                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2007

Anspach v. Phila Dept Pub
Precedential or Non-Precedential: Precedential

Docket No. 05-3632




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                                         PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
             _____________________

                     No: 05-3632
                _____________________

MELISSA L. ANSPACH, A MINOR, BY AND THROUGH HER
       PARENTS AND NATURAL GUARDIANS,
 KURT A. ANSPACH AND KAREN E. ANSPACH; KURT A.
 ANSPACH; KAREN E. ANSPACH, IN THEIR OWN RIGHT,

                                        Appellants

                                   v.


   CITY OF PHILADELPHIA, DEPARTMENT OF PUBLIC
HEALTH; JOHNF. DOMZALISKI, HEALTH COMMISSIONER;
 LOUISE LISI; MARIAFEDOROVA; MARY GILMORE, R.N.;
   JITENDRA N. SHAH, M.D.; CITY OF PHILADELPHIA

                ____________________

      Appeal from the United States District Court
         for The Eastern District of Pennsylvania
            D.C. Civil Action No. 05-cv-00810
      District Judge: The Honorable J. Curtis Joyner
                  __________________

                Argued January 16, 2007
Before: McKEE, AMBRO, and STAPLETON, Circuit Judges
               _____________________

                 (Filed: September 21, 2007)
                  _____________________


JOSEPH P. STANTON, ESQ. (Argued)
Law Offices of Joseph P. Stanton
Jenkintown, PA 19046
Attorney for Appellants

JANE LOVITCH ISTVAN, ESQ. (Argued)
Senior Attorney, Appeals
City of Philadelphia Law Department
Romulo L. Diaz, Jr., City Solicitor
1515 Arch Street, 17th Floor
Philadelphia, PA 19102-1595

ARTHUR B. KEPPEL, ESQ.
CHARLES A. FITZPATRICK, ESQ.
Rawle & Henderson
The Widner Building
1339 Chestnut Street
One South Penn Square, 16 th Floor
Philadelphia, PA 19107
Attorney for Appellees

Terry L. Fromson
David S. Cohen
Women’s Law Project
125 S. Ninth Street, Suite 300
Philadelphia, PA 19107




                                 2
Susan Frietsche
Women’s Law Project
425 Sixth Ave., Suite 1860
Pittsburgh, PA 15222

Paul Messing
Kairys, Rudovsky, Epstein & Messing
924 Cherry Street, Suite 500
Philadelphia, PA 19107
Attorneys for Amici Curiae




                            OPINION




McKEE, Circuit Judge.

       Melissa Anspach and her parents brought this action

against the city of Philadelphia (the “City”) and certain of its

employees and agents, including the City’s Health Department

and the Commissioner of Public Health. Melissa is a 16-year-old

unemancipated minor.       They allege that agents of the City

violated Melissa’s constitutionally protected right to bodily

integrity and parental guidance, as well as her parents’

constitutional right to familial privacy and their parental liberty,

                                 3
by providing Melissa with emergency contraception without

notifying her parents, or encouraging her to consult with them.1

Both Melissa and her parents also allege a violation of their First

Amendment right of religious freedom, and several causes of

action under state law.

          The District Court dismissed the federal constitutional

claims pursuant to Fed. R. Civ. P. 12(b)(6), and remanded the

remaining state claims to state court.2 This appeal followed.

          For the reasons that follow, we will affirm the District

Court’s dismissal.

I. FACTUAL AND PROCEDURAL HISTORY

     1
        Plaintiffs’ Complaint mentions their right to familial
privacy in the context of Count I, an alleged violation of their
fundamental parental liberty interest under the Fourteenth
Amendment. Even if we interpret this as a separate allegation
from their right to parental liberty, Plaintiffs fail to address this
allegation as a separate violation in their Brief. Absent
compelling circumstances not present here, failure to raise an
argument in one’s opening brief waives it. Laborers’ Int’l
Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d
Cir. 1994).
      2
        This action was initially brought in state court, but
Defendants removed the suit to federal court based upon
Plaintiffs’ federal constitutional claims.

                                  4
                                A.

       On January 26, 2004, Melissa Anspach visited a health

center operated by the City’s Department of Public Health (the

“Center”). Melissa had recently engaged in sexual intercourse

and feared she may be pregnant. Upon arriving at the Center, she

requested a pregnancy test, but a receptionist informed her that

pregnancy tests were not being administered that day. Melissa

then left the Center but returned a short time later after a friend

prompted her to “ask for the morning after pill.” Upon her

return, Melissa was directed to the pediatric ward where she

provided her name and date of birth, thereby disclosing that she

was sixteen years of age.

       Plaintiffs allege that Melissa then spoke with defendant

Maria Fedorova, a social worker, for approximately ten minutes.

They discussed sexually transmitted diseases, birth control, and

emergency contraception. During the conversation, Fedorova

confirmed that the Center could provide pills “that would prevent

[Melissa] from getting pregnant,” and Melissa requested the pills.


                                5
       Defendant Mary Gilmore, a registered nurse, next took

Melissa’s temperature and blood pressure, and gave her four

tablets of “Nordette.” 3 Gilmore told Melissa to take four pills

right away and then four more in twelve hours.4 Before Melissa

   3
     Nordette is part of a group of drugs that are regularly used
as oral contraceptives. The Food and Drug Administration has
also approved these drugs for use as emergency or contraception
following sexual intercourse. See generally Dept. of Health and
Human Services, Food and Drug Admin., Prescription Drug
Products; Certain Combined Oral Contraceptives for Use as
Postcoital Emergency Contraception, Part V, 62 Fed. Reg. 8610
(February 25, 1997).
        The regimen for using Nordette as emergency
contraception consists of taking two tablets (0.75 mg in each
pill) within seventy-two hours of unprotected intercourse,
followed by a second identical dose twelve hours later. Id.
Emergency contraception provides a short, strong, burst of
hormone exposure. Depending on where a woman is in her
menstrual cycle and when she had unprotected intercourse,
using emergency contraception may prevent ovulation, disrupt
fertilization, or inhibit implantation of a fertilized egg in the
uterus. Id. If a fertilized egg is implanted prior to taking the
regimen, the emergency contraception will not work. See
FDA’s Decision Regarding Plan B: Questions and Answers
( M a y        2 ,     2 0 0 4 ) ,     a v a i l a b l e      a t
http://www.fda.gov/cder/drug/infopage/planB/planBQandA.ht
m.
   4
    The number of pills per dosage appears to depend on the
amount of hormones contained in each pill. Plaintiffs do not

                                6
took the pills, Gilmore consulted with Fedorova’ “to find out

how Melissa should take the pills.” She also asked Dr. Jitendra

Shah if she wanted to examine Melissa. After determining that

the doctor did not want to examine Melissa, Gilmore returned to

Melissa, who asked if the pills would make her sick. Gilmore

consulted with the doctor once again, and the doctor advised

Gilmore to tell Melissa to drink ginger ale. Melissa then took the

four Nordette pills in the nurse’s presence, and went home.

