                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON



AMY DECKER, by next friend  )
GINA HAGE and GINA HAGE,    )
                            )
     Plaintiffs/Appellants, )               Carroll Circuit No. 3464
                            )
v.                          )
                            )               Appeal No. 02A01-9709-CV-00242
CARROLL ACADEMY, MARY MAYS, )
JENNIFER SALYER, UNKNOWN    )
EMPLOYEES OR AGENTS OF
CARROLL COUNTY HEALTH
DEPARTMENT, CARROLL COUNTY )
                            )
                            )                  FILED
HEALTH DEPARTMENT, CARROLL )
                                                  May 26, 1999
COUNTY, TENNESSEE,          )
COMMISSIONER NANCY MENKE OF )
                                              Cecil Crowson, Jr.
THE TENNESSEE DEPARTMENT OF )
                                             Appellate Court Clerk
HEALTH, and THE ATTORNEY    )
GENERAL OF THE STATE OF     )
TENNESSEE,                  )
                            )
     Defendants/Appellees.  )

              APPEAL FROM THE CIRCUIT COURT OF CARROLL COUNTY
                         AT HUNTINGDON, TENNESSEE

                    THE HONORABLE JULIAN P. GUINN, JUDGE

For the Defendants/Appellees,        For the Defendants/Appellees,
Carroll Academy, Mary Mays,          Commissioner Nancy Menke,
Jennifer Salyer, Carroll County,     the Attorney General of the State
Tennnessee, and Carroll County,      of Tennessee, and Unknown
Health Department:                   Employes or Agents of Carroll County
                                     Health Department:

Robert T. Keeton, Jr.                John Knox Walkup
Huntingdon, Tennessee                Ronald W. McNutt
                                     Nashville, Tennessee

For the Plaintiffs/Appellants:

Landon W. Meadow
Gregory D. Smith
Clarksville, Tennessee

                                     AFFIRMED

                                     HOLLY KIRBY LILLARD, J.


CONCUR:


ALAN E. HIGHERS, J.

DAVID R. FARMER, J.
                                              OPINION

         This case involves a constitutional challenge to Tennessee Code Annotated § 68-34-107,

which allows distribution of birth control information and supplies to minors without parental

consent or notification. The mother of a minor child to whom birth control was distributed filed a

lawsuit against, among others, the minor’s school and the county. The trial court granted the

defendants’ motions to dismiss, and the plaintiffs appeal. We affirm.

         Plaintiff, Amy Decker, was a student at Defendant, Carroll Academy. At the time, Amy was

fourteen years old. She was enrolled at Carroll Academy pursuant to an order of the juvenile court,

after revocation of her probation for minor offenses. At Carroll Academy, she participated in a sex

education class. In connection with the class, Amy asked for information about birth control and

indicated that she was sexually active and needed birth control. Amy said she had been exposed to

venereal disease and asked for medical treatment. An employee of Carroll Academy, Jennifer

Salyer, took Amy to the Defendant, Carroll County Health Department, where a pap smear was

administered and Amy was given birth control pills. Amy’s parents were not notified of her visit

to the Carroll County Health Department, nor did they consent to the pap smear or the birth control

pills.

         Carroll Academy and the Carroll County Health Department acted pursuant to Tennessee

Code Annotated § 68-34-107, which provides that:

         Contraceptive supplies and information may be furnished by physicians to any minor
         who is pregnant, or a parent, or married, or who has the consent of such minor's
         parent or legal guardian, or who has been referred for such service by another
         physician, a clergy member, a family planning clinic, a school or institution of higher
         learning, or any agency or instrumentality of this state or any subdivision thereof, or
         who requests and is in need of birth control procedures, supplies or information.

Tenn. Code Ann. § 68-34-107 (1996). All policies of the Carroll County Health Department are

made by the Tennessee Department of Health. The policy of the Tennessee Department of Health

is to implement the Family Planning Act of 1971, which contains the above statute. See Tenn.

Comp. R. & Regs. 1200-16-1-.02 (1975).

         Subsequently, Amy’s mother, Plaintiff Gina Hage, discovered the birth control pills. The

record does not establish whether Amy ever took any of the pills. Hage later withdrew Amy from

Carroll Academy and enrolled her in a private school.

         A lawsuit was then filed by Amy Decker, by Hage as her next friend, and by Hage

individually, against Carroll Academy; Mary Mays, the director of the Academy; Jennifer Salyer,
the employee who transported Amy to the Health Department; Carroll County, Tennessee; Carroll

County Health Department; unknown employees/agents of Carroll County Health Department; the

Tennessee Department of Health and Commissioner Nancy Menke, in her official capacity; and the

Tennessee Attorney General. The Plaintiffs claimed that the Defendants’ conduct violated Hage’s

federal and state constitutional privacy rights to direct the education and upbringing of her daughter,

her federal and state parental liberty rights to the nurture, education, and well being of her daughter,

the free exercise clause of the First Amendment of the United States Constitution, the federal and

state due process and equal protection clauses of the Fourteenth Amendment, and the Religious

Freedom Restoration Act of 1993. They sought an injunction enjoining the Defendants from acting

pursuant to the statute, on behalf of the Plaintiffs “and those who are similarly situated.” However,

class certification was not sought. Plaintiffs sought monetary damages as well as declaratory and

injunctive relief pursuant to 42 U.S.C. § 1983. The complaint does not clearly set forth the injuries

received and relief sought in regard to Plaintiff Amy Decker other than to allege a battery against

her by the health clinic for not having parental consent to conduct the pap smear.

