T____ H____ v. Jones

¶1(dissenting).

¶2I have read the foregoing opinion and feel constrained to dissent. A dissenting opinion setting forth the reasons follows.

¶3The majority opinion bases its finding that Regulations FPX 120, FPC 120, and 3.7(c) of the Utah State Division of Family Services are invalid and unconstitutional on two grounds: (1) that the state regulations conflict with the federal statute and are therefore invalid under the supremacy clause of the Constitution, and (2) that the plaintiff has a constitutional right of privacy that has been unjustifiably infringed without a compelling state interest justifying it. Careful examination does not reveal a necessary conflict between the state regulations and federal statutes in question. *883Further, the majority’s newly defined constitutional right for minors to receive contraceptives without parental consent seems an unwarranted and unwise extension of the right of privacy as well as an unjustified curtailment of the rights of parents.

¶4SUPREMACY CLAUSE

¶5Whether the state regulations impermis-sibly conflict with the federal statutes in question is a matter of statutory construction. Basic rules of statutory construction require that statutes and regulations be given a sensible interpretation that will accomplish the legislative intent and avoid an illogical conclusion or unreasonable result. Where possible, statutes and regulations should be upheld and operative language be given effect. It is believed the interpretation herein contended for conforms to those standards and that there is no conflict between the regulations and statutes in question.

¶6In its consideration of the statutes and regulations in question, the majority has overlooked pertinent words in the federal statutes and relevant federal regulations which allow a harmonious construction with the state regulations. The two federal statutes in question are 42 U.S.C. § 602(a)(15) and 42 U.S.C. § 1396d(a)(4)(C). Plaintiff argues these statutes mandate that family planning services be given to her. Both statutes, however, contain words of qualification which can be interpreted as giving some definitional leeway in determining who should receive family planning services. 42 U.S.C. § 602(a)(15) provides in part:

(a) A State plan for aid and services to needy families with children must:

… *

(15) . . . [provide a program] for preventing or reducing the incidence of births out of wedlock and otherwise strengthening family life, and for implementing such program by assuring that in all appropriate cases (including minors who can be considered to be sexually active) family planning services are offered to them and are provided promptly (directly and under arrangements with others) to all individuals voluntarily requesting such services. (Emphasis added.)

¶742 U.S.C. § 1396d(a)(4)(C) defines “medical assistance” to mean payment of part or all of the costs of

family planning services and supplies furnished ... to individuals of childbearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies (Emphasis added.)

¶8In 42 U.S.C. § 1396d(a)(4)(C) the discretion of the state is clearly recognized as eligibility under the state plan is set out as a condition to payment of part or all of the cost of medical assistance as therein defined. The phrase “in all appropriate cases” in 42 U.S.C. § 602(a)(15) also is indicative of state discretion in defining program eligibility when read in light of the federal statutes promulgated thereunder. The federal regulation applicable to § 602(a)(15) provides that a state plan can qualify the families and children who may receive mandatory family planning services. 45 C.F.R. § 220.15 (1974) states:

The State plan:

(a) Must assure that responsibility is assumed for the provision of services to all appropriate persons receiving aid and others in the homes whose needs were considered in determining eligibility for such aid, as called for under each of the requirements in §§ 220.16-220.25; and (b) Must be specific in its identification of the services to be provided or purchased and the families and children to whom they will be available. (Emphasis added.)

¶9Further, as it relates to the parental consent requirement in the Utah service plan, 45 C.F.R. § 220.16(c) provides that the family (not merely a minor child within a family) shall have the right to accept or reject particular state plans. It states:

Such plans must be developed in cooperation with the family and must be responsive to the needs of each individual with*884in the family, while taking account of the relation of individual needs to the functioning of the family as a whole. Families shall have the right to accept or reject such plans. (Emphasis added.)

¶10Further support of the philosophy of vol-untariness and the right of the family to elect whether or not to participate in family planning services is seen in 45 C.F.R. § 220.-21 which states in part:

Acceptance of any [family planning] services must be voluntary on the part of the individual and may not be a prerequisite or impediment to eligibility for the receipt of any other service of aid under the plan.