       Melissa took the second dose of pills at home at

approximately 4:00 A.M. as she had been instructed. After

taking the second dose, she experienced severe stomach pains

and began vomiting. Melissa’s father came to her room and

found her lying on the floor. Upon learning that Melissa had

taken emergency contraception, Mr. Anspach called their family

physician and the poison control center, and then took Melissa to

the emergency room of a nearby hospital. Melissa was treated

there and released the same day, but subsequently returned



indicate the amount that each pill contained here.

                                7
because of sub-conjunctive hemorrhaging in her eye that was

apparently caused by excessive vomiting.

                                 B.

       Plaintiffs thereafter filed a complaint in the Court of

Common Pleas in Philadelphia County. They asserted claims

under 42 U.S.C. § 1983, as well as various claims arising under

state law. The suit was subsequently removed to federal court

where the Defendants filed a motion to dismiss pursuant to Rule

12(b)(6).

       The parents’ § 1983 claims are premised on their

contention that Defendants violated their constitutional rights of

parental guidance by providing Melissa with medication without

parental consent. Melissa alleges that the same conduct violated

her constitutional right to bodily integrity and parental guidance

under the Fourteenth Amendment. Each of the Plaintiffs claims

violations of his or her right to the free exercise of religion under

the First Amendment.5

       The District Court dismissed all of Plaintiffs’ claims under


   5
     Melissa claims she was told that emergency contraception
would prevent her from becoming pregnant, but claims she was
never informed that the pills could prevent the implantation of
a fertilized egg, something that she equates with abortion.

                                 8
§ 1983 and remanded the remaining state law claims to state

court. This appeal of the dismissal of the federal constitutional

claims followed.

                 II. STANDARD OF REVIEW

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our

review of the order granting the motion to dismiss is plenary.

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.

1997). When reviewing a Rule 12(b)(6) dismissal, we accept as

true all well-pled factual allegations in the complaint, id., and

view the allegations of the complaint in the light most favorable

to the plaintiff. Pinker v. Roche Holdings, Ltd., 292 F.3d 361,

374 n.7 (3d Cir. 2002). In a § 1983 action, “the plaintiffs are

entitled to relief if their complaint sufficiently alleges deprivation

of any right secured by the Constitution.” Langford v. City of

Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000).

       Although we view the allegations in the complaint in the

light most favorable to the plaintiff, we need not credit “bald

assertions” or “legal conclusions.”        In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997).

“[L]egal conclusions masquerading as factual conclusions will

not suffice to prevent a motion to dismiss.” Morse, 132 F.3d at

                                  9
906 n.8 (quoting Fernandez-Montes v. Allied Pilots Assocs., 987

F.2d 278, 284 (5th Cir. 1993)).

                       III. DISCUSSION

       To state a cause of action under § 1983, Plaintiffs must

allege the deprivation of a constitutional right under color of state

law. 42 U.S.C. § 1983; Gomez v. Toledo, 446 U.S. 635, 640

(1980); see also Mark v. Borough of Hatboro, 51 F.3d 1137,

1141 (3d Cir. 1995), cert. denied, 516 U.S. 858 (1995). The

Anspachs contend in Count I of their Complaint that Defendants’

conduct deprived them of their fundamental right to direct

Melissa’s rearing and education. In Count II, Melissa alleges that

Defendants deprived her of her right to parental guidance and

advice in matters relating to medical care. Both counts arise out

of the liberty interests guaranteed by the Due Process Clause of

the Fourteenth Amendment.             Plaintiffs also allege that

Defendants violated their First Amendment right to free exercise

of religion by providing Melissa with medication that could abort

a pregnancy in violation of their religious objections to abortion.

A.     Substantive Due Process

       The Supreme Court has long recognized that the right of

parents to care for and guide their children is a protected

                                 10
fundamental liberty interest. See, e.g., Meyer v. Nebraska, 262

U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510

(1925); Prince v. Massachusetts, 321 U.S. 158 (1944); Wisconsin

v. Yoder, 406 U.S. 205 (1972); Parham v. J. R., 442 U.S. 584

(1979); Troxel v. Granville, 530 U.S. 57 (2000).               That

constitutional protection is “deeply rooted in this Nation’s history

and tradition.” Moore v. City of East Cleveland, Ohio, 431 U.S.

494, 503 (1977) (citing Yoder, 405 U.S. at 503).

       Nevertheless, the parental liberty interest is not absolute.

It is well-established that “[m]inors, as well as adults, are

protected by the Constitution and possess constitutional rights.”

Planned Parenthood of Central Missouri v. Danforth, 428 U.S.

52, 74 (1976) (overruled in part by Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833 (1992)). Accordingly,

parental interests must be balanced with the child’s right to

privacy, which is also protected under the Due Process Clause.

       This delicate balance is only implicated, however, if the

constitutional rights of both the parent and child are involved.

“In a typical § 1983 action, a court must initially determine

whether the plaintiff has even alleged the deprivation of a right

that either federal law or the Constitution protects.” Gruenke v.

                                11
Seip, 225 F.3d 290, 298 (3d Cir. 2000) (citing Baker v.

McCollan, 443 U.S. 137, 140 (1979) (“The first inquiry in any §

1983 suit . . . is whether the plaintiff has been deprived of a right

secured by the Constitution and laws.”) (quotation omitted)). As

we shall explain, the allegations here do not establish the

constitutional violation required to maintain an action under §

1983. Thus, we need not decide which way that balance would

otherwise tip.

             1. Interference with Parental Rights

       Melissa’s parents allege a substantive due process

violation based on state interference with family relations. They

argue that the Center’s policies were aimed at preventing parents

from learning of their minor daughter’s possible pregnancies. In

support of their contention, the Anspachs point to the fact that

personnel at the Center knew Melissa’s age, failed to ask Melissa

if her parents knew of her predicament, and failed to encourage

Melissa to consult with her parents before deciding whether to

take emergency contraception. The Complaint alleges that these

facts demonstrate that Defendants “engaged in a course of

conduct that was intended to influence Melissa to refrain from

discussing with her parents her possible pregnancy and what

                                 12
course of action was appropriate.” App. at 23a.

       The Due Process Clause of the Fourteenth Amendment

provides that “[n]o State shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const.

