415, 426, 446
S.W.2d 260, 266 (1969); Estep v. State, 183 Tenn. 325, 335, 192 S.W.2d 706, 710
(1946). The remedies for these ills are entrusted to the public, not the courts. See
State v. Lindsay, 103 Tenn. 625, 640, 53 S.W. 950, 954 (1899); Henley v. State, 98
Tenn. 665, 679, 41 S.W. 352, 354 (1897); State ex rel. Coleman v. Campbell, 3 Tenn.
Cas. (Shannon) 355, 366 (1875).
The traditional canons of statutory construction guide the inquiry into a
statute’s purpose and effect. The courts ascertain a statute’s purpose from the plain
and ordinary meaning of its language. See Westland West Community Ass’n v. Knox
County, 948 S.W.2d 281, 283 (Tenn. 1997); Riggs v. Burson, 941 S.W.2d 44, 54
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(Tenn. 1997). Because the courts must give effect to unambiguous statutes, see
Spencer v. Towson Moving & Storage, Inc., 922 S.W.2d 508, 510 (Tenn. 1996), there
is no room for applying the rules of construction when the language is plain and clear.
See Pursell v. First Am. Nat’l Bank, 937 S.W.2d 838, 842 (Tenn. 1996); Anderson v.
Outland, 210 Tenn. 526, 532, 360 S.W.2d 44, 47 (1962). Thus, when the words of
a statute clearly mean one thing, the courts cannot give them another meaning under
the guise of construing them. See Henry v. White, 194 Tenn. 192, 198, 250 S.W.2d
70, 72 (1952); State ex rel. Barksdale v. Wilson, 194 Tenn. 140, 144-45, 250 S.W.2d
49, 51 (1952); Mathes v. State, 173 Tenn. 511, 516, 121 S.W.2d 548, 550 (1938).
The courts also have a duty to use the canons of construction to make sense
rather than nonsense out of statutes. See West Virginia Univ. Hospitals, Inc. v. Casey,
499 U.S. 83, 101, 111 S. Ct. 1138, 1148 (1991); McClellan v. Board of Regents, 921
S.W.2d 684, 689 (Tenn. 1996); Mercy v. Olsen, 672 S.W.2d 196, 200 (Tenn. 1984).
Whenever possible, we must employ the canons to save statutes, not to destroy them.
See Scales v. State, 181 Tenn. 440, 443, 181 S.W.2d 621, 622 (1944). Accordingly,
we begin by presuming that the challenged statute is constitutional. See Vogel v.
Wells Fargo Guard Servs., 937 S.W.2d 856, 858 (Tenn. 1996); In re Burson, 909
S.W.2d 768, 775 (Tenn. 1995). When faced with a choice between two plausible
constructions of a statute, the courts should adopt the construction that avoids
undermining the statute’s constitutionality. See Davis-Kidd Booksellers, Inc. v.
McWherter, 866 S.W.2d 520, 529-30 (Tenn. 1993); State v. Lyons, 802 S.W.2d 590,
592 (Tenn. 1990); Railroad v. Crider, 91 Tenn. 489, 506, 19 S.W. 618, 622 (1892).
But, as helpful as this canon may be in close cases, it does not authorize the courts
to rewrite statutes enacted by the General Assembly. See Chapman v. United States,
500 U.S. 453, 464, 111 S. Ct. 1919, 1927 (1991); Heckler v. Mathews, 465 U.S. 728,
741-42, 104 S. Ct. 1387, 1396 (1984).
In the final analysis, altering or amending statutes is a uniquely legislative
prerogative. See United States v. National Treasury Employees Union, 513 U.S. 454,
479 n.26, 115 S. Ct. 1003, 1019 n.26 (1995); Richardson v. Tennessee Bd. of
Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995); Manahan v. State, 188 Tenn. 394, 397,
219 S.W.2d 900, 901 (1949). The courts cannot use the canons of construction to
amend statutory language. See Shelby County Election Comm’n v. Turner, 755
S.W.2d 774, 777-78 (Tenn. 1988); Town of Mount Carmel v. City of Kingsport, 217
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Tenn. 298, 306, 397 S.W.2d 379, 382 (1965); McBrayer v. Dixie Mercerizing Co.,
176 Tenn. 560, 569, 144 S.W.2d 764, 768 (1940). The far better practice is to leave
necessary amendments to the General Assembly -- the governmental body
constitutionally empowered to make them. See 2A Norman J. Singer, Statutes and
Statutory Construction § 47.38 (5th ed. 1992).
Even though the courts should strive to avoid tampering with the text of a
statute, see United States v. National Treasury Employees Union, 513 U.S. at 478,
115 S. Ct. at 1019, they are not entirely without authority to modify statutory text.
The courts should exercise their authority with unusual caution and only in narrowly
defined circumstances because judicial rewriting of statutes provides a disincentive
for careful legislative drafting in the first instance, see Reno v. ACLU, ___ U.S. ___,
___ n.50, 117 S. Ct. 2329, 2351 n.50 (1997); Osborne v. Ohio, 495 U.S. 103, 121,
110 S. Ct. 1691, 1702 (1990), and also creates the risk of inadvertent judicial
infringement on a legislative prerogative.
Courts may supply missing words to render a statute intelligible when the
context clearly demonstrates that the words were omitted inadvertently or mistakenly.
See Metropolitan Gov’t v. Poe, 215 Tenn. 53, 74, 383 S.W.2d 265, 274 (1964); Scales
v. State, 181 Tenn. at 443, 181 S.W.2d at 622; Riggins v. Tyler, 134 Tenn. 577, 581-
82, 184 S.W. 860, 861 (1916). The court may likewise remove words from a statute
in order to avoid absurdity as long as the real purpose of the statute is clear. See City
of Bristol v. Bank of Bristol, 159 Tenn. 647, 649, 21 S.W.2d 620, 621 (1929). The
courts cannot, however, rewrite statutes in order to conform them to constitutional
requirements, see Reno v. ACLU, ___ U.S. at ___, 117 S. Ct. at 2351; Virginia v.
American Booksellers Ass’n, 484 U.S. 383, 397, 108 S. Ct. 636, 645 (1988), or to
mold them to conform them to their own views of prudent public policy. See United
States v. Rutherford, 442 U.S. 544, 555, 99 S. Ct. 2470, 2477 (1979); Nashville
Mobilephone Co. v. Atkins, 536 S.W.2d at 340.
C.
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We now apply these principles to six of the eight provisions “salvaged” by the
trial court.23 We find that the trial court construed three provisions correctly but
exceeded its authority by essentially rewriting the remaining three provisions.
1.
TENN. CODE ANN. § 39-15-201(c)(1)
Tenn. Code Ann. § 39-15-201(c)(1) states that abortion procedures may be
legally performed “[d]uring the first three (3) months of pregnancy” as long as the
woman has consented and the procedure is performed by an attending physician.24
The phrase “first three (3) months of pregnancy” may reasonably be interpreted in
more than one way because of ambiguities concerning when the period begins and
the duration of the word “month.” Thus, the trial court properly undertook to
construe this phrase in a way that gives the fullest possible effect to the General
Assembly’s purpose and at the same time avoids undermining the statute’s
constitutionality.
The medical testimony concerning the physiology of human reproduction was
remarkably consistent. Both the physicians who opposed the statutes and those who
favored them agreed that the duration of a typical human pregnancy is 265 days and,
therefore, that pregnancy cannot be neatly subdivided into three ninety-day periods.
They also agreed that the length of a pregnancy could be measured either from the
date of conception or from the first day of a woman’s last menstrual period25 and that
obstetricians and gynecologists customarily calculated a fetus’s gestational age
beginning with the first day of a woman’s last menstrual period.
23
We need not consider the trial court’s construction of Tenn. Code Ann. § 39-15-202(f)(1)
or -202(f)(2)(B) because these provisions were repealed by implication in 1989. See Planned
Parenthood Ass’n of Nashville, Inc. v. McWherter, 817 S.W.2d at 16. The trial court’s construction
of these two provisions has no bearing on the interpretation or enforcement of the parental consent
provisions in Tenn. Code Ann. §§ 37-10-301, -307 which were revived by the General Assembly
in 1995.
24
The term “physician” includes only persons licensed to practice medicine or surgery in
accordance with Tenn. Code Ann. § 63-6-201(1997) and persons licensed as osteopathic physicians
in accordance with Tenn. Code Ann. §§ 63-9-101, -114 (1997).
25
These two dates are different since conception can occur approximately two weeks after
the first day of a woman’s last menstrual period.
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The physicians also agreed that the term “month” was not medically helpful
because the pace of fetal development required shorter measurement intervals and
because it could refer to calendar months, thirty-day months, or even four-week
months. Accordingly, the physicians testified that obstetricians and gynecologists
measured pregnancies in terms of weeks rather than months or trimesters. They also
agreed that the term “first trimester” refers to the first fourteen weeks of pregnancy
measured from the first day of a woman’s last menstrual period, that the term “second
trimester” refers to the fifteenth through the twenty-seventh week of pregnancy, and
that the term “third trimester” is commonly understood by physicians to include the
time of pregnancy remaining after the twenty-seventh week of pregnancy.
The phrase “first three (3) months of pregnancy” in Tenn. Code Ann. § 39-15-
201(c)(1) requires judicial construction because it can reasonably be interpreted more
than one way. Our examination of the context in which the phrase appears, as well
as its legislative history, leads us to conclude that the General Assembly employed
the phrase in order to square Tennessee’s abortion statutes with the trimester
framework first established in the Roe v. Wade decision. We find no definitive
indication in the statute’s legislative history of a clear legislative purpose concerning
when this period should begin or precisely whether it should consist of eighty-four
days (three four-week months), ninety days (three thirty-day months), or ninety-two
days (three calendar months, including two thirty-one day months).
Defining this phrase in a way that will be understood both by laypersons and
the medical profession is necessary for two reasons. First, the phrase is an integral
part of a statutory scheme that imposes criminal liability on persons who perform
abortions inconsistent with its requirements. Second, the difference between eighty-
four and ninety-two days can have a profound effect on a woman’s decision whether
or not to terminate her pregnancy. Accordingly, we find that the trial court, following
the weight of the medical evidence presented, could properly define the term “first
three (3) months of pregnancy” to mean “the first fourteen weeks of pregnancy
measured from the first day of a woman’s last menstrual period.”
2.
TENN. CODE ANN. § 39-15-202(b)(5)
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The informed consent provision enacted in 1978 required that a woman receive
certain statutorily defined information before obtaining an abortion. Tenn. Code
Ann. § 39-15-202(b)(5) requires that a woman be informed that if she chooses not to
have an abortion that “numerous public and private agencies and services are
available to assist her during her pregnancy and after the birth of her child . . .
whether she wishes to keep her child or place him [or her] for adoption.” It also
requires that a woman be informed that “her physician will provide her with a list of
such agencies and the services available if she so requests.”
The physicians opposing the abortion statutes argued that this provision
requires physicians to provide women with a list of every available agency and
service providing prenatal, delivery, and post-delivery services to pregnant mothers
whether the physician was aware of the agency or not. They complained that
physicians who performed abortions could be subjected to criminal liability if they
did not know about every single public or private agency that might help pregnant
women decide whether to keep their child instead of having an abortion. In response
to these concerns, the trial court interpreted Tenn. Code Ann. § 39-15-202(b)(5) to
require physicians to inform their patients of the agencies and services “reasonably
known to the physician.”
The legislative debates concerning this provision do not substantiate the claim
that the General Assembly enacted Tenn. Code Ann. § 39-15-202(b)(5) to require
physicians to inform themselves of every single public or private agency that could
possibly provide services to pregnant women. Likewise, they provide no support for
the notion that the General Assembly desired to subject physicians to criminal
prosecution if they did not provide their patients, on request, with a list containing
each and every one of these agencies. Rather, the General Assembly’s purpose was
to make sure that women considering a voluntary termination of their pregnancy
knew that they would be able to obtain assistance if they decided to continue their
pregnancy.
While the phrasing of Tenn. Code Ann. § 39-15-202(b)(5) is awkward, it
cannot reasonably be interpreted to require physicians, under penalty of criminal
prosecution, to be aware of every single agency that might possibly provide services
to pregnant women who desire assistance. The phrase “list of such agencies and the
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services available” does not connote a list of all agencies and services but rather a
representative list of such agencies and services. Every physician and clinical
employee testified that they were aware of agencies providing services to women who
decide to continue their pregnancy, and most testified that they already maintained
a list of these agencies or that they had referred women to these agencies in the past.
Accordingly, the trial court properly construed Tenn. Code Ann. § 39-15-202(b)(5)
to require physicians to provide a representative list of agencies reasonably known
to them.
3.
THE “OR” FOLLOWING TENN. CODE ANN. § 39-15-202(b)(5)
The physicians opposing the abortion statutes also complain that the inclusion
of the word “or” between Tenn. Code Ann. § 39-15-202(b)(5) and Tenn. Code Ann.
§ 39-15-202(b)(6) renders the entire informed consent provision incomprehensible.
In response, the Attorney General introduced evidence that the original legislation
enacted by the General Assembly did not contain the word “or” and that it first
appeared in the 1982 replacement of Volume 7 of the Code because of an “editorial
error.” Accordingly, the trial court “struck” the word from the statute.
The original version of the informed consent provision enacted in 1978 did not
contain the word “or.” See Act of March 23, 1978, ch. 847, 1978 Tenn. Pub. Acts
1078, 1079. Nor did the original codified version of the legislation. See Tenn. Code
Ann. § 39-302 (Supp. 1978). As reflected in the affidavit of the Executive Secretary
of the Tennessee Code Commission, the “or” first appeared in 1982 after the Code
Commission replaced Volume 7 of the Code. See Tenn. Code Ann. § 39-4-202(b)
(1982 replacement volume).
These facts illustrate a classic circumstance in which the courts may properly
elide a word from a statute. The word was mistakenly included in the codified
versions of the statute appearing after 1982 even though it had not been in the
legislation enacted by the General Assembly. Including the conjunction “or” in Tenn.
Code Ann. § 39-15-202(b) causes the provision to become internally inconsistent and
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contrary to the General Assembly’s purpose.26 Because the General Assembly clearly
intended that a woman must receive all the information specified in Tenn. Code Ann.
§ 39-15-202(b) before terminating her pregnancy, the trial court properly elided the
“or” between Tenn. Code Ann. § 39-15-202(b)(5) and Tenn. Code Ann. § 39-15-
202(b)(6) from the statute.
4.
TENN. CODE ANN. § 39-15-201(c)(2)
Tenn. Code Ann. § 39-15-201(c)(2) requires that “[a]fter three (3) months, but
before viability of the fetus,” abortions must be performed in a “hospital as defined
in § 68-11-201, licensed by the state department of health, or a hospital operated by
the state of Tennessee or a branch of the federal government.” In response to the
testimony that abortions between fourteen and eighteen weeks after the first day of
a woman’s last menstrual period could be performed safely in ambulatory surgical
centers, the trial court construed the word “hospital” in Tenn. Code Ann. § 39-15-
201(c)(2) to include ambulatory surgical centers “for abortions performed up to
eighteen weeks measured from the first day of a woman’s last menstrual period.” We
have determined that the plain meaning of Tenn. Code Ann. § 39-15-201(c)(2) does
not permit this construction.
The hospitalization for “second trimester” abortions originated with the 1973
legislation that rewrote Tennessee’s abortion statutes in response to the Roe v. Wade
decision.27 At the time the General Assembly enacted this statute, the broad
definition of “hospital” included
any institution . . . represented and held out to the general
public as ready, willing and able to furnish care,
accommodations, facilities and equipment for the use, in
connection with the services of a physician of one (1) or
more nonrelated persons who may be suffering from
26
Tenn. Code Ann. § 39-15-202(b) states that a woman must be informed of “the following
facts” and then lists the six “facts” that must be provided. This construction means that the woman
must be informed of each of the listed facts. However, the conjunction “or” may have either an
inclusive or an exclusive sense. See Bryan A. Garner, A Dictionary of Modern Legal Usage 624 (2d
ed. 1995). If “or” is interpreted in its exclusive sense, it would be inconsistent with the provision’s
apparent inclusive meaning.
27
See Act of May 4, 1973, ch. 235, § 1(e)(2), 1973 Tenn. Pub. Acts 901, 903, allowing
abortions “[a]fter three (3) months, but before viability of the fetus, if the abortion . . . is performed
. . . in a hospital as defined in Section 53-1301 of this Code.”
-20-
deformity, injury, or disease or from any other condition
for which nursing, medical or surgical services would be
appropriate for care, diagnosis or treatment.
Tenn. Code Ann. § 53-1301(a) (Supp. 1973). The statutes regulating health care
facilities did not distinguish between hospital and ambulatory surgical centers, and
the definition of “hospital” in Tenn. Code Ann. § 53-1301(a) was broad enough to
include ambulatory surgical centers.
In 1976, the General Assembly amended the statutes regulating health care
facilities to recognize a new type of facility called an “ambulatory surgical treatment
center.”28 These facilities were defined as:
[A]ny institution, place or building devoted primarily to
the maintenance and operation of a facility for the
performance of surgical procedures or any facility in which
a medical or surgical procedure is utilized to terminate a
pregnancy. Such facilities shall not provide beds or other
accommodations for the overnight stay of patients.
Individual patients shall be discharged in an ambulatory
condition without danger to the continued well being of the
patients or shall be transferred to a hospital.
Tenn. Code Ann. § 53-1301(o) (Supp. 1976). Three years later, the General
Assembly amended the definition of “ambulatory surgical treatment centers” to make
clear that patients receiving abortions at these facilities would not be permitted to stay
in one of these facilities for more than twelve hours.29 This current definition of
“ambulatory surgical treatment center” is codified at Tenn. Code Ann. § 68-11-
201(3).
By its own terms, the definition of “ambulatory surgical treatment center”
recognizes that ambulatory surgical treatment centers are not hospitals.30 This
differentiation is also reflected in the Tennessee Health Planning and Resource
Development Act of 1987, see Tenn. Code Ann. § 68-11-102(4)(A) (1996) (definition
of “health care institution” that differentiates between a “hospital” and an
“ambulatory surgical treatment center”), and in the regulations of the Tennessee
28
See Act of Feb. 25, 1976, ch. 471, 1976 Tenn. Pub. Acts 185.
29
See Act of Mar. 15, 1979, ch. 77, 1979 Tenn. Pub. Acts 123.