¶11Thus, federal regulation 45 C.F.R. § 220.-15 makes it clear that the states do have leeway to identify “the families and children” to whom family planning services will be available, and 45 C.F.R. § 220.16(c) makes it equally clear that families have the right to reject such plans. The mandatory aspect of these services appears to be that the families involved are made aware of the availability of the services and that the services be provided if requested. Congress’s use of the qualifying language in terms of the “appropriate cases” along with the aforementioned federal regulations does not provide a language base for concluding that the decision of whether or not to acquire and use family planning services is to be left entirely to unmarried minor children in families receiving AFDC aid. Consistent with 45 C.F.R. § 220.16(c), the Utah plan provides family planning services to unmarried minor children with parental consent.

¶12Contrary to the foregoing, the plaintiff, in sum, contends that the statutory language in question merely correlates particular services provided for by the Social Security Act between one group of persons for which the services are mandated and a second group of persons, that plaintiff claims is identified under the Act, who can receive some of the services available to the first group depending upon the peculiarities of the state plan involved. This complex explanation (which is not entirely clear as explained in plaintiff’s brief) does not adequately explain the statutory language in question. Plaintiff puts a strained interpretation on words not carrying the plain signification claimed for them. Two strong arguments can be made against plaintiff’s proposed construction of the statutes. (1) If the word “appropriate” and the phrase “who are eligible under the State plan” were stricken from the respective statutes, no change would be effected. The persons in the second categories, as identified by plaintiff, could still receive all the services for which they qualify even without these words in the statutes. Statutes should be construed in order that each word can be given effect rather than in a manner in which certain words are rendered meaningless. (2) If “appropriate” and “who are eligible under the State plan” were meant to qualify services that might be provided to the persons in the second category, as identified by plaintiff, it would seem that such qualifying words would appear throughout the statute in order to qualify each of the services that could be, under the appropriate circumstances, provided to both groups of persons. However, these qualifying words appear only in connection with the family planning services, rather than in connection with all the various services that can be provided to both groups of persons. Further, with the evidence of precision in the use of words in the extensive and complicated statutes before the court, such phrases with the meaning ascribed to them by plaintiff would seem to be inartful. Reason would require the conclusion that the construction urged by plaintiff was not intended.

¶13The word “appropriate” and the phrase “who are eligible under the State plan” are most logically construed as allowing Utah to exercise discretion in identifying those minors with parental consent as the only minors in the state to whom family planning services will be available. This is in accordance with 45 C.F.R. § 220.15 which provides that in assuming responsibility for the provision of services under the Act that the state plan must “be specific in its identification of the families and children to whom they [the services] will be *885available,” and with 45 C.F.R. § 220.16(c) which provides that families shall have the right to accept or reject particular state plans. Such an interpretation is consistent with the overall objectives of the Act as stated in 42 U.S.C. § 601 which provides that the appropriations were authorized for the purposes of encouraging the care of dependent children in their own homes and for the purpose of helping to

maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection . . (Emphasis added.)

¶14Also, persuasive support for a construction upholding the Utah regulations is the interpretation of the Utah plan by the federal agency charged with the execution of the programs here under consideration. With all their administrative experience in sponsoring and enforcing such laws and regulations, the Department of Health, Education and Welfare, through its Regional Officer, approved Utah’s plan with its parental consent requirement.1

¶15The Utah regulations can be held invalid under the supremacy clause of the Constitution only if they impermissibly conflict with federal law. There is no conflict in this case. The federal law anticipates a state program in which the needs of children are met with continuing parental care and protection and families are strengthened. The government offers the panoply of what it believes are essential services. The family determines which services it will use. 45 C.F.R. § 220.16(c). Under the federal plan, parents are afforded the flexibility to raise their families without the interference of an impersonal government that would, in the words of the majority, substitute the “mature judgment” of trained adults (presumably social workers) for parents. Whose judgment will determine that a particular social worker, perhaps a parent with his own problems, will better advise a minor on the use of contraceptives than the minor’s parents? By what right may a social worker supplant the parent under the basic purposes of the Act? The construction contended for by plaintiff in this important aspect of child care and training would not strengthen the family nor would it “maintain continuing parental care and protection,” as contemplated by the Act.