Amend. XIV. To state a due process claim under § 1983, the

Anspachs must identify a “recognized ‘liberty or property’

interest within the purview of the Fourteenth Amendment, and

[show] that [they were] intentionally or recklessly deprived of

that interest, even temporarily, under color of state law.” Griffith

v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990) (citations

omitted), cert. denied, 498 U.S. 1040 (1991). However, we must

remain mindful that        “section 1983 imposes liability for

violations of rights protected by the Constitution, not for

violations of duties of care arising out of tort law.” Baker v.

McCollan, 443 U.S. 137, 146 (1979); see also DeShaney v.

Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 202

(1989) (“[T]he Due Process Clause of the Fourteenth

Amendment . . . does not transform every tort committed by a

state actor into a constitutional violation.”).

       As we noted earlier, the Due Process Clause of the

Fourteenth Amendment “protects the fundamental right of

                                 13
parents to make decisions concerning the care, custody, and

control of their children.” Troxel, 530 U.S. at 66. However, “the

right is neither absolute nor unqualified.” C.N. v. Ridgewood Bd.

of Educ., 430 F.3d 159, 182 (3d Cir. 2005).          The type of

“interference” that the Anspachs assert would impose a

constitutional obligation on state actors to contact parents of a

minor or to encourage minors to contact their parents. Either

requirement would undermine the minor’s right to privacy and

exceed the scope of the familial liberty interest protected under

the Constitution.

       Courts have recognized the parental liberty interest only

where the behavior of the state actor compelled interference in

the parent-child relationship. These cases involve coercion that

is absent from the allegations in Plaintiffs’ Complaint. This point

is perhaps best illustrated by Doe v. Irwin, 615 F.2d 1162 (6th

Cir. 1980), a case very similar to the one before us here.

       In Doe, a class of parents of minor children sued a

publicly funded family planning center. They claimed that the

distribution of contraceptives to minors without notice to the

parents violated the parents’ constitutional rights. The Family

Planning Center in Doe served both adults and minors. “Neither

                                14
the Center nor any of its services related to minors [were]

advertised, and minors [were] not sought out or encouraged to

attend the Center . . . .” Id. at 1163. Minors were, however,

“permitted to come to the Center either with or without parental

consent.” Id. The Family Planning Center’s services included

prescription of contraceptives that were distributed to minors

“both with and without parental knowledge or consent.” Id.

       The Family Planning Center’s programs featured weekly

“rap sessions” for minors. They were educational and dealt with

methods of birth control, as well as the responsibilities that

accompany being sexually active and the “desirability of

communicating with parents and others involved with a decision

to engage in sexual activities.” Id. Minors were not served by

the Family Planning Center unless they had first attended at least

one weekly rap session. These sessions were intended to give

“factual   information    about     birth   control   and   human

reproduction.” Id. at 164. Minors who attended a rap session

had to register and make an appointment at the Family Planning

Center. The first visit to the Family Planning Center included a

physical examination. If no medical problems were detected,

female minors were usually given a three-month supply of birth

                               15
control pills. Id. According to the testimony of the administrator

of the Family Planning Center, the Center’s personnel did not

advocate that unmarried teenagers become sexually active, but

the personnel tried “to deal with individuals . . .” in a “non-

judgmental” way. Id. at 1164 (quotation omitted).

       The district court in Doe found that the distribution of

contraceptives to minors without notice to parents violated the

parents’ constitutional rights. The court entered a permanent

injunction and ordered the Family Planning Center to “cease and

desist from distributing contraceptives and contraceptive devices

to minor, unemancipated children in the absence of notice to the

parents . . . and a reasonable opportunity for the parents of such

children to consult with their children as to the decision of the

child whether or not to obtain contraceptives or contraceptive

devices.” Id. at 1165 (quotation omitted).

       The Court of Appeals for the Sixth Circuit reversed. It

relied on a line of Supreme Court cases involving the right of

privacy, the authority of the state to regulate the conduct of

children, and the scope of a minor’s right of privacy and

concluded that “[a]s with adults, the minor’s right of privacy

includes the right to obtain contraceptives.” Id. at 1166 (citing

                               16
Carey v. Population Services Int’l, 421 U.S. 678, 692-93 (1977)).

Citing Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), the

court explained that “[t]he Supreme Court has not squarely

decided whether a state may impose a requirement of parental

notice, as opposed to parental consent, as a condition of a

minor’s receiving an abortion.” Doe, 615 F.2d at 1167. The

court observed that the “one fundamental difference” between

the case before it and cases where the state had interfered with

the rights of parents or the rights of children was that “[i]n each

of the Supreme Court cases the state was either requiring or

prohibiting some activity.” Id. at 1168. The court then explained

its observation as follows:

       In Meyer v. Nebraska, [262 U.S. 390 (1923)] the
       state forbade the teaching of foreign languages to
       pupils who had not passed the eighth grade. The
       Court held the statute not reasonably related to any
       end within the competency of the state and
       violative of parents’ Fourteenth Amendment right
       to liberty. In Pierce v. Society of Sisters, [268 U.S.
       510 (1925)] the statute required all children
       between the ages of 8 and 16 to attend public
       schools. The Court found that the law
       unreasonably interfered with the liberty interest of
       parents to direct the upbringing and education of
       their children, including the right to send them to
       accredited private schools. Again in Wisconsin v.
       Yoder, [406 U.S. 205 (1972)] the law in question
       made school attendance compulsory. The Court
       held that Amish parents’ First Amendment rights

                                17
       to the free exercise of their religion were infringed
       by the attendance requirement. In Prince v.
       Massachusetts, [321 U.S. 158 (1944)] child labor
       laws were construed to prohibit street sales of
       religious tracts by children. In that case the Court
       upheld the conviction of a parent who contended
       that these laws unreasonably interfered with her
       right of free exercise of religion and her parental
       rights. In so holding, the Court determined that a
       state’s authority is not nullified merely because the
       parent grounds his claim to control the child’s
       course of conduct on religion or conscience.

Id. at 1168. Viewed against this legal backdrop, it is clear that

Plaintiffs cannot maintain a due process violation when the

conduct complained of was devoid of any form of constraint or

compulsion.

       Plaintiffs compare the absence of protocols in place at the

Center here with the rap sessions in Doe in an attempt to

minimize Doe’s relevance to our analysis of their claims. See

Appellants’ Br. at 24-25. They emphasize the following aspects

of the Family Planning Center’s protocol in Doe: intra-uterine

devices were not dispensed to minors without parental consent,

the program encouraged minors to discuss “their sexual interests

with their parents,” and “[t]he decision on whether a particular

individual will receive contraceptives is made in every case by a

physician.” Id. at 25. Although it is clear that the services


                                18
provided by the Center here are not alleged to include those

considerations, we do not think the difference sufficient to alter

our analysis or the relevance of Doe.

