Aid for Women v. Foulston

HOI evi- produce Tatum allowed have would regarding issue factual creating a dence capaci FOULSTON, in her official Nola by Ta- showing Absent cause. probable Attorney, Judicial 18th ty as District discovery would additional tum that representa Kansas, and as of District summary precluding facts specific revealed county dis of all a class tive of abuse did not court the district

judgment, Kansas, attorneys of the state trict request Tatum’s denying its discretion acting his official Kline, and Phill 56(f). under Rule for a continuance Attorney capacity as General Defendants-Appel Kansas,

State IV lants. case in this conduct police Because Family Physi Academy of American aof deprive Fullard did Association, cians, Medical American arresting hold may not Tatum

right, Associa Medical Women’s American City and officers, supervisors, Association, tion, Nurses American liable Francisco of San County Association, Psychiatric American under death Fullard’s leading up events Psy Society for Adolescent American Moreover, the district U.S.C. Chapter the Ameri chiatry, Kansas deny- its discretion not abuse did court Pediatrics, Academy Kansas can discov- for additional request Tatum’s ing Psychiatric Society, Kansas Medical comply with did not Tatum ery because Associ Public Health Society, Kansas 56(f). Rule requirements VII District ation, Kansas Section costs on College own of Obstetri bear parties shall the American Kansas State Gynecologists, appeal. cians and Association, Associa National Nurses AFFIRMED. Its Kansas Social Workers tion of Society Medi Chapter, Adolescent cine, Curiae. Amici 04-3310. No. Appeals, Court States

United Circuit. Tenth behalf, WOMEN, its own AID FOR 27, 2006. Jan. Margot L.M.S.W., Augustus, Teri M.D., Cowles, Tracy R.N., Breckbill, Epp, R.N., Eby, Vicki

Willow M.D., Estrin, Her Margaret L.B.S.W., M.D., Nauser, M.D., Hodes, Traci bert R.N-C., Mor O’Donnel, Staci Colleen Ph.D., McGilley, Trina D.O., gan, Beth Za L.M.S.W., Wheeler, and Sherman M.D., of themselves remski, on behalf adolescent and their sixteen, and age of under clients simi class of representatives of individuals, Plaintiffs- larly situated Appellees, Attorney Phillips, Assistant

Stephen O. General, (Phill Kline, Attorney General, KS, briefs), Topeka, him Defendants-Appellants. Law Of- Hulnick Shaneyfelt,

Laura B. KS, Jones Wichita, Bonnie Scott fices, Heller, Reproduc- Center and Simon NY, York, for Plaintiffs- Rights, tive New Appellees. LLP, Dale, Rose Proskauer

Margaret A. on York, NY, amicus brief filed an New Family Academy of the American behalf ah, support Plaintiffs- Physicians, et Appellees. PORFILIO, Circuit EBEL and

Before HERRERA, Judge.* District Judges, and

ORDER motion, has Court, own its on

The filed Judgment the Order amended that pro tunc to nunc January addition, publication. we direct In date. this attached to opinion is The amended order. was rehearing en banc petition judges of all of the

transmitted active service. regular who are court service regular active judge noAs be the court that requested court petition request, en banc on the polled also denied. EBEL, Judge. Circuit doctors, requires statute A Kansas notify teachers, other individuals Herrera, by designation. District C. Judith *The Honorable Mexico, sitting of New Judge, District Court government state they § whenever have Kan. Stat. Ann. 38-1521. Kansas there- suspect”

“reason to injury to a minor re- fore requires that speci- whenever certain from, alia, sulting inter sexual abuse. fied professionals have “reason to suspect report Failure to is a misdemeanor. injured a child been aas result of Attorney the Kansas General issued physical, mental or emotional abuse or ne- opinion stating that any sexual activity glect abuse,” or sexual they shall “report by a minor younger than sixteen inher- the matter promptly” to govern- the state injurious ently and that the reporting stat- (the ment. Id. 38-1522 “reporting stat- ute requires persons therefore listed ute”). Those required who are to make the statute a report to file whenever reports such include suspect reason to that a minor has [pjersons licensed to practice the heal- been involved in sexual activity. Various ing arts or dentistry; ... psy- licensed professionals subject to the statute there- chologists; ... psycho- licensed clinical brought suit, after claiming man- therapists; professional licensed datory reporting of minors’ sex- practical examining, nurses attending or persons ual ages similar treating a child age 18; under the violates the minors’ teachers, school administrators or other rights. The district court below issued a employees of a school which the child is preliminary injunction against enforcement attending; ... professional licensed of the reporting the context of counselors; professional licensed clinical voluntary sexual activity between adoles- counselors; ... workers; licensed social cents of age. similar Defendants-Appel- juvenile intake and assessment appeal decision, lants and we vacate workers; and law enforcement officers. the preliminary injunction remand.1 38-1522(a). § Id. “Willful and knowing

