DocketNumber: Case No. 1:18-cv-00239-BLW
Citation Numbers: 378 F. Supp. 3d 920
Judges: Winmill
Filed Date: 3/28/2019
Status: Precedential
Modified Date: 7/25/2022
INTRODUCTION
BACKGROUND
Idaho's Medical Consent and Natural Death Act,
The Model Form is available for download on the Idaho Secretary of State's health care directory registry webpage.
*923This litigation stems from a single provision in the Model Form stating that "[i]f I have been diagnosed as pregnant, this Directive
[Question] 13. What happens if I am pregnant when I become incapacitated?
[Answer:] Life sustaining measures will continue regardless of any directive to the contrary until the pregnancy is complete.4
Finally, if an individual (1) does not have an executed version of the Model Form or a document that satisfies the Incorporation Clause and (2) cannot consent to care due to age or health, then the Idaho Code provides that a "surrogate decision maker" may make health care decisions for the individual. I.C. § 39-4504(1). The "surrogate decision maker['s]" authority to consent to treatment on behalf of an individual is limited by statute in the following ways: "the surrogate decision maker shall not have authority to consent to or refuse health care contrary to such person's advance directives, POST or wishes expressed by such person while the person was capable of consenting to his or her own health care."
ANALYSIS
1. Salerno Applies to Plaintiffs' Challenge
A. Salerno's "No Set of Circumstances" Test
The pivotal question here is whether Plaintiffs' facial challenge to the statute is governed by the Supreme Court's decision in Salerno. In Salerno , the Supreme Court stated that facially challenging a statute is "the most difficult challenge to mount successfully."
B. Debate Regarding the Validity of Salerno
Salerno 's "no set of circumstances" test is the subject of considerable controversy. As Plaintiffs are quick to point out, Dkt. 26 at 10-11, a faction of Justices on the Court has regularly called into question the wisdom of Salerno . See, e.g., City of Chicago v. Morales ,
C. The Development of Exceptions to Salerno
Unsurprisingly, exceptions have developed to Salerno 's "no set of circumstances" test. First, Salerno does not apply to facial challenges to statutes under the First Amendment. Id. at 1026. Second, the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey ,
D. Plaintiffs' Challenge Does Not Fall Within the Casey Exception to Salerno
Plaintiffs first argue that Casey 's "large fraction" test, rather than Salerno 's "no set of circumstances" test, should apply to their challenge to the Pregnancy Exclusion. According to Plaintiffs, the Pregnancy Exclusion limits a woman's ability to terminate her own life, and, by extension, the life of her unborn child. Dkt. 26 at 10-11. Thus, in Plaintiffs' view, the Pregnancy Exclusion is an abortion statute subject to analysis under Casey. Dkt. 26 at 4.
There are a number of problems with Plaintiffs' suggestion that we treat the Pregnancy Exclusion as simply a statute regulating abortion. First, Plaintiffs acknowledged in their opposition to Defendants' Motion to Dismiss that "[t]he Pregnancy exclusion does not concern abortion rights , but the right to be free of forced intrusions by the state into one's bodily integrity." Dkt. 26 at 4 (emphasis added). Second, the language of the Act simply does not regulate abortion procedures. Third, Plaintiffs fail to point the Court towards any precedent applying Casey 's "large fraction" test to statutes containing provisions similar to the Pregnancy Exclusion.
E. Absent Instruction from the Supreme Court or the Ninth Circuit, the Court Will Not Create a New Exception to Salerno
Plaintiffs appear to be urging the Court to create a new exception to Salerno 's "no *925set of circumstances" test. Plaintiffs cite United States v. Sampson as an example of a federal district court departing from Salerno and applying Casey 's "large fraction" test to a statute not involving abortion regulations.
would require that the statute be upheld unless it would be unconstitutional as applied to everyone. Thus, under the Salerno dicta the FDPA would be constitutional if 99 times out of 100 it resulted in the execution of an innocent individual because there would be one case in which a guilty person would be executed. However, a statute that resulted in the execution of actually innocent individuals in 99% of all cases undoubtedly would be deemed to impose cruel and unusual punishment.
