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February 3, 2006
Case Law Development: 10th Circuit Court of Appeals Lifts Injunction Against Kansas Statute Requiring Reporting of Sexual Activity of Minors
As reported in the posting of February 1st, the US District Court is Kansas has been reviewing the constitutionality of the state statute requiring health care providers to report any evidence of sexual activity by their minor patients. In continuing developments in that case, the 10th Circuit Court of Appeals has vacated the preliminary injunction against enforcement of the statute. The case presented two main issues: whether the health care provider plaintiffs had standing to challenge the reporting statute and whether the district court abused its discretion in entering the preliminary injunction against enforcement of the statute in the context of minors' voluntary sexual activity with age-mates. The 10th Circuit concluded that plaintiffs do have standing, but found that the district court abused its discretion in granting the preliminary injunction.
Aid for Women v. Foulston, 2006 U.S. App. LEXIS 2366 (10th Cir. Ct. App. Jan. 27, 2006)
Opinion on the web (last visited February 2, 2006 bgf)
Physicians have standing because they have injury whether they follow the Attorney General's interpretation of the statute or not. If they follow the interpretation, they risk injury to their professional relationships with patients and violation of their professional norms of confidentiality; if they do not accept the interpretation, they risk prosecution for failing to report sexually active teens. The physicians also have jus tertii standing to assert the rights of their teenage patients as well, as they stand in a close relationship with those patients and the patients have genuine obstacles in bringing their own challenge: they would have to reveal the very private information that they would be seeking to protect by challenging the statute and as teenagers would be unlikely to have the sophistication, resources, or access to the courts to bring such a challenge.
On the preliminary injunction, the court of appeals rejected the use of the more liberal test for a preliminary injunction in which a lesser showing of liklihood of success may still support an injunction where other factors favor the injunction (the "fair ground for litigation" test). Rather, the court applied the traditional test for a preliminary injunction and concluded that the district court had abused its discretion in finding a substantial liklihood of success on the merits in the claims that the statute violated the privacy rights of minors. While recognizing that minors do have privacy rights, the court noted that there is Tenth Circuit precedent that indicates that minors may not have any privacy rights in their concededly criminal sexual conduct and that plaintiffs have not "clearly and unequivocally" shown that the balance between their privacy rights and the government's interests in requiring reporting would weigh in their favor. Moreover, the court found that the trial court had not adequately considered the other factors in a preliminary injunction analysis.
Accordingly the court vacated the preliminary injunction and remanded for additional proceedings. One judge dissented on the issue of vacating the preliminary injunction.