Anspach v. Phila Dept Pub, (3rd Cir. 2007)
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PRECEDENTIAL
U N IT E D STATES COURT OF APPEALS
F O R THE THIRD CIRCUIT
N o : 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
A p p ea l from the United States District Court
f o r The Eastern District of Pennsylvania
D .C . Civil Action No. 05-cv-00810
D is tric t Judge: The Honorable J. Curtis Joyner
A rg u e d January 16, 2007
Before: McKEE, AMBRO, and STAPLETON, Circuit Judges (F ile d : September 21, 2007) J O S E P H P. STANTON, ESQ. (Argued) L a w Offices of Joseph P. Stanton Jenkintown, PA 19046 A tto r n e y for Appellants JANE LOVITCH ISTVAN, ESQ. (Argued) S e n io r Attorney, Appeals C ity of Philadelphia Law Department R o m u lo L. Diaz, Jr., City Solicitor 1 5 1 5 Arch Street, 17th Floor P h ila d e lp h ia , PA 19102-1595 A R T H U R B. KEPPEL, ESQ.
C H A R L E S A. FITZPATRICK, ESQ.
R a w le & Henderson T h e Widner Building 1339 Chestnut Street O n e South Penn Square, 16 th Floor P h ila d e lp h ia , PA 19107 A tto r n e y for Appellees Terry L. Fromson D a v id S. Cohen W o m e n 's Law Project 1 2 5 S. Ninth Street, Suite 300 P h ila d e lp h ia , PA 19107 S u s a n Frietsche W o m e n 's Law Project 4 2 5 Sixth Ave., Suite 1860 P itts b u rg h , PA 15222 P a u l Messing K a irys , Rudovsky, Epstein & Messing 9 2 4 Cherry Street, Suite 500 P h ila d e lp h ia , PA 19107 A tto rn e ys for Amici Curiae OPINION
McKEE, Circuit Judge.
M e lis s a Anspach and her parents brought this action a g a in st the city of Philadelphia (the "City") and certain of its e m p l o ye e s and agents, including the City's Health Department a n d the Commissioner of Public Health. Melissa is a 16-year-old u n e m a n c ip a ted minor. They allege that agents of the City v io la ted Melissa's constitutionally protected right to bodily in t e g ri ty and parental guidance, as well as her parents' c o n s titu tio n a l right to familial privacy and their parental liberty, b y providing Melissa with emergency contraception without n o tif yin g her parents, or encouraging her to consult with them.1 B o t h Melissa and her parents also allege a violation of their First A m e n d m e n t right of religious freedom, and several causes of a c tio n under state law.
The District Court dismissed the federal constitutional c la im s pursuant to Fed. R. Civ. P. 12(b)(6), and remanded the re m a in in g state claims to state court.2 This appeal followed.
F o r the reasons that follow, we will affirm the District C o u rt's dismissal.
I. FACTUAL AND PROCEDURAL HISTORY 1 Plaintiffs' Complaint mentions their right to familial p riv a c y in the context of Count I, an alleged violation of their f u n d a m e n tal parental liberty interest under the Fourteenth A m e n d m e n t. Even if we interpret this as a separate allegation f ro m their right to parental liberty, Plaintiffs fail to address this a lle g a tio n as a separate violation in their Brief. Absent c o m p e llin g circumstances not present here, failure to raise an a rg u m e n t in one's opening brief waives it. Laborers' Int'l U n io n of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d C ir. 1994).
2 This action was initially brought in state court, but D e f en d a n ts removed the suit to federal court based upon P la in t if f s ' federal constitutional claims.
A.
O n January 26, 2004, Melissa Anspach visited a health c e n te r operated by the City's Department of Public Health (the " C e n t e r" ) . Melissa had recently engaged in sexual intercourse a n d feared she may be pregnant. Upon arriving at the Center, she re q u e s t e d a pregnancy test, but a receptionist informed her that p r e g n a n c y tests were not being administered that day. Melissa th e n left the Center but returned a short time later after a friend p ro m p t e d her to "ask for the morning after pill." Upon her re tu r n , Melissa was directed to the pediatric ward where she p ro v id e d her name and date of birth, thereby disclosing that she w a s sixteen years of age.
Plaintiffs allege that Melissa then spoke with defendant M a r ia Fedorova, a social worker, for approximately ten minutes.
T h e y discussed sexually transmitted diseases, birth control, and e m e r g e n c y contraception. During the conversation, Fedorova c o n f irm e d that the Center could provide pills "that would prevent [M eliss a ] from getting pregnant," and Melissa requested the pills.
D e f e n d a n t Mary Gilmore, a registered nurse, next took M e lis s a ' s temperature and blood pressure, and gave her four tab lets of "Nordette." 3 Gilmore told Melissa to take four pills r ig h t away and then four more in twelve hours.4 Before Melissa 3 Nordette is part of a group of drugs that are regularly used a s oral contraceptives. The Food and Drug Administration has a ls o approved these drugs for use as emergency or contraception f o llo w in g sexual intercourse. See generally Dept. of Health and H u m a n Services, Food and Drug Admin., Prescription Drug P r o d u c ts ; Certain Combined Oral Contraceptives for Use as P o s tc o ita l Emergency Contraception, Part V, 62 Fed. Reg. 8610 (F e b ru a ry 25, 1997).
The regimen for using Nordette as emergency c o n tra c ep t io n consists of taking two tablets (0.75 mg in each p ill) within seventy-two hours of unprotected intercourse, fo llo w ed by a second identical dose twelve hours later. Id.
E m e rg e n c y contraception provides a short, strong, burst of h o rm o n e exposure. Depending on where a woman is in her m e n stru a l cycle and when she had unprotected intercourse, u s in g emergency contraception may prevent ovulation, disrupt f e rtiliz a tio n , or inhibit implantation of a fertilized egg in the u te ru s . Id. If a fertilized egg is implanted prior to taking the re g i m e n , the emergency contraception will not work. See F D A ' s Decision Regarding Plan B: Questions and Answers available at (May 2, 2004), h t t p : / / w w w . f d a .g o v / c d e r / d r u g / i n f o p a g e / p l a n B / p l a n B Q a n d A . h t m.
4 The number of pills per dosage appears to depend on the a m o u n t of hormones contained in each pill. Plaintiffs do not to o k the pills, Gilmore consulted with Fedorova' "to find out h o w Melissa should take the pills." She also asked Dr. Jitendra S h a h if she wanted to examine Melissa. After determining that th e doctor did not want to examine Melissa, Gilmore returned to M elissa, who asked if the pills would make her sick. Gilmore c o n s u l te d with the doctor once again, and the doctor advised G ilm o re to tell Melissa to drink ginger ale. Melissa then took the f o u r Nordette pills in the nurse's presence, and went home.
