                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      May 8, 2002 Session

    THE TENNESSEE DEPARTMENT OF HEALTH, ET AL. v. GARY C.
                     BOYLE, M.D., ET AL.

                    Appeal from the Chancery Court for Davidson County
                     No. 99-1343-I   Irvin H. Kilcrease, Jr., Chancellor



                  No. M2001-01738-COA-R3-CV - Filed December 19, 2002


The issue in this case is the constitutionality of a Tennessee statute requiring a private clinic that
performs a “substantial number” of abortions to acquire a certificate of need from the Health
Facilities Commission and a license from the Department of Health. The Chancery Court of
Davidson County upheld the statute, enjoined the defendants from operating without a certificate and
a license, and imposed substantial monetary sanctions for civil contempt. We hold that the statute
violates relevant provisions of the United States and Tennessee Constitutions. We therefore reverse
the judgment below and dismiss the contempt charge.


          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                Reversed and Remanded


BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.,
J. and ROBERT E. CORLEW, III, SP . J., joined.

Thomas C. Jessee, Johnson City, Tennessee, for the appellants, Gary C. Boyle, M.D., Wesley A.
Adams, Jr., M.D., Adams & Boyle, P.C., d/b/a The Women’s Center; Angus McDonald Green
Crook, M.D., Debra Jo Adams, Leisa Boyle, Welshwood Partnership, Adams & Boyle Partnership,
and Regina Taylor Hensley.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael
W. Catalano, Associate Solicitor General; and E. Blaine Sprouse, Assistant Attorney General, for
the appellee, State of Tennessee.
                                              OPINION

                                                   I.

       Dr. Wesley Adams and Dr. Gary Boyle are residents of Bristol, Tennessee. They are both
licensed to practice medicine in Tennessee, and prior to 1989, they practiced obstetrics and
gynecology in Bristol. In 1990 they opened an office in Nashville as partners. In 1992 they
incorporated their Nashville practice under the name of Adams & Boyle, P.C., and their clinic was
known as The Women’s Center.

        The Women’s Center offered full gynecological services to women, including first trimester
abortions. The Tennessee legislature has defined any place or building that provides medical or
surgical services to terminate pregnancies as an “ambulatory surgical treatment center” (ASTC). But
exempted from the definition are “private physicians’ and dentists’ office practices, except those
private physicians’ and dentists’ offices in which a substantial number of medical or surgical
pregnancy terminations are performed.” Tenn. Code Ann. § 68-11-201(3). Thus, any facility that
is not a private physician’s or dentist’s office where even one abortion is performed is an ASTC.
On the other hand, a private physician or dentist may perform any number of surgical procedures,
of varying degrees of severity and risk, without being classified as an ASTC, so long as the surgical
procedures do not include a “substantial number” of abortions.

         In terms of state regulation the consequences of being an ASTC are enormous. An ASTC
is also defined as a Health Care Institution. Tenn. Code Ann. § 68-11-102(4)(A) and Tenn. Code
Ann. § 68-11-106(a)(1) prevents the “construction, development, or other establishment of any type
of health care institution” without receiving a certificate of need (CON) from the Health Facilities
Commission (HFC). An ASTC also must be licensed by the Department of Health (the Department).
Tenn. Code Ann. § 68-11-204(a)(1). The Department performs its licensing functions through the
Board for Licensing Health Care Facilities. Tenn. Code Ann. § 68-11-202(a)(2). As this trip to and
fro in the Code indicates, even first trimester abortions have gotten a great deal of attention from the
legislature.

        In the early 1990's the Department of Health suggested to Drs. Adams and Boyle that they
should acquire a CON. They did so in June of 1994, and applied for an ASTC license. The
Department inspectors, however, insisted that they install certain equipment in the Women’s Center
that Drs. Adams and Boyle did not think was required. The dispute dragged on and the CON lapsed
in August of 1996. Drs. Adams and Boyle continued to operate their offices in Bristol and Nashville.