¶16THE RIGHT OF PRIVACY

¶17The legislative solution for preventing or reducing the incidence of births out of wedlock among sexually active minors who are AFDC recipients is presented in the statutes previously discussed herein and argued at length by plaintiff. In discussing plaintiff’s asserted constitutional right of privacy, which is the majority’s second ground for invalidating the Utah regulations in question, it should be borne in mind that a critical distinction exists between (1) the desire of Congress to provide contraceptives to minors if it perceives such a need and (2) a minor’s “right” to receive contraceptives under constitutional principles. A minor’s need for contraceptives may be susceptible to legislative action, while a minor’s right of access to contraceptives is certainly governed by different considerations — the constitutional status of the right of privacy for minors in this context.

¶18RIGHT OF PRIVACY

¶19The constitutional right of access to contraceptives for adults, to the extent it presently exists, has evolved under the court-created right of privacy. See Note, Parental Consent Requirements and Privacy Rights of Minors: The Contraceptive Controversy, 88 Harv.L.Rev. 1001, 1006 (1975). In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) the Court left open the possibility that a state might validly regulate distribution rather than use of contraceptives. No Supreme Court deci*886sion has held that minors have a fundamental right to contraceptives, and no Supreme Court decision has explicitly held that this claimed right of privacy is even applicable to minors. 88 Harv.L.Rev. at 1009. In this case, however, the majority has held that the right to privacy prevents the state from intruding, without justification, into the decision of the minor to obtain and use contraceptives; that the interest of minors in access to contraceptives is one of fundamental importance; that Utah’s parental consent regulations are not supported by a compelling state interest, and therefore are constitutionally invalid. The extrapolation which leads the majority to these conclusions ignores significant familial interests which have been fundamentally at the root of our society.

¶20Justice Oliver Wendell Holmes wrote that “[t]he life of the law has not been logic: it has been experience.”2 While the Griswoldcase has been argued by some as a logical base for holding that a right of privacy gives a minor a fundamental right to contraceptives, such a conclusion is not supported by experience, nor on close examination does logic support this argument even within the majority’s own conceptual framework.

¶21Although never explicitly determined by the Supreme Court, many have concluded from recent right of privacy decisions that the right of privacy does comprehend the right of adults to obtain contraceptives and other birth control information free from unnecessary state interference.3 While the rights of adults are not specifically at issue in this case, a conclusion of their right to contraceptives is a requisite step in the logical consideration of minors’ rights. The majority thus concludes on the proposition that there exists a fundamental right of access to family planning information and material lodged in adults under the constitutional rubric of the right of privacy.

¶22The next step of the majority’s analysis is the conclusion that this privacy right of access to contraceptive materials extends to minors. As to this conclusion, basic principles require disagreement. By long-standing and significant precedent it is clear that constitutional guarantees found in the Bill of Rights and the clauses of the Fourteenth Amendment operate to the protection of minors as well as adults. See, e. g., In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). And it is also an established principle that fundamental constitutional rights accorded adults may be limited in their extension to minors, particularly when capacity is at issue.4See Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), reh. den., 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887 (although written in constitutional language, that decision is not explicitly premised on the First Amendment rights of minors); Oregon v. Mitchell, 400 U.S. 112, 119-31, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970).

¶23The majority properly recognizes that “capacity” is the distinguishing feature in understanding the different approaches utilized by the Supreme Court in extending constitutional rights to minors. It states that

[t]he Court has nevertheless recognized that the state may legitimately curtail the rights of children where it acts to protect children from their own incapacity to fend for themselves. (Emphasis added.) Supra at 425-881.