Melissa took the second dose of pills at home at a p p ro x im a te ly 4:00 A.M. as she had been instructed. After ta k in g the second dose, she experienced severe stomach pains a n d began vomiting. Melissa's father came to her room and f o u n d her lying on the floor. Upon learning that Melissa had tak e n emergency contraception, Mr. Anspach called their family p h ysic ian and the poison control center, and then took Melissa to th e emergency room of a nearby hospital. Melissa was treated th e re and released the same day, but subsequently returned b e c au s e of sub-conjunctive hemorrhaging in her eye that was a p p a re n tly caused by excessive vomiting.
B.
P la in tif f s thereafter filed a complaint in the Court of C o m m o n Pleas in Philadelphia County. They asserted claims u n d e r 42U.S.C. § 1983, as well as various claims arising under state law. The suit was subsequently removed to federal court w h e re the Defendants filed a motion to dismiss pursuant to Rule 1 2 (b )( 6 ).
The parents' § 1983 claims are premised on their c o n te n tio n that Defendants violated their constitutional rights of p a re n ta l guidance by providing Melissa with medication without p a re n ta l consent. Melissa alleges that the same conduct violated h e r constitutional right to bodily integrity and parental guidance u n d e r the Fourteenth Amendment. Each of the Plaintiffs claims v io la tio n s of his or her right to the free exercise of religion under th e First Amendment.5 T h e District Court dismissed all of Plaintiffs' claims under § 1983 and remanded the remaining state law claims to state c o u rt. This appeal of the dismissal of the federal constitutional c la im s followed.
I I . STANDARD OF REVIEW W e have jurisdiction pursuant to 28U.S.C. § 1291. Our re v ie w of the order granting the motion to dismiss is plenary.
M o rs e v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1 9 9 7 ). When reviewing a Rule 12(b)(6) dismissal, we accept as tru e all well-pled factual allegations in the complaint, id., and v iew the allegations of the complaint in the light most favorable to the plaintiff. Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 3 7 4 n.7 (3d Cir. 2002). In a § 1983 action, "the plaintiffs are e n titled to relief if their complaint sufficiently alleges deprivation o f any right secured by the Constitution." Langford v. City of A tla n tic City, 235 F.3d 845, 847 (3d Cir. 2000).
Although we view the allegations in the complaint in the lig h t most favorable to the plaintiff, we need not credit "bald In re Burlington Coat a ss e rtio n s " or "legal conclusions." F a c to r y Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997).
" [ L ]e g a l conclusions masquerading as factual conclusions will n o t suffice to prevent a motion to dismiss." Morse, 132 F.3d at 9 0 6 n.8 (quoting Fernandez-Montes v. Allied Pilots Assocs., 987 F .2 d 278, 284 (5th Cir. 1993)).
I I I . DISCUSSION T o state a cause of action under § 1983, Plaintiffs must a lleg e the deprivation of a constitutional right under color of state la w . 42U.S.C. § 1983; Gomez v. Toledo, 446 U.S. 635, 640 (1 9 8 0 ); see also Mark v. Borough of Hatboro, 51 F.3d 1137, 1 1 4 1 (3d Cir. 1995), cert. denied,
A. Substantive Due Process T h e Supreme Court has long recognized that the right of p a re n ts to care for and guide their children is a protected f u n d a m e n tal liberty interest. See, e.g., Meyer v. Nebraska, 262 U .S . 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1 9 2 5 ); Prince v. Massachusetts, 321 U.S. 158 (1944); Wisconsin v . Yoder, 406 U.S. 205 (1972); Parham v. J. R., 442 U.S. 584 (1 9 7 9 ); Troxel v. Granville, 530 U.S. 57 (2000). That co n stitu tio n al protection is "deeply rooted in this Nation's history a n d tradition." Moore v. City of East Cleveland, Ohio, 431 U.S.
4 9 4 , 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 p ro te c te d by the Constitution and possess constitutional rights." P la n n e d Parenthood of Central Missouri v. Danforth, 428 U.S.
5 2 , 74 (1976) (overruled in part by Planned Parenthood of S o u th e a ste rn Pa. v. Casey, 505 U.S. 833 (1992)). Accordingly, p a r e n ta l interests must be balanced with the child's right to p riv a c y, which is also protected under the Due Process Clause.
T h is delicate balance is only implicated, however, if the c o n stitu tio n a l rights of both the parent and child are involved.
" In a typical § 1983 action, a court must initially determine w h e th e r the plaintiff has even alleged the deprivation of a right th a t either federal law or the Constitution protects." Gruenke v. S e ip , 225 F.3d 290, 298 (3d Cir. 2000) (citing Baker v. M c C o lla n , 443 U.S. 137, 140 (1979) ("The first inquiry in any § 1 9 8 3 suit . . . is whether the plaintiff has been deprived of a right s e c u re d by the Constitution and laws.") (quotation omitted)). As w e shall explain, the allegations here do not establish the co n stitu tio n al violation required to maintain an action under § 1 9 8 3 . Thus, we need not decide which way that balance would o th e rw is e tip.
1. Interference with Parental Rights M e lis s a ' s parents allege a substantive due process v io la tio n based on state interference with family relations. They a rg u e that the Center's policies were aimed at preventing parents fro m learning of their minor daughter's possible pregnancies. In s u p p o rt of their contention, the Anspachs point to the fact that p e r s o n n e l at the Center knew Melissa's age, failed to ask Melissa if her parents knew of her predicament, and failed to encourage M e lissa to consult with her parents before deciding whether to ta k e emergency contraception. The Complaint alleges that these f a cts demonstrate that Defendants "engaged in a course of c o n d u c t that was intended to influence Melissa to refrain from d i s cu s s in g with her parents her possible pregnancy and what c o u rs e of action was appropriate." App. at 23a.
The Due Process Clause of the Fourteenth Amendment p ro v id e s that "[n]o State shall . . . deprive any person of life, lib e rty, or property, without due process of law." U.S. Const.
A m e n d . XIV. To state a due process claim under § 1983, the A n s p a c h s must identify a "recognized `liberty or property' in te re st within the purview of the Fourteenth Amendment, and [ sh o w ] that [they were] intentionally or recklessly deprived of th a t interest, even temporarily, under color of state law." Griffith v . Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990) (citations o m itte d ), cert. denied,
As we noted earlier, the Due Process Clause of the F o u r te e n th Amendment "protects the fundamental right of p a re n ts to make decisions concerning the care, custody, and c o n tro l of their children." Troxel, 530 U.S. at 66. However, "the rig h t is neither absolute nor unqualified." C.N. v. Ridgewood Bd. o f Educ., 430 F.3d 159, 182 (3d Cir. 2005). The type of " in te rf e re n c e " that the Anspachs assert would impose a c o n s titu tio n a l obligation on state actors to contact parents of a m in o r or to encourage minors to contact their parents. Either re q u ire m e n t would undermine the minor's right to privacy and e x c ee d the scope of the familial liberty interest protected under th e Constitution.