        Drs. Adams and Boyle filed a new application for a CON for both facilities in September of
1998. In December of 1998 the HFC deferred action on the Bristol office and denied the application
for the Nashville office, allegedly to punish Drs. Adams and Boyle for operating without a CON for
an extended period of time. When operations at both facilities continued, the Department filed this



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action on May 13, 1999 seeking an injunction to prevent the Women’s Center from operating an
ASTC without a CON and a proper license.

       The defendants alleged in their answer that the statute and the actions taken by the
Department violated the Tennessee and United States Constitutions relating to the right of privacy
of women and the rights of the defendants to due process and equal protection. On July 1, 1999, the
court overruled the defenses and enjoined the defendants and anyone associated with them from
operating an ASTC without a CON and a license as required by law.

        In the meantime, Drs. Adams and Boyle took two actions. On May 28, 1999, they filed an
action in the United States District Court in Nashville seeking an adjudication that the statutes on
which the State relied were unconstitutional; and on June 25, 1999, after the chancellor had issued
a temporary restraining order against operating without a CON and a license, they leased the
Women’s Center to Dr. James Oliver. The federal court chose not to hear any issues relating to Drs.
Adams and Boyle since those issues were pending in the state court. The plaintiffs amended the
federal action to make Dr. Oliver and the Bristol Women’s Center the plaintiffs and to dismiss Drs.
Adams and Boyle as party plaintiffs.

       On March 6, 2000, the Department and HFC amended their complaint in this action to
include Dr. Oliver, the employees/manager of the Women’s Center, Dr. Angus Crook who
performed abortions at the Women’s Center on a contract basis, and the owners of the property on
which the Women’s Center sits. Again, the complaint sought an injunction against operating a
ASTC without a CON or a proper license. The same defenses were raised by the new defendants.

       On April 17, 2000, the federal court issued a temporary injunction enjoining the
Department/HFC from enforcing the statutes as to Dr. Oliver and the Bristol Women’s Center. The
next day the chancery court enjoined all the defendants except Dr. Oliver from operating, owning,
managing, or maintaining an ASTC without a CON and a license.

        On September 26, 2000, the Department/HFC filed a petition to hold certain defendants in
civil contempt for violating the courts’ injunctions. The court found the defendants in contempt and
imposed a fine of $10,000 each on Dr. Adams and Dr. Boyle; $7,500 on Dr. Crook, $5,000 each on
the executive director of Adams & Boyle, P.C. and Welshwood Partnership, the business entity that
owned the property; and $2,500 each on the office manager at the Welshwood facility and one of the
partners in the Welshwood partnership. The court allowed the defendants to purge themselves of
contempt by withdrawing their relationship to the Welshwood facility, including employment and
any other interest they might have therein. The court also ordered the defendants to pay the
plaintiff’s attorneys’ fees in the amount of $17,484.00.

       On May 18, 2001, the court entered a final judgment permanently enjoining the defendants
from operating an ASTC without a CON and a valid license.




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                                                    II.
                               CONSTITUTIONALITY OF THE STATUTE

        As we have found, a doctor may perform abortions in his/her own private office without a
CON or a license to operate the facility, unless he/she performs a “substantial number” of abortions.
In that case the facility becomes an ASTC subject to stricter regulation by the Department.
Accepting patients in an unlicensed facility is also a class B misdemeanor. Tenn. Code Ann. § 68-
11-213(b)(2). For a number of reasons, the defendants say that the statute violates the Tennessee and
the United States Constitution.

         There are certain principles the courts use when litigants mount an attack on the
constitutionality of a statute. First, the courts presume that the Acts of the General Assembly are
constitutional, In Re Petition of Burson, 909 S.W.2d 768 (Tenn. 1995). Consequently, the courts
indulge every presumption and resolve every doubt in favor of constitutionality. State v. Lyons, 802
S.W.2d 590 (Tenn. 1990). When the courts find that a statute may be construed in different ways,
they are required to adopt a construction that will sustain the statute and avoid a conflict with the
constitution. Marion County Bd. v. Marion Co. Election Comm’n, 594 S.W.2d 681 (Tenn. 1980).
The courts also have a duty to ascertain and carry out the legislature’s intent without unduly
restricting or expanding the statute’s coverage. Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000).