30
Tenn. Code Ann. § 68-11-201(3) states that patients at an ambulatory surgical treatment
center must be either discharged in ambulatory condition or transferred to a hospital.
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Health Facilities Commission.31 Accordingly, under the law existing since 1976,
hospitals and ambulatory surgical treatment centers are entirely different entities.
When called upon to construe statutes, the courts must presume that the
General Assembly is aware of its prior enactments, see Hicks v. State, 945 S.W.2d
706, 707 (Tenn. 1997); Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn.
1994), and of the state of the law at the time it enacts new legislation. See Riggs v.
Burson, 941 S.W.2d 44, 54 (Tenn. 1997); Still v. First Tenn. Bank, N.A., 900 S.W.2d
282, 285 (Tenn. 1995). Thus, when the General Assembly differentiated between
ambulatory surgical treatment centers and hospitals in 1976, we must presume that
it was aware of the existing hospitalization requirement for second trimester abortions
and, therefore, that it did not intend for second trimester abortions to be performed
in ambulatory surgical treatment centers. The General Assembly has revisited the
abortion statutes on nine separate occasions since 1976, and on none of these
occasions has it altered the hospitalization requirement in Tenn. Code Ann. § 39-15-
201(c)(2). Accordingly, the trial court erroneously undertook to amend Tenn. Code
Ann. § 39-15-201(c)(2) when it construed it to permit abortions between the
fourteenth and eighteenth weeks following a woman’s last menstrual period to be
performed in ambulatory surgical treatment centers.
5.
TENN. CODE ANN. § 39-15-202(b)
When the General Assembly enacted the informed consent requirement in
1978, it required that a woman obtaining an abortion must be “orally informed by her
attending physician” of certain “facts.” Following the testimony of several
physicians and counselors employed by Planned Parenthood that the pre-abortion
counseling and informed consent discussions were performed by persons other than
the physician performing the abortion, the trial court construed Tenn. Code Ann. §
39-15-202(b) to require the attending physician either to “personally provide the
mandated information” or to “personally confirm with the patient that she has been
31
Tenn. Comp. R. & Regs. r. 0720-2-.01(2) (1994) defines an ambulatory surgical treatment
center as “any institution, place or building devoted primarily to the performance of surgical
procedures on an outpatient basis.” The definition of “hospital” in Tenn. Comp. R. & Regs. r. 0720-
2-.01(9) (1995) simply refers to the definition in Tenn. Code Ann. § 68-11-201(21).
-22-
given the information.” Neither the plain meaning of the words in the statute nor the
statute’s legislative history supports this construction.
The language of Tenn. Code Ann. § 39-15-202(b) is clear and unambiguous.
It requires that a woman’s “attending physician” must be the person who provides the
required information. On its face, the statute does not permit the physician to
delegate his or her statutory counseling and informed consent obligation to any other
person. The certainty of the language is reinforced by the substance of the
legislators’ discussions about this provision on third and final reading. The House
sponsor was asked repeatedly, “Who is going to have the authority to do this
explaining?”. On every occasion, the House sponsor responded that “this will be her
attending physician. It will be her doctor that [sic] does this.” Accordingly, the trial
court erred by importing language into Tenn. Code Ann. § 39-15-202(b) that is not
warranted by the text and that was not desired by the General Assembly.
6.
TENN. CODE ANN. § 39-15-202(h) (Supp. 1989)32
The trial court’s final construction of the abortion statutes relates to the medical
emergency provision in Tenn. Code Ann. § 39-15-202(h) that empowers physicians
to bypass the informed consent, waiting period, and parental notification provisions
in Tenn. Code Ann. § 39-15-202 when the physician certifies that “an abortion . . .
[is] necessary to preserve the life of the pregnant woman.” The trial court construed
Tenn. Code Ann. § 39-15-202(h) to provide an exception not only to the requirements
in Tenn. Code Ann. § 39-15-202 but also to those in Tenn. Code Ann. § 39-15-201.
It also construed Tenn. Code Ann. § 39-15-202(h) to apply to circumstances where
the “health of a woman is threatened.” The trial court again exceeded its authority.
Its construction of Tenn. Code Ann. § 39-15-202(h) is not supported by the plain
meaning of the statutory text or by the legislative history of the abortion statutes.
32
Tenn. Code Ann. § 39-15-202(h) (Supp. 1989) is currently codified at Tenn. Code Ann. §
39-15-202(g) (1997). Since the statute’s substance has remained unchanged, we will continue to
refer to it as Tenn. Code Ann. § 39-15-202(h), as did the trial court.
-23-
The United States Supreme Court held in Roe v. Wade that the states have “an
important and legitimate interest in preserving and protecting the health of the
pregnant woman.” Roe v. Wade, 410 U.S. at 162, 93 S. Ct. at 731. Accordingly, the
Court held that the states could enact regulations of second trimester abortions that
reasonably relate to the preservation and protection of maternal health. See Roe v.
Wade, 410 U.S. at 163, 93 S. Ct. at 732. The Court also held that states may prohibit
abortions after a fetus becomes viable “except when it is necessary to preserve the life
or health33 of the mother.” Roe v. Wade, 410 U.S. at 163-164, 93 S. Ct. at 732.
When the General Assembly rewrote Tennessee’s abortion statutes in 1973, it
endeavored to comply strictly with the medical emergency requirement in the Roe v.
Wade decision. The only restrictions placed on abortions prior to viability were (1)
that the procedure must be performed by a licensed physician, (2) that the woman
must consent to the procedure, and (3) that the procedure must be performed in a
hospital if it occurs after three months but before viability. The General Assembly
also prohibited abortions after the fetus became viable unless the woman’s attending
physician certified in writing that the abortion is “necessary to preserve the life or
health of the mother.” Tenn. Code Ann. § 39-15-201(c)(3).34
When the General Assembly began placing additional restrictions on a
woman’s right to decide whether to terminate her pregnancy, it declined to include
medical emergency exceptions as broad as the one in Tenn. Code Ann. § 39-15-
201(c)(3). When it first enacted the informed consent and waiting period
requirements in 1978, the General Assembly did not include a medical emergency
exception.35 During the next legislative session, however, the General Assembly
added two medical emergency exceptions applicable to the informed consent and
waiting period requirements. First, Tenn. Code Ann. § 39-15-202(d)(3) permitted a
physician to bypass the waiting period if he or she determined that waiting two days
“would endanger the life of the pregnant woman.”36 Second, Tenn. Code Ann. § 39-
33
The Court explained in a companion case to Roe v. Wade that the term “health”
encompasses a woman’s psychological as well as physical well-being. See Doe v. Bolton, 410 U.S.
179, 192, 93 S. Ct. 739, 747 (1973).
34
See Act of May 4, 1973, ch. 235, § 1(e)(3), 1973 Tenn. Pub. Acts 901, 903.
35
See Act of Mar. 23, 1978, ch. 847, 1978 Tenn. Pub. Acts 1078.
36
See Act of April 30, 1979, ch. 287, § 3, 1979 Tenn. Pub. Acts 590, 591.
-24-
15-202(h) provided a medical emergency exception for all requirements in Tenn.
Code Ann. § 39-15-202 “in those situations where an abortion is certified . . . as
necessary to preserve the life of the pregnant woman.”37
Under the statutes as enacted by the General Assembly, women may obtain
abortions after their fetus is viable if their attending physician certifies that the
abortion is necessary to preserve their life or health. However, women cannot receive
an abortion until they comply with the informed consent and waiting period
requirements in Tenn. Code Ann. § 39-15-202 unless their attending physician
certifies that either the informed consent requirement or the waiting period or both
would endanger their lives.38
The United States Supreme Court has made it clear that states cannot interfere
with a woman’s decision to have an abortion if continuing the woman’s pregnancy
would constitute a threat to her health. See Planned Parenthood v. Casey, 505 U.S.
at 880, 112 S. Ct. at 2822; Harris v. McRae, 448 U.S. 297, 316, 100 S. Ct. 2671,
2687-88 (1980); Roe v. Wade, 410 U.S. at 164-65, 93 S. Ct. at 732. Thus, the trial
court’s construction of Tenn. Code Ann. § 39-15-202(h) clearly stemmed from its
desire to save the constitutionality of the abortion statutes. While courts should,
when possible, construe statutes to avoid the danger of unconstitutionality, see Ohio
v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514, 110 S. Ct. 2972, 2980
(1990), they cannot adopt a construction that is not fairly supported by the plain
meaning of the statute’s language or that is either inconsistent with or not clearly
supported by the purpose of the statute.
Medical emergency exceptions to protect the mother’s health have been the
subject of intense public and legislative debate ever since the Roe v. Wade decision
was issued. Because of the United States Supreme Court’s broad construction of the
term “health” in Doe v. Bolton, 410 U.S. at 192, 93 S. Ct. at 747, many have argued
that to construe medical emergency exceptions to protect a mother’s health was to
permit “abortion on demand.” Even the justices themselves have been divided on this
37
See Act of April 30, 1979, ch. 287, § 4, 1979 Tenn. Pub. Acts 590, 591.
38
Women under the age of eighteen years of age may circumvent the parental consent
requirements in Tenn. Code Ann. § 37-10-303 if their physician determines in his or her best medical
judgment that “a medical emergency exists that so complicates the pregnancy as to require an
immediate abortion.” Tenn. Code Ann. § 37-10-305.
-25-
issue. Compare Planned Parenthood v. Casey, 505 U.S. at 887, 112 S. Ct. at 2826
(stating that even the broadest reading of Roe has not suggested there is a
constitutional right to abortion on demand) with Planned Parenthood v. Casey, 505
U.S. at 995, 112 S. Ct. at 2882 (Scalia, J., concurring in the judgment and dissenting
in part) (characterizing Roe v. Wade as a mandate for abortion on demand);
Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. at 782-
83, 106 S. Ct. at 2190 (Burger, C.J., dissenting) (stating that the Court’s opinion
plainly undermines its earlier rejection of the idea of abortion on demand).
The legislative concern over the potential expansive interpretation of
provisions that permit abortions to protect the health of the mother has manifested
itself in the context of debates concerning public funding for abortions and, more
recently, with regard to legislation proscribing “partial-birth” abortions. In order to
avoid the expansive interpretation of the term “health,” both federal and state
legislators have limited the medically necessary abortions that must be funded under
the Medicaid Program, Title XIX of the Social Security Act, to those where physical
disorders, injuries, or illnesses would place the woman in danger of death unless an
abortion is performed. See Planned Parenthood Affiliates of Michigan v. Engler, 73
F.3d 634, 638 (6th Cir. 1996) (quoting 139 Cong. Rec. S12,581 (daily ed. Sept. 28,
1993) (statement of Senator Hatch)); Act of April 28, 1992, ch. 1018, § 10, Item 4,
1992 Tenn. Pub. Acts 1059, 1090-91 (containing limitations on the use of state funds
for abortions); House Bill 3309 / Senate Bill 3307, 100th General Assembly (1998),
§ 10, Item 4 (limiting the use of state funds to abortions “where an abortion is
necessary to save the life of the mother or where the pregnancy is the result of an act
of rape or incest”). Likewise, the General Assembly has permitted “partial-birth”
abortions only when they are “necessary to save the life of the mother whose life is
endangered by a physical disorder, illness or injury.” Tenn. Code Ann. § 39-15-
209(c) (1997).39
39
The Congress enacted H.R. 1833, the “Partial-Birth Abortion Ban Act of 1995" which
would have limited partial-birth abortions to circumstances where they were necessary to save the
life of the mother. During the United States Senate’s debate over an amendment proposed by
Senator Boxer that would have permitted partial-birth abortions to protect the mother’s health,
Senator Smith pointed out that the amendment would be to permit partial-birth abortions on demand.
See 141 Cong. Rec. S18,074 (daily ed. Dec. 6, 1995) (statement of Senator Smith). The amendment
failed, and the President vetoed H.R. 1833 on April 10, 1996. The President stated in his veto
message that he would sign the bill if it contained an exception for “serious health consequences.”
Message to the House of Representatives Returning Without Approval Partial Birth Abortion
Legislation, 1 Pub. Papers 567, 568 (April 10, 1996); see also 142 Cong. Rec. H3338-01 (April 15,
(continued...)
-26-
Despite the testimony of the physicians who supported the statutes being
challenged in this case, the terms “life” and “health” in the context of emergency
medical exceptions do not mean the same thing as they are commonly understood to
mean. While there is consensus that abortions should be permitted to save the life of
the mother when she is in immediate danger, there is no consensus concerning
whether an emergency medical exception to save a mother’s life also includes
procedures to protect the mother from physical impairment or psychological
impairment that is not life-threatening or procedures to end a pregnancy when
childbirth would severely cripple a woman’s chance for a successful life herself.
The only reasonable interpretation of the plain meaning of Tenn. Code Ann.
§ 39-15-202(h) is that it permits bypassing the requirements of Tenn. Code Ann. §
39-15-202 only when “necessary to preserve the life of the pregnant woman.” A
review of the other statutes pertaining to abortions clearly demonstrates that the
General Assembly knows how to provide broader medical emergency exceptions
when it chooses to do so. It defined the medical emergency exception in general
terms in Tenn. Code Ann. § 39-15-201(c)(3) with regard to third trimester abortions
and in Tenn. Code Ann. § 37-10-305 with regard to the parental consent requirement.
Thus, we must conclude that the General Assembly purposely decided to limit the
scope of Tenn. Code Ann. § 39-15-202(h) to circumstances where bypassing the
procedures in Tenn. Code Ann. § 39-15-202 became necessary to preserve the
mother’s life. Accordingly, the trial court erred by interpreting Tenn. Code Ann. §
39-15-202(h) to apply in circumstances where the health of a woman is threatened.
IV.
A pivotal issue in this case concerns the appropriate standard for determining
the constitutionality of the challenged provisions of Tenn. Code Ann. §§ 39-15-201,
-202. Even though the constitutional challenges are based on the Constitution of
Tennessee, both parties draw legal support for their positions largely from federal
precedents construing the United States Constitution. The Planned Parenthood
plaintiffs assert that the Constitution of Tennessee requires nothing less than the strict
standard of review employed by the United States Supreme Court in Roe v. Wade.
39
(...continued)
1996).
-27-
The State responds that a woman’s fundamental right to refrain from procreating is
adequately protected using the “undue burden” standard employed by the United
States Supreme Court in Planned Parenthood v. Casey.
A.
The architects of our federal form of government looked to state constitutions
to provide the primary protection of individual liberties. Accordingly, neither the
Articles of Confederation nor the United States Constitution, as originally adopted,
contained a declaration of rights. See Robert Allen Rutland, The Birth of the Bill of
Rights, 1776-1791, at 78, 100, 106 (1955) (“Rutland”). When the First Congress
approved the Bill of Rights in 1789, its provisions were drawn largely from state
constitutions and bills of rights. See Edward Dumbauld, The Bill of Rights and What
It Means Today 160-65 (1957); Eugene W. Hickock, Jr., Introduction of the Bill of
Rights: Original Meaning and Current Understanding 17 (Eugene W. Hickock, Jr.,
ed. 1991); Craig R. Smith, To Form a More Perfect Union, The Ratification of the
Constitution and the Bill of Rights 1787-1791, at 128 (1993). Thus, most of the
provisions in the state and federal declarations of rights share a common ancestry.
See Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv.
L. Rev. 1147, 1159-61 (1993) (“Kahn”); Rutland, at 13, 74. Although their words
differ, these provisions embody restatements of fundamental principles commonly
accepted at the time. See State v. Staten, 46 Tenn. (6 Cold.) 233, 264 (1869); Wallace
McClure, State Constitution-Making With Especial Reference to Tennessee 211
(1916); Edward T. Sanford, The Constitutional Convention of 1796, Proceedings of
the Fifteenth Annual Meeting of the Bar Association of Tennessee 92, 108 (Nashville,
Marshall & Bruce Co. 1896).
The primacy of state declarations of rights continued until the ratification of
the post-Civil War amendments which, over time, altered the original structure of
federalism to allow federal protection for individual rights through the Due Process
and Equal Protection Clauses of the Fourteenth Amendment. Today many of our
personal liberties are protected by both the state and the federal constitutions.
The relationship between the protections of the state and federal constitutions
is well understood. The federal Bill of Rights provides a basic level of protection for
-28-
individual liberties, which state laws and constitutional provisions may not violate.
See McDaniel v. Paty, 435 U.S. 618, 628-29, 98 S. Ct. 1322, 1328-29 (1978); Girdner
v. Stephens, 48 Tenn. (1 Heisk.) 280, 283-84 (1870); Union Bank v. State, 17 Tenn.
(9 Yer.) 489, 494-95 (1836). However, state constitutions may provide greater
protection or may even protect rights that are not protected by the United States
Constitution. See State v. Barnett, 909 S.W.2d 423, 430 n.6 (Tenn. 1995); Burford
v. State, 845 S.W.2d 204, 207 (Tenn. 1992); Davis v. Davis, 842 S.W.2d 588, 600
(Tenn. 1992).40 As a result of the overlapping protections in the state and federal
constitutions, many state courts became accustomed to following the United States
Supreme Court’s lead in articulating constitutional principles. They conformed their
interpretations of state constitutional provisions to the United States Supreme Court’s
interpretation of analogous federal constitutional provisions.
In recent decades, state appellate courts began to place new emphasis on state
constitutions as independent sources of protections of personal liberties. The
soundness of many of these modern interpretations has been clouded by an ongoing
debate concerning the motivations for these decisions41 and by wide-spread academic
criticism of the quality of the scholarship and reasoning.42 The most widespread
concern is that state constitutions have become convenient vehicles for state judges
40
The Tennessee Supreme Court has specifically held that several provisions of the
Constitution of Tennessee provide broader protection than their federal counterparts. See, e.g., State
v. Marshall, 859 S.W.2d 289, 290-91, 294-95 (Tenn. 1993) (holding that the state constitution
provides broader protection for speech than the First and Fourteenth Amendments); State v. Black,
815 S.W.2d 166, 189, 192-93 (Tenn. 1991) (holding that the state constitution provides different
standards for determining what constitutes cruel and unusual punishment); State v. Jacumin, 778
S.W.2d 430, 435-36 (Tenn. 1989) (holding that Tenn. Const. art. I, § 7 requires different standards
for obtaining a search warrant than does the Fourth Amendment); Miller v. State, 584 S.W.2d 758,
759-61 (Tenn. 1979) (holding that the Ex Post Facto Clause of Tenn. Const. art. I, § 11 provides
greater protection than the Ex Post Facto Clause in U.S. Const. art. I, § 10, cl. 1).