Courts have recognized the parental liberty interest only w h e r e the behavior of the state actor compelled interference in th e 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 C ir. 1980), a case very similar to the one before us here.
In Doe, a class of parents of minor children sued a p u b lic ly funded family planning center. They claimed that the d i s trib u tio n of contraceptives to minors without notice to the p a re n ts violated the parents' constitutional rights. The Family P la n n in g Center in Doe served both adults and minors. "Neither th e Center nor any of its services related to minors [were] a d v e rtise d , and minors [were] not sought out or encouraged to a tte n d the Center . . . ." Id. at 1163. Minors were, however, " p e rm itte d to come to the Center either with or without parental c o n se n t." Id. The Family Planning Center's services included p resc rip tio n of contraceptives that were distributed to minors " b o th with and without parental knowledge or consent." Id.
The Family Planning Center's programs featured weekly " ra p sessions" for minors. They were educational and dealt with m e th o d s of birth control, as well as the responsibilities that a c co m p a n y being sexually active and the "desirability of c o m m u n ic a tin g with parents and others involved with a decision to engage in sexual activities." Id. Minors were not served by th e Family Planning Center unless they had first attended at least o n e weekly rap session. These sessions were intended to give " f a c tu a l information about birth control and human re p ro d u c tio n ." Id. at 164. Minors who attended a rap session h a d to register and make an appointment at the Family Planning C e n te r. The first visit to the Family Planning Center included a p h ys ic a l examination. If no medical problems were detected, f e m a le minors were usually given a three-month supply of birth c o n tro l pills. Id. According to the testimony of the administrator o f the Family Planning Center, the Center's personnel did not a d v o c ate that unmarried teenagers become sexually active, but th e personnel tried "to deal with individuals . . ." in a "nonju d g m e n ta l" way. Id. at 1164 (quotation omitted).
T h e district court in Doe found that the distribution of c o n tra c ep tiv e s to minors without notice to parents violated the p a re n ts ' constitutional rights. The court entered a permanent in ju n c tio n and ordered the Family Planning Center to "cease and d e sis t from distributing contraceptives and contraceptive devices to minor, unemancipated children in the absence of notice to the p a re n ts . . . and a reasonable opportunity for the parents of such c h ild re n to consult with their children as to the decision of the c h ild whether or not to obtain contraceptives or contraceptive d e v ic e s." Id. at 1165 (quotation omitted).
The Court of Appeals for the Sixth Circuit reversed. It re lie d on a line of Supreme Court cases involving the right of p riv a c y, the authority of the state to regulate the conduct of c h ild re n , and the scope of a minor's right of privacy and c o n c lu d e d that "[a]s with adults, the minor's right of privacy in c lu d e s the right to obtain contraceptives." Id. at 1166 (citing C a rey v. Population Services Int'l,
C itin g Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), the c o u rt explained that "[t]he Supreme Court has not squarely d e c id e d whether a state may impose a requirement of parental n o tic e , as opposed to parental consent, as a condition of a m in o r 's receiving an abortion." Doe, 615 F.2d at 1167. The c o u rt observed that the "one fundamental difference" between th e case before it and cases where the state had interfered with th e rights of parents or the rights of children was that "[i]n each o f the Supreme Court cases the state was either requiring or p ro h ib itin g some activity." Id. at 1168. The court then explained its observation as follows: In Meyer v. Nebraska, [262 U.S. 390 (1923)] the sta te forbade the teaching of foreign languages to p u p ils who had not passed the eighth grade. The C o u rt held the statute not reasonably related to any e n d within the competency of the state and v io la tiv e of parents' Fourteenth Amendment right to liberty. In Pierce v. Society of Sisters, [268 U.S.
5 1 0 (1925)] the statute required all children b e tw e e n the ages of 8 and 16 to attend public s c h o o ls . The Court found that the law u n re a so n a b ly interfered with the liberty interest of p a re n ts to direct the upbringing and education of th e ir children, including the right to send them to a c cre d ite d private schools. Again in Wisconsin v. Y o d e r, [406 U.S. 205 (1972)] the law in question m ad e school attendance compulsory. The Court h e ld that Amish parents' First Amendment rights to the free exercise of their religion were infringed b y the attendance requirement. In Prince v. M a ss a c h u se tts, [321 U.S. 158 (1944)] child labor la w s were construed to prohibit street sales of relig io u s tracts by children. In that case the Court u p h e ld the conviction of a parent who contended th a t these laws unreasonably interfered with her rig h t of free exercise of religion and her parental rig h ts. In so holding, the Court determined that a s ta te 's authority is not nullified merely because the p are n t grounds his claim to control the child's c o u rs e of conduct on religion or conscience.
Id . at 1168. Viewed against this legal backdrop, it is clear that P la in tif f s cannot maintain a due process violation when the c o n d u c t complained of was devoid of any form of constraint or c o m p u ls io n .
Plaintiffs compare the absence of protocols in place at the C e n t e r here with the rap sessions in Doe in an attempt to m in im iz e Doe's relevance to our analysis of their claims. See A p p e llan ts' Br. at 24-25. They emphasize the following aspects o f the Family Planning Center's protocol in Doe: intra-uterine d e v ice s were not dispensed to minors without parental consent, th e program encouraged minors to discuss "their sexual interests w ith their parents," and "[t]he decision on whether a particular in d iv id u a l will receive contraceptives is made in every case by a p h ys ic ia n ." Id. at 25. Although it is clear that the services p r o v i d e d by the Center here are not alleged to include those c o n sid e ra tio n s , we do not think the difference sufficient to alter o u r analysis or the relevance of Doe.
Significantly, no one prevented Melissa from calling her p a re n ts before she took the pills she had requested. Plaintiffs attem p t to argue that the circumstances surrounding Melissa's v is it were tantamount to state coercion and that such coercion w a s sufficient to establish a due process violation. Plaintiffs cite L e e v. Weisman, 505 U.S. 577 (1992), to support their argument th a t "these were adult employees of the City of Philadelphia t e llin g a 16-year-[old] minor how and what to do. Coercion is p la in ly inherent in this relationship." Appellants' Br. at 20. We d is a g re e .
In Lee, the Supreme Court held that reciting a n o n d e n o m in a tio n a l prayer during a high school graduation v io la te d the First Amendment. The Court reasoned that c ir c u m s ta n c e s endemic to a high school graduation coerced those a tte n d in g to join in the prayer whether or not doing so violated th e ir personal religious beliefs. The Court explained: What to most believers may seem nothing more th a n a reasonable request that the nonbeliever re sp e c t their religious practices, in a school context m a y appear to the nonbeliever or dissenter to be an a ttem p t to employ the machinery of the State to e n f o rc e a religious orthodoxy . . . .