        The Defendants filed motions to dismiss on several grounds. The Tennessee Attorney

General, on behalf of the Tennessee Department of Health, Commissioner Nancy Menke and

unknown state employees or agents of the Carroll County Health Department, and the Attorney

General argued that the doctrine of sovereign immunity bars a claim against these defendants. They

asserted that they are not “persons” under 42 U.S.C. § 1983 and are not subject to suit pursuant to

Section 1983. In addition, they contended that the Plaintiffs’ claim is barred by the statute of

limitations because they failed to plead with specificity the date on which the incident occurred or

when Hage discovered that Amy was taken to Carroll County Health Department. The Attorney

General also argued for the constitutionality of Tennessee Code Annotated § 68-34-107, citing Doe

v. Irwin, 615 F.2d 1162 (6th Cir. 1980), for the proposition that parents’ constitutional rights under

the United States Constitution are not violated when a minor decides to use contraceptives without

parental notification.

        In addition, the Attorney General maintained that Tennessee Code Annotated § 68-34-107

is constitutional pursuant to the Tennessee Constitution. The Attorney General argued that under

Cardwell v. Bechtol, 724 S.W.2d 739, 749 (Tenn. 1987), a fourteen year old minor is presumed to

have capacity to seek medical treatment. In addition, the statute recognizes Amy’s right not to


                                                   2
procreate as recognized in Davis v. Davis, 842 S.W.2d 588, 600 (Tenn. 1992). Addressing the free

exercise of religion claim, the Attorney General argued that the statute does not implement

governmental coercion contrary to religious belief, which is necessary to sustain a claim under the

free exercise clause.

       In response, the Plaintiffs stipulated that all claims against the Tennessee Health Department

should be barred under the doctrine of sovereign immunity, as well as the claim for monetary

damages against Commissioner Menke. The Plaintiffs also stipulated that the claim against all

Defendants based on the Religious Freedom Restoration Act should be dismissed pursuant to the

holding in City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 2172, 138 L. Ed. 2d 624 (1997),

which held the Act unconstitutional.

       Defendants Carroll Academy, Mary Mays, Jennifer Salyer, and the Carroll County Health

Department filed a motion to dismiss as well, arguing that they have qualified immunity from suit

because they acted pursuant to “known statutory authority.” Carroll County, Tennessee did not file

a motion to dismiss.

       The Plaintiffs’ claims against the Tennessee Department of Health and the claim for

monetary damages against Commissioner Menke were dismissed pursuant to stipulation. The

Plaintiffs’ claim under the Religious Freedom Restoration Act was also dismissed. All other parties

remained, namely, Carroll Academy; Mary Mays, the director of the Academy; Jennifer Salyer, the

employee who transported Amy to the Health Department; Carroll County, Tennessee; Carroll

County Health Department; unknown employees/agents of the Carroll County Health Department;

Commissioner Nancy Menke of the Tennessee Department of Health; and the Tennessee Attorney

General. The Plaintiffs continued to seek monetary damages against these parties, as well as

injunctive and declaratory relief, except that no monetary damages were sought against Commissiner

Menke.

       The trial court granted the motions to dismiss, and dismissed the complaint as to all

Defendants. In a succinct order, the trial court stated simply:

       It is the decision of the court that Tenn. Code Ann. § 68-34-107 and the Tennessee
       Department of Health’s policy in providing birth control pills and medical treatment
       to minors is constitutional. Therefore, the Motions to Dismiss on behalf of all
       Defendants are well-taken and the Plaintiffs’ action is dismissed.

From this order, the Plaintiffs now appeal.



                                                 3
       Plaintiffs raise two issues on appeal. First, Plaintiffs argue that the statute violates their right

to freedom of religion under the Tennessee Constitution as well as the Federal Constitution because

it encourages adolescents to engage in premarital sex, which is contrary to Hage’s religious beliefs.

Second, Plaintiffs reassert their claim that the statute at issue, Tennessee Code Annotated § 68-34-

107,1 is unconstitutional under both the federal and state constitutions because it unreasonably

interferes with the fundamental privacy right of parents to direct the education and upbringing of

their children. On appeal, the Plaintiffs do not dispute that the Legislature may lawfully authorize

the distribution of birth control to minors, or that schools may lawfully transport a minor to a

physician or to the Health Department for this purpose, even without parental consent. Rather, they

argue that, if this is done, the federal and state constitutions mandate that the parents be notified of

the actions of the school and the Health Department.

       First we must address the finality of the judgment in this case. The trial court granted the

Defendants’ motions to dismiss and dismissed the Plaintiffs’ lawsuit. Defendant Carroll County,

Tennessee did not file a motion to dismiss. Therefore, the trial court dismissed the claims against

Carroll County sua sponte. The trial court has the authority to dismiss a complaint sua sponte in the

absence of a motion to dismiss when the complaint fails to state a claim upon which relief may be

granted. See Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn. 1975); see also Cockrill v. Everett,

958 S.W.2d 133, 135 (Tenn. App. 1997). Courts entertaining the possibility of dismissing a

complaint sua sponte for failure to state a claim upon which relief can be granted should construe

the pleadings liberally in the plaintiff's favor. See Huckeby, 521 S.W.2d at 571. The trial court’s

implicit dismissal of Carroll County in this case was within its power, and therefore the judgment

from which the Plaintiffs appeal is deemed a final judgment.

