                 IN THE COURT OF APPEALS OF TENNESSEE

                                   AT KNOXVILLE                   FILED
                                                                  February 11, 1998

                                              Cecil Crowson, Jr.
TERESA MCGLOTHLIN and KATHY ) C/A NO. 03A01-9706-CV-00236
                                              Appellate C ourt Clerk
HELTON,                     )
                            ) SULLIVAN LAW
            Appellants,     )
                            ) HON. JO HN M cLELLA N, III
v.                          ) JUDGE
                            )
BRIS TOL OBS TET RICS ,     )
GYNECOLOGY and FAMILY       )
PLA NNIN G, INC .,          )
                            )
and                         )
DR. GARY BOYLE,             ) AFFIRMED
                            ) AND
            Appellees.      ) REMANDED




TERRY C. FRYE, Bristol, VA, for Appellants.

CHARLES T. HERNDON, IV, HERNDON, COLEMAN, BRADING & McKEE,
Johnson City, for Appellees.




                                     O P I N IO N


                                                          Franks, J.


              Plaintiffs, m other and d aughter, sue d defend ants, chargin g defend ants

performed an a bortion on daugh ter, in violation of T.C.A. §39 -15-202, and the do ctor,

in performing the abortion, was guilty of medical malpractice and battery upon the

daughter.

              The Trial Court dismissed the part of the complaint relying upon

violation of the statute, on the grounds that the statute was unconstitutional, and

granted summary judgment on the remaining causes of action. Plaintiffs have
appealed.

               The disputed statute was passed by the General Assembly in 1989, and

recorded a t Chapter 5 91, Public A cts of 198 9, which A ct states, in pertine nt part:

               Section 39 -15-202. C onsent of pregnan t woman required pr ior to
               abortion-information provided by doctor-Waiting period-Penalty for
               violation-N otice to paren ts or guardia ns-Requ irements ina pplicable in
               certain cases.

                      (a) An abortion otherwise permitted by law shall be performed or
               induced only with the informed written consent of the pregnant woman,
               given freely and without coercion. Such consent shall be treated as
               confiden tial.

                      (b) In order to insure that a c onsent fo r an abortion is truly
               informed consent, an abortion shall be performed or induced upon a
               pregnant woman only after she has been orally informed by her
               attending physician of the follow ing facts and has signe d a consent form
               acknowledging that she has been informed as follows:

                             (1) That according to the best judgment of her attending
                      physician she is pregnan t;

                             (2) The number of weeks elapsed from the probable time
                      of the conception of her unborn child, based upon the information
                      provided by her as to the time of her last menstrual period or after
                      a history, physical examination, and appropriate laboratory tests;

                             (3) That if more than twenty-four (24) weeks have elapsed
                      from the time of conception, her child may be viable, that is,
                      capable o f surviving outside of th e wom b, and that if s uch child
                      is prematurely born alive in the course of an abortion her
                      attending p hysician has a le gal obligation to take steps to
                      preserve the life and health of the child;

                             (4) That abortion in a considerable number of cases
                      constitutes a major surgical procedure;

                             (5) 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 the abortion,
                      whether she wishes to keep her child or place him or her for
                      adoption, and that her physician will provide her with a list of
                      such agencies and the services available if she so requests; or

                              (6) Num erous ben efits and risk s are attenda nt either to
                      continued pregnancy and childbirth or to abortion depending
                      upon the circumstances that the patient might find herself in. The
                      physician sha ll explain thes e benefits a nd risks to the best of his
                      ability and knowledge of the circumstances involved.

                                              2
        (c) At the same time the attending physician provides the
information required b y subsection (b) of this section, he shall inform
the pregnant woman of the particular risks associated with her
pregnan cy and childb irth and the a bortion or c hild delivery tech nique to
be employed, including providing her with at least a general description
of the medical instructions to be followed subsequent to the abortion or
child birth in order to ins ure h er sa fe re covery.

      (d) 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, and on the third day following the day such
information was given, the patient may return to the physician and sign a
consent form.

       Vio latio n of this s ubse ction by a physician is a Cla ss E f elon y.