       Significantly, no one prevented Melissa from calling her

parents before she took the pills she had requested. Plaintiffs

attempt to argue that the circumstances surrounding Melissa’s

visit were tantamount to state coercion and that such coercion

was sufficient to establish a due process violation. Plaintiffs cite

Lee v. Weisman, 505 U.S. 577 (1992), to support their argument

that “these were adult employees of the City of Philadelphia

telling a 16-year-[old] minor how and what to do. Coercion is

plainly inherent in this relationship.” Appellants’ Br. at 20. We

disagree.

       In Lee, the Supreme Court held that reciting a

nondenominational prayer during a high school graduation

violated the First Amendment.          The Court reasoned that

circumstances endemic to a high school graduation coerced those

attending to join in the prayer whether or not doing so violated

their personal religious beliefs. The Court explained:

       What to most believers may seem nothing more
       than a reasonable request that the nonbeliever
       respect their religious practices, in a school context

                                19
       may appear to the nonbeliever or dissenter to be an
       attempt to employ the machinery of the State to
       enforce a religious orthodoxy . . . .

       The undeniable fact is that the school district’s
       supervision and control of a high school
       graduation ceremony places public pressure, as
       well as peer pressure, on attending students to
       stand as a group or, at least, maintain respectful
       silence during the Invocation and Benediction.
       This pressure, though subtle and indirect, can be as
       real as any overt compulsion. . . . [F]or the
       dissenter of high school age, who has a reasonable
       perception that she is being forced by the State to
       pray in a manner her conscience will not allow, the
       injury is . . . real.

505 U.S. at 592-93. The Court also stressed that attendance at

the ceremony was not truly voluntary. “[T]o say a teenage

student has a real choice not to attend her high school graduation

is formalistic in the extreme.” Id. at 595.

       The circumstances here are very different. The Anspachs’

allegation of coercion is merely that Nurse Gilmore “told Melissa

to swallow the pills before leaving the center.” Appellants’ Br.

at 19. However, Melissa was only given the pills because she

asked for them. Arguing that coercion is established because a

nurse said “take these,” while handing Melissa a glass of water

and the pills she had requested, ignores what really happened.

Moreover, Plaintiffs’ insistence that the atmosphere at the Center


                               20
was sufficiently coercive to implicate the Due Process Clause is

belied by the allegations in their Complaint. The Complaint

states that, when she entered the Center for the second time,

Melissa requested the morning after pill and was thereafter

advised by Fedorova that the Center could provide pills that

would prevent Melissa from becoming pregnant. App. at 16-17a.

Melissa responded that she would take the pills. Id. “Nurse

Gilmore then gave four of the pills to Melissa and instructed

Melissa to take these pills with water, which Melissa did in Nurse

Gilmore’s presence.” App. at 18a. Simply being told when and

how to take a pill that Melissa herself requested is not tantamount

to coercion.

       In Arnold v. Bd. of Educ. of Escambia, County, Ala., 880

F.2d 305, 308-09 (11th Cir. 1989), the Court of Appeals for the

Eleventh Circuit found a constitutional violation where plaintiffs

alleged that school officials had engaged in overt acts to procure

an abortion for a student without contacting her parents.6 The

school guidance counselor had discovered that “Jane Doe” was



   6
    Arnold was overruled on other grounds by Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit,
507 U.S. 163 (1993).

                                21
pregnant. She then summoned Jane to her office for counseling,

and, at the expense of the school, procured a pregnancy test that

was positive. The counselor and the vice principal of the school

then persuaded Jane Doe and John Doe (who had admitted

paternity) to obtain an abortion.       Id. at 309.   Because the

youngsters could not afford to pay for an abortion themselves,

school officials paid them to perform menial tasks so they could

raise the money for the procedure. School officials even paid an

individual to drive the minors to a medical facility where the

abortion was performed. Id. at 308-09. The court held that these

actions amounted to coercion of a minor to obtain an abortion or

to refrain from discussing the matter with her parents in violation

of the latter’s parental rights. Id. at 313.

       The defendants in Arnold were public school officials in

a position of authority over the Doe plaintiffs and the minors

there were required by law to attend school where they were

subject to the authority of the defendants. The complaint in

Arnold alleged that the school officials not only pressured the

children to refrain from discussing the pregnancy and abortion

with their parents, but also imposed their own will on the

decision of the children regarding whether to abort the pregnancy

                                 22
in various ways, including by providing them with the money for

the procedure and hiring a driver to take them to the appointment.

Id. at 309. There are no similar acts that could arguably be seen

as coercion alleged here.

       Nor can the Anspachs find support in our decision in

Gruenke v. Seip, 225 F.3d 290, 309 (3d Cir. 2000). There, we

recognized the parental liberty interest of a mother whose

daughter was forced by her high school swim team coach to take

a pregnancy test after he became suspicious that she was

pregnant. Id. at 296-97. Acting on a hunch, the coach discussed

his suspicions with other school personnel, including a guidance

counselor, and asked other team members about their suspicions.

Although spreading this rumor widely, he did not contact the

minor’s parents. He finally insisted that the swimmer in question

take a pregnancy test. Id. at 295-96. Thereafter, the student and

her mother sued the coach under § 1983 alleging, inter alia,

violation of the mother’s constitutional right to manage her

daughter’s upbringing as well as the daughter’s right to privacy.

Id. at 297.

       In determining whether the plaintiffs had alleged a

constitutional violation in Gruenke, we recognized both the

                               23
parental interest in directing the care of their children and the fact

that, “for some portions of the day, children are in the

compulsory custody of state-operated school systems. In that

setting the state’s power is custodial and tutelary, permitting a

degree of supervision and control that could not be exercised

over free adults.” Id. at 304 (citation and quotations omitted).

During this custodial time, in order to maintain order and the

proper educational atmosphere, at times, those authorities “may

impose standards of conduct that differ from those approved of

by some parents.” Id. Where these standards collide, a court will

require the State to demonstrate a compelling interest that

outweighs the parental liberty interest in raising and nurturing

their child. Id. at 305.

       We recognized in Gruenke that “[s]chool-sponsored

counseling and psychological testing that pry into private family

activities can overstep the boundaries of school authority and

impermissibly usurp the fundamental rights of parents to bring up

their children . . . .” Id. at 307. However, that recognition does

not extend to circumstances where there is no manipulative,

coercive, or restraining conduct by the State.