        The Attorney General filed three memoranda of law to be considered by the trial judge in

support of its various motions to dismiss and on behalf of the Tennessee Department of Health,

Nancy Menke, and unknown state employees of the Carroll County Health Department. Defendants

Carroll Academy, Mary Mays, Jennifer Salyer and the Carroll County Health Department also filed




       1
               On appeal, the Plaintiffs also assert that the policy of the Tennessee Department
of Health, implementing the Family Planning Act of 1971, including Tennessee Code Annotated
§ 68-34-107, is unconstitutional. See Tenn. Comp R. & Regs. 1200-16-1-.02 (1975). However,
the Tennessee Department of Health is not a party to this appeal.

                                                    4
a memorandum of law in support of their motion to dismiss. They attached affidavits and

depositions. The depositions were not made part of the record on appeal.

       Rule 12.03 of the Tennessee Rules of Civil Procedure provides that “If, on a motion for

judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the

court, the motion shall be treated as one for summary judgment . . . ” Tenn. R. Civ. P. 12.03.

Therefore, the Defendants’ motions to dismiss would be considered motions for summary judgment,

under Rule 12.03, because the trial court considered evidence outside the pleadings. See Gardner

v. Insura Property & Cas. Ins. Co., 956 S.W.2d 1, 2 (Tenn. App. 1997).

       A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.

1993), our Supreme Court stated:

       Once it is shown by the moving party that there is no genuine issue of material fact,
       the nonmoving party must then demonstrate, by affidavits or discovery materials, that
       there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05
       provides that the nonmoving party cannot simply rely upon his pleadings but must
       set forth specific facts showing that there is a genuine issue of material fact for trial.


Id. at 211 (citations omitted).

       Summary judgment is only appropriate when the facts and the legal conclusions drawn from

the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.

1995). Since only questions of law are involved, there is no presumption of correctness regarding

a trial court's grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of

the trial court’s dismissal, treated as an order of summary judgment, is de novo on the record before

this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

       In Tennessee, constitutional issues should not be addressed “unless the issue’s resolution is

absolutely necessary for determination of the case and the rights of the parties.” Haynes v. City of

Pigeon Forge, 883 S.W.2d 619, 620 (Tenn. App. 1994). Statutes are entitled to a strong



                                                   5
presumption in favor of their constitutionality. See Dennis v. Sears, Roebuck & Co., 223 Tenn. 415,

446 S.W.2d 260, 263 (1969). Doubts about a statute’s constitutionality should be resolved in favor

of constitutionality. See Marion County Bd. of Comm’rs v. Marion County Election Comm’n, 594

S.W.2d 681, 684 (Tenn. 1980).

        First we review the Plaintiffs’ claim that the Defendants’ actions amount to an infringement

of a mother’s right to instill her religious beliefs in her children. The free exercise clause of the First

Amendment of the U.S. Constitution guarantees religious freedom: “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const.

amend. I. The threshold requirement for a claim under this provision is whether the challenged

governmental action creates a substantial burden on the exercise of the plaintiff’s religion. See

Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699, 109 S. Ct. 2136, 2148, 104

L. Ed. 2d 766 (1989). For a burden to be substantial, it must be coercive or compulsory in nature.

See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 447-51, 108 S. Ct. 1319,

1324-26, 99 L. Ed. 2d 534 (1988). The United States Supreme Court uses a three-part inquiry to

determine whether a statute violates the Establishment Clause: (1) whether the statute has a secular

purpose, (2) whether the principle or primary effect of the statute advances or inhibits religion, and

(3) whether the statute fosters excessive governmental entanglement with religion. See Lemon v.

Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 2111, 29 L. Ed. 2d 745 (1971). Though it has not

been adopted by a majority of the U.S. Supreme Court, Justice O’Connor would also adopt an

“endorsement inquiry,” namely an inquiry as to " ‘whether a reasonable observer would view such

longstanding practices as a disapproval of his or her particular religious choices, in light of the fact

that they serve a secular purpose rather than a sectarian one and have largely lost their religious

significance over time.’ " Martin v. Beer Bd. for Dickson, 908 S.W.2d 941, 950-51 (Tenn. App.

1995) (quoting County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh

Chapter, 492 U.S. 573, 631, 109 S. Ct. 3086, 3121, 106 L. Ed. 2d 472 (1989) (O'Connor, J.,

concurring)). The United States Supreme Court later held that laws which are neutral and of general

application, that are not specifically intended to regulate religion, “need not be justified by a

compelling governmental interest even if the law has the incidental effect of burdening a particular

religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U. S. 520, 531,

113 S. Ct. 2217, 2226, 124 L. Ed. 2d 472 (1993).


                                                    6
       The Tennessee Constitution also recognizes and protects the rights of its citizens to practice

the religion of their choice free from state interference. See Tenn. Const. art. I, § 3. The religious

freedom provision of the Tennessee Constitution is akin to the First Amendment of the U.S.

