Wednesday, July 1, 2009

Ohio Supreme Court Abortion ruling

Yesterday, the Ohio Supreme Court ruled in an interesting case - Roe v. Planned Parenthood of Southwest Ohio.  The facts of this most intriguing case are these: Thirteen year-old Jane Roe and her 21-year old soccer ccoach John Haller began a sexual relationship resulting in Jane's pregnancy.  Haller encouraged Jane to terminate the pregnancy.  Upon arriving at the clinic, she was asked to fill out a consent form.  Per Haller's instructions, she listed her father's name and address correctly, but provided Haller's phone number.  The clinic called Haller to request parental consent.  When Jane's real parents discovered the chicanery, they called the police.  Haller was arrested for sexual battery.  Planned Parenthood was also investigated, but no criminal charges were filed.  Therefore, the Roes sued Planned Parenthood for violating various Ohio statutes, including, inter alia, failing to obtain parental consent, failing to obtain Jane's properly informed consent, and failing report to report suspected sexual abuse of a minor. 

The last count really is key to the importance of the case.  In discovery, the Roes sought to obtain not only Jane's medical records (which Planned Parenthood provided) but also the redacted medical records of all Planned Parenthood clients going back ten years.  The Roes asserted the information was necessary to prove that Planned Parenthood had engaged in a "pattern and practice" of ignoring possible sexual abuse.  Based on state precedents, the Ohio Supreme Court ruled that there is no such right to the information of third parties, even if redacted.

While the claims were primarily resolved on state law grounds, the ramifications for federal and state law are many.  The majority of states require some form of parental notification or consent.  But the facts of this case highlight just how tenuous those laws can be.  A brief search of the legal literature reveals but a few articles,* but there are enough articles and cases to prove that this is not the first time this has happened, and it will likely not be the last. 

So, what are the options on the consent issue?  The burden could be placed firmly on the doctor to be certain that the consent is legitimate.  However, the question is where does one draw the line in such situations.  Haller engaged in a very manipulative scheme.  It's not impossible to see some clinic being duped in the future on similar facts.  If a clinic truly does act in good faith, should it be penalized?  Moreover, at least one article argues that such a high burden might be an unconstitutional violation of Casey's "undue burden" standard.**  Another option is to follow the lead of states likeTexas and Louisiana which require parental consent forms to be notarized.  However, even this might not entirely eliminate the fraud issue.  At present, it seems the most important thing to do is to recognize the issue and close any legislative loopholes (hopefully without creating new ones).

The second issue is the privacy ruling.  The striking part of the ruling is that the parents were not entitled to even the redacted medical information.  While the case was decided on state law grounds, and tort law as opposed to constitutional law, the right to informational privacy - especially about health information - seems to be gaining traction in this nation (see HIPAA).  While the Court has yet to fully constitutionalize the right (see Whalen), in this context - where another right of privacy is implicated - there might be a stronger argument.*** 

I hope you find this case interesting in teaching these concepts. 

NLS

* Katheryn D. Katz, The Pregnant Child's Right To Self-Determination, 62 Alb. L. Rev. 1119 (1999).

** Pammela S. Quinn, Note, Preserving Minors' Rights After Casey: The “New Battlefield” of Negligence and Strict Liability Statutes, 49 Duke L.J. 297 (1999).

*** Ingrid Schüpbach Martin,  The Right To Stay In The Closet: Information Disclosures By Government Officials, 32 Seton Hall L. Rev. 407 (2002).

http://lawprofessors.typepad.com/conlaw/2009/07/ohio-supreme-court-abortion-ruling.html

Abortion, Due Process (Substantive), Fundamental Rights, Privacy | Permalink

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