T h e undeniable fact is that the school district's s u p e rv is io n and control of a high school g ra d u a tio n ceremony places public pressure, as w e ll as peer pressure, on attending students to s ta n d as a group or, at least, maintain respectful s ile n c e during the Invocation and Benediction.
T h is pressure, though subtle and indirect, can be as re a l as any overt compulsion. . . . [F]or the d iss e n ter of high school age, who has a reasonable p e rc e p tio n that she is being forced by the State to p ra y in a manner her conscience will not allow, the in ju ry is . . . real.
505 U.S. at 592-93. The Court also stressed that attendance at th e ceremony was not truly voluntary. "[T]o say a teenage s tu d e n t 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' a lle g a t io n of coercion is merely that Nurse Gilmore "told Melissa to swallow the pills before leaving the center." Appellants' Br. a t 19. However, Melissa was only given the pills because she a sk e d for them. Arguing that coercion is established because a n u rs e said "take these," while handing Melissa a glass of water a n d the pills she had requested, ignores what really happened.
M o re o v e r, Plaintiffs' insistence that the atmosphere at the Center w a s sufficiently coercive to implicate the Due Process Clause is b e lie d by the allegations in their Complaint. The Complaint s ta te s that, when she entered the Center for the second time, M e lis s a requested the morning after pill and was thereafter a d v is e d by Fedorova that the Center could provide pills that w o u ld prevent Melissa from becoming pregnant. App. at 16-17a.
M e lis s a responded that she would take the pills. Id. "Nurse G ilm o re then gave four of the pills to Melissa and instructed M e lis s a to take these pills with water, which Melissa did in Nurse G ilm o re 's presence." App. at 18a. Simply being told when and h o w 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 .2 d 305, 308-09 (11th Cir. 1989), the Court of Appeals for the E le v e n th Circuit found a constitutional violation where plaintiffs alleg ed that school officials had engaged in overt acts to procure a n abortion for a student without contacting her parents.6 The s c h o o l guidance counselor had discovered that "Jane Doe" was p re g n a n t. She then summoned Jane to her office for counseling, a n d , at the expense of the school, procured a pregnancy test that w a s positive. The counselor and the vice principal of the school th e n persuaded Jane Doe and John Doe (who had admitted Id. at 309. p a te rn ity) to obtain an abortion. Because the yo u n g s te r s could not afford to pay for an abortion themselves, sc h o o l officials paid them to perform menial tasks so they could ra is e the money for the procedure. School officials even paid an in d iv id u a l to drive the minors to a medical facility where the a b o rtio n was performed. Id. at 308-09. The court held that these a c tio n s amounted to coercion of a minor to obtain an abortion or to refrain from discussing the matter with her parents in violation o f 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 th ere were required by law to attend school where they were su b jec t to the authority of the defendants. The complaint in A rn o ld alleged that the school officials not only pressured the c h i ld r e n to refrain from discussing the pregnancy and abortion w ith their parents, but also imposed their own will on the d e c is io n of the children regarding whether to abort the pregnancy in various ways, including by providing them with the money for th e procedure and hiring a driver to take them to the appointment.
Id . at 309. There are no similar acts that could arguably be seen a s coercion alleged here.
N o r can the Anspachs find support in our decision in G r u e n k e v. Seip, 225 F.3d 290, 309 (3d Cir. 2000). There, we r e c o g n iz e d the parental liberty interest of a mother whose d a u g h te r was forced by her high school swim team coach to take a pregnancy test after he became suspicious that she was p re g n a n t. Id. at 296-97. Acting on a hunch, the coach discussed h is suspicions with other school personnel, including a guidance c o u n s e lo r , and asked other team members about their suspicions.
A l t h o u g h spreading this rumor widely, he did not contact the m in o r's parents. He finally insisted that the swimmer in question ta k e a pregnancy test. Id. at 295-96. Thereafter, the student and h e r mother sued the coach under § 1983 alleging, inter alia, v i o l a tio n of the mother's constitutional right to manage her d a u g h te r's upbringing as well as the daughter's right to privacy.
Id . at 297.
In determining whether the plaintiffs had alleged a c o n s titu tio n a l violation in Gruenke, we recognized both the p a re n ta l interest in directing the care of their children and the fact th a t, "for some portions of the day, children are in the c o m p u l s o ry custody of state-operated school systems. In that s e ttin g the state's power is custodial and tutelary, permitting a d e g r e e of supervision and control that could not be exercised o v e r free adults." Id. at 304 (citation and quotations omitted).
D u rin g this custodial time, in order to maintain order and the p ro p e r educational atmosphere, at times, those authorities "may im p o s e standards of conduct that differ from those approved of b y some parents." Id. Where these standards collide, a court will re q u ire the State to demonstrate a compelling interest that o u tw e ig h s the parental liberty interest in raising and nurturing th e ir child. Id. at 305.
We recognized in Gruenke that "[s]chool-sponsored c o u n se lin g and psychological testing that pry into private family a c tiv itie s can overstep the boundaries of school authority and im p e rm is s ib ly usurp the fundamental rights of parents to bring up th e ir children . . . ." Id. at 307. However, that recognition does n o t extend to circumstances where there is no manipulative, c o e rc iv e , or restraining conduct by the State.
The coach's conduct at issue in Gruenke is qualitatively d if f ere n t from Defendants' conduct here. Significantly, he took a c tio n in tandem with his authority as the minor's swim coach.
W ith o u t the minor's invitation, indeed, against her express w is h e s, the coach had very personal conversations with her in an a tte m p t to have her admit to being pregnant, and he asked other c o a c h e s to do the same. Id. at 296. When she wouldn't admit to b e in g pregnant, he paid for a pregnancy test and told her, through o th e r members on the team, that unless she took the pregnancy te s t, he would take her off the relay team. Id. In addition, k n o w in g that the minor's possible pregnancy was a topic of g o s s ip among other team members as well as their parents, he w o u ld occasionally tell others that it was possible that she was p re g n a n t, while attempting to explain the increase in her times at s w im meets. Id. at 307.
Here, the Center, a public health clinic, had no authority o v er Melissa, nor did Center staff become involved in Melissa's re p ro d u c tiv e health decisions without invitation. The only fa ctu a l basis for Plaintiffs' claim is that Nurse Gilmore " in stru c ted " Melissa to take the emergency contraception pills w ith water and that Defendants neither advised Melissa to talk to h e r parents before taking the pills nor first offered to let her See Appellants' Br. at 18-19. p h o n e them. Unlike the d e f e n d a n t's conduct in Gruenke, the Center's actions fail to s u g g e st that Melissa was in any way compelled, constrained or c o e rc e d into a course of action she objected to.