Constitution, but, “[i]f anything, our own organic law is broader and more comprehensive in its

guarantee of freedom of worship and freedom of conscience.” Carden v. Bland, 199 Tenn. 665,

672, 288 S.W.2d 718, 721 (1956). There are two complementary concepts of religious freedom: the

freedom to believe and the freedom to act. See Wolf v. Sundquist, 955 S.W.2d 626, 630 (Tenn.

App. 1997). “The freedom to believe is absolute; while the freedom to act is subject to reasonable

control for the protection of others.” Id. at 630-31. Tennessee follows the Lemon v. Kurtzman

inquiries, supplemented by Justice O'Connor's endorsement inquiry, to determine whether a statute

violates article I, § 3 of the Tennessee Constitution. See Martin, 908 S.W.2d at 951.

       In this case, we must determine whether the statute at issue creates a substantial burden on

Plaintiff Gina Hage’s exercise of religion. For the burden to be deemed substantial, it must be

coercive or compulsory in nature. See Lyng, 485 U.S. at 447-51, 102 S. Ct. at 1324-26. Tennessee

Code Annotated § 68-34-107 is not compulsory in nature; it merely authorizes a physician to provide

contraceptives to a minor who has been referred by an entity, such as a school, or who has requested

and is in need of contraceptives. Participation by the minor is voluntary, and parental consent is

neither required nor prohibited. Under the analysis in Lemon v. Kurtzman, the statute is secular in

purpose. See Lemon, 403 U.S. at 612-13, 91 S. Ct. at 2111. The primary effect of the statute, to

authorize physicians to provide contraceptives to minors even in the absence of notification to the

parents, neither advances nor inhibits Gina Hage’s religious beliefs or her ability to communicate

her beliefs to her daughter. Id. Likewise, the Health Department program did not prohibit Hage

from teaching her religious beliefs to Amy. “[I]ncidental effects of government programs, which

may make it more difficult to practice certain religions but 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.” Lyng, 485 U.S. at 450-51, 108

S. Ct. at 1326 (emphasis added). “Merely because the [Plaintiff] find[s] the program objectionable

does not render it violative of [her] right to the free exercise of [her] religion.” Alfonso v.

Fernandez, 606 N.Y.S.2d 259, 268 (N.Y. App. Div. 1993). Finally, the statute, merely authorizing

such actions by physicians, does not foster excessive governmental entanglement with religion. See

                                                  7
id. Therefore, the statute does not rise to the level of an infringement of the Plaintiffs’ rights under

the free exercise clause of the First Amendment of the U.S. Constitution guaranteeing religious

freedom. U.S. Const. amend. I.

          Under the Tennessee Constitution, the analysis under Lemon v. Kurtzman is followed, with

the addition of the “endorsement inquiry” advocated by Justice O’Connor. See Martin, 908 S.W.2d

at 951.     Under this inquiry, the statute at issue, merely authorizing physicians to provide

contraceptives to minors, cannot be viewed as a “disapproval of [the Plaintiff’s] religious choices.”

County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S.

573, 631, 109 S. Ct. 3086, 3121, 106 L. Ed. 2d 472 (1989) (O’Connor, J., concurring). Therefore,

the statute does not rise to the level of an infringement of the Plaintiff’s right to religious freedom

under the Tennessee Constitution. See Tenn. Const. art I, § 3.

          The Plaintiffs argue next that the Tennessee statute, and the Health Department policy

implementing it, violate the Plaintiff mother’s right to privacy under the federal and state

constitutions by unreasonably interfering with her fundamental privacy right to direct the education

and upbringing of her daughter.

          Under the U.S. Constitution, the right to privacy stems from the concept of liberty bestowed

by the Fourteenth Amendment: “ ‘No state shall . . . deprive any person of life, liberty, or property,

without due process of law.’ ” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed.

1042 (1923) (quoting U. S. Const amend XIV.). “[T]he concept of liberty protects those personal

rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.” Griswold

v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 1683, 14 L. Ed. 2d 510 (1965) (Goldberg, J.,

concurring). Included in the federal right to privacy is the right of reproductive freedom: “If the

right of privacy means anything, it is the right of the individual, married or single, to be free from

unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision

whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 1038, 31

L. Ed. 2d 349 (1972).

          A right to privacy under the Tennessee Constitution was recognized by the Tennessee

Supreme Court in Davis v. Davis, 842 S.W.2d 588, 600 (Tenn. 1992). Although the right to privacy

is not explicitly mentioned in the Tennessee Constitution, it is supported by the concept of liberty

found throughout the Tennessee Declaration of Rights, such as the guarantee of freedom of worship,


                                                   8
the prohibition of unreasonable searches and seizures, the guarantees of freedom of speech and the

press, and the prohibition of the quartering of soldiers. See id. at 600. The Davis court stated that

it had “no hesitation” in finding a right to privacy from these liberty clauses. Id. Furthermore, the

court found that, under Tennessee constitutional law, “the right of procreation is a vital part of an

individual’s right to privacy. Federal law is to the same effect.” Id. The right to procreational

autonomy, although not absolute, includes the right to procreate and the right to avoid procreation.