Ninth Circuit case law does not support the creation of a new exception to Salerno in this case. Time and again, plaintiffs have attempted to escape the effect of the Salerno standard, only to see their path foreclosed by the Ninth Circuit. For example, in Tucson Woman's Clinic v. Eden ,
That abortion rights are involved does not alter th[e] rule [that Salerno applies rather than Casey ]. Indeed, it is difficult to even articulate what application of the Casey standard to claims other than the undue burden claims would entail. Therefore, we apply the Salerno standard to all of plaintiffs' claims except their undue burden claim.
2. Circumstances Exist Under Which the Pregnancy Exclusion Can Be Constitutionally Applied
Given that Salerno applies, with no exception available to Plaintiffs, the final question is whether there is a set of circumstances in which the Pregnancy Exclusion can be applied in a constitutionally acceptable manner. The Court finds that such circumstances exist.
a. A Potential Set of Circumstances Exists Under Which the State of Idaho May Limit a Woman's Ability to Prospectively Dictate Her Healthcare Choices
As an initial matter, the Court notes that state laws limiting a pregnant woman's ability to prospectively dictate her healthcare choices are not rare. As of the Spring of 2018, thirty-four states had laws "either mandat[ing] that a pregnant woman's advance directive be disregarded entirely due to her pregnancy or require[ing] a woman to take some further affirmative step beyond creating an advance directive in order for her wishes to be carried out." Nikolas Youngsmith, The Muddled Milieu of Pregnancy Exceptions and Abortion Restrictions , 49 COLUM. HUM. RTS. L. REV. 415, 424 (2018). Though this fact does not, of course, answer the question of whether such laws are constitutional, it is nevertheless true that a majority of state legislatures have seen fit to pass laws that are at least nominally similar to Idaho's Pregnancy Exclusion.
Even though at least thirty-four states have laws limiting a pregnant woman's ability to prospectively dictate their healthcare choices, Plaintiffs fail to point the Court to a single case in which a law similar to Idaho's Pregnancy Exclusion has been struck down pursuant to a facial challenge. Plaintiffs cite a series of cases in which courts have wrestled with the question of whether, in essence, it was appropriate for the state to dictate the healthcare choices of one person in order to save the life of another. See, e.g. , In re A.C. ,
b. A Potential Set of Circumstances Exists Under Which the State of Idaho Is Constitutionally Entitled to Dictate the Medical Care that a Woman Receives
Plaintiffs make the conclusory allegation that "even under the Salerno *927standard" there are no set of circumstances in which the State of Idaho may dictate the healthcare choices of a pregnant woman. Dkt. 26 at 4-5. Pursuant to the Due Process Clause, the Court must first identify the liberty interest at stake, and then "balance [the] liberty interest[ ] against the relevant state interest." Cruzan by Cruzan v. Dir., Missouri Dep't of Health ,
Though Plaintiffs cite a number of cases in which federal and state courts have struck down statutes that place limitations on an individual's ability to make their own healthcare choices, their argument fails to acknowledge that the Supreme Court in Casey , Cruzan , and Washington v. Glucksberg ,
In Casey , the Supreme Court reaffirmed its decision in Roe that " 'subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.' " Casey ,
The closest case that the Court has found to the case at bar is Pemberton v. Tallahassee Mem. Regional Med. Ctr., Inc. ,
Post refusal, the hospital obtained a court order requiring plaintiff to consent to a caesarean section.
The same reasoning applies with equal force in this case. Simply put, there are circumstances under which a pregnant woman's right to autonomy in her health *928care decisions can be circumscribed by the state's right to protect a third party. Those situations may very well be rare, but they exist. Under Salerno , that is all Defendants must show.
CONCLUSION
Today's decision is limited in scope. Plaintiffs have only pursued a facial challenge to the Pregnancy Exclusion. This challenge is subject to Salerno 's "no set of circumstances" test, which Plaintiffs have failed to meet. But, the Court hastens to add that it has little difficulty imagining circumstances in which the Pregnancy Exclusion is unconstitutional.
Indeed, it is at least possible that one or more of the existing plaintiffs may be able to make an as-applied challenge. The briefing in this case casts the constitutional injury as occurring when a woman who is pregnant and incapacitated is, despite her express wishes to the contrary, denied the right to forego further medical treatment. As the Court pointed out during oral argument, the constitutional injury could, alternatively, be described as occurring at the moment the state limits a woman's right to prospectively dictate the healthcare she receives in the event she becomes incapacitated. Under this view a woman who has executed a healthcare directive which the state has indicated it will not permit to be enforced, suffers an immediate constitutional injury which can be redressed in an as-applied challenge to the statute. The Court does not offer any opinion as to whether such a view will prevail, but it would appear to be an approach worthy of consideration - given the important constitutional rights at play here.