        Provided, however, that this subsection (d) shall not apply when
the attending physician, utilizing his experience, judgment, or
professional competence, determines that a two (2) day waiting period
or any w aiting pe riod w ould en dange r the life o f the pre gnant w oman .
Such determination made by the attending physician shall be in writing
and shall state his medical reasons upon which he bases his opinion that
the waiting period w ould enda nger the life o f the pregn ant wom an. This
provision shall not relieve the attending physician of his duty to the
pregnan t woman to inform h er of the fa cts under su bsection (b ) of this
section.

       (e) The attending physician performing or inducing the abortion
shall provide the pregnant woman with a duplicate copy of the consent
form signed by her.

       (f) The attending physician or agency performing an abortion
upon a minor of less than eighteen (18) years of age shall inform the
parents or legal guardians of such minor, or if the whereabouts of the
parents cannot be determined and there is no other legal guardian than
the agency or other individual to whom the child’s custody has been
transferred, two (2) days prior to the operation that an abortion is to be
perform ed upon such min or. Provide d howe ver, the prov isions of this
section shall in no way be construed to mean, provide for, or authorize
parental objection to, in any way, prevent or alter the decision of the
minor to proceed with the abortion.

       Notice shall not be required if:

               (1) The minor is emancipated by marriage; or

              (2) The attending physician determines that, in his best
       medical judgment, the abortion is necessary to preserve the life or
       health of the mother and must be performed prior to the
       expiration of the two (2) day notice period.

       (g) The words “the physician” and “the attending physician” as

                               3
              used in this section shall mean any licensed physician on the service
              treating the pregnant woman.

                      (h) The provisions of this section shall not apply in those
              situations where an abortion is certified by a licensed physician as
              necessary to preserve the life of the pregnant woman.

In response to the notice of challenge to the constitutionality of the statute the

Attorney General, responded:

              The statutory provision at issue, Section 39-15-202(f), was deleted by
              amendment in 1995 and is, accordingly, no longer in effect. The
              Attorney General declines to defend the constitutionality of this repealed
              statutory provision.

The Ch ancellor, in his opinion, said and we quote w ith approva l:

              The plaintiff, then a minor 17 years and approximately 10 months of
              age, contracted for an ab ortion on Septemb er 29, 1990. The statutory
              scheme in effect in Tennessee at the time provided that if a person was
              under 18 years of age, that the attending physician would inform that
              person’s parents of the contemplated procedure two days prior to the
              abortive procedure being performed on the minor. The two-day waiting
              period set forth in subsection (d)(1) of T.C.A. 39-15-202 applies to a
              pregnant woman who has been orally informed by her attending
              physician of factors (1) through (6) and requires the signing of a consent
              form ack nowled ging that the patient has b een advise d of the statu torily
              prescribed information. S ubsection (f)(1) and (2) is the on ly statutory
              subsection of T.C.A. 39-15-202 solely applicable to an individual less
              than 18 years o f age. It furth er appears that the statutory co nstruction in
              question represents the effort of the legislature to address the
              constitutiona l infirmities con tained in prio r legislation as it re lates to
              abortion rights and minors. This statutory scheme was legislatively re-
              establish ed in 19 95 and is now provid ed in T .C.A. 3 7-10-3 01, et seq.
              This legislation has again been found to be constitutionally infirm first
              for failure to properly protec t a minor’s co nfidentiality and anonymity in
              seeking a judicial bypass of parental consent and secondly for failure to
              provid e a suff iciently ex peditiou s bypass p rocedu re. . . . See Me mphis
              Planned Parentho od, Inc. V. D onald Su ndquist, et al., ___ Fed. Supp.
              (M.D. Tenn. 1996). It thus appears that both the Tennessee Supreme
              Court and the United States District Court reviewed Tennessee’s various
              statutory provisions as they apply to a minor’s right to terminate her
              pregnancy by taking into consideration not only the provisions regarding
              parental consent and two-day waiting period but also consideration of
              the four criteria required by the United States Supreme Court in the case
              of Bellotti v. Baird, 443 U .S. 622 , 99 S.C t. 3035 ( 1979) . Bellotti
              established the four criteria that a judicial bypass procedure in a consent
              statute such as Tenne ssee’s must satisfy. The United D istrict Court
              found that the 1995 re-enactment failed to meet the two of the Bellotti-
              imposed criteria.