¶24Thus, where capacity of the minor child is not an issue in the exercise of a particular fundamental right, the Court has applied constitutional protections for minors with substantially identical force. See Tinker v. Des Moines Ind. Com. School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (First Amendment rights of students to *887wear anti-Viet Nam war armbands to school upheld); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (both extending criminal process rights to minors); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (procedural rights guaranteed prior to suspension from public high school). However, other “fundamental” rights have not been identically applied to minors when capacity is at issue. Thus, the right to vote, deemed fundamental, is not accorded to minors though a substantial number of minors undoubtedly have the capacity to exercise that right with superior ability in comparison to many adults. See Oregon v. Mitchell, 400 U.S. 112, 119-31, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (denying right to vote to 18 year olds in state elections). Minors are also denied rights of access to allegedly pornographic materials which some court decisions have allowed adults under the First Amendment. See Rowan v. United States Post Office Dept., 397 U.S. 728, 738, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970) (parent may reject mailed material being sent to minor members of family);5Ginsberg v. New York, supra (standards of obscenity different for minors). The underlying though not explicit premise of these cases is that where capacity is an issue, i. e., that the judgment required in the exercise of the right is such that a substantial number of the class of minors involved lack the mental and emotional capacity to effectively make that judgment, the state may limit in a number of ways the exercise of those rights by minors. And, similarly, when capacity is not at issue in the exercise or entitlement of rights, such as criminal process or due process rights, there is then no justification for state limitation or infringement of those rights.

¶25It is not, however, with the significance of “capacity” that gives so much concern, but with the majority’s definition. After noting the constitutionally permissible limitations which states may impose to protect minors “from their own incapacity to fend for themselves,” the majority opinion goes on to state that

[i]n the present case, however, the state can assert no such interest in protecting sexually active minors from dangers that may be entailed in the use of contraceptives.

¶26Supra at 881.

¶27Thus, it appears that the majority equates “capacity to fend for oneself” with “sexual activity,” and holds that any sexually active minor has the capacity to make the contraceptive decision. Such an equation seems oblivious to the precedential and linguistic meaning of “capacity” and of the traditional protection of minors afforded by state law. It can hardly be contested that a minor’s decision to use contraceptives involves intellectual, emotional, and moral factors as well as the physical factor. Nonetheless, the majority, disregarding these other factors, has limited their observation in this respect to the risk of “physical harms” resulting from the practice of birth control. Consequently, the conclusion that the state can assert no interest in protecting sexually active minors from the use of contraceptives, because they have capacity, seems based on a false assumption.6

¶28*888Since capacity is at issue here, and requires consideration of more than the level of a particular minor’s sexual activity or ability, it remains to determine what applicability the right of privacy has for minors claiming family planning assistance. One possible analytical approach is to define the two groups of minors whose interests appear to be raised by limitations on contraceptive access, whether by parental consent requirements or otherwise. The first group are those minors with the capacity to make the contraceptive decision who would choose to obtain family planning materials, referred to as those “with capacity.” The second group are those minors clearly lacking the capacity to effectively make the contraceptive decision who would choose also to obtain family planning materials to their injury, referred to as those “lacking capacity.” The former arguably suffer the possible deprivation of a constitutional right; the latter suffer the possible consequences of an erroneous decision. It is in the light of these competing interests that the claimed right of minors to contraceptives must be evaluated. First, the interests of those two groups must be defined and weighed, if possible, i. e., whether the interest of the first group, those with capacity, is of significantly larger dimensions than that of the latter group to warrant denominating the right to contraceptives as fundamental for all minors. It is clear that no such conclusion can be drawn in the absence of supporting empirical evidence of plaintiff’s position and without a more persuasive logical position on the face of the arguments themselves. Thus, as in eases such as Oregon v. Mitchell and Ginsberg, the presence of a critical capacity issue precludes extending this right of access to contraceptives, as a fundamental right, to all minors. And the relative interests of those minors with capacity cannot of their own weight and constitutional substance bootstrap the right for all minors, in light of the competing interests and claims discussed above. Therefore, the right of privacy, insofar as it may include the right of unhindered access to contraceptives for adults, does not extend to minors as a fundamental right.