T h e real problem alleged by Plaintiffs is not that the state a c to r s interfered with the Anspachs as parents; rather, it is that th e state actors did not assist the Anspachs as parents or a f f irm a tiv e ly foster the parent/child relationship. However, the A n s p a c h s are not entitled to that assistance under the Due P ro c e s s Clause. See DeShaney, 489 U.S. at 196. Plaintiffs' a rg u m e n ts to the contrary ignore that the Constitution "does not re q u ire the Government to assist the holder of a constitutional rig h t in the exercise of that right." Haitian Refugee Center, Inc. v . Baker, 953 F.2d 1498, 1513 (11th Cir. 1992); see also Ye v. U n ite d States, 484 F.3d 634, 636 (3d Cir. 2007) (no affirmative a c t constituting deprivation of liberty where publicly employed d o cto r wrongly assured patient that there was nothing to worry a b o u t and that he was fine); Youngberg v. Romeo, 457 U.S. 307, 3 1 7 (1982) ("As a general matter, a State is under no c o n s titu t io n a l duty to provide substantive services for those w ith in its border"); Harris v. McRae, 448 U.S. 297, 317-318, 100 (1 9 8 0 ) (no constitutional obligation to fund abortions or other m e d ic a l services). As the Supreme Court recognized in Harris: " A lth o u g h the liberty protected by the Due Process Clause a f fo rd s protection against unwarranted government interference . . . , it does not confer an entitlement to such [governmental aid] a s may be necessary to realize all the advantages of that f re e d o m ." 448 U.S. at 317-318.
The Anspachs attempt to marshal facts to support their a rg u m e n t that the Center "permits no parental involvement at all, a n d purposefully seeks to separate their children from their p a re n ts in the distribution of these pills." Appellants' Br. at 21.
H o w e v e r, as we have repeatedly stressed, the Complaint is c o m p lete ly devoid of any allegations that Center personnel told M e lis s a not to consult her parents before taking the medication, o r that Melissa told Center personnel that she was reluctant to ta k e the medication before speaking with her parents and was p re v e n te d from doing so, or even that any mention was made of h e r parents at all. Plaintiffs admit that Melissa entered the Center v o lu n ta rily and requested the morning after pill. Melissa did not a v a il herself of the opportunity that she had, prior to taking the m e d ic in e or requesting it, to call her parents or to tell the Center s ta f f that she wanted to delay taking the medication to contact her p a re n ts . These facts in no way suggest that the state injected its e lf into the Anspachs' private familial sphere as required for a constitutional violation.
Plaintiffs fail to plead sufficient interference by the state.
H e re , as in Doe, there is no requirement [by the State] that the [children] of p la in tif f s avail [themselves] of the services offered . . . and no prohibition against the plaintiffs' p a rtic ip a tin g in decisions of their minor [children] o n issues of sexual activity and birth control. The p la in tif f s remain free to exercise their traditional c a re , custody and control over their unemancipated c h ild r e n .
D o e , 615 F.2d at 1168.
Our analysis in Parents United for Better Sch. Inc. v. Sch.
D is t. of Pa. Bd. of Educ., 148 F.3d 260, 276 (3d Cir. 1998) (" P U B S " ), is not to the contrary. There, we held that a condom d i str ib u tio n program did not violate parental rights because p a rtic ip a tio n in the program was voluntary for both parents and s tu d e n ts and the program specifically allowed parents the option o f refusing their child's participation. Id. at 275-76. Plaintiffs r e ly on that opt-out provision in their attempt to distinguish P U B S . However, a closer look at that decision undermines P la in tif f s ' 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 v o lu n ta ry nature, and the opt-out provision. However, PUBS d o e s not hold that an opt-out provision is constitutionally re q u ire d whenever reproductive health services are provided to m in o rs . We simply recognized that the opt-out provision further u n d e rm in e d the appellants' claim that the condom distribution p ro g ra m was coercive or compulsory. Id. at 277. We did not d e c id e whether parental rights would be violated if a states p o n s o re d condom distribution program did not require parental n o tif ic a tio n or consent because the issue was not before us.
In PUBS, we cited favorably to Doe, which found "no d e p riv a tio n of the liberty interest of parents in the practice of not n o tify in g them of their children's voluntary decisions to p a rtic ip a te in the activities of the Center." PUBS, 148 F.3d at 2 7 6 (citing Doe, 615 F.2d at 1168) (emphasis added). In quoting th is language, we did not limit the relevance of Doe; we noted o n ly that the program at issue in PUBS was voluntary, just like th e program in Doe, and that it also provided for parental n o tif ic a tio n . Id.
T h a t PUBS does not stand for the proposition that the lack o f an opt-out provision is fatal to the constitutionality of a c o n tra c ep tiv e distribution program is also evidenced by our re lia n c e on Curtis v. Sch. Comm. of Falmouth, 420 Mass. 749, 7 5 9 (1995), cert. denied,
T h e students are not required to seek out and a c c e p t the condoms, read the literature a c co m p a n yin g them, or participate in counseling re g a rd in g their use. In other words, the students a re free to decline to participate in the program . .
. . Although exposure to condom vending m a c h in e s and to the program itself may offend the m o ral and religious sensibilities of plaintiffs, mere e x p o su re to programs offered at school does not a m o u n t to unconstitutional interference with p a re n ta l liberties without the existence of some c o m p u ls o ry aspect of the program.
Id . at 757-58. The same is true here. Although the Anspachs' m o ra l and religious sensibilities may have been offended by their d a u g h te r seeking out and using emergency contraception, her d e c is io n was voluntary. The Constitution does not protect p a re n tal sensibilities, nor guarantee that a child will follow their p a re n ts ' moral directives. Defendants' actions therefore do not " a m o u n t to unconstitutional interference with parental liberties . . . ." Id. at 758.
We realize, however, that one case that is cited in PUBS, b u t not controlling here, arguably lends some support to P lain tiff s' claim that an opt-out feature may be constitutionally re q u ire d to protect the parental liberty interest. In Alfonso v. F e rn a n d e z, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993), the court fo u n d a parental liberty violation where condoms were d is tr ib u ted to students upon request in the school's health re so u rc e room without an opt-out provision or parental notice req u irem e n t. Id. at 261. The holding in Alfonso, however, is lim ite d to the distribution of contraceptives to minors in a school s e ttin g . The court viewed that as coercive because public school See id. at 266. a tte n d a n c e is mandatory. This case is d is tin g u is h a b le from Alfonso for the same reasons that the A lfo n s o court distinguished Doe: In Doe the plaintiffs were attempting to enjoin the d istrib u tio n of contraceptive devices to their ch ild re n at a public clinic. The clinic, however, w a s not inside a school or other building where the p a re n ts were obliged by law to send their children.