         As these rudimentary principles show, the persons challenging a statute have the burden of
showing its unconstitutionality, Fritts v. Wallace, 723 S.W.2d 948 (Tenn. 1987); and unless the
statute restricts a fundamental right, the courts will uphold it if the courts are able to conceive of a
rational basis for the measure that is reasonably related to a legitimate governmental interest. Riggs
v. Burson, 941 S.W.2d 44 (Tenn. 1997). Conversely, “where certain fundamental rights are involved
. . . regulation limiting these rights may be justified only by a ‘compelling state interest’ . . . and . .
. legislative enactments must be narrowly drawn to express only the legitimate state interests at
stake.” Roe v. Wade, 410 U.S. 113, 155 (1973); Planned Parenthood v. Sundquist, 38 S.W.3d 1
(Tenn. 2000).

        A person challenging a statute on constitutional grounds must also have standing to do so.
National Gas Distributors v. Sevier County Utility District, 7 S.W.3d 41 (Tenn. Ct. App. 1999).
Under state law the standing requirement demands a showing that the statute infringes the rights of
the person attacking it. Id. “A person has no standing to contest the constitutionality of a statutory
provision he claims to be deficient unless the provision . . . has been used to deprive him of his
rights.” State v. Johnson, 762 S.W.2d 110, 118 (Tenn. 1988). Under federal law, Article III of the
United States Constitution restricts the jurisdiction of federal courts to actual “cases or
controversies.” Younger v. Harris, 401 U.S. 37 (1971). To have standing to challenge a statute on
constitutional grounds a plaintiff must allege that he has “sustained or is immediately in danger of
sustaining some direct injury as a result of the challenged statute . . . . The injury or threat of injury


                                                   -4-
must be both ‘real and immediate’ not ‘conjectural or hypothetical.’” O’Shea v. Littleton, 414 U.S.
488, 494 (1974). With respect to abortion rights, both the United States Supreme Court and the
Tennessee Supreme Court have accorded physicians standing to challenge the constitutionality of
abortion statutes on behalf of their patients. “[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. Wolff, 428 U.S. 106, 117 (1976). See also Planned
Parenthood v. Sundquist, 38 S.W.3d 1 (Tenn. 2000).

       The courts have also applied the standing requirement to the special circumstance where a
defendant claims that a statute is too vague to satisfy due process. In Parker v. Levy, 417 U.S. 733
(1974), the U.S. Supreme Court held that a person who clearly understands that his own conduct
comes within the statute’s prohibitions cannot challenge the statute because it might be vague as to
some other conduct. Following this line of thought, our Supreme Court said, “a party who engages
in conduct that is clearly proscribed by the state cannot complain of the vagueness of the law as
applied to others.” State v. Burkhart, 58 S.W.3d 694 at 699 (Tenn. 2001).

                                               III.
                                           DUE PROCESS

        The defendants assert that the statute requiring a doctor’s office to obtain a CON and a
license to operate if a “substantial number” of abortions are performed in the office does not satisfy
the constitutional requirement of due process. See U.S. Const., amend. XIV; Tenn. Const., art. I, §
8. Since Tenn. Code Ann. § 68-11-213(b)(2) makes the operation of an ASTC without a license a
crime, due process requires that such statutes be drawn with a certain clarity. City of Chicago v.
Morales, 527 U.S. 41 (1999). The reasons are two-fold. The first is one of fundamental fairness.
If the government thinks it is necessary to punish one of its citizens for violating the government’s
laws, fairness dictates that the person affected be able to understand what is expected or prohibited.
Leech v. American Booksellers Ass’n, Inc., 582 S.W.2d 738 (Tenn. 1979). The second reason is
based on our concept of equality before the law. An imprecise law encourages arbitrary and
discriminatory enforcement. See Crites v. Smith, 826 S.W.2d 459 at 473 (Tenn. Ct. App.
1991)(Judge Koch concurring and dissenting.) As the United States Supreme Court said in Grayned
v. City of Rockford, 408 U.S. 104 (1972),