ORDER
IT IS ORDERED:
1. Defendants' Motion to Dismiss (Dkt. 17) is GRANTED,7 with leave to amend. If no amended complaint is filed within 30 days, the case will be closed.
Idaho Secretary of State, Health Care Directive Registry, https://sos.idaho.gov/hcdr/index.html (last visited March 27, 2019). Additionally, Plaintiffs' Complaint alleges that the Model Form was also available on the websites of the State of Idaho Office of the Attorney General and the Idaho Department of Health and Welfare. Complaint , Dtk. 1 at ¶¶ 29, 30. Although the web-addresses provided in the Complaint no longer contain the Model Form, at the motion to dismiss phase the Court will assume the truth of Plaintiffs' allegations with respect to the availability of the Model Form.
During the hearing in this matter on January 16, 2019, the Court engaged in an extended discussion with Counsel for both Parties over how the statute operates. In particular, the Parties acknowledged that there is ambiguity in the statute with respect to whether a woman with a healthcare directive that does not contain the Pregnancy Exclusion could, nevertheless, have her directive followed and her life terminated if she was both pregnant and incapacitated. Counsel for Defendants conceded that at this phase of the litigation, the Court should evaluate the constitutionality of the statute with the background assumption that a pregnant woman with a healthcare directive that does not contain the Pregnancy Exclusion would not have her care terminated in accordance with the express wishes of her healthcare directive. This interpretation of the statute accords with the interpretation of the statute put forth by the Idaho Secretary of State, the State of Idaho Office of the Attorney General, and the Idaho Department of Health and Welfare. The Court will proceed on the basis of this assumption but notes that the assumed interpretation is in no way binding on these or future litigants. That issue remains for another day.
"Directive" is defined by the statute as "a document that substantially meets the requirements of section 39-4510(1), Idaho Code, or is a 'Physician Orders for Scope of Treatment' (POST) form or is another document which represents a competent person's authentic expression of such person's wishes concerning his or her health care." I.C. § 39-4502(8).
Idaho Secretary of State, Health Care Directive Registry - Frequently Asked Questions, https://sos.idaho.gov/hcdr/faq.html (last visited March 27, 2019). Additionally, Plaintiffs' Complaint alleges that similar language was also available on the websites of the State of Idaho Office of the Attorney General and the Idaho Department of Health and Welfare. Complaint , Dtk. 1 at ¶¶ 29, 30. Although the web-addresses provide in the Complaint no longer contain similar language, at the motion to dismiss phase the Court will assume the truth of Plaintiffs' allegations with respect to the presence of similar language.
The Court notes that Plaintiffs in this case are entitled to bring as-applied challenges to the Pregnancy Exclusion. As will be discussed below, the Court is willing to entertain a motion to amend the complaint to make this an as-applied challenge on behalf of an existing plaintiff.
I reach this conclusion with serious reservations. Analytically, it is difficult to see why the undue burden exception created by Casey should not apply to the Pregnancy Exclusion. I find no meaningful difference between a restriction on a woman's right to dictate, in advance, the end-of-life medical care she will receive if pregnant and a woman's right to choose, contemporaneously, between having an abortion or giving birth. It necessarily follows that the Supreme Court's modified view of the requirements for a facial challenge to an abortion statute, should apply here. If I were writing on a clean slate, I would so hold. But, the case law of the Circuit is clear and unyielding. It is my duty to follow that precedent.
Plaintiffs' Amended Complaint contains allegations that certain components of Idaho's bureaucracy have acted ultra vires in their interpretation of the Pregnancy Exclusion. Dkt. 16 at ¶¶ 27-30. Plaintiffs' causes of action, despite containing incorporation by reference provisions, appear to focus solely on the facial validity of the Pregnancy Exclusion as codified. Id. at ¶¶ 32-41. The Court's decision, in accordance with the Parties' briefing, focuses solely on the facial challenge, and does not evaluate Plaintiffs' potential ultra vires claim. Plaintiffs are free to pursue this claim in an amended complaint.