                                             4
                      The Court finds that Tennessee’s statutory scheme involving
               abortions as it relates to a minor is so interw oven with other statutory
               provisions, that the Court can not elide a previously declared
               unconstitutional portion of a statute and determine that the remaining
               provisions are constitutional and effective particularly where so many of
               the provisions of the subject statutory scheme has been declared
               unconstitutional by state and federal courts.

               ...

                       Further as to the issue of plaintiff’s cap acity to consen t which is
               predicated upon T .C.A. 39-1 5-202, the C ourt finds th at the record fails
               to rebut the presumption of capacity by the plaintiff to sign the consent
               to abor tion do cume nt as a m ature m inor. See Cardwell v. Bechtol, 724
               S.W.2d 7 39 (Tenn .. 1987). De fendants’ medical af fidavit is effe ctively
               unrebutted. A cause of action by plaintiffs based upon battery for
               failure to obtain informed or knowledgeable consent prior to the
               abortion being performed is not alleged nor supported by proper medical
               or othe r eviden ce.

                       Plaintiffs’ complaint predicates their cause of action upon
               defendants’ failure to com ply with T.C.A. 39-15-2 02(b) and (e) (battery
               or lack of informed consent and strict liability); thus, plaintiffs’ cause of
               action rests solely within the confines of the provisions of T.C.A. 39-15-
               202. Therefore, the viability of plaintiffs cause of action based on
               battery or lack of informed consent and strict liability rests upon the
               viability of the statu te. . . . Add itionally, T .C.A. 3 9-15-2 01, et seq., fails
               to create a civil cause of action (although it does contain criminal
               sanctions) f or failure to n otify such pare nts or guard ians and is
               additionally constitutionally unsound in that it fails to provide a judicial
               by-pass proce dure wh ich the Un ited States sup reme Co urt manda ted in
               order to provid e to min ors their constitu tional gu arantee s. Bellotti v.
               Baird, supra at 642- 44 (19 79).

               Plaintiffs ap peal that part o f the decisio n holding the statute

unconstitutional, the allegation of interferen ce with family relations, and the sum mary

judgment as to the allegations of battery and medical malpractice.

               First, plaintiffs argue that we should uphold T.C.A. 39-15-202(f) and

assert that the United States Supreme Court has never expressly required a by-pass

proced ure in o rder fo r a notif ication s tatute to b e valid. Citing H.L. v. Matheson, 450

U.S. 398 (1981). The Matheson Court held that it would not entertain the

constitu tional ch allenge to the sta tute bec ause th e plaintif f did no t have s tanding . Id.

101 S.Ct. 1189. In Matheson Mr. Justice Powell in a concurring opinion states the


                                                5
rule succ inctl y:

                Numerous and significant interests compete when a minor decides
                whether or not to abort her pregnancy. The right to make that decision
                may not b e unco nstitution ally burde ned. Roe v. Wade, 410 U.S. 113,
                154, 93 S .Ct. 705, 72 7, 35 L.Ed .2d 174 (1 973); Planned Parenthood of
                Central M o. V. Dan forth, 428 U.S., at 74-75, 96 S .Ct. At 2843-2844 . In
                addition, the m inor has an interest in effe ctuating he r decision to a bort,
                if that is th e decisio n she m akes. Id. at 75, 96 S.C t., at 2844; Bellotti II,
                443 U.S . at 647, 99 S .Ct., at 3035. T he State, asid e from the interest it
                has in e ncoura ging ch ildbirth ra ther than abortio n, cf. Maher v. Roe, 432
                U.S. 464 , 97 S.Ct. 23 76, 53 L.E d.2d 484 (1977); Harris v. McR ae, 448
                U.S. 297 , 100 S.Ct. 2 671, 65 L .Ed.2d 78 4 (1980), h as an interest in
                fostering such consultation as will assist the minor in making her
                decisio n as w isely as po ssible. Planned Parenthood of Central Mo. V.
                Danfo rth, sup ra, 428 U .S., at 91, 9 6 S.Ct. A t 2851 ( STEW ART , J.,
                concurring ); post, at 1178 (STEVENS, J., concurring in judgment). The
                State also may have an interest in the family itself, the institution though
                which “we inculcate and pass down m any of our most cherished values,
                moral and cultural.” Moore v. East Cleveland, 431 U.S. 494, 503-504,
                97 S.Ct., 1932, 1937-1938, 52 L.Ed.2d 531 (1977). Parents have a
                traditional and substantial interest in, as well as a responsibility for, the
                rearing and w elfare o f their ch ildren, es pecially d uring im mature years.
                Bellotti II, supra, 443 U.S., at 637-639, 99 S.Ct. At 3045-3046.