       a vague law impermissibly delegates basic policy matters to policemen, judges and
       juries for resolution on an ad hoc and subjective basis, with the attendant danger of
       arbitrary and discriminatory application.

408 U.S. at 108-9.

        This invalidating principle has been called “void for vagueness.” Underwood v. State, 529
S.W.2d 45 (Tenn. 1975). But the term “void” may be misleading. No one is required to obey a void
law. Cumberland Capital Corp. v. Patty, 556 S.W.2d 516 (Tenn. 1977). Yet there are some laws
that are invalid as to some defendants and not invalid as to others. The courts have called laws that


                                                 -5-
are invalid only in certain circumstances “invalid as applied,” while laws that are invalid in every
conceivable circumstance are “facially invalid.” Bowen v. Kendrick, 487 U.S. 589 (1988). The
distinction has been described in this way: “If a statute is unconstitutional as applied, the state may
continue to enforce the statute in different circumstances where it is not unconstitutional, but if a
statute is unconstitutional on its face, the State may not enforce the statute under any circumstances.”
Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir. 1997). Therefore,
it seems to us that only those laws that are facially invalid are truly void.

        Arguing that the law under consideration is not facially invalid, the State argues that the
Parker v. Levy/State v. Burkhart principle prevents the defendants from attacking the statute on
vagueness grounds since they knew that they were performing a large number of abortions and might
come within the statutes’ application. Using the language of the United States Supreme Court, the
State says:

        None of them [past cases] suggests that one who has received fair warning of the
        criminality of his own conduct from the statute in question is nonetheless entitled to
        attack it because the language would not give similar fair warning with respect to
        other conduct which might be within its broad and literal ambit.

Parker v. Levy, 417 U.S. 733 at 756.

        But the Parker v. Levy prohibition also has its exceptions. By the time the court decided
Parker v. Levy it had already decided that an unaffected plaintiff could assert a vagueness defense
“where individuals not parties to a particular suit stand to lose by its outcome and yet have no
effective avenue of preserving their rights themselves.” Eisenstadt v. Baird, 405 U.S. 438 (1972).
Another exception allows

        Litigants . . . to challenge a statute not because their own rights of free expression are
        violated, but because of a judicial prediction or assumption that the statute’s very
        existence may cause others not before the court to refrain from constitutionally
        protected speech or expression ...

Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Such statutes are invalidated because they are
“overbroad,” according to the U.S. Supreme Court. Id. Although this doctrine is applied most often
to laws that impact First Amendment rights, our Supreme Court has recognized that it applies also
to other constitutionally protected conduct. See State v. Burkhart, 58 S.W.3d at 701 (Tenn. 2001).
The United States Supreme Court has now held that the standing requirements should be relaxed
when the challenged statute affects a substantial amount of constitutionally protected conduct.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Ltd., 445 U.S. 489, 494-95 (1982). Thus,
even a person whose conduct is at the core of the activities clearly covered by a statute’s terms may
raise a vagueness defense if the state is one that is likely to chill the exercise of constitutionally
protected conduct. United States v. Loy, 237 F.3d 251, 259 (3rd Circ. 2001). Obtaining a first



                                                   -6-
trimester abortion is undisputedly constitutionally protected conduct. Planned Parenthood of Middle
Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000).

       It also seems to us that the Parker v. Levy principle does not apply to the second prong of the
due process argument – that a law encourages arbitrary enforcement. If a defendant has notice that
his conduct is unlawful, it makes sense to say to him “you cannot complain that the law may not give
adequate notice to someone else.” But the same logic does not apply to a claim that a law commits
law enforcement to the personal whims of officers, prosecutors, judges, and juries. State v. Lyons,
802 S.W.2d 590 (Tenn. 1990).