See id. at 601.

        The United States Supreme Court has recognized that the right to privacy extends to minors.

See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74-75, 96 S. Ct. 2831, 2843-44,

49 L. Ed. 2d 788 (1976). The state has “somewhat broader authority to regulate the conduct of

children than that of adults,” but federal case law clearly reflects a constitutionally protected right

of privacy for minors. Doe v. Irwin, 615 F.2d 1162, 1166 (6th Cir. 1980) (citing cases). The right

to obtain contraceptives is included within a minor’s right of privacy. See id. (citing Carey v.

Population Servs., Int’l, 431 U.S. 678, 692-93, 97 S. Ct. 2010, 2019-20, 52 L. Ed. 2d 675 (1977)).

In Carey, a plurality of the Court indicated that federal law would proscribe a blanket prohibition

of the distribution of contraceptives to minors, as well as a blanket requirement of parental consent:

               Since the State may not impose a blanket prohibition, or even a blanket
        requirement of parental consent, on the choice of a minor to terminate her pregnancy,
        the constitutionality of a blanket prohibition of the distribution of contraceptives to
        minors is a fortiori foreclosed. The State’s interests in protection of the mental and
        physical health of the pregnant minor, and in protection of potential life are clearly
        more implicated by the abortion decision than by the decision to use a nonhazardous
        contraceptive.

Carey, 431 U.S. at 694, 97 S. Ct. at 2021.

        Juxtaposed against the minor’s right to privacy, including the right to obtain contraceptives,

is the fundamental liberty interest of parents to rear their children as they see fit, also protected under

the Fourteenth Amendment of the U.S. Constitution. See Meyer, 262 U.S. at 399, 43 S. Ct. at 626;

see also Hawk v. Hawk, 855 S.W.2d 573, 578 (Tenn. 1993). The right of parents to be protected

from unwarranted government intrusion in the rearing of their children is supported by federal case

law. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554-55, 54 L. Ed. 2d 511 (1978);

Wisconsin v. Yoder, 406 U.S. 205, 232-34, 92 S. Ct. 1526, 1541-42, 32 L. Ed. 2d 15 (1972); Prince

v. Massachusetts, 321 U.S. 158, 166-67, 64 S. Ct. 438, 442, 88 L. Ed. 2d 645 (1944); Pierce v.

Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534-35, 45 S. Ct. 571,


                                                    9
573, 69 L. Ed. 2d 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed.

1042 (1923). Similarly, considering “Tennessee’s historically strong protection of parental rights

and the reasoning of federal constitutional cases,” the Tennessee Supreme Court has held that

“parental rights constitute a fundamental liberty interest under Article I, Section 8 of the Tennessee

Constitution.” Hawk, 855 S.W.2d at 579. Under the Federal Constitution, an interference with

parental rights may be unconstitutional if it is coercive or compulsory in nature, such that “the

governmental action is mandatory and provides no outlet for the parents, such as where refusal to

participate in a program results in a sanction or in expulsion.” Curtis v. School Comm. of

Falmouth, 652 N.E.2d 580, 586 (Mass. 1995). Mandatory attendance at public school, for example,

does not rise to the level of a constitutional violation. See id. at 587.

        We first analyze the Plaintiffs’ privacy claims under the Federal Constitution. Doe v. Irwin,

615 F.2d 1162, 1168 (6th Cir. 1980), involved a family clinic that performed physical examinations

and distributed contraceptives, including birth control pills, without parental notification or consent.

Visits to the family planning clinic by minors and other patients were voluntary. The clinic’s

services related to minors were not advertised. The parents of several minors who received

contraceptives with no parental notification brought suit alleging that the actions of the clinic

violated their constitutional rights.

        The Sixth Circuit recognized that the minor’s right to privacy includes the right to obtain

contraceptives. See id. at 1166. It also recognized the right of parents under the Fourteenth

Amendment “to the care, custody and nurture of their children” and the state’s right to protect minor

females “from the physical and emotional hazards of unwanted pregnancies.” Id. at 1167. The Sixth

Circuit distinguished previous Supreme Court cases finding unconstitutional interference with

parental rights by noting that the fundamental difference between those cases and the Irwin case was

that, in the previous cases, the state was either requiring or prohibiting some activity. See id. at

1168. In contrast, the Irwin court did not find the policy of the family planning clinic coercive or

compulsory. See id. The Sixth Circuit stated:

                The State of Michigan, acting through the Center and defendants, has
        imposed no compulsory requirements or prohibitions which affect rights of the
        plaintiffs. It has merely established a voluntary birth control clinic. There is no
        requirement that the children of the plaintiffs avail themselves of the services offered
        by the Center 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


                                                  10
        unemancipated children. . . . [W]e can find 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.

Id. at 1168. The Sixth Circuit noted that the U.S. Supreme Court had not “squarely decided”

whether a state may require parental notice before birth control is provided to unemancipated minors.

Id. at 1167. Based on the court’s conclusion that there was no unconstitutional interference with the

plaintiffs’ parental rights, the court declined to consider whether the state had a compelling state

interest or whether the parental rights outweighed the right of the minor children to obtain

contraceptives. See id. at 1169.