                        None of these interests is absolute. Even an adult woman’s right
                to an ab ortion is not unq ualified . Roe v. Wade, supra, 410 U.S., at 154,
                93 S.Ct., at 727. Particularly when a minor becomes pregnant and
                considers a n abortion, th e relevant circ umstance s may vary wid ely
                depending upon her age, maturity, mental and physical condition, the
                stability of her home if she is not emancipated, her relationship with her
                parents , and the like. . . . In sum, a State may not validly require notice
                to parents in all cases, without providing an independent decision maker
                to whom a pregnan t minor can have reco urse if she b elieves that sh e is
                mature enough to make the abortion decision independently or that
                notification otherwise would not be in her best interests. (Empha sis
                supplied).

Clearly, under the Constitution of the United States and the case law decisions dealing

with this issue, it is established that the statute as written offen ds the individual’s

constitutional safeguards. Moreover, the statute impermissibly restricts the

individ ual’s libe rty and pri vacy inter ests und er this St ate’s C onstitutio n. See: Hawke

v. Hawke, 855 S.W.2d 573 (Tenn. 1993), and Davis v. D avis, 842 S.W.2d 588 (Tenn.

1992) , cert. denied 113 S.Ct. 1259 (1 993).

                Next, plaintiffs contend that the Trial Court erred in finding the


                                                6
remain ing sec tions of that statu te to be u ncons titutiona l, i.e., (a), (b) , (c), (d) an d (e).

                Under th e familiar rule that we w ill only consider c onstitutional issu es if

the matter may not otherwise be resolved, we conclude that no private civil right of

action e xists for the alleg ed viola tions of the rem ainder o f the sta tute. See Roddy v.

Volunteer Medical Clinic, Inc., 926 S.W.2d 572 (Tenn. App. 1996). As the Supreme

Court in Planned Parenthood Association v. McWherter, 817 S.W.2d 13 (Tenn. 1991)

observed , the legislature a dopted the statute as a pa rt of Chap ter 591 of th e Public

Acts of 1989 when the legislature revised Tennessee criminal laws and sentencing

procedure and this statute is a part of that massive revision and includes a criminal

penalty for cer tain violations , i.e., a felony. Plaintiff s cite the 198 8 Public A ct,

Chapter 929, which contains the following provision:

                Failure to ob tain consen t pursuant to the requirem ents of this A ct is
                prima fac ie evidence of failure to obtain informed consent and of
                interference with family relations in appropriate civil actions. The law
                of this State shall not be construed to preclude the awa rd of exemplary
                damage s in any appro priate civil action relevant to the violation of this
                Act. Nothing in this Act shall be construed to limit the common law
                rights of parents.

They insist that “it only stands to reason that it would also be applicable to the similar

issue of pa rental notifica tion”. This p rovision ha s no effica cy here. It is contain ed in

another chapter of the Code and the Court in McWherter, in discussing Tennesse e’s

1988 Parental Consent Statute and Tennessee’s 1989 Parental Notification Statute,

held that the two statutes were in “direct conflict” and observed at page 15:

                Despite the absence o f an explic it repealer bill, there can be little
                question about the legislative intent with regard to the two conflicting
                statutes involved here. . . . Because of an irreconcilable conflict between
                the revisions of the 1988 Parental Consent Statute . . . and those of the
                1989 Pa rental Notif ication Statute . . . the latter Statute h as effective ly
                repeale d the fo rmer by im plication . . . .

                The Rule relating to whether a private cause of action is created by a

statute is stated in 73 Am.Jur.2d §432, p. 530:

                In this respec t, the general ru le is that a statute w hich does not purpo rt to

                                                  7
               establish a civ il liability, but merely mak es provision to secure the safety
               or welfare of the public as an entity, is not subject to a construction
               establish ing a civil liabi lity.