        The U.S. Supreme Court seems to be moving in that direction. In two recent cases the Court
stated that “the more important aspect of the vagueness doctrine is not actual notice, but the other
principal element of the doctrine – the requirement that a legislature establish minimal guidelines
to govern law enforcement.” Kolender v. Lawson, 461 U.S. 352, 358 (1983); City of Chicago v.
Morales, 527 U.S. 41 (1999). While both cases involved loitering statutes that substantially
impacted First Amendment rights, the Court’s majority in Kolender and a plurality in City of
Chicago relied more heavily on the fact that the statutes allowed the law to be arbitrarily enforced
and in that way distinguished Parker v. Levy. See 461 U.S. at 358 ftn. 8; 527 U.S. at 52, 56.

         Finally, Parker v. Levy applies in circumstances where the challenged statute, as
authoritatively construed, contains some standards that can be used to determine whether conduct
is proscribed or not. It does not apply when the challenged statute contains no standards at all. The
“substantial number” provision in Tenn. Code Ann. § 68-11-201(3) is so nebulous and ill-defined
that it provides no notice at all as a practical matter.

       The State argues that in an appearance before the Health Facilities Commission the lawyer
representing Drs. Adams and Boyle conceded that they knew a substantial number of abortions were
being performed at the Welshwood facility. But this statement does not amount to an admission that
they knew their activities were in violation of the statute. The physicians were seeking a CON, not
because they understood that the statute required them to, but because the state officials told them
they needed to. Dr. Boyle continued to insist that he did not have to have an ASTC license to
perform gynecology services including first trimester abortions in his office.

        Even if the statements of the lawyer before the Health Facilities Commission could be
construed as concessions that Drs. Adams and Boyle understood that the statute applied to their
activities, those statements can be attributed only to Drs. Adams and Boyle. The lawyer was not
speaking for the other defendants, and so the concession cannot reasonably be attributed to them.

        We believe that these defendants have standing to challenge the statute on the vagueness
ground. We also believe the statute is unconstitutional because it fails to give fair notice of what
it requires and because it encourages arbitrary and discriminatory enforcement.

                                                 IV.


                                                 -7-
                       THE STATUTE ’S EFFECT ON FUNDAM ENTAL RIGHTS

         In Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000), the
court held that a woman’s right to terminate her pregnancy is a vital part of the right of privacy
guaranteed in the Tennessee Constitution. Accordingly, the statutes regulating this right must be
subjected to a strict scrutiny analysis, and must be narrowly tailored to achieve a compelling state
interest. Id. The State argues, however, that this statute does not purport to regulate abortions; it
attempts to regulate the facilities where abortions are performed; and, in any event, the Welshwood
facility is a place devoted primarily to the performance of surgical procedures. Therefore, it fits the
ASTC definition under the first part of the subsection. See Marcowitz v. Department of Public
Health, 435 N.E.2d 1291 (Ill. App. 1982).

        In focusing on the doctors and the facilities in which they work, the State argues for the more
deferential rational basis test rather than the strict scrutiny the statute must undergo when considered
as a regulation on a woman’s right to an abortion. We think, however, that the State’s argument
would require us to read out of the statute the references to abortions and to ignore the fact that the
statute seems to be aimed primarily at facilities where abortions are performed. As we have pointed
out, the performance of even one abortion makes a facility an ASTC, unless the facility is a private
doctor or dentists’ office. In that case, any number of surgical procedures may be performed there
so long as the procedures do not include a substantial number of abortions. When that invisible
threshold is crossed, the State insists on deciding if the facility is needed and on what terms it should
be allowed to operate.