        In analogous circumstances, other courts have found no unconstitutional interference with

parental rights where condoms are distributed without parental authorization or notification. See

Parents United for Better Schs, Inc. v. School Dist. of Phila. Bd. of Educ., 148 F.3d 260, 277 (3d

Cir. 1998) (holding that the voluntary school program for condom distribution “did not offend

parental rights regarding the custody and care of their children”); Planned Parenthood Ass’n of

Utah v. Matheson, 582 F. Supp. 1001, 1009 (D. Utah 1983) (striking down law requiring parental

notification for contraceptive distribution at family planning clinic because “parental notification

laws in the abortion context support the conclusion that the state may not impose a blanket parental

notification requirement on minors seeking to exercise their constitutionally protected right to decide

whether to bear or to beget a child”); Curtis v. School Comm. of Falmouth, 652 N.E.2d 580, 584-89

(Mass. 1995) (finding that school condom-availability program “lacks any degree of coercion or

compulsion in violation of the plaintiffs’ parental liberties, or their familial privacy”). But see

Alfonso v. Fernandez, 606 N.Y.S.2d 259, 261 (N.Y. App. Div. 1993) (holding that school condom-

distribution program that lacked a way for parents to opt their children out of the program violated

parental rights to rear their children as they see fit, but did not violate free exercise of religion).

        Hage argues in part that the Tennessee statute, and the Health Department policy

implementing it, which allows physicians to provide contraceptives to minors without parental

notification, encourages her daughter and other minors to engage in premarital sexual activities in

violation of Hage’s religious beliefs, which usurps and undercuts her parental authority. This is

similar to the argument rejected by the United States Supreme Court in Carey v. Population Servs.

Int’l, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977). See Alfonso, 606 N.Y.S.2d at 274

(Eiber, J. dissenting). In Carey, the state argued that the availability of contraceptives to minors

                                                   11
would lead to increased sexual activity among adolescents, which the state sought to prevent. The

plurality opinion summed up this argument as the idea “that minors’ sexual activity may be deterred

by increasing the hazards attendant on it.” Carey, 431 U.S. at 694, 97 S. Ct. at 2021. The plurality

noted, however, that this argument is untenable because “ ‘[i]t would be plainly unreasonable to

assume that (the State) has prescribed pregnancy and the birth of an unwanted child (or the physical

and psychological dangers of an abortion) as punishment for fornication.’ ” Id. (quoting Eisenstadt

v. Baird, 405 U.S. 438, 448, 92 S. Ct.1029, 1036, 31 L. Ed. 2d 349 (1972).

        Based on Doe v. Irwin and other analogous case law, considering the noncompulsory nature

of the statute, we conclude that the absence of a parental notification requirement in the statute at

issue, and the Health Department policy implementing it, do not rise to the level of an

unconstitutional interference with the parent’s right “to the care, custody and nurture of their children

as a liberty interest” under the Fourteenth Amendment of the U.S. Constitution. Irvin, 615 F.2d at

1167. The Tennessee statute is not compulsory in nature; the participation of the minor is voluntary,

and notification to parents is neither required nor prohibited. Physicians are not required to provide

birth control to minors who request and need contraceptives; the statute merely authorizes them to

do so. The statute does not prohibit a parent from any conduct in the raising of her child, nor does

it require any conduct of a parent. As in Irwin, even if the minor chooses not to notify her parent,

the Plaintiff mother in this case “remain[s] free to exercise . . . traditional care, custody and control”

over her daughter. Irwin, 615 F.2d at 1168. Consequently, under federal caselaw, since the statute

is not compulsory in nature, we must find that the absence of a parental notification requirement in

the statute is not an unconstitutional interference with the Plaintiff’s parental rights under the U.S.

Constitution.

        Next we must determine whether the Tennessee statute at issue and the Health Department

policy implementing it violate the Plaintiffs’ right to privacy under the Tennessee Constitution. As

noted above, Tennessee recognizes that “parental rights constitute a fundamental liberty interest

under Article I, Section 8 of the Tennessee Constitution.” Hawk , 855 S.W.2d at 579. This finding

is based on “Tennessee’s historically strong protection of parental rights and the reasoning of federal

constitutional cases.” Id. Thus, the Tennessee Constitution “protects the right of parents to care for

their children without unwarranted state intervention.” Id.




                                                   12
       The Tennessee Supreme Court has also held under the Tennessee Constitution that “the right

of procreation is a vital part of an individual’s right to privacy.” Davis, 842 S.W.2d at 600. The

Davis Court found that “a right to procreational autonomy is inherent in our most basic concepts of

liberty.” Id. at 601. It described the “right of procreational autonomy” as “composed of two rights

of equal significance--the right to procreate and the right to avoid procreation.” Id. This right to

“procreational autonomy” under the Tennessee Constitution has been applied to minors in decisions

involving abortion. See McGlothlin v. Bristol Obstetrics, Gynecology and Family Planning, Inc.,

No. 03A01-9706-CV-00236, 1998 WL 65459, at *4 (Tenn. App. Feb. 11, 1998).

       Thus, the parent and the minor child each have constitutionally protected privacy interests

to consider. The State has an interest as well, set forth in the Family Planning Act of 1971 that

includes the statute at issue. Tennessee Code Annotated § 68-34-107 is located within the Act.