C o n s e q u e n tly, in Doe there was no State c o m p u lsio n on parents to send their children into a n environment where they had unrestricted access to free contraceptives, which is precisely what the p e titio n e rs in the instant matter must do.
Id .
A lth o u g h the Anspachs make much of their inability to opt o u t of the Center's distribution of Nordette, as the foregoing case law makes clear, they overlook the fact that services offered at a p u b lic health clinic are wholly voluntary. The Center provides re p ro d u c tiv e health services only at the request of individuals w h o come there and ask for them.
We agree with the District Court that "passive failure on th e part of a state agency and its employees cannot form the basis o f a constitutional claim." Anspach v. City of Philadelphia, 2005 W L 1519014 *3 (E.D. Pa. 2005).7 To hold otherwise would stre tch the parental liberty interest well beyond its previously d e f i n e d borders.8 2 . Parental Notification W e also hold that there is no constitutional right to p a re n ta l notification of a minor child's exercise of reproductive p riv a c y rights. Plaintiffs claim that their position is supported by p a re n ta l notification requirements under Pennsylvania law in the c o n te x t of medical treatment, school field trips, and blood d o n a tio n . They argue that, just as the state can require parental n o tif ic a tio n in the context of a blood donation, the Center had an o b lig a tio n to notify them when Melissa requested emergency c o n tra c e p tio n . See, e.g., 28 Pa. Code § 30.30 (requiring that b lo o d donors between the ages of 17 and 18 have a written c o n se n t signed by a parent or guardian). In addition, the A n s p a c h s argue that the Pennsylvania Minors' Consent Act, 35 P .S . § 10101, which allows minors to consent to certain types of m ed ical treatment, prohibits minors from consenting to any form o f medical treatment unspecified in the Act.
Plaintiffs' first argument ignores the well-accepted p rin c ip le that duties under state law can not create constitutional rig h ts . Fagan v. City of Vineland, 22 F.3d 1296, 1309 n.9 (3d C ir. 1994) (en banc); see also Paul v. Davis, 424 U.S. 693, 701 (1 9 7 5 ). The notifications Plaintiffs rely upon to fashion a federal c o n stitu tio n a l right are all rooted in state law obligations rather th a n the Constitution. These statutes remain subject to c o n stitu tio n a l limitations, including the minor's own privacy rig h ts as well as the state's legitimate interest in the reproductive h e a lth of minors. Second, even if the Anspachs could ground th e ir constitutional claim to notification in state parental consent la w , they still could not prevail. The Minors' Consent Act s p e c if ic a lly permits minors to "give effective consent for medical a n d health services to determine the presence of or treat p re g n a n cy . . . and the consent of no other person shall be n e c es s a ry." See 35 P.S. § 10103.
W e are also unpersuaded by Plaintiffs' reliance on S u p r e m e Court cases that permit parental notification in the a b o rtio n context. They argue that parental consent is required for th e distribution of emergency contraceptives in Pennsylvania u n le ss the court allows the minor to "bypass" the parent when the c o u rt has determined that the minor is mature enough to make her o w n decision, or that the procedure is in the minor's best interest.
However, the cases that Plaintiffs cite are fundamentally distinct f ro m this case in both origin and application. They concern the co n stitu tio n al limitations on a state to interfere with a minor's rig h t to abortion, rather than a parent's affirmative right to be a p p ris e d of a minor's reproductive decisions generally.9 T h e cases Plaintiffs cite developed in response to co n stitu tio n al challenges to state laws that limited a minor's rig h ts by conditioning the availability of abortions on parental n o tif i c a t io n and consent. Courts had to determine whether the g o v ern m en tal interest justified a state's intrusion into a minor's rig h t to an abortion. These cases do not, however, create a c o n stitu tio n a l right of parental notification about an abortion, or a n y other reproductive health decision--they merely find such n o tif ic a tio n constitutionally permissible when paired with a ju d ic ia l bypass provision to protect the minor's health and safety.
P l ain tif f s again rely on Arnold and Gruenke for their c o n te n t io n that it is Defendants, not the parents, "who must e s ta b l is h an absolute proposition . . . that parents never have any rig h t to notice, or to the basic medical background examination o f their immature minor daughter prior to the administration of m o ra lly controversial and potentially harmful medication." A p p e lla n ts ' Br. at 22 (emphasis in original). However, neither A rn o ld nor Gruenke provide for a constitutional right to notice.
9 (...continued) im p e rm is s ib ly burden a minor's right to obtain an abortion).
P lain tiff s acknowledge that Arnold specifically "declined to hold th a t [school] counselors are constitutionally mandated to notify p a re n ts when their minor child receives counseling about p re g n a n cy." Arnold, 880 F.2d at 314. While the court in Arnold re c o g n ize d in dicta that, in the context of school counseling, such c o m m u n ic a tio n should be encouraged "as a matter of common s e n se ," the court by no means suggested that it was c o n stitu tio n a lly required or that such a right to notice might be rec o g n ized under a different set of circumstances. Id. Indeed, th e court expressly noted that "[t]he decision whether to seek p a re n tal guidance, absent law to the contrary, should rest within th e discretion of the minor." Id.
Similarly in Gruenke, we recognized the unique ability of s c h o o l officials to exert control and authority over minor s tu d e n ts , finding a violation of the parental liberty right when th o s e officials exploit their authority to persuade or coerce a m in o r into disclosure of a reproductive health condition, or insist o n a course of action with regard to certain health decisions. 225 F .3 d at 307. We did not, however, recognize a parent's co n stitu tio n al right to notification by school officials with regard to a minor's reproductive health. Rather, we merely opined in d icta that it is doubtful that school counselors have a c o n stitu tio n a l right "to withhold information of this nature from th e parents." See Gruenke, 225 F.3d 290 at 307. Indeed, we d is tin g u is h the court's suggestion in Arnold that, "[a]s a matter o f common sense," counselors should encourage communication, 8 8 0 F.2d at 314, noting that the coach was not a counselor whose g u id a n c e was sought by a student, but instead, a school official, a c tin g contrary to the student's express wishes that he mind his o w n business. Id. at 306-07.
Here, Melissa, on her own initiative, visited a public h e a lth clinic, a facility that, unlike a public school, does not re q u ire attendance or exercise authority over its visitors. She th e n made a choice about whether she should contact her parents b e f o re taking the pills she had requested. No one familiar with ad o lesce n ts will be surprised that she instead consulted a peer.
T h a t friend advised her to request emergency contraception, w h ic h she did. It is equally unsurprising that she did so without p a u sin g to consult or advise her parents. The Constitution does n o t require governmental involvement in that decision, and P la in tif f s have failed to plead facts that would establish that the C e n t e r inserted itself into Melissa's decision by preventing M e lissa from consulting her parents. The Constitution is d e sig n e d to protect individuals from unwarranted governmental in te rf e re n c e, not to require intervention under the circumstances See Arnold, 880 F.2d at 311 ("It is freedom in the h e re . d e c isio n m a k in g process which receives constitutional p ro t e c t io n ." ) (citing Roe v. Wade, 410 U.S. 113; Griswold v. C o n n e c tic u t, 381 U.S. 479; Carey v. Population Servs. Int'l, 431 U .S . 678, 694 (1977); Planned Parenthood v. Danforth, 428 U.S.