        Our Supreme Court applied the strict scrutiny test to a statute that required all second
trimester abortions to be performed in a hospital. Although the court recognized that the State has
a compelling interest in maternal health from the beginning of pregnancy, the second trimester
hospitalization requirement was not narrowly tailored to further that interest. Planned Parenthood
of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 18 (Tenn. 2000). Other courts have considered
statutes similar to this one, and have found that they impose burdens on exercising the right to an
abortion that the State has to justify by important state health objectives. In Ragsdale v. Turnock,
841 F.2d 1358 (7th Cir. 1988), the court noted how the statute seemed to run counter to the State’s
interest in preserving a woman’s health:

        To the extent that there is any basis for distinguishing between a doctor who
        occasionally performs an abortion in his office and one whose practice is primarily
        devoted to such procedures, the regulations appear to run contrary to sound health
        policy.

841 F.2d at 1371.

        In Planned Parenthood of Greater Iowa v. Atchison, 126 F.3d 1042 (8th Cir. 1997), the court
said, “where a requirement serves no purpose other than to make abortions more difficult, it strikes
at the heart of a protected right, and is an unconstitutional burden on that right.” Id. At 1049.


                                                  -8-
        There is evidence in the record showing that first trimester abortions are less likely to result
in complications than many other surgical procedures that are routinely performed in doctor’s
offices. Loop electrical excision procedures, regular diagnostic D & C’s, hysteroscopy, diagnostic
laparoscopy, genetic amniocentesis and laser procedures all pose risks to women equal to or greater
than first trimester abortions. A tonsillectomy carries a risk of death twice as high as that of a legal
abortion. The proof would justify a conclusion that there is no medical justification for treating
abortions differently from other medical procedures of similar complexity and risk.

        The proof with respect to the actual burden on a woman’s right to an abortion is sketchy. But
the facts of this case demonstrate how the statute impacts the availability of abortions. The attempts
to comply with the statute have already cost the defendants in excess of $15,000 and that does not
include the improvements to the physical facilities that the State insists on as a condition to issuing
the license. These costs will undoubtedly be passed on to the patients of the Women’s Center. The
deterrent effect of the statute on the availability of abortions cannot be said to be de minimus. See
Ragsdale v. Turnock, 841 F.2d 1358, 1371 (7th Cir. 1988). Therefore, we conclude that the statute
adversely impacts a constitutionally protected right without a compelling state reason to justify it.
See Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000).
Consequently, it cannot be enforced.

                                                V.
                                             CONTEM PT

       Ordinarily if a court issues an injunction, the parties enjoined must obey it, even if they
believe the statute on which the injunction was based is unconstitutional.     This is called the
Collateral Bar Rule. See Howat v. Kansas, 258 U.S. 181 (1922). Thus, even if the injunction was
improvidently granted, the order must be obeyed, and disobedience of the injunction may be
punished. Walker v. City of Birmingham, 388 U.S. 307 (1967).

         This rule, however, does not apply to civil contempt. In United States v. United Mine
Workers of America, 330 U.S. 258 (1947), the Court said “the right to remedial relief falls with an
injunction which events prove was erroneously issued.” The Court reasoned that since the civil
contempt sanction is for the benefit of the other party, a plaintiff was not entitled to profit from an
order that is subsequently reversed. Apparently this question has not been decided before in
Tennessee, but other courts have followed the rule laid down in Mine Workers. In Cliett v.
Hammonds, 305 F.2d 565, 570 (C.A. 5th Cir. Tex. 1962), the Court said, “In contrast, civil contempt
falls with the order if it turns out to have been erroneously or wrongfully issued.” Therefore, the
civil fines imposed along with the attorneys’ fees awarded for violating the injunction in this case
are reversed.

                                                  VI.

     We declare the statute unconstitutional on the ground that it is an undue burden on a
woman’s right to privacy. We therefore reverse the judgment of the court below and remand the case


                                                  -9-
to the trial court for any further proceedings that may become necessary. Tax the costs on appeal
to the State.



                                            _________________________________________
                                            BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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