I. BACKGROUND failure to make a report required by this section” is a A. Reporting § The misdemeanor. Id. Statute 38- 1522(f). Kansas law declares that abuse,” “Sexual is as used in policy

[i]t of the reporting this state provide statute, protection for the is defined in of part “any relevant children who have act subject been physical, committed with a mental or child emo- which is de- tional or neglect abuse or scribed sexual article chapter abuse 21 of the by encouraging the reporting of Kansas suspect- Statutes § Annotated.” Id. 38- 1502(c). ed child neglect abuse and by] in- [and The referenced article 35 crimi- suring the thorough prompt nalizes a investi- wide range activity, of sexual gation of reports. these including voluntary activity.2 Thus, sexual 1. Due impending to the trial in the .district engaging any following of the acts with a merits, court on the ap- our decision child who is years 14 or age more of but peal originally was issued unpublished as an (1) years less than 16 age: Any lewd Judgment Order and on January 2006. fondling touching person or of either motion, On the own court's the Order offender, the child or the done or submitted pro Judgment is amended nunc tunc and is to with the intent to arouse satisfy or to being published re-issued as this opinion. sexual desires of either the child or the offender, both; or soliciting or the child 2. For example, article 35 criminalizes, inter engage any fondling lewd touching or alia, "sexual intercourse with a person child who is of another with the intent to years age," under 14 § Kan. Stat. Ann. 21- satisfy or arouse child, the sexual desires of the 3502(a)(2); another, the offender or “[mjutual age- exploration sexual in article 35— activity described sexual all (no differential, force, in- or power in- involuntary mates voluntary or whether —that issues).”4 Thus, report a when years cest than younger participants volves required by the suspected sexual abuse under Kan- abuse” “sexual old constitutes only of provides statute evidence reporting law. sas by age- exploration “mutual Reporting Policies B. no evidence of where there is mates”—and differential, force, or incest—as a power by the required reports report policy of internal SRS matter the Kan- made to usually must be investigation and accepted “will not be and Rehabilita- of Social Department sas assessment.”5 38-1522(c).3 (“SRS”). § Id. tion Services Manual Policy and Procedure

The SRS’s Opinions Attorney General C. to “screen policy it the SRS’s states Attorney Kansas Two relevant investigation out,” accept for or not analyzed report opinions not re- General assessment, that do reports those 1992, Attorney General ing statute.6 Specifically, investigation. further quire opinion noting an Stephan issued of the Manual states section years child under 16 “when unmarried neglect should be abuse or report of (as pregnant, sexual abuse statu age concerns “[r]eport out where screened defined) occurred, artifi torily absent directly harm a not ‘lifestyle’issues that do Att’y Op. Kan. Gen. cial insemination.” a child in likelihood place or child However, report that the he noted to section 92-48. “Practice Note” In a harm.” require reporting of statute “does not ing situations lists several the Manual abuse; requires it re suspected child life- all indicates the “[i]nformation where is ‘reason where there porting harm situations directly which do style issues injured’ as a the child has been danger suspect in imminent place them children Attorney General of abuse.” Id. be result harm,” therefore should and which although Stephan opined then situations of the listed out. One screened findings, "[sjexual court’s 21-3503(a); from the district It is clear intercourse with id. however, may reported use this in years age but less that SRS more of who is 14 or child 21-3504(a)(l); follow-up if it investigation § or years age,” id. for of formation than 16 For Women v. patterns of abuse. Aid reveals Foulston, (D.Kan. (1) voluntary: F.Supp.2d Sexual inter- engaging course; (2) fondling 2004) ("[T]he or sodomy; 'screening lewd out’ decision in or years age touching investigation who is 14 of and the preliminary with a child volves some (cid:127) n database!)] years age allowing] and the offend- than 16 but less (cid:127) SRS use of the age years reports and less than any prior less than 19 abuse er is SRS to check age child and years patterns older than the four a minor and look made about only are the child and the offender necessitating investigation and addition more involved, So, parties follow-up.”). is incorrect in the dissent al § 21-3522. governmental id. assuming no that the SRS has screened-out information. use for when exceptions, such as There are several 3. open or when the for business the SRS is position this court is the well-settled "[I]t by employ- alleged perpetrated an abuse was binding general opinions are not attorney that § Stat. Ann. 38- the SRS. See Kan. ee of Kansas, merely persuasive au- but are law 1522(c), (e). Patrol, 273 Highway thority.” Willis v. Kan. Thus, (2002). 41 P.3d Kan. argument, advanced the Plaintiffs 4. At oral attorneys bound county are not and district persons separat- "age-mates” as definition Attorney General. opinions of years age or less. ed three “pregnant, unmarried may very minor [In addition to a doctor where] called [is] likely display emotional, signs of physical upon perform girl abortion for a injuries or mental report- which should be age years[,] under the of 16 ... [o]ther ed[,] ... we do not pregnancy believe that might situations that trigger a mandated of an unmarried necessarily minor consti- reporter’s obligation, because ac- sexual Thus, injury.” tutes Attorney Id. General tivity known, of a minor becomes include Stephan concluded that a teenage girl boy or who seeks medical a particular [w]hether minor in partic- attention sexually for a dis- transmitted injured