5 2 (1976); Eisenstadt v. Baird, 405 U.S. 438 (1972)).
A c c o rd in g ly, Plaintiffs have failed to allege a constitutional v io la tio n .
Though they cite no case law to support their position, M e lis s a 's parents argue that Melissa's particular vulnerability as a 16-year-old minor requesting reproductive health services sh o u ld tip the balance of liberty interests in their favor.
H o w e v e r, allegations that minors seeking reproductive health s e rv ic e s are particularly vulnerable can not negate the fact that m in o rs are individuals who enjoy constitutional rights of privacy u n d e r substantive due process. See Danforth, 428 U.S. at 74 (" C o n s titu tio n a l rights do not mature and come into being m a g ic a lly only when one attains the state-defined age of m a jo rity."). While parental notification has been permitted in lim ite d circumstances in the context of abortion, see, e.g., Casey, 5 0 5 U.S. 833, it has never been affirmatively required, nor e x te n d e d to include other reproductive health services such as a c c e s s to contraception. See Carey, 431 U.S. at 694 (holding that a n y absolute prohibition on the distribution of contraceptives to m in o r s without parental consent was "a fortiori foreclosed.").
W e therefore reject Plaintiffs' claim to an affirmative c o n stitu tio n a l right to notification.10 B. Free Exercise of Religion P la in tif f s' final allegation is that Defendants' actions in te rf e re d with Melissa's First Amendment rights under the Free E x ercise Clause. The First Amendment prohibits the government f ro m burdening the free exercise of religion. United States v. L e e , 455 U.S. 252, 256-257 (1982). However, the First A m e n d m e n t is only implicated if the governmental burden on re lig io n is "substantial." Hernandez v. C.I.R., 490 U.S. 680, 699 (1 9 8 9 ).
In order to establish a substantial burden, Plaintiffs must o n c e again allege state action that is either compulsory or c o e rc iv e in nature. See Lee, 505 U.S. at 621 (a Free Exercise C lau se violation is predicated on coercion); see also Lyng v. N o rth w est Indian Cemetery Protective Ass'n, 485 U.S. 439, 4 4 7 -4 5 1 (1988); Bowen v. Roy, 476 U.S. 693, 704-705 (1986); S c h o o l Dist. of Abington v. Schempp,
As we previously noted, Melissa argues that her allegation th a t she was "told to take the pills" and misled by the designation o f "emergency contraception" in the literature provided by D e f en d a n ts establishes the required coercion. However, she does n o t allege that she informed the clinic staff that her religious b e lief s would prevent her from taking the pills if doing so could p re v e n t the implantation of a possibly fertilized ovum. Nor does s h e allege that she ever inquired about the potential effect of the p ills on a possibly fertilized ovum. Our discussion of the absence o f coercion is equally relevant here. Plaintiffs do not contend th a t Defendants actually compelled Melissa to take the pills, or th a t any of them prevented her from consulting her parents or a n yo n e else before she took them. Instead, their Complaint s u g g e sts that Fedorova "misled" Melissa as to the consequences o f taking emergency contraception by advising Melissa that the p ills would prevent her from getting pregnant. See App. at 17a1 9 a . We are unable to conclude that Melissa was compelled or c o e rc e d to act contrary to her religious beliefs.
Moreover, Fedorova's statement was not inaccurate, nor w a s it misleading under the circumstances here. The United S ta te s Food and Drug Administration has approved oral c o n tra c ep tiv e s such as Nordette for use as emergency c o n tra c e p tio n following sexual intercourse in the dosage given to M e lis s a . See 62 Fed. Reg. 8610.1 1 Depending upon the point a w o m a n is at in her menstrual cycle when having unprotected in te rc o u rs e , the emergency contraception regimen, as described b y the FDA, may prevent ovulation, disrupt fertilization, or in h ib it implantation of a fertilized egg in the uterus. Id. The F D A characterizes the Nordette regimen that Melissa was given a s "one of the most widely employed methods of pregnancy Id. p r e v e n ti o n . " According to the FDA, "[e]mergency c o n tra c e p tio n pills are not effective if the woman is pregnant; th e y act by delaying or inhibiting ovulation, and/or altering tubal tra n s p o rt of sperm and/or ova (thereby inhibiting fertilization), a n d /o r altering the endometrium (thereby inhibiting im p la n ta tio n )." Id. at 8611. Furthermore, [s]tudies of combined oral contraceptives in a d v e rte n tly taken early in pregnancy have not s h o w n that the drugs have an adverse effect on the fe tu s, and warnings concerning such effects were r e m o v e d from labeling several years ago. There is, th e re f o re , no evidence that . . . emergency c o n tra c ep ti o n , will have an adverse effect on an e s ta b lis h e d pregnancy.
Id . As the federal agency "responsible for protecting the public h e a lth by assuring the safety, efficacy, and security of human . .
. drugs . . . and helping the public get the accurate, science-based in f o rm atio n they need to use medicines," the Defendants were e n t itle d to rely on the FDA's scientific and policy conclusions.
See FDA Mission Statement, available at h t t p : / / w w w . f d a . g o v / o p a c o m / m o r e c h o i c e s / m i s s io n .h t m l . In p articu lar, Defendants were entitled to rely upon the FDA's c o n c lu s io n that scientific studies demonstrated that emergency c o n tra c ep tio n does not have an adverse effect on an "established p re g n a n c y." 62 Fed. Reg. 8610.
The governmental actors here must, of course, respect P la in tif f s' religious beliefs about when life begins and what c o n stitu te s an abortion; however, the Free Exercise Clause, " c a n n o t be understood to require the Government to conduct its o w n internal affairs in ways that comport with the religious Lyng, 485 U.S. at 448 b elief s of particular citizens . . . ." (q u o tin g Bowen v. Roy, 476 U.S. 693, 699-700 (1986)).