       The coach’s conduct at issue in Gruenke is qualitatively

                                 24
different from Defendants’ conduct here. Significantly, he took

action in tandem with his authority as the minor’s swim coach.

Without the minor’s invitation, indeed, against her express

wishes, the coach had very personal conversations with her in an

attempt to have her admit to being pregnant, and he asked other

coaches to do the same. Id. at 296. When she wouldn’t admit to

being pregnant, he paid for a pregnancy test and told her, through

other members on the team, that unless she took the pregnancy

test, he would take her off the relay team. Id. In addition,

knowing that the minor’s possible pregnancy was a topic of

gossip among other team members as well as their parents, he

would occasionally tell others that it was possible that she was

pregnant, while attempting to explain the increase in her times at

swim meets. Id. at 307.

       Here, the Center, a public health clinic, had no authority

over Melissa, nor did Center staff become involved in Melissa’s

reproductive health decisions without invitation.       The only

factual basis for Plaintiffs’ claim is that Nurse Gilmore

“instructed” Melissa to take the emergency contraception pills

with water and that Defendants neither advised Melissa to talk to

her parents before taking the pills nor first offered to let her

                               25
phone them.     See Appellants’ Br. at 18-19.         Unlike the

defendant’s conduct in Gruenke, the Center’s actions fail to

suggest that Melissa was in any way compelled, constrained or

coerced into a course of action she objected to.

       The real problem alleged by Plaintiffs is not that the state

actors interfered with the Anspachs as parents; rather, it is that

the state actors did not assist the Anspachs as parents or

affirmatively foster the parent/child relationship. However, the

Anspachs are not entitled to that assistance under the Due

Process Clause. See DeShaney, 489 U.S. at 196. Plaintiffs’

arguments to the contrary ignore that the Constitution “does not

require the Government to assist the holder of a constitutional

right in the exercise of that right.” Haitian Refugee Center, Inc.

v. Baker, 953 F.2d 1498, 1513 (11th Cir. 1992); see also Ye v.

United States, 484 F.3d 634, 636 (3d Cir. 2007) (no affirmative

act constituting deprivation of liberty where publicly employed

doctor wrongly assured patient that there was nothing to worry

about and that he was fine); Youngberg v. Romeo, 457 U.S. 307,

317 (1982) (“As a general matter, a State is under no

constitutional duty to provide substantive services for those

within its border”); Harris v. McRae, 448 U.S. 297, 317-318, 100

                                26
(1980) (no constitutional obligation to fund abortions or other

medical services). As the Supreme Court recognized in Harris:

“Although the liberty protected by the Due Process Clause

affords protection against unwarranted government interference

. . . , it does not confer an entitlement to such [governmental aid]

as may be necessary to realize all the advantages of that

freedom.” 448 U.S. at 317-318.

       The Anspachs attempt to marshal facts to support their

argument that the Center “permits no parental involvement at all,

and purposefully seeks to separate their children from their

parents in the distribution of these pills.” Appellants’ Br. at 21.

However, as we have repeatedly stressed, the Complaint is

completely devoid of any allegations that Center personnel told

Melissa not to consult her parents before taking the medication,

or that Melissa told Center personnel that she was reluctant to

take the medication before speaking with her parents and was

prevented from doing so, or even that any mention was made of

her parents at all. Plaintiffs admit that Melissa entered the Center

voluntarily and requested the morning after pill. Melissa did not

avail herself of the opportunity that she had, prior to taking the

medicine or requesting it, to call her parents or to tell the Center

                                27
staff that she wanted to delay taking the medication to contact her

parents. These facts in no way suggest that the state injected

itself into the Anspachs’ private familial sphere as required for

a constitutional violation.

       Plaintiffs fail to plead sufficient interference by the state.

Here, as in Doe, there is no

       requirement [by the State] that the [children] of
       plaintiffs avail [themselves] of the services offered
       . . . and no prohibition against the plaintiffs’
       participating in decisions of their minor [children]
       on issues of sexual activity and birth control. The
       plaintiffs remain free to exercise their traditional
       care, custody and control over their unemancipated
       children.

Doe, 615 F.2d at 1168.

       Our analysis in Parents United for Better Sch. Inc. v. Sch.

Dist. of Pa. Bd. of Educ., 148 F.3d 260, 276 (3d Cir. 1998)

(“PUBS”), is not to the contrary. There, we held that a condom

distribution program did not violate parental rights because

participation in the program was voluntary for both parents and

students and the program specifically allowed parents the option

of refusing their child’s participation. Id. at 275-76. Plaintiffs

rely on that opt-out provision in their attempt to distinguish

PUBS. However, a closer look at that decision undermines


                                28
Plaintiffs’ efforts to distinguish it.

       As just noted, our conclusion that there was no coercion

in PUBS was based on two characteristics of the program: its

voluntary nature, and the opt-out provision. However, PUBS

does not hold that an opt-out provision is constitutionally

required whenever reproductive health services are provided to

minors. We simply recognized that the opt-out provision further

undermined the appellants’ claim that the condom distribution

program was coercive or compulsory. Id. at 277. We did not

decide whether parental rights would be violated if a state-

sponsored condom distribution program did not require parental

notification or consent because the issue was not before us.

       In PUBS, we cited favorably to Doe, which found “no

deprivation of the liberty interest of parents in the practice of not

notifying them of their children’s voluntary decisions to

participate in the activities of the Center.” PUBS, 148 F.3d at

276 (citing Doe, 615 F.2d at 1168) (emphasis added). In quoting

this language, we did not limit the relevance of Doe; we noted

only that the program at issue in PUBS was voluntary, just like

the program in Doe, and that it also provided for parental

notification. Id.

                                  29
       That PUBS does not stand for the proposition that the lack

of an opt-out provision is fatal to the constitutionality of a

contraceptive distribution program is also evidenced by our

reliance on Curtis v. Sch. Comm. of Falmouth, 420 Mass. 749,

759 (1995), cert. denied, 516 U.S. 1067 (1996). There, the

Massachusetts Supreme Court held that because the program at

issue lacked “any degree of coercion or compulsion in violation

of the plaintiffs’ parental liberties, or their familial privacy . . .

neither an opt out provision nor parental notification is required

by the Federal Constitution.”