41
Some commentators have suggested that these decisions represent efforts by state judges
to circumvent the perceived conservatism of the Burger and Rehnquist Courts. See Paul M. Bator,
The State Court and Federal Constitutional Liberties, 22 Wm. & Mary L. Rev. 605, 606 n.1 (1981);
Otis H. Stephens, Jr., The Tennessee Constitution and the Dynamics of American Federalism, 61
Tenn. L. Rev. 707, 708 (1994); Alan Tarr, Constitutional Theory and State Constitutional
Interpretation, 22 Rutgers L.J. 841, 845-47 (1991). On the other hand, defenders of these decisions
restore state constitutions to their proper place in the continuing constitutional dialogue. See Kahn,
106 Harv. L. Rev. at 1154; Frederic S. Le Clercq, The Process of Selecting Constitutional
Standards: Some Incongruities of Tennessee Practice, 61 Tenn. L. Rev. 573, 586-92 (1994).
42
See James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev.
761, 763 (1992); David Schuman, A Failed Critique of State Constitutionalism, 91 Mich. L. Rev.
274, 276 (1992).
-29-
who disagree with the holdings of the United States Supreme Court to transform their
personal beliefs and opinions into state constitutional doctrine.
In this climate, the courts should provide thorough explanations of their
interpretations of state constitutional provisions. See Summers v. Thompson, 764
S.W.2d 182, 188 (Tenn. 1988) (Drowota, J., concurring). Our understanding of the
provisions of the Constitution of Tennessee should be guided by the text of the
provision, the history of its adoption, our state’s unique history and tradition, the
fundamental values reflected in the provision, and the United States Supreme Court’s
construction of similar provisions in the United States Constitution. See A. E. Dick
Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62
Va. L. Rev. 873, 935-44 (1976). If we are to be the Constitution’s guardians43 and
the chief protectors of the fundamental principles it contains,44 we should not allow
constitutional principles to be shaped by judicial ingenuity or by individual judges’
personal preferences. See City of White House v. Whitley, No. 01A01-9612-CH-
00571, 1997 WL 331743, at *10 (Tenn. Ct. App. June 18, 1997) (Koch, J.,
dissenting), perm. app. granted (Tenn. Nov. 24, 1997).45
The interpretation of a constitutional provision should begin with its text. See
Shelby County v. Hale, 200 Tenn. 503, 510, 292 S.W.2d 745, 748 (1956); Prescott
v. Duncan, 126 Tenn. 106, 128, 148 S.W. 229, 234 (1912); Bank v. Cooper, 10 Tenn.
(2 Yer.) 599, 621-22 (1831) (Kennedy, J., concurring). The courts may illuminate the
meaning of the text by examining the reasonable understanding of the text when the
provision was adopted,46 the practices and usages in existence when the provision was
43
See Neely v. State, 63 Tenn. 174, 185 (1874); Eason v. State, 65 Tenn. 466, 477 (1873).
44
See Metropolitan Gov’t v. Tennessee State Bd. of Equalization, 817 S.W.2d 953, 955 (Tenn.
1991); Luehrman v. Taxing Dist., 70 Tenn. 425, 438 (1879) (stating that the court’s search for
meaning of constitutional provisions should not be guided by the judge’s own subjective notions of
unexpressed constitutional intent); State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 573 (Tenn. Ct.
App. 1994).
45
The Tennessee Supreme Court heard oral argument in this case on April 2, 1998.
46
See Gaskin v. Collins, 661 S.W.2d 865, 867 (Tenn. 1983); Hatcher v. Bell, 521 S.W.2d 799,
803 (Tenn. 1974).
-30-
adopted,47 the common law, 48 and the contemporary legislative and judicial
construction of the provision.49 We may also consider pertinent historical documents
including journals of constitutional conventions,50 prior draft constitutions,51 and
other jurisdictions’ constructions of similar constitutional provisions.52
Earlier judicial decisions can also elucidate the meaning of a constitutional
provision. These precedents provide stability and continuity in our understanding of
the constitution’s meaning. See Monday v. Millsaps, 197 Tenn. 295, 298, 271 S.W.2d
857, 858 (1954); State ex rel. Pitts v. Nashville Baseball Club, 127 Tenn. 292, 303,
154 S.W. 1151, 1154 (1913). They should not, however, be used to perpetuate error,
see Board of Educ. v. Shelby County, 207 Tenn. 330, 365, 339 S.W.2d 569, 584
(1960); Arnold v. Mayor of Knoxville, 115 Tenn. 195, 202, 90 S.W. 469, 470 (1905),
or principles that no longer work. See State v. Kendricks, 891 S.W.2d 597, 603
(Tenn. 1994). The doctrine of stare decisis is not inflexible, see City of Memphis v.
Overton, 216 Tenn. 293, 298, 392 S.W.2d 98, 100 (1965), and should be used to
enable the law to adapt to changing conditions. See Metropolitan Gov’t v. Poe, 215
Tenn. 53, 80, 383 S.W.2d 265, 277 (1964); Shousha v. Matthews Drivurself Serv.,
Inc., 210 Tenn. 384, 389, 358 S.W.2d 471, 473 (1962).
B.
The Tennessee Supreme Court alluded to a woman’s federally protected right
to terminate her pregnancy several times prior to 1992. See Smith v. Gore, 728
S.W.2d 738, 751-52 (Tenn. 1987); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn.
1977). In 1992, the court recognized for the first time that the Constitution of
47
See Ashe v. Leech, 653 S.W.2d 398, 401 (Tenn. 1983); Peay v. Nolan, 157 Tenn. 222, 230,
7 S.W.2d 815, 817 (1928); Pope v. Phifer, 50 Tenn. (3 Heisk.) 682, 687 (1871).
48
See Williams v. Taxing Dist., 84 Tenn. 531, 535 (1886).
49
See State v. Wilson, 80 Tenn. 246, 265 (1883).
50
See State ex rel. Cohen v. Darnell, 885 S.W.2d 61, 63 (Tenn. 1994); The Judges’ Cases,
102 Tenn. 509, 519-20, 53 S.W. 134, 136 (1899).
51
See State v. Marshall, 859 S.W.2d at 303 (Reid, C.J., concurring and dissenting); Paty v.
McDaniel, 547 S.W.2d 897, 902 (Tenn. 1977), rev’d on other grounds, 435 U.S. 618, 98 S. Ct. 1322(1978).
52
See State v. Marshall, 859 S.W.2d at 292-94; Cumberland Capital Corp. v. Patty, 556
S.W.2d 516, 519 (Tenn. 1977); Stoots v. State, 205 Tenn. 59, 69, 325 S.W.2d 532, 536 (1959).
-31-
Tennessee protects a woman’s right of procreational autonomy which includes both
the right to procreate and the right to avoid procreation. See Davis v. Davis, 842
S.W.2d at 601. As fashioned by the court, the right of procreational autonomy is not
absolute but is tempered by the State’s interest in protecting life after the end of the
first trimester of pregnancy. See Davis v. Davis, 842 S.W.2d at 602.
The lineage of the right of procreational autonomy protected by the
Constitution of Tennessee parallels that of a woman’s right to decide whether to
terminate her pregnancy recognized in Roe v. Wade. The right of procreational
autonomy derives from an individual’s right of privacy, see Davis v. Davis, 842
S.W.2d at 600, which is inherent in the concept of liberty embedded in the
Constitution of Tennessee. See Davis v. Davis, 842 S.W.2d at 598-99. The concept
of liberty is not confined to a specific provision but rather is implicit in Tenn. Const.
art. I, § 8 and the “liberty clauses” in the Declaration of Rights. See Davis v. Davis,
842 S.W.2d at 599-600.53
The Tennessee Supreme Court never held in Davis v. Davis that the scope of
the right of privacy protected by the Constitution of Tennessee was broader than the
right of privacy protected by the United States Constitution. While the court
observed that there is no reason to assume complete congruity between the two rights,
see Davis v. Davis, 842 S.W.2d at 600, it did not conclude that the boundaries
between the two rights are, in fact, different. In fact, the court intimated that the state
and federal rights are similar when it noted that “the right of procreation is a vital part
of an individual’s right to privacy. Federal law is to the same effect.” Davis v. Davis,
842 S.W.2d at 600. The court also relied exclusively on decisions of the United
States Supreme Court construing the United States Constitution to describe the nature
and scope of the right of procreational autonomy. See Davis v. Davis, 842 S.W.2d
at 600-02.
53
The court’s discussion of the liberty clauses centered on Tenn. Const. art. §§ 1, 2, 3, 7, 19,
and 27. Referring to Tenn. Const. art. I, §§ 1 and 2, the court observed that the Constitution of
Tennessee is the only state constitution that gives the people the right to resist governmental
oppression even to the extent of overthrowing the government. See Davis v. Davis, 842 S.W.2d at
599. In fact, Tenn. Const. art. I, §§ 1 and 2 were derived from Md. Dec. of Rights of 1776, art. IV
and N.H. Const. of 1784, pt. I, art. X and are not unique. Currently, the constitutions of thirty-one
states contain provisions securing the political rights of the people. See, e.g., Ala. Const., art. I, §
2; Ga. Const., art. I, § 2, ¶ 2; Ky. Const., Bill of Rights § 4; Mass. Const., Dec. of Rights, art. VII;
N.C. Const., art. I, § 2; Va. Const., art. I, § 3. Two other state constitutions contain provisions
similar to Tenn. Const. art. I, § 2. See Md. Const., Dec. of Rights, art. 6; N.H. Const., pt. I, art. 10.
-32-
While the Tennessee Supreme Court has invoked the right of privacy since
deciding Davis v. Davis,54 it has not again addressed the scope of either the right of
privacy or the right of procreational autonomy. The only reported case addressing
the scope of the right of privacy involved a challenge to the Homosexual Practices
Act, Tenn. Code Ann. § 39-13-510 (1991). In that case, a panel of this court held that
the statute was unconstitutional because it was not narrowly tailored to advance the
State’s interest in preventing the spread of infectious diseases. See Campbell v.
Sundquist, 926 S.W.2d 250, 263-64 (Tenn. Ct. App. 1996). The panel also observed
that “the right to privacy provided to Tennesseans under our Constitution is in fact
more extensive than the corresponding right to privacy provided by the Federal
Constitution.” Campbell v. Sundquist, 926 S.W.2d at 261.
We do not on this occasion take issue with our colleagues’ conclusion in
Campbell v. Sundquist. However, we do not view their observation concerning the
scope of Tennessee’s right of privacy to be controlling in this case for four reasons.
First, their reliance on Davis v. Davis for the proposition that the scope of the state
right of privacy is broader than the scope of the federal right of privacy is misplaced.
Davis v. Davis never held that the contours of the two rights differ, and the Tennessee
Supreme Court’s analysis based on the uniqueness of the liberty clauses in the
Constitution of Tennessee is historically inaccurate.55 Second, other than its reliance
on the historically incorrect language in Davis v. Davis, the Court of Appeals cited
no other law to support its understanding of the scope of the right of privacy. Third,
the Campbell v. Sundquist decision did not deal specifically with the right of
procreational autonomy. Finally, the fact that the Tennessee Supreme Court denied
permission to appeal in Campbell v. Sundquist is not a reliable indication that the
court concurs with the conclusion with regard to the scope of Tennessee’s right of
privacy. See Meadows v. State, 849 S.W.2d 748, 752 (Tenn. 1993); Swift v. Kirby,
737 S.W.2d 271, 277 (Tenn. 1987); Street v. Calvert, 541 S.W.2d 576, 587 (Tenn.
1976).
54
See Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717-18 (Tenn. 1997); In re Adoption of
Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Nale v. Robertson, 871 S.W.2d 674, 680
(Tenn. 1994); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993).
55
See supra note 53.
-33-
Accordingly, we must determine whether the scope of the right of procreational
autonomy is broader than the analogous right of reproductive freedom protected by
the United States Constitution. The Tennessee Supreme Court has already noted that
these rights spring from common constitutional roots -- the concept of liberty
reflected in the state and federal constitutions. See Davis v. Davis, 842 S.W.2d at
598. In order to conclude that Tennessee’s right to procreational autonomy is broader
than its federal counterpart, we must point to material differences in the applicable
constitutional language or to other historical or precedential matters that warrant this
conclusion. See City of White House v. Whitley, 1997 WL 331743, at *13 (Koch, J.,
dissenting).
The parties challenging the constitutionality of Tenn. Code Ann. §§ 39-15-201,
-202 have the burden of demonstrating that the right of procreational autonomy
differs in scope and application from the constitutionally protected liberty interests
recognized in Roe v. Wade. They have failed to carry their burden because even the
most expansive reading of Davis v. Davis does not substantiate their claim. Both the
Constitution of Tennessee and the United States Constitution embody ancient
principles that shield private rights from arbitrary governmental interference. See
State v. Staten, 46 Tenn. (6 Cold.) 233, 245 (1869). In light of the common
constitutional lineage of these two rights, and in the absence of any demonstrable
basis for a contrary conclusion, we decline to hold that the right of procreational
autonomy recognized in Davis v. Davis differs in any material way from the
fundamental right of a woman to decide whether to terminate her pregnancy first
recognized in Roe v. Wade.
C.
Having determined that the state right of procreational autonomy does not
differ materially from the procreational right recognized in Roe v. Wade, we must
now identify the standards to be used to test the validity of the statutory provisions
challenged in this case. The formulation of clear legal standards in cases of this sort
is essential because standards minimize judicial subjectivity as well as the risk that
the height of the bar will be determined by the apparent exigencies of the day. See
Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 785,
-34-
116 S. Ct. 2374, 2406 (1996) (Kennedy, J., concurring in part, concurring in the
judgment in part, and dissenting in part).
The Tennessee Supreme Court has not provided us with standards for deciding
whether a statute adequately balances the State’s interest in protecting maternal health
and potential human life with a woman’s procreational autonomy. It has, however,
pointed to several important similarities between the state and federal rights that point
to a workable standard. Like the United States Supreme Court, the Tennessee
Supreme Court has recognized that women have a constitutionally protected liberty
interest in determining whether to bear or beget a child. See Planned Parenthood v.
Casey, 505 U.S. at 846, 859, 112 S. Ct. at 2804, 2816; Roe v. Wade, 410 U.S. at 153,
93 S. Ct. at 727; Davis v. Davis, 842 S.W.2d at 600-01. But, like the United States
Supreme Court, the Tennessee Supreme Court has also recognized that the woman’s
right is not absolute and that the State’s interest in protecting maternal health and
potential life may justify imposing reasonable limitations on a woman’s exercise of
her right. See Planned Parenthood v. Casey, 505 U.S. at 878-79, 112 S. Ct. at 2821;
Roe v. Wade, 410 U.S. at 162-64, 93 S. Ct. at 731-32; Davis v. Davis, 842 S.W.2d at
602.
In an early effort to strike the appropriate balance between these interests, the
United States Supreme Court held in Roe v. Wade and in several later cases that state
regulations touching on a woman’s abortion decision should be subjected to strict
scrutiny and should be upheld only if they were drawn in narrow terms to further a
compelling state interest. See Roe v. Wade, 410 U.S. at 155-56, 93 S. Ct. at 728.
Using the strict scrutiny test, the United States Supreme Court invalidated statutes
requiring mandatory pre-abortion counseling,56 spousal consent,57 parental consent
for minors,58 waiting periods,59 and hospitalization requirements for abortions
occurring after the first trimester.60
56
See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. at 764,
106 S. Ct. at 2180.
57
See Planned Parenthood v. Danforth, 428 U.S. 52, 69-71, 96 S. Ct. 2831, 2841-42 (1976).
58
See Planned Parenthood v. Danforth, 428 U.S. at 74, 96 S. Ct. at 2843.
59
See City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. at 449-51, 103 S. Ct. at
2502-03.
60
See Planned Parenthood v. Ashcroft, 462 U.S. 476, 481-82, 103 S. Ct. 2517, 2520 (1983);
(continued...)
-35-
In 1989 the Court signaled its disenchantment with its post-Roe v. Wade
standards when it upheld a statutory restriction against using public employees or
facilities to perform non-therapeutic abortions. See Webster v. Reproductive Health
Servs., 492 U.S. at 509-11, 109 S. Ct. at 3052-53. Four members of the Court,
including Chief Justice Rehnquist and Justices White, Scalia, and Kennedy, noted
that Roe v. Wade’s strict scrutiny standard based on the trimester framework had
proved to be unsound in principle and unworkable in practice. See Webster v.
Reproductive Health Servs., 492 U.S. at 518, 109 S. Ct. 3056; Webster v.
Reproductive Health Servs., 492 U.S. at 532, 109 S. Ct. at 3064 (Scalia, J., concurring
in part and concurring in the judgment). Justice O’Connor stated that she was not
prepared to address the continuing viability of Roe v. Wade in this case. See Webster
v. Reproductive Health Servs., 492 U.S. at 525-26, 109 S. Ct. at 3060-61 (O’Connor.
J., concurring in part and concurring in the judgment).
The occasion for reconsidering the Roe v. Wade standards presented itself in
1992 in a multifaceted challenge to Pennsylvania statutes pertaining to medical
emergencies, informed consent, waiting periods, parental consent, reporting and
record keeping requirements, and spousal notification. The Court upheld all
challenged provisions except the spousal notification requirement, but the justices
prepared five opinions reflecting their lack of consensus concerning the appropriate
standards. Four justices, including three of the justices who had earlier departed from
Roe v. Wade in Webster v. Reproductive Health Servs., sustained all the challenged
provisions on the basis that they were rationally related to a legitimate state interest.
See Planned Parenthood v. Casey, 505 U.S. at 966, 979, 112 S. Ct. at 2867, 2873
(Rehnquist, C.J., concurring in the judgment in part and dissenting in part).
The pivotal opinion was prepared jointly by Justices O’ Connor, Kennedy, and
Souter.61 While retaining the “essential holdings” of Roe v. Wade,62 the three justices
60
(...continued)
City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. at 437-39, 103 S. Ct. at 2496-97.
61
The joint opinion is the controlling opinion in the case because it embodies the position of
the members of the Court who concurred on the narrowest grounds. See Marks v. United States, 430
U.S. 188, 193, 97 S. Ct. 990, 993 (1977); Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S. Ct. 2909,
2923 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).