¶29This conclusion is in accord with the analogy to the legislative decision, in the area of voting rights, to deny in toto the right of minors to vote, which has been sustained by the Supreme Court, notwithstanding the strong argument of the existence of a substantial number of minors with capacity. See Oregon v. Mitchell, supra.Consequently, given the conclusion that the right of minors to family planning assistance is not a fundamental one, the traditional approach of courts is to see if there is a reasonable basis for such a statutory limitation. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 40-59, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Developments in the Law—Equal Protection, 82 Harv.L.Rev. 1065, 1077-87 (1969). In light of the very strong societal interest in protecting minors lacking capacity from the potential injuries resulting from erroneous decisions,7 the parental consent requirement invoking the guidance and judgment of parents has such a reasonable basis.

¶30The parental consent requirement also recognizes the traditional role of the family in society.

The well-being of its children is of course a subject within the State’s constitutional power to regulate, and, in our view, two interests justify the limitations . upon the availability of sex material to minors under 17. . First of all, constitutional interpretation has consist*889ently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include the preparation for obligations the state can neither supply nor hinder.’ Prince v. Commonwealth of Massachusetts, supra [321 U.S.], at 166, 64 S.Ct. [438] at 442. The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children’s well-being are entitled to the support of laws designed to aid discharge of that responsibility. . . . Moreover, the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children. Ginsberg v. New York, supra, 390 U.S. at 639, 88 S.Ct. at 1280. (Emphasis added.)

¶31It seems incongruous to assign to parents the role of instruction, on matters of morality and citizenship as well as other areas, and then deprive them of that role in the instance of opting to use contraceptives. Consequently, the parental consent requirement does not unconstitutionally infringe the rights of those minors with capacity, while reflecting substantial interests which persuasively weigh in its favor over a state counselor approach even assuming the “mature judgment” spoken of in the majority opinion.

¶32EQUAL PROTECTION

¶33The majority opinion also notes that “even if we were to sustain the state’s regulation in their effect upon plaintiff’s privacy, they would nevertheless be subject to attack on equal protection grounds” because there is no state law prohibiting distribution of contraceptives to all minors. This argument, while not relied upon by the majority nor elaborated in any detail, appears to be based on the assumption that family planning assistance is denied to the poor while available to the affluent. Under that assumption, such a statutory scheme would be subject to two challenges. The first is based on wealth discrimination. However, the Supreme Court has recently ruled that wealth is not a suspect classification. See San Antonio Independent School Dist. v. Rodriguez, supra,411 U.S. at 18-28, 93 S.Ct. 1278. Thus, only a reasonable basis need be found for the apparent distinctive treatment embodied in the state plan. The second challenge is that an important right (whether or not deemed fundamental) is denied to some while granted to others with no apparent justification. The problem with that argument is that those in plaintiff’s position who come under the various federal programs here involved are not denied access to contraceptives. Rather, they are only denied family planning materials through the particular program for which the state plan was adopted where the parents do not consent. It remains for those in plaintiff’s position to obtain contraceptive material and information from the same sources as “affluent” minors, if state law so allows. Thus, the only challenge is the wealth discrimination challenge. And it is a reasonable basis for such a state plan that the state choose not to be involved in the distribution of contraceptive materials to minors. State statutes condemn sexual relations with minors. See e. g., Utah Code Ann. § 76-53-19 (1953) (a felony to have carnal knowledge of a minor). Further, a common factual predicate for a determination of a “delinquent child” or contributing to the delinquency of a minor, is unlawful sexual activity. Thus, an equal protection challenge to the state’s plan requiring parental consent fails as well.

¶34As quoted above by the United States Supreme Court in Ginsberg v. New York, supra, 390 U.S. at 639, 88 S.Ct. at 1280.

Constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”

¶35*890It is believed that the regulation of the state which requires parental consent in this important area of moral training is justified under the law. I, therefore, feel constrained to dissent.