Several policy reasons support the enactment of the Family Planning Act and are set forth:

               (1) Continuing population growth either causes or aggravates many social,
       economic and environmental problems, both in this state and in the nation;
               (2) Contraceptive procedures, supplies, and information, and information as
       to and procedures for voluntary sterilization, are not sufficiently available as a
       practical matter to many persons in this state;
               (3) It is desirable that inhibitions and restrictions be eliminated so that all
       persons desiring and needing contraceptive procedures, supplies, and information
       shall have ready and practicable access thereto; . . .

Tenn. Code Ann. § 68-34-103 (1996). Furthermore, the legislature found that enactment of the

Family Planning Act was “necessary for the immediate preservation of the public peace, health, and

safety.” Tenn. Code Ann. § 68-34-110 (1996).

       Thus, the legitimate interests of the parent, the minor and the State must be considered.

Davis v. Davis notes that conflicting constitutional interests may be resolved by considering the

“positions of the parties, the significance of their interests, and the relative burdens that will be

imposed by differing resolutions.” Davis, 842 S.W.2d at 603.

       As noted above, under federal caselaw, the statute at issue, and the Health Department policy

implementing it, do not constitute an impermissible infringement of the parent’s liberty interest to

raise her child under the Federal Constitution. The question becomes, then, whether the parent’s

right of privacy to raise her child under the Tennessee Constitution differs from the concomitant

federal right so significantly that the statute and the implementing policy are unconstitutional under

the Tennessee Constitution.



                                                 13
        The Tennessee Constitution can provide stronger protection than that provided by the United

States Constitution. See State v. Middlebrooks, 840 S.W.2d 317, 338 (Tenn. 1992). The Tennessee

Supreme Court, the court of last resort in interpreting the Tennessee Constitution, is "always free to

expand the minimum level of protection mandated by the federal constitution." Tennessee Small

Sch. Sys. v. McWherter, 851 S.W.2d 139, 152 (Tenn. 1993) (quoting Doe v. Norris, 751 S.W.2d

834, 838 (Tenn. 1988)).

        This has, on occasion, been done. See Campbell v. Sundquist, 926 S.W.2d 250, 261 (Tenn.

App. 1996) (right of privacy under Tennessee Constitution protects against government intrusion

into private homosexual contact between consenting adults); see also City of White House v.

Whitley, No. 01A01-9612-CH-00571, 1997 Tenn. App. LEXIS 428 (Tenn. App. June 18, 1997)

(Koch, J., dissenting) (citing State v. Marshall, 859 S.W.2d 289, 290-91, 294-95 (Tenn. 1993)

(holding that the state constitution provides greater protection for free speech than the First and

Fourteenth Amendments); State v. Black, 815 S.W.2d 166, 189, 192-193 (Tenn. 1991) (holding that

the state constitution provides different standards for determining what constitutes cruel and unusual

punishment); State v. Jacumin, 778 S.W.2d 430, 435-36 (Tenn. 1989) (holding that Tenn. Const.

art. I, § 7 requires different standards for obtaining a search warrant than does the Fourth

Amendment); Miller v. State, 584 S.W.2d 758, 760 (Tenn. 1979) (holding that the ex post facto

clause in Tenn. Const. art. I, § 11 provides greater protection than the ex post facto clause in U.S.

Const. art. I, § 10, cl. 1)).

        Tennessee courts cannot, however, interpret the Tennessee Constitution in such a manner that

it encroaches federally protected rights under the U.S. Constitution. See Middlebrooks, 840 S.W.2d

at 338. Thus, the Tennessee Constitution cannot be interpreted in such a manner that the parent’s

liberty interest in raising her child as she sees fit under the Tennessee Constitution encroaches on

the minor’s right to “procreational autonomy” under the U.S. Constitution. See Davis, 842 S.W.2d

at 600-01 (discussing right to “procreational autonomy” under both federal and state constitutions).

        Moreover, provisions under the Tennessee Constitution are generally interpreted in a manner

that is consistent with the analogous federal constitutional provisions. “[O]rdinarily the two

constitutions should be construed alike where possible.” State v. Jennette, 706 S.W.2d 614, 620

(Tenn. 1986). Tennessee courts have indicated a tendency to construe the right of privacy under the

Tennessee Constitution as consonant with the parallel federal constitutional provisions. See Hawk,


                                                 14
855 S.W.2d at 580; Davis, 842 S.W.2d at 600 (“the right of procreation is a vital part of an

individual’s right to privacy. Federal law is to the same effect.”); Planned Parenthood of Middle

Tenn. v. Sundquist, No. 01A01-9601-CV-00052, 1998 WL 467110, at **20-21 (Tenn. App. Aug.

12, 1998); McGlothlin, 1998 WL 65459, at *4. But see Campbell, 926 S.W.2d at 261.

        In this case, Gina Hage asserts her right to instill her moral and religious beliefs in Amy, and

to make decisions regarding her medical care and her use of contraceptives. She asserts in the

complaint in this case that the statute and the attendant Health Department policy have “a detrimental

effect upon the Plaintiff’s ability to instill in her child certain sincerely held religious values

regarding chastity and morality.” She objects to the distribution of contraceptives and the

administering of medical procedures such as a pap smear to Amy without notification to her.