62
According to the joint opinion, the three essential holdings of Roe v. Wade were: (1) the
recognition of a woman’s right to choose to have an abortion before viability and to obtain it without
(continued...)
-36-
rejected Roe v. Wade’s rigid trimester framework, see Planned Parenthood v. Casey,
505 U.S. at 873, 112 S. Ct. at 2818, and also rejected the strict scrutiny standard
because it did not give proper weight to the State’s interest in maternal health and in
potential life. See Planned Parenthood v. Casey, 505 U.S. at 875-76, 112 S. Ct. at
2819-20. In the place of the strict scrutiny standard, the joint opinion employed an
“undue burden” standard that it explained as follows:
Only where state regulation imposes an undue burden on
a woman’s ability to make this decision does the power of
the State reach into the heart of the liberty protected by the
Due Process Clause.
Planned Parenthood v. Casey, 505 U.S. at 874, 112 S. Ct. at 2819. The joint opinion
elaborated on the meaning of an undue burden by pointing out that “[a] finding of an
undue burden is a shorthand for the conclusion that a state regulation has the purpose
or effect of placing a substantial obstacle in the path of a woman seeking an abortion
of a nonviable fetus.” Planned Parenthood v. Casey, 505 U.S. at 877, 112 S. Ct. at
2820.
The joint opinion drew a clear distinction between regulations that placed an
undue burden on a woman’s ability to decide whether to terminate her pregnancy and
those that had the incidental effect of increasing the cost or decreasing the availability
of abortions. The justices pointed out that “the fact that a law which serves a valid
purpose, one not designed to strike at the right itself, has the incidental effect of
making it more difficult or more expensive to procure an abortion cannot be enough
to invalidate it.” Planned Parenthood v. Casey, 505 U.S. at 874, 112 S. Ct. at 2819.
They also emphasized that
What is at stake is the woman’s right to make the ultimate
decision, not a right to be insulated from all others in doing
so. Regulations which do no more than create a structural
mechanism by which the State, or the parent or guardian of
a minor, may express profound respect for the life of the
unborn are permitted, if they are not a substantial obstacle
to the woman’s exercise of the right to choose. . . . Unless
it has that effect on her right of choice, a state measure
designed to persuade her to choose childbirth over abortion
62
(...continued)
undue interference from the state, (2) confirmation of the state’s power to restrict abortions after fetal
viability if the law contains emergency medical exceptions to protect the life and health of the
woman, and (3) recognition that the state has legitimate interests from the onset of pregnancy in
protecting the health of the woman and the life of the fetus that may become a child. See Planned
Parenthood v. Casey, 505 U.S. at 846, 112 S. Ct. at 2804.
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will be upheld if reasonably related to that goal.
Regulations designed to foster the health of a woman
seeking an abortion are valid if they do not constitute an
undue burden.
Planned Parenthood v. Casey, 505 U.S. at 877-78, 112 S. Ct. at 2821.
As employed in the joint opinion, the undue burden standard requires the court
to analyze the factual record to determine whether the challenged regulation, in a
large fraction63 of the cases in which it is relevant, will operate as a substantial
obstacle to a woman’s choice to undergo an abortion. See Planned Parenthood v.
Casey, 505 U.S. at 895, 112 S. Ct. at 2830; see also Women’s Med. Prof’l Corp. v.
Voinovich, 130 F.3d 187, 194 (6th Cir. 1997); Planned Parenthood v. Miller, 63 F.3d
1452, 1457 (8th Cir. 1995); Summit Med. Assocs., P.C. v. James, 984 F. Supp. 1404,
1449 (M.D. Ala. 1998). Thus, the undue burden standard requires a fact-intensive
inquiry based on the record developed in the trial court. See Planned Parenthood v.
Casey, 510 U.S. 1309, 1310, 114 S. Ct. 909, 910-11 (1994) (Souter, J., denying
application for stay); Fargo Women’s Health Org. v. Schafer, 507 U.S. 1013, 1014,
113 S. Ct. 1668, 1669 (1993) (O’Connor, J., concurring in denial of stay).
Accordingly, the three justices employing the undue burden standard and the
four justices employing the rational basis standard departed from Akron v. Akron Ctr.
for Reproductive Health, Inc. and upheld Pennsylvania’s 24-hour waiting period. See
Planned Parenthood v. Casey, 505 U.S. at 885-87, 112 S. Ct. at 2825-26. They also
departed from Akron v. Akron Ctr. for Reproductive Health, Inc. and Thornburgh v.
American College of Obstetricians and Gynecologists to uphold Pennsylvania’s
informed consent procedure requiring physicians to provide their patients with state-
prescribed information, some of which was intended to influence the woman’s choice
between abortion and childbirth. See Planned Parenthood v. Casey, 505 U.S. at 881-
85, 112 S. Ct. at 2822-25.
The Court also upheld Pennsylvania’s one-parent consent requirement for
minors seeking abortions because it had an adequate judicial bypass procedure. See
63
Three justices continue to insist that facial challenges to abortion statutes must fail unless
there exists no set of circumstances in which the statute can be constitutionally applied. See Janklow
v. Planned Parenthood, 517 U.S. 1174, ___, 116 S. Ct. 1582, 1584-85 (1996) (Scalia, J., dissenting
from the denial of certiorari); Ada v. Guam Soc’y of Obstetricians and Gynecologists, 506 U.S. 1011,
1011-12, 113 S. Ct. 633, 633-34 (1992) (Scalia, J., dissenting from the denial of certiorari).
-38-
Planned Parenthood v. Casey, 505 U.S. at 899-900, 112 S. Ct. at 2832. In addition,
the Court upheld Pennsylvania’s medical emergency exception, see Planned
Parenthood v. Casey, 505 U.S. at 879-80, 112 S. Ct. at 2822, as well as the reporting
and record keeping requirement. See Planned Parenthood v. Casey, 505 U.S. at 900-
01, 112 S. Ct. at 2832-33. In a closely divided vote, the Court found that the spousal
notification requirement unduly burdened married women seeking abortions who do
not wish to notify their husbands and who do not qualify for one of the statutory
exemptions to the notice requirement. See Planned Parenthood v. Casey, 505 U.S.
at 887-98, 112 S. Ct. at 2826-31.
The United States Supreme Court’s “reproductive rights” decisions are not
binding on this court in this case because the challenge to Tenn. Code Ann. §§ 39-15-
201, -202 is based on the Constitution of Tennessee. They can, however, provide
helpful guidance for our decision. See Wright v. Cunningham, 115 Tenn. 445, 463-
64, 91 S.W. 293, 297 (1905). In the absence of a demonstrable basis for holding
otherwise, we should favor a construction of the Constitution of Tennessee that is
harmonious with analogous provisions in the United States Constitution. See State
v. Jones, 598 S.W.2d 209, 219 (Tenn. 1980) overruled on other grounds by State v.
Shropshire, 874 S.W.2d 634, 638 (Tenn. Crim. App. 1993); Miller v. State, 584
S.W.2d 758, 763 (Tenn. 1979) (Harbison, J., dissenting).
The Planned Parenthood plaintiffs have failed to present colorable arguments
that Planned Parenthood v. Casey’s undue burden standard is inconsistent with the
right of procreational privacy recognized in Davis v. Davis. They have not pointed
to textual differences or historical or precedential factors that require the continued
use of Roe v. Wade’s strict scrutiny standard. We have considered this issue in light
of Davis v. Davis and the historical background surrounding the drafting and
adoption of Tennessee’s Bill of Rights, and we find that Planned Parenthood v.
Casey’s undue burden standard appropriately balances a woman’s right to
procreational autonomy with the State’s significant interest in protecting maternal
health and potential human life. Accordingly, we will use the undue burden standard
to determine whether the provisions challenged in this case pass muster under the
Constitution of Tennessee.
-39-
Except for certain circumstances not applicable here, the persons challenging
a statute have the burden of demonstrating its unconstitutionality. See Hart v. City
of Johnson City, 801 S.W.2d 512, 516 (Tenn. 1990); Fritts v. Wallace, 723 S.W.2d
948, 950 (Tenn. 1987). This principle applies to constitutional challenges to abortion
statutes. See Katherine Kolbert & David H. Gans, Responding to Planned
Parenthood v. Casey: Establishing Neutrality Principles in State Constitutional Law,
66 Temple L. Rev. 1151, 1155 (1993). Thus, in order to prevail, those challenging
the statutory regulations of a woman’s right of procreational autonomy must prove
either that the General Assembly’s purpose in enacting the regulation was to interfere
substantially with a woman’s choice or that the regulation has interposed a substantial
obstacle in the path of a woman seeking an abortion before the fetus attains viability.
See Planned Parenthood v. Casey, 505 U.S. at 878, 112 S. Ct. at 2821.
V.
We will now consider the constitutionality of the separate statutory provisions
at issue in this case. The relative sparsity of probative evidence concerning the effect
of these provisions has not escaped our notice. We find the lack of evidence
somewhat discomfiting in light of both the profound importance of the issues
presented and the United States Supreme Court’s unmistakably clear direction in
Planned Parenthood v. Casey that the undue burden standard requires a thoughtful,
fact-intensive analysis of the effect of the challenged provisions on women’s
procreational autonomy.
A.
Tenn. Code Ann. §§ 39-15-201, -202 have state-wide application. According
to the most current data in the record,64 abortions are currently being performed in
nine of Tennessee’s ninety-five counties. Over 90% of these abortions are performed
in the State’s five most populous areas.65 Despite this geographic concentration,
virtually all of the evidence presented to the trial court relates to abortions performed
in Nashville and the operation of the Planned Parenthood clinic in Nashville. While
64
See Division of Information Resources, Tennessee Dep’t of Health, Report of Induced
Abortions in Tennessee 1990 (June 1992).
65
Chattanooga, Knoxville, Nashville, Memphis, and the Tri-Cities.
-40-
there is some evidence about the operation of the Planned Parenthood clinic in
Memphis, the record contains little evidence concerning the availability of abortions
in Memphis and no current evidence of any sort concerning the circumstances in
Chattanooga, Knoxville, or the Tri-Cities.
To the extent that the statewide statistical data for 1990 remains reliable, 90%
of the abortions performed in Tennessee are performed during the first twelve weeks
of pregnancy. Approximately 6% are performed during the thirteenth and fourteenth
weeks of pregnancy, and only 3.9% of the abortions are performed after the
fourteenth week of pregnancy. The statewide data also indicates that 87% of the
abortions obtained by Tennessee residents are performed either in a physician’s office
or in a licensed ambulatory surgical treatment center.66 Only 2.2% of all abortions
are performed in hospitals; however, over 81% of all abortions performed during or
after the seventeenth of pregnancy are performed in hospitals.
The data also reveals that a majority of the women who obtain abortions
(63.3%) are Caucasian. Approximately 80% of the women are unmarried, and
approximately 36% have had a previous abortion. The median age of women
obtaining an abortion is twenty-three years old. Approximately 25% of the women
are nineteen years old or younger, while 33.9% are between the ages of twenty and
twenty-four.
B.
The Planned Parenthood plaintiffs first assert that the abortion regulations in
Tenn. Code Ann. §§ 39-15-201, -202 violate Tenn. Const. art. I, § 8 and Tenn. Const.
art. XI, § 8 because they subject women seeking abortions to burdens and obstacles
not faced by women seeking other types of medical treatment. Since the right of
procreational autonomy is a fundamental right, they argue that the challenged
regulations must be strictly scrutinized and that they should be upheld only if they are
precisely tailored to serve a compelling governmental interest. The State responds
that heightened scrutiny is not required and that Tenn. Code Ann. §§ 39-15-201, -202
66
The Planned Parenthood clinics in Memphis and Nashville are licensed as ambulatory
surgical treatment centers.
-41-
will withstand an equal protection challenge if there is any reasonably conceivable
set of facts that could provide a rational basis for the restriction.
The Equal Protection Clauses of the Constitution of Tennessee require that all
persons or entities be treated the same under like circumstances and conditions. See
Genesco, Inc. v. Woods, 578 S.W.2d 639, 641 (Tenn. 1979); Mascari v. International
Brotherhood of Teamsters, 187 Tenn. 345, 350, 215 S.W.2d 779, 781 (1948). They
do not require persons or things that are, in fact, different to be treated the same. See
Riggs v. Burson, 941 S.W.2d at 52. The initial burden of determining what is
“different” and what is “the same” with regard to statutory classifications resides with
the General Assembly. See State v. Smoky Mountain Secrets, Inc., 937 S.W.2d 905,
912 (Tenn. 1996). Any classification that is constitutionally suspect or that interferes
with a fundamental constitutional right will be subjected to strict scrutiny, see State
v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994); Harrison v. Schrader, 569 S.W.2d 822,
825 (Tenn. 1978), and will be upheld only if it is precisely tailored to serve a
compelling governmental interest. See Doe v. Norris, 751 S.W.2d 834, 842 (Tenn.
1988).
Pregnancy, as a medical condition, provides a natural, appropriate basis for
classifying women with regard to the provision of medical services. Pregnant women
are distinctly different from other women seeking reproductive or any other type of
healthcare. Their pregnancy places additional demands on their bodies, and treatment
decisions can affect not only their life and health but also the life and health of the
fetus. Because of the dual effect of decisions regarding the treatment of pregnant
women, the State has a constitutionally significant interest not only in protecting the
mother’s life and health but also in the fetus’s potential human life. See Planned
Parenthood v. Casey, 505 U.S. at 846, 112 S. Ct. at 2804; Planned Parenthood v.
Casey, 505 U.S. at 914-15, 112 S. Ct. at 2840 (Stevens, J., concurring in part and
dissenting in part); Planned Parenthood v. Casey, 505 U.S. at 929-30, 112 S. Ct. at
2847 (Blackmun, J., concurring in part, concurring in the judgment in part, and
dissenting in part); Planned Parenthood v. Casey, 505 U.S. at 945-46, 112 S. Ct. at
2856 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); Roe
v. Wade, 410 U.S. at 162, 93 S. Ct. at 731; Davis v. Davis, 842 S.W.2d at 601-02.
-42-
Thus, even if a woman’s right of procreational autonomy is fundamental for
the purposes of an equal protection analysis, the State’s interest in maternal health
and potential life justifies appropriate state intervention. In equal protection parlance,
this intervention must be precisely tailored. In the context of statutory regulations of
abortions, the courts should determine whether a particular regulation is precisely
tailored using the undue burden standard set out in Planned Parenthood v. Casey.
Thus, a statutory regulation of abortion will withstand equal protection analysis if it
does not impose a substantial obstacle in the path of a woman seeking an abortion
before the fetus attains viability.
C.
The Planned Parenthood plaintiffs assert that the hospitalization requirement
in Tenn. Code Ann. § 39-15-201(c)(2) burdens a woman’s right of procreational
autonomy without serving a compelling or even legitimate state interest. They insist
that elective abortions can be performed safely outside a hospital through the
eighteenth week of pregnancy and that the cost of obtaining an abortion in a hospital
is significantly higher that the cost of similar procedures in an outpatient clinic or
free-standing facility. They also insist that the hospitalization requirement is
inconvenient and that hospitals pose additional health risks for women because of the
possibility of nosocomial infection.
Our determination of these issues rests on the language of the statute as enacted
by the General Assembly, not as embellished by the trial court. Thus, the regulation
we are construing at this juncture permits abortions
After three (3) months, but before viability of the
fetus, if the abortion . . . is performed . . . in a hospital as
defined in § 68-11-201, licensed by the state department of
health, or a hospital operated by the State of Tennessee or
a branch of the federal government.
The Planned Parenthood plaintiffs argue that we should review this
requirement using the same strict scrutiny standard used by the United States
Supreme Court to overturn similar requirements in the past.67 They insist that the
67
See City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. at 434-439, 103 S. Ct.
at 2495-97; Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 481-82,
(continued...)
-43-
undue burden standard is inapplicable because the United States Supreme Court did
not specifically depart from its earlier decisions concerning hospitalization
requirements when it decided Planned Parenthood v. Casey. The Casey Court did
not address its prior decisions concerning hospitalization requirements because this
question was not before it. However, the authors of the joint opinion in Casey clearly
envisioned that the undue burden standard should be used to evaluate the
constitutionality of any state regulation affecting a woman’s procreational autonomy.
We have already determined that the undue burden standard strikes the proper
balance between a woman’s right of procreational autonomy and the State’s
important and legitimate interest in protecting maternal health and potential human
life. Accordingly, our task is to review Tenn. Code Ann. § 39-15-201(c)(2) to
determine whether its hospitalization requirement places a substantial obstacle in the
path of women seeking an abortion before fetal viability.
The undue burden standard requires us to consider both the purpose and the
effects of the hospitalization requirement. See Planned Parenthood v. Casey, 505
U.S. at 877, 112 S. Ct. at 2820. The purpose prong of the standard does not require
us to consider the number of women affected by the provision. Instead, it requires
us to invalidate the requirement if the persons challenging the statute prove that the
General Assembly intended to hinder a woman’s procreational autonomy when it
enacted the requirement. If, however, the requirement serves a valid purpose not
designed to strike at the heart of the right of procreational autonomy, the requirement
should be overturned only if its effect is to place a substantial obstacle in the path of
a significant number of women seeking an abortion before fetal viability.
The record contains no direct evidence that the General Assembly enacted the
hospitalization requirement in Tenn. Code Ann. § 39-15-201(c)(2) to frustrate a
woman’s exercise of her procreational choice. To the contrary, the evidence
illustrates the General Assembly’s genuine desire to protect the health of women who
seek abortions. Since protecting maternal health is a legitimate and important state
interest, see Planned Parenthood v. Casey, 505 U.S. at 877-78, 112 S. Ct. at 2821, we
find that the evidence does not support a finding of improper legislative motivation.
67
(...continued)
103 S. Ct. 2517, 2520 (1983).
-44-
In the absence of direct evidence of improper legislative motive, the Planned
Parenthood plaintiffs argue that an improper motive may be deduced from the facts
that few Tennessee hospitals provide elective abortions after the first fourteen weeks
of pregnancy and that the medical community believes that abortions through the first
eighteen weeks of pregnancy can be performed safely outside of hospitals. The
evidence with regard to the availability issue is meager. What evidence there is
relates only to the practice of hospitals in Nashville. There is no evidence concerning
hospital policies with regard to post-fourteen week abortions in Memphis,
Chattanooga, Knoxville, the Tri-Cities, Cookeville, or Jackson. With regard to
Nashville, the evidence shows that between two and four hospitals permit elective
post-fourteen week abortions. The evidence also shows that hospital policies
regarding post-fourteen week abortions are driven by the risk of complications of
these procedures and the shortage of trained physicians willing to perform them, not
by Tenn. Code Ann. §§ 39-15-201, -202.