ular case has been as a result of ease, a girl who teenage seeks medical sexual intercourse and a resulting preg- attention for pregnancy, or a teenage nancy must be determined on a case-by- girl seeking birth control who discloses case basis. The fact of pregnancy cer- already she has been sexually active. tainly puts one on notice that sexual Id. (as defined) statutorily abuse proba- D. Background Procedural bly occurred, and requires persons listed reporting [the to investigate statute] Less than four months after Attorney further whether the child has suffered General Kline issued opinion, Plaintiffs, his injury, physical emotional, aas result a group of professionals, “licensed includ- of such activity. If there is reason to ing physicians, nurses, workers, social suspect that the child has injured, been psychologist, educator,” and a sexuality person required then to report brought a class action lawsuit under suspicions such reasons there- U.S.C. against a defendant class fore. composed of “all county and district attor- neys Id. in Kansas”7 and against Attorney General of The complaint Kansas. sought Attorney General Kline issued a “declaratory injunctive relief conflicting opinion. Although he acknowl- against application of the reporting edged statute opinion, the 1992 he concluded that to incidents of consensual sexual activity it “by was error: focusing on the preg- between ... a nancy minor under per- of an 16 and a girl years unmarried under 16 son of similar age, age [where the office con- [in Plaintiffs] failed 1992] to look at clude in their professional clearly judgment the State’s articulated position that act sexual rape, has not caused mi- whether forcible or ‘statu- tory,’ injury.” nor is an act that inherently injurious asserted several grounds why and harmful.” Att’y Kan. Op. Gen. un- 03-17. Thus, after reaffirming applied as any that context. First, intercourse with a minor Plaintiffs alleged is sexual abuse such applica- law, a matter of tion Attorney rights General “violates the Kline un- adolescents opined “injury that as a der 16 to result of maintain the confidentiality sexual abuse should be private inferred as a matter of information about their sexual be- law whenever intercourse, sexual havior and medical whether and psychological voluntary or involuntary, care, health including occurred the fact that awith child age under the of 16.” sought Id. have reproductive or mental health added). (emphasis Attorney care General or counseling, without serving any recognized Kline the broad reach of legitimate, his important or compelling state opinion: Second, interest.” “it give fails to the 7. The district court granted the motion class January for certification on its court the district abused that clude reporting when notice of fair plaintiffs in- preliminary the dis- arbitrary granting and discretion encourages and required Finally, criminatory junction. enforcement.” un- adolescents rights of