" [ I]n c id e n ta l effects of government programs, which . . . have no ten d e n c y to coerce individuals into acting contrary to their r e lig io u s beliefs, [do not] require the government to bring f o rw a rd a compelling justification for its otherwise lawful a c tio n s ." Id. at 450-451. Melissa failed to disclose her religious b elief s about abortion to any Defendant, and Defendants were e n title d to base their actions on Melissa's request for emergency c o n tra c ep tio n and the FDA's characterization of the emergency c o n tra c ep tio n Melissa was given.12 12 Judge Stapleton would assume arguendo that there may be situ a tio n s in which a state actor's intentional deception will p ro v id e the "coercion" necessary for a violation of the Free (c o n tin u e d ...) I n a related and interwoven claim, Melissa's parents also a lle g e a free exercise claim under § 1983, arguing that D e f e n d a n ts prevented them from learning of Melissa's request f o r something that could terminate a pregnancy. However, we re ite ra te that the Constitution does not impose an affirmative o b lig a tio n on Defendants to ensure that children abide by their p a re n ts wishes, values, or religious beliefs. See Doe, 615 F.2d at 1 1 6 8 (citing Prince, 321 U.S. at 166). Moreover, even if we assu m ed, arguendo, that giving Melissa emergency contraception u n d e r these circumstances somehow violated her parents' First Amendment rights, their claim would still fail for the reasons we h a v e already discussed; they have not alleged sufficient facts to e s ta b lis h coercion, manipulation, or restraint.
IV. CONCLUSION B e c a u s e we agree that the allegations in Plaintiffs' c o m p la in t have failed to state a cause of action under § 1983, we w ill affirm the decision of the District Court.
indicate the amount that each pill contained here.
5 Melissa claims she was told that emergency contraception w o u ld prevent her from becoming pregnant, but claims she was n e v e r informed that the pills could prevent the implantation of a fertilized egg, something that she equates with abortion.
6 Arnold was overruled on other grounds by Leatherman v. T a rr a n t County Narcotics Intelligence and Coordination Unit,
5 0
7 Although we quote this statement of the District Court, we d o not intend to suggest that the pleadings here establish any " f ailu re " insofar as that term suggests Defendants were under so m e duty to inform Melissa's parents or instruct Melissa to c o n ta c t them before she could receive emergency contraception.
8 Melissa independently asserts a right to receive parental g u id a n c e under the Fourteenth Amendment. However, like her p a re n ts, Melissa has failed to allege facts that constitute c o e rc io n and thus, like her parents, can not sustain a c o n stitu tio n a l violation under our precedent.
9 See, e.g., Lambert v. Wicklund, 520 U.S. 292 (1997) (f in d in g statute's judicial bypass provision, allowing waiver of n o tic e requirement if notification was not in minor's best in ter e st, sufficient to protect minor's constitutional right to ab o rtio n ); Casey, 505 U.S. 833 (upholding statute's parental c o n se n t requirement for minor's abortion based on the existence o f a judicial bypass mechanism); Hodgson v. Minnesota, 497 U .S . 417, 435 (1990) (finding a state statute's two-parent n o tif ic a tio n requirement for minors seeking abortions u n c o n s titu tio n a l, but permitting the notification when coupled w ith a judicial bypass provision); Ohio v. Akron Ctr. for Reprod. H e a lth , 497 U.S. 502 (1990) (upholding a statute requiring a m in o r to notify one parent before having an abortion, subject to a judicial bypass provision); see also H.L. v. Matheson, 450 U.S.
3 9 8 (1981) (holding that a parental notification statute did not (c o n tin u e d ...) 10 We also note, however, that the state's substantial interest in the reproductive health of minors counsels against recognition o f a constitutional right to parental notification when a minor c h ild seeks confidential health care services. Federal legislation i n this area, in particular Title X of the Public Health Service A c t, supports this precept. 42U.S.C.A. §§ 300; see also 42 C .F .R . § 59.5(a)(4) (implementing regulations for Title X p ro v id e that family planning services must be provided without re g a rd to age); Planned Parenthood Fed'n of America, Inc. v. H e c k l e r, 712 F.2d 650 (D.C. Cir. 1983) (finding regulations is s u e d by the Secretary of Health and Human Services requiring a ll providers of family planning services which receive funds u n d e r Title X of the Public Health Service Act to notify parents o r guardians within ten working days of providing prescription c o n tra c e p tiv e s to unemancipated minors inconsistent with C o n g re s s io n a l intent and Title X, found no support in Title X, a n d were thus invalid).
11 Courts ruling on Rule 12(b)(6) motions may take judicial n o tic e of public records. See Oran v. Stafford,
2 8 9 (3d Cir. 2000). The Commissioner of the Food and Drug A d m in is tra tio n 's announcement regarding the safety and e f fic a cy of oral contraceptives for use as emergency co n trac ep tio n is a document published in the Federal Register. It is therefore a public record of which we may take judicial n o tic e . We consider it, not for the truth of its contents, but ra th e r as evidence of the information provided by the federal g o v e r n m e n t to healthcare providers regarding the purpose and e f fe c t of the emergency contraception regimen.
12 (...continued) E x e rc is e Clause. He would hold, however, that this is not such a case. Melissa's only claim to have been deceived is that Ms. F e d o ro v a led her to believe that the pills would only prevent a p re g n a n cy when, in fact, they also would keep a fertilized egg fro m becoming implanted in the uterus, thereby, in Melissa's v ie w , causing an abortion. While it is apparently true that N o rd e tte "alters . . . the endometrium (thereby inhibiting im p l a n ta tio n ) ," 62 Fed. Reg. at 8611, and it is true that Melissa w a s not so advised, Melissa did not tell anyone at the clinic of h e r religious views regarding abortion and there is no reason to b e l ie v e anyone was deliberately trying to mislead Melissa into v io la tin g her religious beliefs. She does not allege intentional o r reckless deception. Judge Stapleton would hold that the a b s e n c e of such an allegation is fatal to her Free Exercise claim. L o v e la c e v. Lee, 472 F.3d 174, 201 (4th Cir. 2006) (holding that " u n in te n d e d denials of religious rights do not violate the Free E x erc ise Clause.").
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- U.S. Court of Appeals for the Third Circuit - Parents United v. Sch Dist Phila, 148 F.3d 260 (3rd Cir. 1998)
- U.S. Court of Appeals for the Third Circuit - Jerome P. Morse, Individually and as Executor of the Estate of Diane M. Morse, Deceased, and as Parent and Natural Guardian of Juree N. Morse, a Minor, Appellant, v. Lower Merion School District; Daycare Association of Montgomery County, Inc., D/B/a Ardmore Child Care Center; Jamison Contractors, Inc.; Buttonwood Company, Inc.; United States Roofing Corporation., 132 F.3d 902 (3rd Cir. 1997)
- U.S. Court of Appeals for the Third Circuit - C.N., Individually and as Guardian Ad Litem of J.N., a Minor; L.M., Individually and as Guardian Ad Litem of V.M., a Minor; M.E., Individually and as Guardian Ad Litem of J.E., a Minor, Appellants v. Ridgewood Board of Education; Frederick J. Stokley; Joyce Snider; Ronald Verdicchio; Robert Weakley; John Mucciolo; Anthony Bencivenga; Sheila Brogan., 430 F.3d 159 (3rd Cir. 2005)
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