In light of the improvements in medical equipment and procedures during the
past twenty-five years, the medical community has reached a consensus that abortions
can be performed safely in physicians’ offices and outpatient clinics through the
fourteenth week of pregnancy.68 Physicians have also agreed that abortions through
the eighteenth week of pregnancy may be performed safely in a free-standing surgical
facility.69 The procedures performed in these facilities may be under general or
regional block anesthetic, but the recovery period must be short because patients must
be able to be discharged on the same day the procedure is performed.70 These
facilities must maintain the same surgical, anesthetic, and personnel standards that
are required of hospitals, including: (a) control of the sources and transmission of
infection, (b) infection surveillance, (c) functional oxygen and suction, (d)
resuscitation and defibrillation (e) emergency lighting, (f) sterilization, and (g)
emergency intercommunication.71
68
See ACOG Standards at 65-66.
69
See ACOG Standards at 68. The medical community has also concluded that abortions can
be provided even later in ambulatory surgical facilities attached to hospitals because of the
availability of surgical, recovery, and emergency response facilities.
70
See ACOG Standards at 66.
71
See ACOG Standards at 74.
-45-
The evidence concerning the adequacy of the facilities in Tennessee where
outpatient abortions are performed is sketchy. Outside of the evidence with regard
to the Planned Parenthood clinics in Memphis and Nashville, it is nonexistent. The
Planned Parenthood clinics in Memphis and Nashville are licensed as ambulatory
surgical treatment centers under Tenn. Code Ann. § 68-11-102(4)(A), but neither
facility meets the ACOG Standards for performing post-fourteen week abortions.72
Because ambulatory surgical centers are of relatively recent vintage, the
Planned Parenthood plaintiffs do not seriously argue that the General Assembly erred
in 1973 when it decided that post-fourteen week abortions must be performed in
hospitals. They argue instead that the hospitalization requirement has become
outdated. Since it is no longer medically necessary to perform abortions through the
eighteenth week of pregnancy in a hospital, they ascribe improper motives to the
General Assembly for failing to update Tenn. Code Ann. § 39-15-201(c)(2) to make
it consistent with current medical thinking.
Courts must be cautious about reading too much into legislative inaction. See
Johnson v. Transportation Agency, 480 U.S. 616, 671-72, 107 S. Ct. 1442, 1472
(1987) (Scalia, J., dissenting); Evans v. Steelman, No. 01A01-9511-JV-00508, 1996
WL 557844 at *10 n.14 (Tenn. Ct. App. Oct. 2, 1996) (Koch, J., dissenting), aff’d on
other grounds, ___ S.W.2d ___ (Tenn. 1998).73 The record contains no indication
that the General Assembly has declined or even has been requested to reconcile Tenn.
Code Ann. § 39-15-201(c)(2) with the current ACOG Standards. Accordingly, we
decline to read any sort of improper motive into the General Assembly’s actions or
inactions regarding the hospitalization requirement. Under the facts of this case, the
arguments concerning updating the hospitalization requirement do not raise a
constitutional issue but rather a policy issue that should be addressed to the General
Assembly. Based on the evidence before us, we decline to find improper legislative
motivation for the hospitalization requirement in Tenn. Code Ann. § 39-15-201(c)(2).
72
As an illustration, one physician who performs abortions at the Planned Parenthood clinic
in Nashville recounted an occasion when he was forced to complete a procedure using a flashlight
when the clinic’s electrical power failed.
73
See Evans v. Steelman, No. 01S01-9701-JV-00019, 1998 WL 325224 (Tenn. Mar. 30,
1998).
-46-
The lack of evidence of improper legislative purpose does not end the inquiry.
The hospitalization requirement must be invalidated if it has the effect of placing a
substantial burden in the path of a woman seeking an abortion before fetal viability.
The effect prong of the undue burden analysis requires us to focus on only those
women for whom the requirement is actually a restriction. See Planned Parenthood
v. Casey, 505 U.S. at 894, 112 S. Ct. at 2829. The group of women in Tennessee
affected by the hospitalization requirement is quite limited.
Since 96% of all abortions performed in Tennessee are performed before or
during the fourteenth week of pregnancy, the hospitalization requirement affects only
4% of the abortions performed in Tennessee. Of these abortions, the requirement
does not impose an undue burden on women (a) who are more than eighteen weeks
pregnant, (b) who elect to obtain their abortions outside of Tennessee for reasons of
confidentiality or other similar reasons, and (c) whose medical condition otherwise
requires hospitalization. While the evidence on these matters is sketchy, it appears
that, at most, the hospitalization requirement could become a substantial obstacle for
approximately 2% of the women seeking abortions in Tennessee - that is those
women who are between fourteen and eighteen weeks pregnant who seek elective
abortions and who, either by choice or necessity, decide to obtain their abortion in
Tennessee.
The Planned Parenthood plaintiffs assert that the hospitalization requirement
substantially burdens these women’s procreational autonomy in three ways: (1)
significantly increased cost, (2) additional delay and inconvenience, and (3) increased
risk of complications. The fact that a regulation makes it more difficult or expensive
for a woman to obtain an abortion is not enough to invalidate the regulation. See
Planned Parenthood v. Casey, 505 U.S. at 874, 112 S. Ct. at 2819. Thus,
inconvenience, even significant inconvenience, is not a substantial obstacle under the
undue burden analysis. In order to constitute an undue burden, the regulation must
be likely to prevent women from obtaining abortions. See Karlin v. Foust, 975 F.
Supp. 1177, 1205 (W.D. Wis. 1997). Under the facts before us, we decline to find
that the hospitalization requirement will likely prevent women desiring an elective
abortion from obtaining one.
-47-
The record contains clear evidence that the average cost of abortions performed
in hospitals is substantially higher than the cost of abortions performed in a
physician’s office or outpatient clinic.74 Increased cost alone, however, is not an
undue burden. Women can avoid these costs by obtaining their elective abortions
during or prior to their fourteenth week of pregnancy. If they do so, they avoid the
hospitalization requirement completely because they will be able to obtain the
procedure at a physician’s office or clinic.
The Planned Parenthood plaintiffs also argue that the hospitalization
requirement imposes an undue burden because it increases inconvenience and causes
delay. The record contains little probative evidence on this point. There is some
evidence that women in Tennessee are presently traveling an average of fifty miles
to obtain an elective abortion, and there is no evidence that they will be required to
travel any further if they must obtain their elective abortion in a hospital. As with the
cost issue, women can avoid this additional delay and inconvenience by obtaining
their abortion during or before their fourteenth week of pregnancy.
In their final assault on the hospitalization requirement, the Planned
Parenthood plaintiffs argue that hospitals may be less appropriate than physician’s
offices or outpatient clinics for performing abortions because (a) hospital staffs might
be less supportive of women seeking elective abortions, (b) hospitals have a higher
risk of nosocomial infection, and (c) hospitals present a greater risk for breaches of
confidentiality. Again, the record contains little, if any, evidence to support these
assertions other than the fears of the persons challenging the hospitalization
requirement. The record before us does not contain sufficient evidence for us to
conclude that hospital personnel will provide substandard care to women seeking
elective abortions or that they will violate the strict confidentiality standards imposed
on hospitals by state and federal law. Likewise, there is no objective evidence
supporting the claim that women run a greater risk of nosocomial infection if they
obtain an abortion in a hospital as opposed to a physician’s office or outpatient clinic.
74
This comparison is based on the cost of abortions performed during the first fourteen weeks
of pregnancy. We have no similar comparison of costs for abortions performed after the first
fourteen weeks because outpatient clinics are not presently performing these procedures. For the
purpose of our analysis, we will presume that there are similar differences in the cost of post-
fourteen week abortions. The cost difference is most likely not as great because the clinics would
pass on to their patients most, if not all, of the increased operating expenses incurred to comply with
the ACOG Standards.
-48-
In light of the present record, we find that the infection control standards imposed on
hospitals by governmental regulations and accrediting agencies are sufficient to
protect the health of women who are hospitalized when they obtain their abortions.
The American Medical Association has concluded that abortions are safest
when they are performed early in a pregnancy by a well-trained physician working
in a facility equipped to manage any complications that might arise.75 Because of the
absence of evidence that the hospitalization requirement in Tenn. Code Ann. § 39-15-
201(c)(2) has the purpose or effect of placing a substantial obstacle in the path of
women seeking an elective abortion, we conclude that the hospitalization requirement
does not place an undue burden on women’s procreational autonomy.
D.
The Planned Parenthood plaintiffs have also mounted a multifaceted attack on
the informed consent requirements in Tenn. Code Ann. § 39-15-202(b), (c). First,
they take issue with the requirement in Tenn. Code Ann. § 39-15-202(b) that a
woman be “orally informed [of the required information] by her attending physician.”
Second, they assert that the information required to be provided by Tenn. Code Ann.
§ 39-15-202(b)(3), -202(b)(5), and -202(b)(6) and -202(c) is biased, inaccurate, and
misleading76 and that requiring that this information be provided unduly burdens
women’s procreational autonomy. As with our consideration of the hospitalization
requirement in Tenn. Code Ann. § 39-15-201(c)(2), we will construe the challenged
provisions of Tenn. Code Ann. § 39-15-202(b), -202(c) as they were enacted by the
General Assembly and as we construed them in Section III(C) of this opinion.
75
American Medical Ass’n, Council on Scientific Affairs, “Induced Termination of
Pregnancy Before and After Roe v. Wade: Trends in Mortality and Morbidity in Women,” at 16
(May 1992).
76
The State has not appealed from the trial court’s decision that the information required by
Tenn. Code Ann. § 39-15-202(b)(4) is misleading. Accordingly, the validity of this provision is not
before us.
-49-
1.
TENN. CODE ANN. § 39-15-201(b)
We turn first to the requirement that physicians must personally provide their
patients with the information required by Tenn. Code Ann. § 39-15-202(b), -202(c).
Despite the United States Supreme Court’s approval of this procedure, see Mazurek
v. Armstrong, 520 U.S. 968, ___, 117 S. Ct. 1865, 1866 (1997); Planned Parenthood
v. Casey, 505 U.S. at 883-885, 112 S. Ct. at 2824-25, the Planned Parenthood
plaintiffs assert that it places an undue burden on procreational autonomy and that it
infringes on a physician’s freedoms of conscience and speech protected by Tenn.
Const. art. I, § § 3 and 19. We will consider the physician’s rights first.
The United States Supreme Court has recognized that similar requirements
implicate a physician’s First Amendment rights but has found that they are also part
of a State’s legitimate prerogative to regulate the practice of medicine. See Planned
Parenthood v. Casey, 505 U.S. at 884, 112 S. Ct. at 2824. This reasoning is equally
applicable to a physician’s free speech rights protected by Tenn. Const. art. I, § 19.
In some circumstances the protection afforded by Tenn. Const. art. I, § 19 may be
broader than those of the First Amendment, see Leech v. American Booksellers Ass’n,
Inc., 582 S.W.2d 738, 745 (Tenn. 1979) (holding that the scope of Tenn. Const. art.
I, § 19's protection of speech is at least as broad as that afforded by the First
Amendment). However, the parties challenging Tenn. Code Ann. § 39-15-202(b)
have failed to point out any difference in the wording of Tenn. Const. art. I, § 19 or
in its history of construction that might support a broader construction in cases of this
sort than the United States Supreme Court gave the First Amendment in Planned
Parenthood v. Casey.
The connection between Tenn. Code Ann. § 39-15-202(b), (c) and a
physician’s freedom of conscience protected by Tenn. Const. art. I, § 3 is tenuous at
best. The Constitution of Tennessee insulates from governmental control an
individual’s freedom to believe whatever he or she wishes, but it does not similarly
insulate actions or conduct based on those beliefs. See State ex rel. Swann v. Pack,
527 S.W.2d 99, 111 (Tenn. 1975); Harden v. State, 188 Tenn. 17, 25, 216 S.W.2d
708, 711 (1948); Wolf v. Sundquist, 955 S.W.2d 626, 630-31 (Tenn. Ct. App. 1997).
While states should tread lightly when imposing practice standards on licensed
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professionals, they have the unquestioned authority under their police power to
regulate the conduct of licensees. Requiring physicians to conform their conduct to
prescribed standards does not thereby require physicians to alter their beliefs about
the propriety or efficacy of abortions, nor does it require them to subscribe to ideas
inconsistent with their own beliefs or standards. Accordingly, a requirement such as
the one in Tenn. Code Ann. § 39-15-202(b) will not violate Tenn. Const. art. I, § 3,
as long as it involves truthful, non-misleading information that is not likely to prevent
women from obtain an abortion.
All parties agreed that women seeking an abortion should receive proper
counseling before the procedure. They also agreed that this counseling should
include appropriate information concerning the procedure itself and the possible risks
and complications, as well as information necessary to enable the woman to
understand the consequences of the procedure on herself and the fetus. The parties
differed sharply over who should provide this information to the woman.
The opponents of Tenn. Code Ann. § 39-15-202(b) insist that the required
counseling may be provided by persons other than the physician who will perform
the procedure. In fact, they assert that trained counselors may provide more effective
counseling than physicians because physicians do not receive training as counselors
and may not be as empathetic listeners as counselors. They also point to the policy
statements of both the American College of Obstetrics and Gynecology and the
American Public Health Association that women may receive pre-abortion counseling
from “trained, sympathetic individuals working under appropriate supervision”77 and
that physicians performing abortions “should verify that the counseling has taken
place” if they do not perform the counseling themselves.78
On the other hand, the physicians supporting Tenn. Code Ann. § 39-15-202(b)
insist that the physicians performing the procedure should personally provide their
patients with the counseling and informed consent information. They assert that
persons who are not medically trained should not be permitted to counsel with
patients and that the physician who will actually perform the procedure is best suited
77
American Pub. Health Ass’n, APHA Recommended Program Guide for Abortion Services
(Revised 1979), 70 Am. J. Pub. Health 652, 654 (1980).
78
See ACOG Standards, at 68.
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to explain the benefits and risks of the procedure and the alternative treatments. In
support of their position, these physicians cite the Code of Ethics of the American
Medical Association, which states that one of the fundamental elements of the
relationship between a patient and a physician is that “[p]atients should receive
guidance from the physicians as to the optimal course of action.”79
The opposing views of physicians who testified in this case mirror the
observation of Dr. Terrence Ackerman, the Chairman of the Department of Human
Values and Ethics of the University of Tennessee College of Medicine. Citing the
ACOG Standards,80 Dr. Ackerman stated that physicians have an ethical obligation
to obtain informed consent prior to surgery. He pointed out that the medical
profession, as a general matter, assigns the role of obtaining proper informed consent
to physicians and that physicians have a duty to determine whether they and their
patients are in agreement with the proposed procedure. While Dr. Ackerman stated
that the physician is the person who should obtain the informed consent, he did not
rule out the possibility that circumstances could arise in which the physician could
appropriately delegate this responsibility. He added, however, that delegation is not
the accepted norm and that it should be permitted only when the treating physician
receives an appropriate and relatively full report in order to assure himself or herself
that the patient has been given the opportunity to make an autonomous decision.
The United States Supreme Court has upheld Pennsylvania’s requirement that
physicians, not their assistants, must provide their patients with the required
information. See Planned Parenthood v. Casey, 505 U.S. at 884-85, 112 S. Ct. at
2824-25. With the medical opinions concerning the delegation of this responsibility
79
Council on Ethical & Judicial Affairs, American Medical Ass’n, Code of Medical Ethics,
Court Opinions xi (1992).
80
The ACOG Standards state:
In the event of an unwanted pregnancy, the physician should counsel the
patient about her options: 1) continuing the pregnancy to term and keeping the infant,
2) continuing the pregnancy to term and offering the infant for legal adoption, or 3)
aborting the pregnancy. When feasible, and with the patient’s approval, the
physician should offer this counseling to the patient’s relatives and to her parents (if
she is an adolescent) before this difficult decision is made. If the patient elects
abortion, information about contraception should be offered. When the physician
recommends pregnancy termination for medical or psychological indications,
consultation may be appropriate.
ACOG Standards, at 62.
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so evenly divided, we are not prepared to hold that the General Assembly established
this requirement to interfere with a woman’s procreational autonomy.
The Planned Parenthood plaintiffs also argue that the physician counseling
requirement will have the effect of unduly burdening a woman’s procreational choice
because it will force physicians to spend more time with each patient thereby
reducing the time available to them to perform abortions. They view this as a
substantial obstacle because of the limited number of physicians who are willing to
perform abortions. However, the evidence does not provide a direct causal link
between the Planned Parenthood clinics’ recruiting difficulties and Tenn. Code Ann.
§§ 39-15-201, -202. To the contrary, the evidence indicates that the shortage of
physicians willing to perform abortions is caused by (a) the decrease in the number
of medical schools providing training in the procedure, (b) physicians’ personal
decisions not to perform abortions, (c) physicians’ reluctance to take time away from
their regular practice, and (d) physicians’ concern about their relationship with both
their regular patients and their peers.
Enforcing the physician counseling requirement will require physicians
providing abortions in a Planned Parenthood clinic to spend more time with their
patients. Clinic representatives testified that physicians at their facilities spend, on
average, only ten minutes with each patient, including the two to five minutes
required to perform the procedure itself. By contrast, other physicians testified that
they spend from fifteen to thirty minutes counseling their patients before performing
the procedure. In recognition of the importance of proper pre-abortion counseling
and the profound significance of the woman’s decision, we decline to find, on these
facts, that the requirement in Tenn. Code Ann. § 39-15-202(b) that physicians
personally provide the counseling to their patients places a substantial obstacle in the
path of a woman seeking an elective abortion.
2.
TENN. CODE ANN. § 39-15-202(b) & (c)
The Planned Parenthood plaintiffs also take issue with the substance of several
of the statutory informed consent requirements. They argue that mandatory informed
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consent unduly burdens procreational choice because (a) it is biased in favor of
continuing pregnancies to term, (b) it creates unnecessary stress because most women
have already decided to have an abortion by the time they contact Planned
Parenthood, and (c) providing this information in cases where the abortion is
therapeutic rather than elective is inappropriate and cruel.