        Under Tennessee case law, the parent’s constitutional liberty interest in rearing her child is

framed in terms of protection against “interference” and “intervention” by the State:

        Implicit in Tennessee case and statutory law has always been the insistence that a
        child’s welfare must be threatened before the state may intervene in parental
        decision-making.
                                                ***
        [N]either the legislature nor a court may properly intervene in parenting decisions
        absent significant harm to the child from those decisions.

Hawk, 855 S.W.2d at 580, 581. As noted above, the statute at issue is neither coercive nor

compulsory in nature. Participation by the minor and the physician is voluntary; notification to the

parent is neither required nor prohibited. Indeed, it is the lack of compulsion in the statute that the

Plaintiff protests; she argues that the statute, in order to pass constitutional muster, must

affirmatively require notification to the parent.

        We are not asked to decide whether it would be advisable or beneficial for the legislature to

amend the statute to include a requirement of parental notification. Rather, we are asked to

determine whether the Tennessee Constitution mandates that parents be notified if contraceptives

are distributed to their minor children, in light of the fact that the U.S. Constitution does not contain

such a requirement. In other words, “The question . . . is not whether a state may impose a condition

which would limit the right of privacy of the minors whose interests are involved. Rather, it is

whether the Constitution requires such a condition.” Irwin, 615 F.2d at 1169.

        Based on federal case law interpreting parental rights under the Federal Constitution, the

inclination of Tennessee courts to interpret Tennessee constitutional provisions consistent with



                                                    15
similar federal provisions, and caselaw from the Tennessee Supreme Court describing parental rights

under the Tennessee Constitution as protection against state “intervention” into parental child-rearing

decisions, we must conclude that the Tennessee Constitution does not mandate that the statute

authorizing physicians to prescribe contraceptives to minors also compels parental notification.

Therefore, the state statute at issue, and the Health Department policy implementing it, do not

contravene the Tennessee Constitution.

       This holding obviates the necessity to weigh against the parental rights the minor’s

constitutional right to “procreational autonomy” and the State’s stated reasons for enacting the

statute. It should also be noted that we are not presented with the issue of whether a parental

notification requirement, if enacted by the legislature, would impinge upon a minor’s procreational

rights under the Tennessee or Federal Constitution.

       Plaintiff Gina Hage also argues that it was unlawful for her daughter to receive medical

treatment, i.e. a pap smear, without parental consent or notification. Parental consent usually must

be obtained before a minor child can receive medical treatment. See Parents United for Better Schs,

Inc. v. School Dist. of Pa. Bd. of Educ., 148 F.3d 260, 275 (3d Cir. 1998). Under Tennessee

common law, a minor’s ability to obtain medical treatment without parental consent is governed by

the Rule of Sevens. See Cardwell v. Bechtol, 724 S.W.2d 739, 749 (Tenn. 1987). Minors under the

age of seven have no capacity for consent, minors between the ages of seven and fourteen have a

rebuttable presumption of no capacity, and minors between fourteen and eighteen are entitled to a

rebuttable presumption of capacity. See id.; Roddy v. Volunteer Med. Clinic, Inc., 926 S.W.2d 572,

576 (Tenn. App. 1996). Amy Decker was fourteen years old when the events at issue in this case

took place. States cannot presume the immaturity of girls under the age of fifteen. City of Akron

v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 440, 103 S. Ct. 2481, 2497, 76 L. Ed. 2d 687

(1983), overruled on other grounds by Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.

833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). The record contains no indication that the Plaintiffs

presented or sought to present evidence rebutting the presumption of Amy’s capacity to consent to

the medical treatment performed on her. See McGlothlin v. Bristol Obstetrics, Gynecology and

Family Planning, Inc., No. 03A01-9706-CV-00236, 1998 WL 65459, at *5 (Tenn. App. Feb. 11,

1998); Roddy, 926 S.W.2d at 576. Therefore, we cannot find that the provision of medical treatment

in this case was unlawful.


                                                  16
       Plaintiffs argue that the statute at issue is overly broad in that it authorizes family planning

clinics to provide contraceptives to minors regardless of age. Because Hage’s parental rights were

not violated as to her fourteen-year-old daughter in this case, it is unnecessary to address the

situation in which a child younger than fourteen obtains contraceptives under the statute.

       In sum, we find that the judgment in this case is final because the trial court had authority

to dismiss the complaint as to all Defendants. We conclude that Tennessee Code Annotated

§ 68-34-107, and the Health Department policy implementing it, do not rise to the level of an

infringement of the Plaintiff’s right to religious freedom under the U.S. Constitution and the

Tennessee Constitution. We also hold that the statute and the policy do not violate the Plaintiff’s

parental rights under the federal and state constitutions. In addition, the Plaintiffs failed to proffer

any evidence rebutting the presumption that the fourteen-year-old minor had the capacity to consent

to the medical treatment administered in this case. Therefore, we conclude that the trial court did

not err in granting the Defendants’ motions and dismissing the Plaintiffs’ complaint.




                                                  17
       The decision of the trial court is affirmed. Costs are taxed to Appellants, for which execution

may issue if necessary.




                                              HOLLY KIRBY LILLARD, J.


CONCUR:


ALAN E. HIGHERS, J.



DAVID R. FARMER, J.




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