Id. at 759-60 (emphasis added). The program in Curtis was

voluntary, and the court thus rejected the plaintiff parents’

request for a programmatic change that would have afforded

them notice and the ability to opt out of the program. The court

explained:

       We discern no coercive burden on the plaintiffs’
       parental liberties in this case . . . . Condoms are
       available to students who request them and, in high
       school, may be obtained from vending machines.
       The students are not required to seek out and
       accept the condoms, read the literature
       accompanying them, or participate in counseling
       regarding their use. In other words, the students
       are free to decline to participate in the program . .
       . . Although exposure to condom vending
       machines and to the program itself may offend the

                                 30
        moral and religious sensibilities of plaintiffs, mere
        exposure to programs offered at school does not
        amount to unconstitutional interference with
        parental liberties without the existence of some
        compulsory aspect of the program.

Id. at 757-58. The same is true here. Although the Anspachs’

moral and religious sensibilities may have been offended by their

daughter seeking out and using emergency contraception, her

decision was voluntary.      The Constitution does not protect

parental sensibilities, nor guarantee that a child will follow their

parents’ moral directives. Defendants’ actions therefore do not

“amount to unconstitutional interference with parental liberties

. . . .” Id. at 758.

        We realize, however, that one case that is cited in PUBS,

but not controlling here, arguably lends some support to

Plaintiffs’ claim that an opt-out feature may be constitutionally

required to protect the parental liberty interest. In Alfonso v.

Fernandez, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993), the court

found a parental liberty violation where condoms were

distributed to students upon request in the school’s health

resource room without an opt-out provision or parental notice

requirement. Id. at 261. The holding in Alfonso, however, is

limited to the distribution of contraceptives to minors in a school

                                 31
setting. The court viewed that as coercive because public school

attendance is mandatory.       See id. at 266.      This case is

distinguishable from Alfonso for the same reasons that the

Alfonso court distinguished Doe:

       In Doe the plaintiffs were attempting to enjoin the
       distribution of contraceptive devices to their
       children at a public clinic. The clinic, however,
       was not inside a school or other building where the
       parents were obliged by law to send their children.
       Consequently, in Doe there was no State
       compulsion on parents to send their children into
       an environment where they had unrestricted access
       to free contraceptives, which is precisely what the
       petitioners in the instant matter must do.


Id.

       Although the Anspachs make much of their inability to opt

out of the Center’s distribution of Nordette, as the foregoing case

law makes clear, they overlook the fact that services offered at a

public health clinic are wholly voluntary. The Center provides

reproductive health services only at the request of individuals

who come there and ask for them.

       We agree with the District Court that “passive failure on

the part of a state agency and its employees cannot form the basis

of a constitutional claim.” Anspach v. City of Philadelphia, 2005



                                32
WL 1519014 *3 (E.D. Pa. 2005).7 To hold otherwise would

stretch the parental liberty interest well beyond its previously

defined borders.8

                      2. Parental Notification

           We also hold that there is no constitutional right to

parental notification of a minor child’s exercise of reproductive

privacy rights. Plaintiffs claim that their position is supported by

parental notification requirements under Pennsylvania law in the

context of medical treatment, school field trips, and blood

donation. They argue that, just as the state can require parental

notification in the context of a blood donation, the Center had an

obligation to notify them when Melissa requested emergency

contraception. See, e.g., 28 Pa. Code § 30.30 (requiring that

blood donors between the ages of 17 and 18 have a written




   7
     Although we quote this statement of the District Court, we
do not intend to suggest that the pleadings here establish any
“failure” insofar as that term suggests Defendants were under
some duty to inform Melissa’s parents or instruct Melissa to
contact them before she could receive emergency contraception.
       8
     Melissa independently asserts a right to receive parental
guidance under the Fourteenth Amendment. However, like her
parents, Melissa has failed to allege facts that constitute
coercion and thus, like her parents, can not sustain a
constitutional violation under our precedent.

                                 33
consent signed by a parent or guardian).          In addition, the

Anspachs argue that the Pennsylvania Minors’ Consent Act, 35

P.S. § 10101, which allows minors to consent to certain types of

medical treatment, prohibits minors from consenting to any form

of medical treatment unspecified in the Act.

       Plaintiffs’ first argument ignores the well-accepted

principle that duties under state law can not create constitutional

rights. Fagan v. City of Vineland, 22 F.3d 1296, 1309 n.9 (3d

Cir. 1994) (en banc); see also Paul v. Davis, 424 U.S. 693, 701

(1975). The notifications Plaintiffs rely upon to fashion a federal

constitutional right are all rooted in state law obligations rather

than the Constitution.       These statutes remain subject to

constitutional limitations, including the minor’s own privacy

rights as well as the state’s legitimate interest in the reproductive

health of minors. Second, even if the Anspachs could ground

their constitutional claim to notification in state parental consent

law, they still could not prevail. The Minors’ Consent Act

specifically permits minors to “give effective consent for medical

and health services to determine the presence of or treat

pregnancy . . . and the consent of no other person shall be

necessary.” See 35 P.S. § 10103.

                                 34
         We are also unpersuaded by Plaintiffs’ reliance on

Supreme Court cases that permit parental notification in the

abortion context. They argue that parental consent is required for

the distribution of emergency contraceptives in Pennsylvania

unless the court allows the minor to “bypass” the parent when the

court has determined that the minor is mature enough to make her

own decision, or that the procedure is in the minor’s best interest.

However, the cases that Plaintiffs cite are fundamentally distinct

from this case in both origin and application. They concern the

constitutional limitations on a state to interfere with a minor’s

right to abortion, rather than a parent’s affirmative right to be

apprised of a minor’s reproductive decisions generally.9


     9
        See, e.g., Lambert v. Wicklund, 520 U.S. 292 (1997)
(finding statute’s judicial bypass provision, allowing waiver of
notice requirement if notification was not in minor’s best
interest, sufficient to protect minor’s constitutional right to
abortion); Casey, 505 U.S. 833 (upholding statute’s parental
consent requirement for minor’s abortion based on the existence
of a judicial bypass mechanism); Hodgson v. Minnesota, 497
U.S. 417, 435 (1990) (finding a state statute’s two-parent
notification requirement for minors seeking abortions
unconstitutional, but permitting the notification when coupled
with a judicial bypass provision); Ohio v. Akron Ctr. for Reprod.
Health, 497 U.S. 502 (1990) (upholding a statute requiring a
minor to notify one parent before having an abortion, subject to
a judicial bypass provision); see also H.L. v. Matheson, 450 U.S.
398 (1981) (holding that a parental notification statute did not
                                                    (continued...)

                                35
       The cases Plaintiffs cite developed in response to

constitutional challenges to state laws that limited a minor’s

rights by conditioning the availability of abortions on parental

notification and consent. Courts had to determine whether the

governmental interest justified a state’s intrusion into a minor’s

right to an abortion. These cases do not, however, create a

constitutional right of parental notification about an abortion, or

any other reproductive health decision—they merely find such

notification constitutionally permissible when paired with a

judicial bypass provision to protect the minor’s health and safety.