We need not tarry long with the bias claim. The United States Supreme Court
has already rejected this argument when it held that States could constitutionally
adopt measures designed to persuade women to choose childbirth over abortion. See
Planned Parenthood v. Casey, 505 U.S. at, 877-78 112 S. Ct. at 2821. Decisions
concerning whether to have an abortion have profound and lasting meaning.
Accordingly, the State may take steps to ensure that a woman’s decision is thoughtful
and informed and
may erect rules and regulations designed to encourage her
to know that there are philosophic and social arguments of
great weight that can be brought to bear in favor of
continuing her pregnancy to full term and that there are
procedures and institutions to allow adoption of unwanted
children as well as a certain degree of state assistance if the
mother chooses to raise the child herself.
Planned Parenthood v. Casey, 505 U.S. at 872, 112 S. Ct. at 2818.
The claim that state-mandated counseling increases stress for women who have
already decided to have an abortion is equally without merit because the State has a
significant interest in making sure that a woman’s decision to have an abortion is
autonomous, informed, and well-considered. The Planned Parenthood plaintiffs
assert that virtually all women have already decided to obtain an abortion before they
contact one of their clinics. However, they also concede that only 43% of their
patients are referred to them by a private physician. Thus, it is reasonable to conclude
that approximately one-half of Planned Parenthood’s patients have made their
decision to have an abortion without appropriate medical counseling or advice.
The State has a legitimate interest in establishing a framework to ensure that
a woman’s consideration of her options is commensurate with the importance of her
decision. Thus, as Dr. Ackerman stated, the fact that a woman might have made up
her mind to have an abortion is irrelevant insofar as proper counseling and informed
consent are concerned. The State may take steps to see to it that a woman makes an
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informed, autonomous choice and that she understands not only the nature and the
risks of the procedure but also the other alternatives available to her.
The final challenge to the mandatory counseling is that it is cruel and
unnecessary to provide this information to women who must undergo therapeutic
abortions to protect their health or life. Requiring women facing a medically
necessary abortion to participate in the mandatory counseling required by Tenn. Code
Ann. § 39-15-202(b) & (c) is undoubtedly inappropriate. However, this argument
overlooks the mandatory constitutional requirement that regulations such as Tenn.
Code Ann. § 39-15-202(b) & (c) must be subject to an emergency medical exception
that will enable physicians to bypass any or all of these counseling requirements
when medically necessary. See Planned Parenthood v. Casey, 505 U.S. at 880, 112
S. Ct. at 2822. Tenn. Code Ann. § 39-15-202(h) currently contains such an
emergency medical exception, even though it is constitutionally deficient in its
current form because it fails to include circumstances and conditions that seriously
endanger a woman’s health. However, once brought into compliance with
constitutional standards, this provision will obviate the mandatory counseling
requirement when women require a therapeutic abortion.
3.
TENN. CODE ANN. § 39-15-202(b)(3)
In their first of three challenges to specific statutorily required information, the
Planned Parenthood plaintiffs take issue with Tenn. Code Ann. § 39-15-202(b)(3) that
requires physicians to inform their patients
That if more than twenty-four (24) weeks have
elapsed from the time of conception, her child may be
viable, that is, capable of surviving outside the womb, and
that if such child is prematurely born alive in the course of
the abortion, her attending physician has a legal obligation
to take steps to preserve the life and health of the child.
While they do not take issue with the truthfulness of this information, they assert that
it is irrelevant to the vast majority of women seeking an abortion because these
women obtain their abortions long before the twenty-fourth week of pregnancy. On
the assumption that providing truthful yet irrelevant information can unduly burden
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procreational autonomy,81 we find that the information mandated by Tenn. Code Ann.
§ 39-15-202(b)(3) is relevant to all women considering whether to have an elective
abortion.
Ninety percent of the abortions performed in Tennessee are performed during
the first twelve weeks of pregnancy. However, the Planned Parenthood plaintiffs
presented evidence that younger women tend to put off making their decision and
thus generally obtain abortions later in their pregnancy. Even though the physicians
differed about the relevance of this information, they did not disagree that abortions
become more risky as a pregnancy advances and that elective abortions cannot be
performed once a fetus becomes viable.
As we interpret the information required in Tenn. Code Ann. § 39-15-
202(b)(3), it is intended to impress on a woman the consequences of waiting too long
before deciding to obtain an abortion. The information is quite relevant to all women
seeking elective abortions because it assists them in making informed, autonomous
decisions. Accordingly, like the trial court, we find that providing women with the
information required by Tenn. Code Ann. § 39-15-202(b)(3) does not unduly burden
their procreational choice.
4.
TENN. CODE ANN. § 39-15-202(b)(5)
The Planned Parenthood plaintiffs also take issue with Tenn. Code Ann. § 39-
15-202(b)(5) that requires physicians to inform their patients
That numerous public and private agencies and
services are available to assist her during her pregnancy
and after the birth of her child, if she chooses not to have
an abortion, whether she wishes to keep the child or place
him [or her] for adoption, and that her physician will
provide her with a list of such agencies and services
available if she so requests.
Earlier in Section III(C)(2) of this opinion, we held that this statute does not require
physicians to know about every public and private organization that could possibly
help a pregnant woman with either medical care or adoption services. Rather, we
81
We need not decide in this case whether providing truthful yet irrelevant information places
an undue burden on procreational choice because the parties have neither raised nor briefed the issue.
-56-
construed the statute to require physicians to provide their patients with information
reasonably known to them.
Even though the United States Supreme Court has explicitly approved
providing women with this sort of information, see Planned Parenthood v. Casey,
505 U.S. at 872, S. Ct. at 2818, the Planned Parenthood plaintiffs insist that it is
inaccurate and misleading because the public and private agencies in Tennessee that
provide medical services, financial support, and adoption services are neither
numerous nor reasonably available to most women. They also insist that providing
this information to women requiring therapeutic abortions would be cruel and
traumatizing, especially if the fetus has profound abnormalities or if the pregnancy
was the result of rape or incest.
In order to determine whether providing women with the information required
by Tenn. Code Ann. § 39-15-202(b)(5) burdens procreational choice, we must first
identify the class of women to which this provision is relevant. It is not relevant to
women who have the financial means to obtain adequate medical care for themselves
and their child. It is likewise not relevant to women who qualify under the
emergency medical exception in Tenn. Code Ann. § 39-15-202(h). Thus, this
provision is most relevant to low income women seeking elective abortions. We
must decide whether this information is inaccurate and whether it will most likely
have the effect of preventing these women from obtaining elective abortions.
The parties challenging the accuracy of the information required by Tenn. Code
Ann. § 39-15-202(b)(5) point to the October 1992 final report of the Committee to
Study Aid To Families With Dependent Children as proof that Tennessee does not
have numerous public and private agencies that provide medical and adoption
services to financially disadvantaged pregnant women and new mothers. This report
demonstrates in convincing terms that Tennessee’s poorest families must struggle for
many of life’s basic necessities and that the State’s AFDC program falls short of
meeting these basic needs. It does not, however, support the Planned Parenthood
plaintiffs’ arguments in this case for two reasons. First, the fact that gaps in AFDC
coverage exist does not necessarily mean that there are not many public and private
agencies in Tennessee providing medical and adoption services to women seeking
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them. Second, the report does not reflect the improvements in the availability of
medical care brought about by the TennCare program.
The opponents of Tenn. Code Ann. § 39-15-202(b)(5) point to the finding in
the AFDC report that thirty-five of Tennessee’s ninety-five counties have no
obstetrician willing to accept Medicaid.82 While this may very well be true, the
Director of Women’s Health of the Tennessee Department of Health testified that all
county health departments provide basic prenatal services with no eligibility
requirements. She also stated that comprehensive prenatal care is available in twenty-
five counties and that the Department has contracted with private physicians for
similar services in other areas. Women residing in counties where no prenatal care
is available may obtain the care in other counties, and according to the Director, it is
quite common for women to gravitate toward service areas where specialty care is
available.
The implementation of the TennCare program has also improved the
availability of prenatal care and medical care for young children. As a result of
TennCare, tens of thousands of children who did not have healthcare coverage in the
past are now insured.83 In addition,
242,264 girls and women ages 14 to 44 - roughly
childbearing age - are now covered and have greater access
to prenatal care.
Many of those now covered by TennCare, but who
were not covered by Medicaid, are lower-income working
people who previously had to self-ration health care
because of their limited financial resources. This could
have lead [sic] to a pregnant woman having little prenatal
care or preventative medical care for the family.
Kids Count, at 10. As a result, Tennessee’s prenatal care indicator has improved from
1990 when 32.3% of all births lacked adequate prenatal care to 1995 when 27.3% of
births lacked adequate prenatal care. See Kids Count, at 11. This improvement
should continue as a result of another TennCare initiative beginning in April 1997
enabling uninsured children under 18 years of age to apply for TennCare coverage.
See Kids Count, at 11.
82
Report of Committee to Study Aid to Families with Dependent Children, at p. 7 (Oct.
1992).
83
See Tennessee Comm’n on Children & Youth, Kids Count, The State of the Child in
Tennessee 1996, at 10 (May 1997) (“Kids Count”).
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In addition to the public services available to pregnant women, the record
contains evidence of a number of private and not-for-profit service providers. The
physicians testifying concerning the availability of services in Nashville identified
four agencies providing these services. One physician observed that two of these
agencies have never failed to provide assistance to patients he has referred to them.
Planned Parenthood of Nashville’s own clinical policies and procedures manual
contains numerous references to both public and private providers who offer basic
medical care, obstetric and gynecologic care, and adoption services.
The Planned Parenthood personnel who testified at trial stated that they collect
this referral information because they believe that part of the informed consent
process is making sure that a woman is informed of her alternatives and because they
desire to provide comprehensive services to their patients. Thus, for women who
decide to continue their pregnancy to term, the Planned Parenthood of Nashville
manual stresses that women who are concerned about monetary needs should be
provided “referrals for subsidized food programs, prenatal care, or even housing and
Medicaid referrals.” For a woman considering adoption, the manual directs that she
be given “counseling and adoption referrals.” The manual also recommends that a
woman considering adoption should be informed that “some couples might reimburse
her for the medical and food bills” and that she should be provided assistance in
seeking “support systems such as parents, relatives, and her church.”
Those testifying both in favor of and in opposition to Tenn. Code Ann. § 39-
15-202(b)(5) agreed that pregnant women considering elective abortions should be
counseled concerning their alternatives. This particular section reflects this
consensus. It does not require physicians to provide their patients with every possible
public or private agency that might help them. Of equal importance, it does not
require physicians to inform their patients that deciding to continue their pregnancy
to term will be easy or without risk. Nor does it require physicians to leave their
patients with the erroneous impression that the care and services that they and their
babies will require are convenient or readily available simply for the asking. All that
Tenn. Code Ann. § 39-15-202(b)(5) requires physicians to do is to provide their
patients, if requested, with truthful, accurate information concerning public and
private agencies that might be able to provide them with assistance should they
decided to carry their pregnancy to term. While several physicians viewed this
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requirement as inconvenient, it does not place an undue burden on a woman’s
procreational choice.
5.
TENN. CODE ANN. § 39-15-202(b)(6) & -202(c)
The final challenged informed consent provisions require that women
considering an abortion should be told that
Numerous benefits and risks are attendant either to
continued pregnancy and childbirth or to abortion
depending upon the circumstances in which the patient
might find herself. The physician shall explain these
benefits and risks to the best of his [or her] ability and
knowledge of the circumstances involved.
Tenn. Code Ann. § 39-15-202(b)(6) and that
At the same time the attending physician provides
the information required by subsection (b), he [or she] shall
inform the pregnant woman of the particular risks
associated with her pregnancy and childbirth and the
abortion or child delivery technique to be employed,
including providing her with at least a general description
of the medical instructions to be followed subsequent to
the abortion or childbirth in order to ensure her safe
recovery.
Tenn. Code Ann. § 39-15-202(c). The Planned Parenthood plaintiffs take issue with
these provisions because (a) it is not clear what additional information Tenn. Code
Ann. § 39-15-202(c) requires that is not already required by Tenn. Code Ann. § 39-
15-202(b)(6), (b) physicians are not able to predict at the early stages of a pregnancy
which childbirth technique might eventually be employed, (c) the information
concerning delivery techniques and postpartum care is irrelevant to women seeking
an abortion, and (d) it is impossible to know in advance what specific benefits a
woman will derive from carrying her pregnancy to term.
Tenn. Code Ann. § 39-15-202(b)(6) & -202(c) are not models of clear
legislative drafting. In this circumstance, our task is to make sense rather than
nonsense out of their terms. See McCellan v. Board of Regents, 921 S.W.2d at 689.
We must discover and give the fullest possible effect to the General Assembly’s
purpose, see Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997), without
unduly restricting the statute or expanding it beyond its intended scope. See Hicks
-60-
v. State, 945 S.W.2d at 707; Riggs v. Burson, 941 S.W.2d at 54. In doing so, we must
ascribe the words in the statute their natural and ordinary meaning, see Davis v.
Reagan, 951 S.W.2d 766, 768 (Tenn. 1997), and we must also consider the words in
the context of the entire statute. See Kultura, Inc. v. Southern Leasing Corp., 923
S.W.2d 536, 539 (Tenn. 1996).
These two provisions overlap significantly. When read together in light of the
General Assembly’s purpose to ensure that women make fully informed, autonomous
decisions about whether to obtain an abortion, we find that they require physicians
to provide their patients the following information:
(1) that there are numerous risks and benefits attendant to having an
abortion or carrying a pregnancy to term;
(2) the specific risks associated with either abortion or childbirth that the
particular patient herself might face in light of the physician’s
reasonable understanding and knowledge of the patient’s condition;
(3) a general discussion of the risks and benefits of both childbirth and
abortion; and
(4) a general explanation of the expected course of a routine pregnancy
without complications and the expected recovery from both a routine
delivery and a routine abortion.
This information is relevant to women faced with a choice between having an
abortion and carrying the pregnancy to term. It enables them to make an informed,
autonomous decision.
Tenn. Code Ann. § 39-15-202(b)(6) & -202(c) do not require physicians to
describe the specific benefits that each particular patient might gain from carrying her
pregnancy to term or by deciding to have an abortion. Physicians will satisfy these
requirements by explaining in general terms how abortions may benefit women by
permitting them to continue with their lives without being required to deal with an
unwanted pregnancy. Likewise, it will be sufficient for physicians to explain to their
patients in general terms the benefits of carrying their pregnancy to term. For women
who decide to keep their child, these benefits may include the joys of parenthood.
For women who decide to give up their child for adoption, the benefits may include
knowing that they have enabled another couple to enjoy parenthood and that their
child will be provided for.
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Finally, we turn to the Planned Parenthood plaintiffs’ assertion that Tenn. Code
Ann. § 39-15-202(c) requires physicians to inform their patients of the specific
delivery technique that will be used if they decide to carry their pregnancy to term.
They point out that it is difficult to predict early in a pregnancy which delivery
technique will be used, especially if the prediction is being made by a physician who
will not deliver the child. Thus, they assert that requiring this information prompts
conjecture that could very well prove to be wrong depending on the course of a
woman’s pregnancy.
We would agree with the Planned Parenthood plaintiffs’ concerns if Tenn.
Code Ann. § 39-15-202(c) required physicians to guess which delivery technique will
be used for a particular patient. However, we do not construe the statute to require
this information. In the context of the entire provision, the statutory terms at issue
require physicians to inform their patients of “the particular risks associated with . .
. the . . . child delivery technique to be employed . . .” Reasonably understood, this
language requires only that physicians provide their patients with a general
description of the risks associated with commonly employed child delivery
techniques. This information is certainly relevant to pregnant women who are
considering whether to have an abortion or to carry their pregnancy to term, and
physicians, even ones who do not expect to deliver the child, are certainly capable of
providing it.
While the evidence demonstrates that physicians are unable to guess in the
early weeks of a woman’s pregnancy which delivery technique will be used, the same
cannot be said for abortion techniques. The evidence contains overwhelming proof
that physicians know which abortion procedure they will employ if their patient
decides to have an abortion during the first fourteen weeks of pregnancy.84 In
addition, the basic requirements of informed consent require physicians to provide
their patients with specific information concerning the risks attendant to the
procedure they propose to perform. Thus, the requirement in Tenn. Code Ann. § 39-
15-202(c) that physicians inform their patients of “the particular risks associated with
84
Over 97% of the abortions performed in Tennessee employ the suction curettage procedure.
See Division of Information Resources, Tennessee Dep’t of Health, Report of Induced Abortions in
Tennessee 1990, at 15 (Jan. 1992).
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. . . the abortion . . . technique to be employed” places no more burden on physicians
than the law presently imposes.
6.
TENN. CODE ANN. § 39-15-202(d)
The mandatory waiting period is the final challenged feature of the informed
consent process. Tenn. Code Ann. § 39-15-202(d)(1) requires that
There shall be a two (2) day waiting period after the
physician provides the required information, excluding the
day on which such information was given. On the third
day following the day such information was given, the
patient may return to the physician and sign a consent
form.
Tenn. Code Ann. § 39-15-202(d)(3) contains an emergency medical exception
specifically applicable to Tenn. Code Ann. § 39-15-202(d)(1) that permits foregoing
the waiting period when delaying the procedure could endanger the life of the
mother.85 The trial court determined that any inflexible waiting period unduly
burdened a woman’s right to terminate her pregnancy under both the federal and state
constitutions. The trial court’s decision, to the extent it rests on the effect of the
waiting period on the physician-patient relationship, is inconsistent with Planned
Parenthood v. Casey. It also devalues the State’s legitimate interest in maternal
health and the State’s constitutionally-recognized prerogative to establish a decision-
making framework to ensure that a woman’s decision is considered and autonomous.
Deciding whether to have an abortion is one of the most difficult choices that
a woman can make. There is no psychologically painless way to make this decision,
and in fact, most women perceive it as a choice of the lesser of two unfortunate
options. All parties agree that a woman in this predicament should make a deliberate,
informed choice. They do not agree, however, on whether a mandatory waiting
period should be part of the decision-making process.
85
This emergency medical exception is similar to the general emergency medical exception
found in Tenn. Code Ann. § 39-15-202(h). We need not address in this case whether having two
potentially overlapping emergency medical exceptions introduces unconstitutional ambiguity into
the statute. However, as we concluded in Section V(F) of this opinion, the scope of this exception,
like that of Tenn. Code Ann. § 39-15-202(h), is too narrow.