it violates the Standing A. reproductive in their to privacy der ability (1) inhibiting their by: decisions district appeal first the Defendants repro- other and contraception to obtain have that Plaintiffs court’s conclusion serving without services health ductive reporting stat challenge the standing to (2) interest; [and] state any significant Women, F.Supp.2d Aid ute. See able to con- being them from preventing mainly con Defendants Although at 1281. if even an obtain abortion fidentially pa them ability to raise Plaintiffs’ test if an abortion even mature and they are rights constitutional and clients’ tients’ in their best notice is parental without also ex standing”), we must (“third-party interests. properly court the district amine whether in- preliminary a sought Plaintiffs also satisfied that Plaintiffs have concluded the statute enforcement against junction See standing requirements. constitutional July On challenged context. Denver, 348 County City & Rector v. an order court issued 2004, the district (10th (“Standing injunction based preliminary granting and we questions jurisdictional raises claims. Plaintiffs’ the first solely on the issue sua to consider required Women, at 1288. F.Supp.2d For Aid Article there is an that to ensure sponte the outset that held at district court The us.”) (quota controversy before III case both their standing to assert had Plaintiffs omitted). district review tions We rights rights and own novo, Utah v. de standing decision court’s clients, and that those and patients Cir. Babbitt, a “possess and clients Plaintiffs 1998), both and conclude concerning personal informational reporting challenge the standing to be revealed have might matters mi Id. at reporting.” they can assert mandatory through statute then concluded that court clients’ constitutional patients’ 1280-86. nor by the required as mandatory reporting rights. pa- the minor violates

reporting statute without and clients’ Requirements tients’ 1. Constitutional interest. Id. state significant serving requirements The constitutional timely filed notice Defendants 1285-88. statute challenge state standing to See U.S.C. interlocutory appeal. “(1) injury are threefold: court federal 4(a)(1)(A). P. 1292(a)(1); R.App. Fed. (2) between fact, a causal connection act, challenged injury and the II. DISCUSSION redressed injury will be likelihood main issues: presents case two This No. 2 v. Roe decision.” by a favorable standing to chal- whether Cir. 1228-29 Ogden, and whether lenge asserting 2001). Plaintiffs, parties its discretion abused district court establish burden bear the jurisdiction, injunction against entering preliminary three satisfied these they have ing that in the context of the statute enforcement Babbitt, at 1202. elements. activity with minors’ time the as of the is determined “Standing that conclude Although we age-mates. Sys. v. Health Nova brought.” is con- action also standing, we have do Plaintiffs Gandy, However, Cir. tiffs of this “fair notice.”8 lack 2005). inju- of fair notice is not itself sufficient ry-in-fact standing for purposes. One who Injury

a. in fact engage does not or engage any intend to activity potentially We conclude that have covered Plaintiffs injury met statute does not prong. The amended com suffer “concrete and particularized” plaint reporting injury asserts that from an statute unclear stat- violates ute. process rights Sys., Plaintiffs’ due be Nova Health at give Here, however, cause it “fails to the plaintiffs fair Plaintiffs alleged have notice of reporting required.” they when As among are those covered the re- claim, support for this point Plaintiffs porting statute and that of the “[e]aeh conflicting the two Attorney opin General patients individual Plaintiffs has or clients allege county ions and that “some Kansas age under the sexually of sixteen who are and attorneys district ... have endorsed In light active.” of the risk that Plaintiffs adopted Kline’s interpretation” such prosecuted will be under the reporting plaintiff subject that each “will himself or they statute should fail to report that sexu- possible prosecution herself to if he or she activity, al they have sufficiently alleged a automatically report does not all sexually injury-in-fact. concrete Although Defen- active age adolescents under the of 16 to point dants out that none of the Plaintiffs SRS.” Plaintiffs newspaper also cite to “have been prosecuted or even threatened quotes by other district attorneys express prosecution” failing to report sex- ing confusion about the scope of the re ual by minors with age-mates, De- statute. porting fendants concede that prose- some Kansas cutors have endorsed Attorney General comply

“To with the Due Process interpretation Kline’s of the reporting stat- Amendment, Clause Fourteenth it is And, ute. as the district correctly court requisite that a penal statute give fair out, pointed “defendants offer no assur- notice to ordinary people of conduct what plaintiffs ances will not prosecuted, be if prohibited in a manner that does not they not automatically continue encourage arbitrary discriminatory sexually all active or enforcement.” United clients.” Aid Agnew, States Women, Cir.1991). 327 F.Supp.2d at 1281.9 We for Therefore, conflicting failing conclude because interpreta to follow Attor- ney tions the reporting General interpretation and the un Kline’s could certainty toas what conduct realistically will lead to prosecution, lead to Plaintiffs’ prosecution potentially did deprive Plain- process rights due implicated 8. The district court determined that gia-licensed by pregnant doctors consulted likely are not to succeed on the merits women ... standing challenge [to Geor- Women, due process claim. Aid gia’s despite criminal abortion statutes] F.Supp.2d at appeal 1283. Plaintiffs do not fact record does any not disclose that However, that decision here. we conclude prosecuted, one of them been or threat- because district court's decision was prosecution, ened with for violation of the preliminary and because Plaintiffs could still physician State's abortion statutes. The is the potentially prevail on their lack-of-fair-notice against one whom these criminal statutes di- trial, claim the district court’s decision rectly operate.... physician-appellants, insufficient to moot Plaintiffs’ claim aof case therefore, sufficiently assert a direct threat of controversy. personal They detriment. should not be re- quired undergo to await and prose- Bolton, criminal 179, 188, 9. See also v.Doe relief.”). cution the sole seeking means of (1973) ("Geor- 35 L.Ed.2d 201