Under the test we set forth in Bucke r v. Car lton, 623 S.W.2d 1 02 (Tenn. Ap p. 1981),

we conclude that the legislature did not create a private right of action for damages, as

it relates to the remaining sections of the Act. This is reinforced when the remainder

of the Statu te is considere d indepen dent of the provision w hich we h ave held

unconstitutional. The gravamen of the complaint as to both plaintiffs is the violation

of the statutory provision requiring parental notice.

               As to the claims of battery and medical malpractice, defendant doctor

submitted an unreb utted affidavit stating that he wa s familiar with the standard o f care

applicable to the procedure performed, and at all relative times exercised care required

under that standard. No affidavit was filed in rebuttal of the doctor’s affidavit, and

summ ary judgm ent wa s appro priate on the issue of me dical m alpractic e.

               As to the re maining iss ue of batte ry, the affidavits f iled by defen dants

present evid ence that the plaintiff w as a mature minor, and no coun tervailing aff idavit

disputes this evidence. The Supreme Court in Bechtol teaches that a minor fourteen

years of a ge or ol der is pre sumed to have the cap acity to co nsent to treatme nt. Id. at

745. This presumption is not rebutted on this record, and indeed is reinforced by the

affidavits f iled by defen dants. Bef ore leaving this issue, we point to our d ecision in

Roddy at page 576, where we said:

               Determining whether defendant failed to obtain informed consent from
               Ms. Roddy is dependent upon the standard of care of the profession or
               speciality. If informed consent is not effectively obtained, the
               defendant’s departure from the standard of care is not negligence, but
               battery, because the doctrine of battery is applicable to cases involving
               treatme nt perfo rmed w ithout in forme d or kn owled geable consen t.
               Malpractice is based on the lack of care or skill in the performance of
               services contracted for, and battery is predicated upon wrongful trespass
               on the pers on, regardle ss of the skill e mployed. T he assertion of one is
               the den ial of the other. . . . (Emphasis supp lied).

               For the foregoing reasons, we affirm the judgment of the Trial Court and

                                              8
remand a t appellants’ c ost.




                                  __________________________
                                  Herschel P. Franks, J.


CONCUR:




___________________________
Don T. McM urray, J.




_(Separate Conc urring Opinion)
Houston M. Godd ard, P.J.




                                  9
                                  I N   T H E         C O U R T       O F      A P P E A L S           O F     T E N N E S S E E

                                                              E A S T E R N              S E C T I O N                  FILED
                                                                                                                        February 11, 1998

                                                                                                                       Cecil Crowson, Jr.
                                                                                                                        Appellate C ourt Clerk
T E R E S A M c G L O T H L I N                       a n d                          )
K A T H Y H E L T O N                                                                )
                                                                                     )
            A p p e l l a n t s                                                      )
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B R I S T O L O B S T E T R I C S ,                                                  )            S U L L I V A N C O U N T Y
      G Y N E C O L O G Y a n d                                                      )            0 3 A 0 1 - 9 7 0 6 - C V - 0 0 2 3 6
F A M I L Y P L A N N I N G , I N C .                                                )
                                                                                     )
                a n d                                                                )
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D R .   G A R Y         B O Y L E                                                    )
                                                                                     )
            A p p e l l e e s                                                        )




                                                                      C O N C U R R I N G             O P I N I O N




                                                                                                                              G o d d a r d ,     P . J .




                            I      c o n c u r        i n     t h e         o p i n i o n          a u t h o r e d      b y      J u d g e

F r a n k s .           I         w r i t e       s e p a r a t e l y            t o        p o i n t        o u t    t h a t      j u d g e s     a r e

a l w a y s      r e q u i r e d                t o     f o l l o w          t h e        l a w      a s     p r o n o u n c e d       b y

s u p e r i o r         c o u r t s ,             b u t       t h e y        a r e        n o t      r e q u i r e d      t o      a g r e e     w i t h

t h o s e     p r o n o u n c e m e n t s .




_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
H o u s t o n   M .   G o d d a r d ,   P . J .




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