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The opponents of statutorily mandated informed consent procedures insist that
decisions concerning an abortion are not easily made and are not easily changed once
made. They assert that statutory waiting periods are unnecessary because a vast
majority of women have already decided to have an abortion by the time they consult
an abortion provider. In addition, they argue that women do not favor waiting
periods and that requiring a woman to wait for any pre-ordained amount of time
increases her anxiety and stress and adds to the inconvenience and cost of the
procedure. They also express concern that delay could cause medical complications
and could even push a woman past the time when she will be able to obtain an
abortion in her physician’s office or in an outpatient clinic.
The advocates of a waiting period respond that a woman’s interests are not well
served by making a snap decision about an abortion and that a waiting period actually
helps women to regain a sense of control and to increase their self-esteem. They
point out that unwanted pregnancies cause highly stressful situations which promote
reactive thinking and that the waiting period prompts women to discuss their
pregnancy with the other important persons in their lives and to reflect on their
choice. They also point out that a waiting period does not generally entail a health
risk and that any delay caused by a waiting period is not disproportionate to delays
normally attendant to other kinds of elective surgery.
There is a consensus among the medical community that a woman “should be
allowed sufficient time for reflection before she makes an informed decision”
concerning an abortion. See ACOG Standards, at 68. Some physicians assert that
counseling and informed consent “may be best performed a day or so preceding the
operation to ensure that the patient is emotionally committed to undergoing the
abortion.” Warren C. Plauché, et al., Surgical Obstetrics 122 (1992). In the final
analysis, all testifying physicians agreed that the attending physician should perform
an abortion only when satisfied that the patient has made an informed, autonomous
choice.
The trial court acknowledged the need for a “sufficient time for reflection,” but
determined that deciding how much time is sufficient was a matter to be decided
solely by the woman and her physician, not the General Assembly. The trial court
concluded that “a sufficient amount of time varies with each individual woman, and
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the inflexibility of a two-day waiting period as it applies to every woman except in
a medical emergency situation requires its invalidation.” Accordingly, the trial court
found that the waiting period in Tenn. Code Ann. § 39-15-202(d) infringed upon a
woman’s “flexible patient-physician autonomous relationship” and that this
relationship was an integral part of the right of procreational autonomy protected by
the Constitution of Tennessee.
We turn first to the trial court’s conclusion that the waiting period in Tenn.
Code Ann. § 39-15-202(d)(1) is unconstitutional simply because it is at least twice
as long as the waiting period upheld in Planned Parenthood v. Casey. We have
discovered no precedent for the notion that a waiting period’s constitutionality
somehow hinges on its length alone. While a waiting period’s length has some
bearing on whether it unconstitutionally burdens procreative choice, it is not
evidence, in and of itself, that the General Assembly intended to place a substantial
obstacle in the path of women seeking an abortion. Accordingly, the trial court erred
by holding that the length of the waiting period alone renders the statute
unconstitutional.
Likewise, the trial court erred by holding that the waiting period is
unconstitutional because it interferes with the physician-patient relationship. The
United States Supreme Court rejected a similar argument in Planned Parenthood v.
Casey when it upheld Pennsylvania’s waiting period even though it interfered with
the physician’s discretion. See Planned Parenthood v. Casey, 505 U.S. at 886, 112
S. Ct. at 2825. In doing so, the Court held that waiting periods enhance the informed
consent process as long as they do not create an appreciable health risk and do not
place a substantial obstacle in the path of women seeking an abortion. See Planned
Parenthood v. Casey, 505 U.S. at 885-86, 112 S. Ct. at 2825.
A waiting period may still be found unconstitutional under the state and federal
constitutions if it cannot withstand scrutiny under the effects prong of Planned
Parenthood v. Casey’s undue burden test. Using this test, an abortion regulation
should be found unconstitutional if it will likely prevent a significant number of
women for whom the restriction is relevant from obtaining an abortion. See Planned
Parenthood v. Casey, 505 U.S. at 894-95, 112 S. Ct. at 2829-30. Waiting periods are
relevant to women seeking an abortion of a nonviable fetus who do not meet the
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requirements for an emergency medical exception under either Tenn. Code Ann. §
39-15-202(d)(3) or Tenn. Code Ann. § 39-15-202(h). An analysis under the effects
prong on the undue burden standard is fact-intensive. Accordingly, we return to the
record to analyze the evidence concerning the effect that the waiting period in Tenn.
Code Ann. § 39-15-202(d)(1) has had or will have on procreational choice. The
record contains some evidence concerning the operation of Tennessee’s mandatory
waiting period, although this evidence is relatively old and geographically limited.
In the context of the federal litigation challenging Tennessee’s residency
requirement and mandatory waiting period, Memphis Planned Parenthood
commissioned two studies concerning the attitudes of women seeking elective
abortions to the waiting period now found in Tenn. Code Ann. § 39-15-202(d).86
While 77% of the women surveyed said that they gained no benefit from the waiting
period, 23% identified benefits such as (a) providing more time to consider the
decision, (b) providing additional time to adjust psychologically, and (c) providing
additional time to learn about the medical aspects of the procedure. See Lupfer &
Silber, at 76. In addition, 41% of the women stated that the waiting period was not
burdensome while 59% percent identified problems such as (a) additional stress, (b)
additional nausea, (3) additional expense for travel and childcare, (d) missing work
and school, and (e) requiring them to make up additional excuses. See Lupfer &
Silber, at 76-77. The women also reported an increase in their expenses of
approximately $24. See Lupfer & Silber, at 75.
These surveys also shed some light into the women’s decision-making process.
Of the women surveyed, 59% stated that they decided to obtain an abortion within
twenty-four hours of learning that they were pregnant. See Lupfer & Silber, at 76.87
While 88% of the women stated that they talked about their pregnancy to someone
else before seeing a counselor at a Planned Parenthood clinic, only 7% of the women
had discussed their pregnancy with a physician or a nurse. See Lupfer & Silber, at
86
The first of the two studies involved women seeking abortions from Planned Parenthood
clinics in Knoxville and Memphis between October 1979 and January 1980. The second study
involved women in Memphis but excluded women who expressed an uncertainty about obtaining
an abortion. See Michael Lupfer & Bohne G. Silber, How Patients View Mandatory Waiting
Periods for Abortions, 13 Fam. Planning Perspectives 75, 76 (March/April 1981) (“Lupfer &
Silber”). The State has not challenged the methodology of these studies, and we express no
independent opinion concerning the studies’ methodology or conclusions.
87
The record contains other evidence that women decide whether they will obtain an abortion
within one week after missing their menstrual period.
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76. Most often, the women had discussed their pregnancy with their partner or with
a close friend. Only 17% had talked with their mothers, and only 2% had talked with
a counselor or minister. The women surveyed stated that they obtained the abortion
within fourteen to twenty-one days after making their decision.
In July 1978, the United States District Court for the Western District of
Tennessee temporarily enjoined the enforcement of the waiting period. See Planned
Parenthood of Memphis v. Blanton, No. 78-2310 (W.D. Tenn. Jul. 14, 1978). In
March 1981, following an evidentiary hearing that included the introduction of the
two Planned Parenthood studies, the United States District Court “with considerable
trepidation under these circumstances” permanently enjoined the enforcement of the
waiting period. See Planned Parenthood of Memphis v. Alexander, No. 78-2310
(W.D. Tenn. Mar. 23, 1981). In doing so, the court noted that it was “not persuaded
that there has been an ‘undue burden’ cast by the requirement of a waiting period” but
that it was constrained to grant the injunction because of “the almost universal
holding of courts of appeal . . . setting aside the waiting period (even a 24-hour
period).” Planned Parenthood of Memphis v. Alexander, supra, at 17.
As a result of the injunction that has been in place since 1981, the record in this
case contains no current data concerning Tennessee’s waiting period. There is little
other reliable evidence on this issue.88 Prior to 1991, the Planned Parenthood clinics
in Memphis and Nashville provided only one-day abortion services in which the
counseling and the procedure took place on the same day. Sometime in early 1991,
both clinics began to offer two-step procedures in which the counseling and necessary
medical tests are performed on one day and then the patient returns on another day
for the procedure. While the two-step procedure was offered for the patient’s
convenience, the Memphis clinic discontinued it after several weeks because of lack
of demand. The Nashville clinic continues to offer the two-step procedure, and it is
now requested by 59% of the clinic’s patients. Prior to offering the two-step
procedure, approximately 30% of the Nashville clinic’s patients and 40% of the
88
At one point late in the proceeding, the trial court referred to but did not appear to rely on
data obtained by The Alan Guttmacher Institute that was introduced through its Deputy Director of
Research. Other courts, citing what they believed to be serious methodological shortcomings, have
declined to give credence to other Institute studies. See Karlin v. Foust, 975 F. Supp. at 1215-18
(declining to accredit the deputy director’s conclusion that Wisconsin’s 24-hour waiting period
operates as a substantial obstacle in a large number of cases).
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Memphis clinic’s did not keep their appointment for the one-day procedure.89 In
contrast, of the women who opt for the two-step procedure at the Nashville clinic,
only 7% do not return for their second appointment when the procedure is performed.
Much of the force of the argument that any sort of waiting period will prevent
a significant number of women from obtaining an abortion is undermined by the
Planned Parenthood plaintiffs’ own evidence. Forty-one percent of the women
surveyed in 1979 and 1980 did not perceive that the waiting period burdened their
decision to obtain an abortion. The difficulties identified by the remaining women
are virtually the same problems that the United States Supreme Court has declined
to classify as substantial burdens. See Planned Parenthood v. Casey, 505 U.S. at
885-87, 112 S. Ct. at 2825-26 (holding that requiring two visits to the physician and
the accompanying costs and delay did not unduly burden a woman’s decision to
obtain an abortion). Similarly, the evidence that 59% of the Nashville clinic’s
patients voluntarily opt for the two-step procedure indicates that a majority of the
women currently seeking an abortion do not view a delay between their initial and
second appointment as a substantial obstacle. The record contains no evidence that
a very large number of Tennessee women have been or are being subjected to
additional harassment or that they have had their confidentiality breached by
choosing the two-step procedure.90 Likewise, the record contains no evidence that
a large number of women either in 1979, 1980, or at the present time, have
experienced significant health problems or have been forced to forego obtaining an
abortion in an outpatient clinic or physician’s office solely because of the delay
between their first and second clinic appointments. Taken in its entirety, the evidence
fails to demonstrate that women in Tennessee are being or will be burdened anymore
by a waiting period than were the women in Pennsylvania whose waiting period was
upheld by the United States Supreme Court.
Given the importance of the decision, there is virtual unanimity among the
witnesses that a woman’s choice should be informed and autonomous. In order for
a decision to be truly informed, a women should understand the nature of the
89
The clinics’ records do not indicate how many of the women who missed their first
appointment obtained another appointment and eventually obtained an abortion.
90
The medical director of the Planned Parenthood clinic in Nashville could not recall any
incidents of harassment or of breach of confidentiality. The clinic’s clinical director recalled only
one incident where the privacy of a woman choosing the two-step procedure was breached.
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procedure, the risks associated with the procedure and with pregnancy, the costs of
the options available to her, the alternatives to abortion, and the effects of the
decision on her unique personal circumstances. After receiving this information, she
should also be allowed sufficient time for reflection in order to make sure that she
understands the decision and is comfortable with her choice, whatever it might be.
In contrast to the lack of evidence concerning the burdensome effects of a waiting
period, the record contains evidence that a statutorily mandated informed consent
process that includes a waiting period promotes deliberate, autonomous decisions
concerning the termination of a pregnancy.
The evidence indicates that women in Tennessee are quick to make up their
minds about having an abortion. Sometimes they make a decision when they only
suspect they might be pregnant, but most often they make their decision shortly after
their pregnancy is confirmed. According to the Planned Parenthood plaintiffs’
evidence, few women have consulted a medical professional of any sort when they
first make their decision. Most of the women who have shared the fact that they are
pregnant with anyone have shared it with their partner or a close friend. Thus, many
women appear not to have received the very information that only health
professionals can provide about abortion when they make their initial decision.
In light of this evidence, health professionals have insufficient basis to assume
that most women seeking abortions have already been fully and appropriately
counseled when they first come to a clinic to obtain an abortion. It thus becomes the
physician’s responsibility to see to it that his or her patient makes an informed and
autonomous choice that best accommodates her personal circumstances. The
informed consent requirements in Tenn. Code Ann. § 39-15-202(b), -202(c) and the
waiting period in Tenn. Code Ann. § 39-15-202(d) represent an appropriate
legislative effort to establish a decision-making framework that reflects a profound
respect for the potential life of the unborn, ensures that each woman’s choice is
informed and autonomous, and does not unduly burden a woman’s ability to obtain
an abortion once she has made up her mind to obtain one.
As a final matter, the duration of the waiting period requires some comment.
The waiting period in Tenn. Code Ann. § 39-15-202(d) is at least twice as long as the
24-hour waiting period approved in Planned Parenthood v. Casey. While the length
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of the waiting period gives us some concern, we are reluctant to hold that the
constitutionality of a waiting period depends solely on its length. We have been
unable to find any case, either before or after the Planned Parenthood v. Casey
decision, upholding a waiting period longer than twenty-four hours.91 But the lack
of precedent supporting a 48-hour waiting period does not preclude us from
upholding such a waiting period. Under Planned Parenthood v. Casey, we should not
disturb the General Assembly’s decision to establish this requirement unless it has
the practical effect of preventing a significant number of women from obtaining an
abortion.
The Planned Parenthood plaintiffs’ strategy in this litigation was to place the
burden on the State to prove that the challenged provisions in Tennessee’s abortion
statutes serve a compelling governmental interest and are precisely tailored to further
that interest alone. They anticipated that this court would find a broader right of
procreational privacy in the Constitution of Tennessee than is found in the United
States Constitution. The evidence they presented at trial reflected this strategy, and
it was only after the trial court indicated that it would not employ Roe v. Wade’s strict
scrutiny standard that the plaintiffs asserted that their proof was sufficient to carry
their burden of proving that the challenged provisions unduly burdened women’s
procreational autonomy. While the plaintiffs introduced some evidence of the
burdens and inconveniences that a waiting period could cause women seeking an
abortion, they have failed to prove that waiting periods, as a general matter, place an
undue burden on procreational choice.
In their assault on waiting periods in general, the Planned Parenthood plaintiffs
presented little, if any, proof concerning how the 48-hour waiting period in Tenn.
Code Ann. § 39-15-202(d) placed a greater burden on women seeking an abortion
than the 24-hour waiting period upheld in Planned Parenthood v. Casey. In fact,
several of their witnesses testified that a 24-hour waiting period would essentially
cause the same burden to women seeking an abortion as the waiting period in Tenn.
Code Ann. § 39-15-202(d). Accordingly, based on the evidence in this record, we
91
We have found no decisions handed down since Planned Parenthood v. Casey construing
the constitutionality of a waiting period longer than twenty-four hours. Prior to 1992, at least four
courts struck down 48-hour waiting periods. See Womens Servs., P.C. v. Thone, 636 F.2d 206, 210
(8th Cir. 1980); Wynn v. Carey, 599 F.2d 193, 196 (7th Cir. 1979); Planned Parenthood Ass’n of
Kansas City, Mo., Inc. v. Ashcroft, 483 F. Supp. 679, 696 (W.D. Mo. 1980); Women’s Community
Health Ctr., Inc. v. Cohen, 477 F. Supp. 542, 551 (D. Me. 1979).
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have no factual basis for concluding that the waiting period in Tenn. Code Ann. § 39-
15-202(d) unduly burdens a woman’s procreational autonomy. This is the same
factual conclusion reached by the United States District Court in 1981. Of course,
our conclusion based on the facts in this record does not prevent another court from
reaching a different conclusion in another case based on different evidence.
E.
The Planned Parenthood plaintiffs have also challenged the parental
notification procedures in Tenn. Code Ann. § 39-15-202(f). The trial court
invalidated these procedures in its initial ruling, but before the trial court entered a
final order, the General Assembly repealed the parental notification procedures in
Tenn. Code Ann. § 39-15-202(f) and replaced them with the parental consent
procedures in Tenn. Code Ann. §§ 37-10-301, -307. The parties properly informed
the trial court of this development, but no party sought to amend its pleadings to raise
the issue of the constitutionality of the parental consent procedures in these
proceedings. Nonetheless, the trial court, on its own initiative, declared that the
parental consent procedures were constitutional without first giving the parties the
opportunity to present evidence or legal arguments concerning this provision.
The doctrine of justiciability prompts the courts to stay their hand in cases that
do not involve a genuine, existing controversy. See State ex rel. Lewis v. State, 208
Tenn. 534, 537, 347 S.W.2d 47, 48 (1961); McIntyre v. Traughber, 884 S.W.2d 134,
137 (Tenn. Ct. App. 1994). Courts should decline to render advisory opinions, see
Super Flea Market of Chattanooga, Inc. v. Olsen, 677 S.W.2d 449, 451 (Tenn. 1984);
Parks v. Alexander, 608 S.W.2d 881, 892 (Tenn. Ct. App. 1980), or to decide abstract
legal questions. See State ex rel. Lewis v. State, 208 Tenn. at 538, 347 S.W.2d at 48-
49; Eyring v. East Tenn. Baptist Hosp., 950 S.W.2d 354, 359 (Tenn. Ct. App. 1997).
Thus, courts should refrain from deciding constitutional issues in the absence of an
actual controversy requiring them to address the question. See West v. Carr, 212
Tenn. 367, 382, 370 S.W.2d 469, 475 (1963).
The parties in this case never joined issue with regard to the constitutionality
of the newly enacted parental consent procedures. Accordingly, neither party had the
opportunity to present evidence or legal arguments concerning this issue. Addressing
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the constitutionality of Tenn. Code Ann. §§ 37-10-301, -307 was not necessary to
deciding this case, and thus the trial court erred by reaching out to address the
constitutionality of these provisions.
F.
The Planned Parenthood plaintiffs also take issue with the emergency medical
exceptions in Tenn. Code Ann. § 39-15-202(h) and -202(d)(3). They point to two
defects in these provisions. First, they point to the ambiguity created by the
overlapping of the two provisions. Second, they take issue with the narrowness of
their application. We have already determined that the trial court exceeded its
authority by effectively amending these provisions and, therefore, that we must
construe them as they were enacted by the General Assembly.