       Plaintiffs again rely on Arnold and Gruenke for their

contention that it is Defendants, not the parents, “who must

establish an absolute proposition . . . that parents never have any

right to notice, or to the basic medical background examination

of their immature minor daughter prior to the administration of

morally controversial and potentially harmful medication.”

Appellants’ Br. at 22 (emphasis in original). However, neither

Arnold nor Gruenke provide for a constitutional right to notice.


   9
   (...continued)
impermissibly burden a minor’s right to obtain an abortion).

                                36
Plaintiffs acknowledge that Arnold specifically “declined to hold

that [school] counselors are constitutionally mandated to notify

parents when their minor child receives counseling about

pregnancy.” Arnold, 880 F.2d at 314. While the court in Arnold

recognized in dicta that, in the context of school counseling, such

communication should be encouraged “as a matter of common

sense,” the court by no means suggested that it was

constitutionally required or that such a right to notice might be

recognized under a different set of circumstances. Id. Indeed,

the court expressly noted that “[t]he decision whether to seek

parental guidance, absent law to the contrary, should rest within

the discretion of the minor.” Id.

       Similarly in Gruenke, we recognized the unique ability of

school officials to exert control and authority over minor

students, finding a violation of the parental liberty right when

those officials exploit their authority to persuade or coerce a

minor into disclosure of a reproductive health condition, or insist

on a course of action with regard to certain health decisions. 225

F.3d at 307.     We did not, however, recognize a parent’s

constitutional right to notification by school officials with regard

to a minor’s reproductive health. Rather, we merely opined in

                                37
dicta that it is doubtful that school counselors have a

constitutional right “to withhold information of this nature from

the parents.” See Gruenke, 225 F.3d 290 at 307. Indeed, we

distinguish the court’s suggestion in Arnold that, “[a]s a matter

of common sense,” counselors should encourage communication,

880 F.2d at 314, noting that the coach was not a counselor whose

guidance was sought by a student, but instead, a school official,

acting contrary to the student’s express wishes that he mind his

own business. Id. at 306-07.

       Here, Melissa, on her own initiative, visited a public

health clinic, a facility that, unlike a public school, does not

require attendance or exercise authority over its visitors. She

then made a choice about whether she should contact her parents

before taking the pills she had requested. No one familiar with

adolescents will be surprised that she instead consulted a peer.

That friend advised her to request emergency contraception,

which she did. It is equally unsurprising that she did so without

pausing to consult or advise her parents. The Constitution does

not require governmental involvement in that decision, and

Plaintiffs have failed to plead facts that would establish that the

Center inserted itself into Melissa’s decision by preventing

                                38
Melissa from consulting her parents.        The Constitution is

designed to protect individuals from unwarranted governmental

interference, not to require intervention under the circumstances

here.   See Arnold, 880 F.2d at 311 (“It is freedom in the

decisionmaking     process    which    receives    constitutional

protection.”) (citing Roe v. Wade, 410 U.S. 113; Griswold v.

Connecticut, 381 U.S. 479; Carey v. Population Servs. Int’l, 431

U.S. 678, 694 (1977); Planned Parenthood v. Danforth, 428 U.S.

52 (1976); Eisenstadt v. Baird, 405 U.S. 438 (1972)).

Accordingly, Plaintiffs have failed to allege a constitutional

violation.

        Though they cite no case law to support their position,

Melissa’s parents argue that Melissa’s particular vulnerability as

a 16-year-old minor requesting reproductive health services

should tip the balance of liberty interests in their favor.

However, allegations that minors seeking reproductive health

services are particularly vulnerable can not negate the fact that

minors are individuals who enjoy constitutional rights of privacy

under substantive due process. See Danforth, 428 U.S. at 74

(“Constitutional rights do not mature and come into being

magically only when one attains the state-defined age of

                               39
majority.”). While parental notification has been permitted in

limited circumstances in the context of abortion, see, e.g., Casey,

505 U.S. 833, it has never been affirmatively required, nor

extended to include other reproductive health services such as

access to contraception. See Carey, 431 U.S. at 694 (holding that

any absolute prohibition on the distribution of contraceptives to

minors without parental consent was “a fortiori foreclosed.”).

We therefore reject Plaintiffs’ claim to an affirmative

constitutional right to notification.10

B.        Free Exercise of Religion

          Plaintiffs’ final allegation is that Defendants’ actions



     10
      We also note, however, that the state’s substantial interest
in the reproductive health of minors counsels against recognition
of a constitutional right to parental notification when a minor
child seeks confidential health care services. Federal legislation
in this area, in particular Title X of the Public Health Service
Act, supports this precept. 42 U.S.C.A. §§ 300; see also 42
C.F.R. § 59.5(a)(4) (implementing regulations for Title X
provide that family planning services must be provided without
regard to age); Planned Parenthood Fed’n of America, Inc. v.
Heckler, 712 F.2d 650 (D.C. Cir. 1983) (finding regulations
issued by the Secretary of Health and Human Services requiring
all providers of family planning services which receive funds
under Title X of the Public Health Service Act to notify parents
or guardians within ten working days of providing prescription
contraceptives to unemancipated minors inconsistent with
Congressional intent and Title X, found no support in Title X,
and were thus invalid).

                                 40
interfered with Melissa’s First Amendment rights under the Free

Exercise Clause. The First Amendment prohibits the government

from burdening the free exercise of religion. United States v.

Lee, 455 U.S. 252, 256-257 (1982).            However, the First

Amendment is only implicated if the governmental burden on

religion is “substantial.” Hernandez v. C.I.R., 490 U.S. 680, 699

(1989).

       In order to establish a substantial burden, Plaintiffs must

once again allege state action that is either compulsory or

coercive in nature. See Lee, 505 U.S. at 621 (a Free Exercise

Clause violation is predicated on coercion); see also Lyng v.

Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439,

447-451 (1988); Bowen v. Roy, 476 U.S. 693, 704-705 (1986);

School Dist. of Abington v. Schempp, 374 U.S. 203, 223 (1963)

(stating that “[the] purpose [of the Free Exercise Clause] is to

secure religious liberty in the individual by prohibiting any

invasions thereof by civil authority. Hence it is necessary in a

free exercise case to show the coercive effect of the enactment as

it operates against him in the practice of his religion.”); see also

Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1066

(6th Cir. 1987) (stating that “[i]t is clear that governmental

                                41
compulsion either to do or refrain from doing an act forbidden or

required by one’s religion, or to affirm or disavow a belief

forbidden or required by one’s religion, is the evil prohibited by

the Free Exercise Clause.”). The concept is a simple one. “In

essence, the state may not compel an individual to act contrary to

his religious beliefs.” Arnold, supra, 880 F.2d at 314.

