Anspach v. Phila Dept Pub ( 2007 )

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Precedential or Non-Precedential: Precedential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 at276 (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 at1168 (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