The wording of the emergency medical exceptions in Tenn. Code Ann. § 39-
15-202(d)(3) and Tenn. Code Ann. § 39-15-202(h) differ slightly. The former
provides an exception for circumstances that “would endanger the life of the pregnant
woman;” while the latter permits exceptions when “necessary to preserve the life of
the pregnant woman.” Despite these differences, we find that both provisions cover
circumstances where a woman’s pregnancy is endangering her life. The legislative
history contains no explanation for these redundant provisions, and we perceive no
apparent need for Tenn. Code Ann. § 39-15-202(d)(3) because Tenn. Code Ann. § 39-
15-202(h) applies to all provisions in Tenn. Code Ann. § 39-15-202, including Tenn.
Code Ann. § 39-15-202(d). Redundancy in statutory language is not necessarily
unconstitutional, and our construction removes any ambiguity concerning the
operation or scope of Tenn. Code Ann. § 39-15-202(h).
Emergency medical exceptions are essential to the operation of abortion
statutes. See Planned Parenthood v. Casey, 505 U.S. at 879, 112 S. Ct. at 2822.
Accordingly, any regulation that will delay a woman’s opportunity to obtain an
abortion must contain a valid emergency medical exception. See Women’s Med.
Prof’l Corp. v. Voinovich, 130 F.3d 187, 203 (6th Cir. 1997). In order to be valid, the
exception must not only cover immediately life threatening conditions but also
conditions that constitute a serious threat to a woman’s health. See Planned
Parenthood v. Casey, 505 U.S. at 880, 112 S. Ct. at 2822. Thus, the United States
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Supreme Court approved an emergency medical exception when pregnancy so
complicated a woman’s medical condition that a delay in obtaining an abortion would
create a serious risk of substantial and irreversible impairment of a major bodily
function. See Planned Parenthood v. Casey, 505 U.S. at 879-80, 112 S. Ct. at 2822.
Tenn. Code Ann. §§ 39-15-202(h), -202(d)(3) cover only circumstances that
threaten a woman’s life; they do not cover medical conditions threatening a serious
risk of substantial and irreversible impairment of a major bodily function. Thus, on
their face, these emergency medical exceptions are too narrow to pass constitutional
muster. Accordingly, we find that these provisions unduly burden a woman’s
constitutional right of procreational autonomy because they do not contain adequate
provisions that will permit immediate abortions necessary to protect the woman’s
health.
VI.
In the previous section we reviewed separately each of the challenged
provisions in the statutes regulating a woman’s procreational choice. Applying the
undue burden standard formulated in Planned Parenthood v. Casey, we concluded
that, with the exception of the emergency medical exceptions, the Planned
Parenthood plaintiffs have not carried their burden of proving that each provision,
standing alone, imposes an undue burden on a woman’s procreational autonomy.
Even though not directly raised by the parties, we have concluded that our review of
the constitutionality of the challenged provisions cannot end with a review of each
individual provision in isolation. Even though a particular provision, standing on its
own, may pass constitutional muster, a combination of two or more of these
provisions may unduly burden a woman’s right to terminate her pregnancy when the
effects of the provisions are considered together.
The evidence in this record demonstrates that the combined effects of the
physician-only counseling requirement in Tenn. Code Ann. § 39-15-202(b) and the
waiting period in Tenn. Code Ann. § 39-15-202(d) will place a substantial obstacle
in the path of a large number of women seeking an abortion in Tennessee. The
representatives of the Planned Parenthood clinics in Nashville and Memphis testified
concerning the difficulty of recruiting physicians willing to perform abortions at their
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clinics. Neither clinic employs full time physicians, and accordingly, they must
contract with individual physicians or physician groups. These physicians have other
practices, and their work at the clinics is clearly secondary.
The Planned Parenthood clinic in Nashville provides abortion services on
Tuesday, Wednesday, alternate Thursdays, Friday, and alternate Saturdays. The
clinic in Memphis provides abortion services on Tuesday and Thursday afternoons
from 3:00 to 6:00 p.m. and on Saturdays from 9:00 a.m. to 2:00 p.m. In order to
provide the necessary coverage, the clinics must contract with enough physicians who
will be available to work during these times. Since most physicians maintain other
practices, they are available to work at the clinic irregularly or infrequently. In
addition, for reasons unrelated to the statutes, many physicians do not want the
additional work and are concerned about the effects that working at the clinics might
have on their own practices and with their relations with their patients and other
physicians. Thus, it is quite common for physicians to agree to work at the clinics
only one day every other week or on similar irregular intervals.
The medical staffing problems facing Planned Parenthood clinics would not
appreciably increase the burden or inconvenience caused by either Tenn. Code Ann.
§ 39-15-202(b) or Tenn. Code Ann. § 39-15-202(d) considered alone. However, the
staffing problems will exacerbate the burdens caused by the combined operation of
these two provisions. If the clinics employed full time physicians, the expected delay
in obtaining the procedure attributable to the statutes would be the length of the
waiting period in Tenn. Code Ann. § 39-15-202(d). Conceivably, a particular
woman’s scheduling conflicts could cause some additional delay. These sorts of
delays, however, are not substantively different from the delay involved with other
elective surgical procedures, and they should not prevent a large number of women
from obtaining an abortion during the first fourteen weeks of pregnancy.
The reality of employing part time physicians changes this picture
significantly. When physicians work irregularly, the delay between the mandatory
counseling and the procedure could very well be substantially longer than the
minimum waiting period. If, for example, a physician works only every other week,92
92
The record contains evidence that the Planned Parenthood clinic in Nashville employs
(continued...)
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a woman seeking an abortion would be delayed at least two weeks because she would
be required to wait for the same doctor who provided her with the pre-abortion
counseling to perform her abortion. This two-week delay could become extremely
significant in light of the relatively short interval between the time a woman
discovers she is pregnant and the end of her fourteenth week of pregnancy, after
which she will no longer be able to obtain an abortion in a physician’s office or
outpatient clinic. This interval could be even shorter in the case of younger women
who, according to the proof, tend to discover or confirm their pregnancies later than
their older counterparts and who face additional obstacles to obtaining an abortion.93
Physician scheduling would not have the same impact if there were no
mandatory waiting period. Women would be able to consult with a physician and
have their abortion on the same day without being required to delay their abortion
until the same physician was working. Similarly, if there were no requirement that
the physician performing the abortion provide the required counseling, women would
be able to obtain their counseling from any physician and then schedule their
procedure with another physician as soon as the waiting period expired. The
physicians’ schedules would not be relevant in those circumstances because any
qualified physician could perform the procedure even though he or she had not
counseled the patient.
Nationwide, approximately 91% of abortions are performed within the first
twelve weeks of pregnancy. In Memphis, however, 20% of all abortions are
performed in the thirteenth or fourteenth weeks of pregnancy, as compared with 5%
of the abortions performed in Nashville. The passage of time becomes important as
a pregnancy progresses because the medical risks attendant to the procedure increase
and because the opportunity to obtain a less expensive abortion in a physician’s office
or clinic rather than in a hospital may slip away. Thus, the possibility of introducing
a delay of two weeks or more after the tenth week of pregnancy would amount to a
substantial obstacle for a large number of women, especially younger women.
92
(...continued)
several physicians who provide abortion services at the clinic only one day every other week.
93
Unemancipated women living at home face additional problems with regard to (a) obtaining
the funds necessary to pay for the procedure, (b) discussing their pregnancy with their parents or
seeking a judicial bypass of this requirement, (c) discussing their pregnancy with their sexual
partner, and (d) finding the opportunity to be absent from school to obtain the counseling and the
abortion.
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Having determined that the combined effect of Tenn. Code Ann. § 39-15-
202(b) and Tenn. Code Ann. § 39-15-202(d) causes an undue burden because of the
staffing problems of the Planned Parenthood Clinics, we must decide whether we
have any factual or legal basis for striking down either provision. The record
provides no factual basis to do so because the Planned Parenthood plaintiffs have
failed to prove that either requirement, standing alone, unduly burdens procreational
autonomy. Likewise, because we have no reason to invalidate either provision on its
face, we have no legal basis to strike down either provision. The resolution of this
dilemma must be found in the Constitution of Tennessee itself.
Neither the state nor the federal constitution prevent the states from
conditioning a woman’s exercise of her right of procreational autonomy either on
physician-only counseling or on a mandatory waiting period. It follows that deciding
whether to establish either or both requirements is a public policy judgment for the
General Assembly, not the courts, to make. Thus, Tenn. Const. art. II, §§ 1 & 2
require us to leave the choice between the two policies to the General Assembly
rather than arrogating the General Assembly’s powers for ourselves.
Our task as judges is to measure the product of legislative action against the
requirements of the state and federal constitutions. We have performed our task in
this case by determining that the combined effect of the physician-only counseling
in Tenn. Code Ann. § 39-15-202(b) and the mandatory waiting period in Tenn. Code
Ann. § 39-15-202(d) unconstitutionally burdens women’s procreational autonomy by
unduly delaying their ability to obtain an abortion. The General Assembly must
decide which of these two policies is most important. However, until the General
Assembly makes this choice, neither the waiting period in Tenn. Code Ann. § 39-15-
202(d) nor the requirement in Tenn. Code Ann. § 39-15-202(b) that only physicians
may provide the required pre-abortion counseling may be enforced.
VII.
The State takes issue with the trial court’s decision to award two court-
appointed expert witnesses $27,600 in attorney’s fees on the ground that the trial
court lacked the authority to award these fees. We agree that the trial court does not
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have the authority to require the State to pay the legal expenses of these court-
appointed experts and, accordingly, vacate the award of these fees.
The trial court’s perception of the role of Drs. Anthony Trabue and Betty Neff
can best be described as novel. Shortly after this case began, these two physicians
retained their own lawyer and sought to intervene in the case as parties to defend the
constitutionality of the abortion statutes, especially the parental notification
procedures that the Attorney General and Reporter was unprepared to defend. In
September 1992, the trial court denied the physicians’ motion to intervene but,
relying on Tenn. R. Evid. 614 and 706, named them court-appointed experts for the
defendants. At the same time, the trial court announced that it would appoint two
court-appointed experts for the plaintiffs and requested the plaintiffs to designate the
experts to be appointed.94 In addition, the trial court stated that the lawyer retained
by Drs. Trabue and Neff could continue to participate in pretrial discovery, examine
all court-appointed experts and witnesses, file briefs, and participate in oral
arguments.
Even though their lawyer appears to have focused much of his efforts on the
parental notice provision in Tenn. Code Ann. § 39-15-202(f), both Drs. Trabue and
Neff testified in detail in support of all the challenged provisions in Tenn. Code Ann.
§§ 39-15-201, -202. In its initial opinion filed on November 19, 1992, the trial court
struck down Tenn. Code Ann. § 39-15-202(f) and permitted Drs. Trabue and Neff to
intervene as “limited parties” to defend the constitutionality of this procedure on
appeal. Four months later, the physicians requested fees for their services as well as
an additional $19,062.50 for their legal expenses. In April, 1993, the trial court
awarded Dr. Trabue $7,725 and Dr. Neff $5,525 for their services.95 It also awarded
the physicians an additional $25,000 for their legal expenses.
Thereafter, Drs. Trabue and Neff, through their counsel, undertook to file a
cross-claim requesting a declaration that Tenn. Code Ann. § 39-15-202(f) was
constitutional even though the trial court had already struck down the provision. The
94
While evenhanded, the trial court’s decision seems to be somewhat inconsistent with the
purpose of court-appointed experts which is to provide the trial court with neutral, unbiased experts
who will provide more reliable expert opinions. See 29 Charles A. Wright & Victor J. Gold, Federal
Practice and Procedure § 6302 (1997).
95
The State has not taken issue with these fees on appeal.
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trial court permitted them to file this cross-claim over the objections of the Planned
Parenthood plaintiffs and the State and even allowed them to present evidence on this
issue. The trial court’s belated decision to accept proof on this issue created a
procedural quagmire for the parties. Eventually, Drs. Trabue and Neff nonsuited their
cross-claim without offering evidence of any sort. The trial court permitted them to
dismiss their cross-claim but not before awarding them another $2,600 for their legal
expenses.
All parties had numerous expert witnesses available to testify both in favor of
and in opposition to the constitutionality of Tenn. Code Ann. §§ 39-15-201, -202.
Accordingly, we question whether this case called for court-appointed experts,
especially ones that had already allied themselves with the parties in the case.
However, on the assumption that the trial court did not abuse its discretion by
appointing these experts, we find no basis in the rules, the statutes, or the common
law for reimbursing these witnesses for their own voluntarily assumed legal expenses.
It was not the trial court’s decision to designate them as court-appointed experts that
prompted them to retain counsel. The physicians had already retained counsel by the
time they were designated court-appointed experts, and they could have discharged
their responsibilities as court-appointed experts without counsel.
Tenn. R. Evid. 706(b) permits the trial court to set reasonable compensation for
court-appointed experts. This compensation is for their services as experts and does
not include the collateral, voluntarily incurred legal expenses. The trial court’s
decision to designate them as court-appointed experts did not require them to retain
counsel, and the record contains no evidence that they ever requested permission to
seek legal advice or that they would have been unable to provide expert testimony
without the assistance of counsel. Accordingly, Tenn. R. Evid. 706(b) provides no
basis for the trial court’s decision to require the State to pay Drs. Trabue’s and Neff’s
legal expenses.
Attorney’s fees are not recoverable in the absence of a statute or contract
providing for their recovery or some other recognized equitable ground. See Kultura,
Inc. v. Southern Leasing Corp., 923 S.W.2d at 540; Pullman Standard, Inc. v. Abex
Corp., 693 S.W.2d 336, 338 (Tenn. 1985); State ex rel. Orr v. Thomas, 585 S.W.2d
606, 607 (Tenn. 1979). When attorney’s fees are awarded, they are awarded as
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additional damages unless the statute or rule permitting them provides otherwise. In
the absence of a statute or rule to the contrary, attorney’s fees or other legal expenses
are not costs. Accordingly, neither Tenn. Code Ann. § 20-12-119 (1994) nor Tenn.
Code Ann. § 29-14-111 (1980) empower the trial court to order the State to pay the
voluntarily incurred legal expenses of its court-appointed experts.
VIII.
The trial court has broad discretion to award attorneys fees to prevailing parties
in cases such as this one. When attorneys fees are sought, the trial court must first
determine whether the party requesting the fees is a prevailing party and then must
determine what fee would be reasonable under the facts of the case. Prevailing
parties must obtain more than a technical, de minimis victory. See Texas State
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S. Ct. 1486,
1493-94 (1989). They must succeed on a significant issue in the litigation and obtain
relief that materially alters the legal relationship between the parties by obtaining
some benefit the party sought in bringing suit. See Farrar v. Hobby, 506 U.S. 103,
111-12, 113 S. Ct. 566, 573 (1992); Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.
Ct. 1933, 1939 (1983); McIntyre v. Traughber, 884 S.W.2d 134, 138 (Tenn. Ct. App.
1994). The reasonableness of a requested fee depends on the facts of each case, see
Hail v. Nashville Trust Co., 31 Tenn. App. 39, 51, 212 S.W.2d 51, 56 (1948), and
must be carefully analyzed using the factors in Tenn. S. Ct. R. 8, DR 2-106(B). See
Connors v. Connors, 594 S.W.2d 672, 676-77 (Tenn. 1980); Alexander v. Inman, 903
S.W.2d 686, 695 (Tenn. Ct. App. 1995).
The question of the amount of attorney’s fees to which the Planned Parenthood
plaintiffs may be entitled should be revisited in light of the substantial modifications
we have made in the trial court’s disposition of this case. Accordingly, we direct the
trial court to reopen the question of attorney’s fees once this case is remanded. At
that time, the trial court should permit the parties to present any evidence they have
with regard to the plaintiffs’ right to an award for their legal expenses and the amount
of the award. The trial court should specifically consider the reasonableness of the
requested fees with regard to possible duplication of services and the services relating
to the challenge to the constitutionality of Tenn. Code Ann. § 39-15-202(f).
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IX.
In summary, the combined results of our decision and the trial court’s decisions
either affirmed by or not appealed to this court are:
(1) Tenn. Code Ann. §§ 39-15-201, -202 do not violate the Equal Protection
Clauses of Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8 [see
Section V(B)];
(2) the requirement in Tenn. Code Ann. § 39-15-201(c)(2) that abortions
performed after the fourteenth week of pregnancy be performed in a
hospital is constitutional [see Section V(C)];
(3) the residency requirement in Tenn. Code Ann. § 39-15-201(d) is
unconstitutional;96
(4) the requirement in Tenn. Code Ann. § 39-15-202(b) that a woman’s
attending physician must provide his or her patient with the information
required in Tenn. Code Ann. § 39-15-202(b), -202(c) is constitutional
[see Section V(D)(1)];
(5) the information required to be provided to women seeking an abortion
by Tenn. Code Ann. § 39-15-202(b)(1), (2), (3), (5), and (6) and Tenn.
Code Ann. § 39-15-202(c) is constitutional [see Section V(D)(2)-(5)];97
(6) the information required to be provided to women seeking an abortion
by Tenn. Code Ann. § 39-15-202(b)(4) is unconstitutional;98
(7) the mandatory waiting period in Tenn. Code Ann. § 39-15-202(d)(1) is
constitutional based on the facts in this record [see Section V(D)(6)];
(8) the parental notification requirement in Tenn. Code Ann. § 39-15-202(f)
has been repealed by implication, and we express no opinion concerning
the constitutionality of the parental consent requirement in Tenn. Code
Ann. §§ 37-10-301, -307 [see Section V(E)];
(9) the medical emergency exceptions in Tenn. Code Ann. § 39-15-
202(d)(3), -202(h) are unconstitutionally narrow [see Section V(F)]; and
96
The State has not appealed from the trial court’s determination that this provision is
unconstitutional.
97
The Planned Parenthood plaintiffs have not appealed from the trial court’s determination
that Tenn. Code Ann. § 39-15-202(b)(1), (2) are constitutional.
98
The State has not appealed from the trial court’s determination that this provision is
unconstitutional.
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(10) under the facts of this case, the combined effect of the physician-only
counseling requirement in Tenn. Code Ann. § 39-15-202(b) and the
mandatory waiting period in Tenn. Code Ann. § 39-15-202(d)(1) unduly
burdens a woman’s exercise of her procreational rights [see Section VI].
We remand the case for whatever further proceedings consistent with this opinion
may be required, and we tax the costs of this appeal to the State of Tennessee.
______________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
___________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
___________________________________
SAMUEL L. LEWIS, JUDGE
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