       As we previously noted, Melissa argues that her allegation

that she was “told to take the pills” and misled by the designation

of “emergency contraception” in the literature provided by

Defendants establishes the required coercion. However, she does

not allege that she informed the clinic staff that her religious

beliefs would prevent her from taking the pills if doing so could

prevent the implantation of a possibly fertilized ovum. Nor does

she allege that she ever inquired about the potential effect of the

pills on a possibly fertilized ovum. Our discussion of the absence

of coercion is equally relevant here. Plaintiffs do not contend

that Defendants actually compelled Melissa to take the pills, or

that any of them prevented her from consulting her parents or

anyone else before she took them. Instead, their Complaint

suggests that Fedorova “misled” Melissa as to the consequences

of taking emergency contraception by advising Melissa that the

                                42
pills would prevent her from getting pregnant. See App. at 17a-

19a. We are unable to conclude that Melissa was compelled or

coerced to act contrary to her religious beliefs.

        Moreover, Fedorova’s statement was not inaccurate, nor

was it misleading under the circumstances here. The United

States Food and Drug Administration has approved oral

contraceptives such as Nordette for use as emergency

contraception following sexual intercourse in the dosage given to

Melissa. See 62 Fed. Reg. 8610.11 Depending upon the point a

woman is at in her menstrual cycle when having unprotected

intercourse, the emergency contraception regimen, as described

by the FDA, may prevent ovulation, disrupt fertilization, or

inhibit implantation of a fertilized egg in the uterus. Id. The

FDA characterizes the Nordette regimen that Melissa was given



   11
       Courts ruling on Rule 12(b)(6) motions may take judicial
notice of public records. See Oran v. Stafford, 226 F.3d 275,
289 (3d Cir. 2000). The Commissioner of the Food and Drug
Administration’s announcement regarding the safety and
efficacy of oral contraceptives for use as emergency
contraception is a document published in the Federal Register.
It is therefore a public record of which we may take judicial
notice. We consider it, not for the truth of its contents, but
rather as evidence of the information provided by the federal
government to healthcare providers regarding the purpose and
effect of the emergency contraception regimen.

                                43
as “one of the most widely employed methods of pregnancy

prevention.”     Id.    According to the FDA, “[e]mergency

contraception pills are not effective if the woman is pregnant;

they act by delaying or inhibiting ovulation, and/or altering tubal

transport of sperm and/or ova (thereby inhibiting fertilization),

and/or     altering    the   endometrium     (thereby    inhibiting

implantation).” Id. at 8611. Furthermore,

         [s]tudies of combined oral contraceptives
         inadvertently taken early in pregnancy have not
         shown that the drugs have an adverse effect on the
         fetus, and warnings concerning such effects were
         removed from labeling several years ago. There is,
         therefore, no evidence that . . . emergency
         contraception, will have an adverse effect on an
         established pregnancy.

Id. As the federal agency “responsible for protecting the public

health by assuring the safety, efficacy, and security of human . .

. drugs . . . and helping the public get the accurate, science-based

information they need to use medicines,” the Defendants were

entitled to rely on the FDA’s scientific and policy conclusions.

See      FDA      Mission       Statement,       available       at

http://www.fda.gov/opacom/morechoices/mission.html.              In

particular, Defendants were entitled to rely upon the FDA’s

conclusion that scientific studies demonstrated that emergency


                                44
contraception does not have an adverse effect on an “established

pregnancy.” 62 Fed. Reg. 8610.

       The governmental actors here must, of course, respect

Plaintiffs’ religious beliefs about when life begins and what

constitutes an abortion; however, the Free Exercise Clause,

“cannot be understood to require the Government to conduct its

own internal affairs in ways that comport with the religious

beliefs of particular citizens . . . .”   Lyng, 485 U.S. at 448

(quoting Bowen v. Roy, 476 U.S. 693, 699-700 (1986)).

“[I]ncidental effects of government programs, which . . . have no

tendency to coerce individuals into acting contrary to their

religious beliefs, [do not] require the government to bring

forward a compelling justification for its otherwise lawful

actions.” Id. at 450-451. Melissa failed to disclose her religious

beliefs about abortion to any Defendant, and Defendants were

entitled to base their actions on Melissa’s request for emergency

contraception and the FDA’s characterization of the emergency

contraception Melissa was given.12


  12
     Judge Stapleton would assume arguendo that there may be
situations in which a state actor’s intentional deception will
provide the “coercion” necessary for a violation of the Free
                                                  (continued...)

                               45
        In a related and interwoven claim, Melissa’s parents also

allege a free exercise claim under § 1983, arguing that

Defendants prevented them from learning of Melissa’s request

for something that could terminate a pregnancy. However, we

reiterate that the Constitution does not impose an affirmative

obligation on Defendants to ensure that children abide by their

parents wishes, values, or religious beliefs. See Doe, 615 F.2d at

1168 (citing Prince, 321 U.S. at 166). Moreover, even if we

assumed, arguendo, that giving Melissa emergency contraception

under these circumstances somehow violated her parents’ First



   12
     (...continued)
Exercise Clause. He would hold, however, that this is not such
a case. Melissa’s only claim to have been deceived is that Ms.
Fedorova led her to believe that the pills would only prevent a
pregnancy when, in fact, they also would keep a fertilized egg
from becoming implanted in the uterus, thereby, in Melissa’s
view, causing an abortion. While it is apparently true that
Nordette “alters . . . the endometrium (thereby inhibiting
implantation),” 62 Fed. Reg. at 8611, and it is true that Melissa
was not so advised, Melissa did not tell anyone at the clinic of
her religious views regarding abortion and there is no reason to
believe anyone was deliberately trying to mislead Melissa into
violating her religious beliefs. She does not allege intentional
or reckless deception. Judge Stapleton would hold that the
absence of such an allegation is fatal to her Free Exercise claim.
Lovelace v. Lee, 472 F.3d 174, 201 (4th Cir. 2006) (holding that
“unintended denials of religious rights do not violate the Free
Exercise Clause.”).


                                46
Amendment rights, their claim would still fail for the reasons we

have already discussed; they have not alleged sufficient facts to

establish coercion, manipulation, or restraint.

                     IV. CONCLUSION

       Because we agree that the allegations in Plaintiffs’

complaint have failed to state a cause of action under § 1983, we

will affirm the decision of the District Court.




                             47