mi standing challenge the re- stand- demonstrated injury prong of the have satisfied statute. porting ing.10 redressibility Third-party 2. or “Jus Tertii” Stand-

b. Causation ing also satisfied Plaintiffs have redressibility prongs of though they satisfy

the causation Even can the consti- prong asks standing. The causation Plain- requirements standing, tutional injury “fairly trace alleged the whether potential prudential tiffs face a restriction action of the defen challenged to the able ability on their to assert the Sys., 416 F.3d Nova Health dant.” minor and clients. rights of their omitted). Here, Plaintiffs’ (quotation 1156 has held that “even Court the injury is a result of both process due injury plaintiff alleged when the suffi- of the Attorney interpretation General’s controversy’ the ‘case or cient to meet po prosecutors’ statute and the reporting requirement, plaintiff generally the against of the statute tential enforcement legal rights and inter- must assert his own Stocker, 819 Plaintiffs. See also Wilson ests, and cannot rest his claim to relief Cir.1987) (“[A] plaintiff 947 par- third legal rights or interests of constitutionality of a state challenging Seldin, ties.” U.S. Warth legal in sufficiently has a adverse (1975); L.Ed.2d see 95 S.Ct. officer sued a state enforcement terest Cohen, n. also Flast v. U.S. to create a representative capacity in his (“[A] 1942, 20 L.Ed.2d 947 here, when, controversy substantial imposed by limitation general standing threat of appreciable shows an plaintiff will ordi- litigant federal courts is that statute.”). directly from the injury flowing narily permitted not be to assert redressibility, injunction against As for parties.”). third of absent chal reporting statute enforcing the rule, however, not abso This in Plaintiffs’ lenged context would redress “third-party” lute. the doctrine Under longer it no be uncer jury because would may Plaintiffs “jus standing, tertii” prosecuted could be tain whether Plaintiffs rights of others not before assert the by mi report failing additional they if can “make two court where, opinion, age-mates nor Tesmer, 543 U.S. Kowalski v. showings.” They harm to the minors. there is no 125, 130, L.Ed.2d 519 S.Ct. “fair notice” as longer thus no lack would (2004). First, Plaintiffs must show statute. scope reporting of the has a ‘close’ party asserting Therefore, satisfactorily “the Plaintiffs have following allege that the Kline allege Plaintiffs also Additionally, several other Plaintiffs "profes injury interpretation will harm Plaintiffs' satisfy injury that could forms of relationships with adolescent standing [their] sional prong test. of the constitutional standing injury Additionally, patients.” approach to They assert an "if ... then" physician (i.e., might Plaintiffs be found for injury we don’t follow the Kline inter- if "physicians real and immediate because face prosecution, but if we pretation, then we face reg it, complying injury by with the notification patients' then we will harm our do follow they may thereby violate an ethi since rights). It seems ulation and clients’ constitutional legal duty to maintain confidentiali cal and approach would be the "if ... then” Heckler, ty.” New York v. standing if Plaintiffs would be sufficient for Thus, 1983). (2d at least at Cir. injured they the Kline inter- whether follow have al stage proceedings, Plaintiffs allege they pretation or that if not. they Kline leged injury follow the interpretation, whether do not follow the Kline interpretation or not. prosecution statute. under the face 1112

relationship person with the relationship a. Close possesses who Second, right.” Id. Plaintiffs must physician The satisfy Plaintiffs the first show that “there is a ‘hindrance’ to the requirement third-party standing, a possessor’s ability protect to his own inter- close relationship.13 Many courts have Id.; INS, ests.” see also Terrell v. 157 the physician-patient found relationship to 806, F.3d 809 (“Third-party sufficiently be close for third-party stand standing requires only injury an in fact ing. For example, the Second Circuit has and a close relation to the party, third but concluded that physicians may “assert the also a hindrance or inability of the third unemancipated interests the[ir] minor party claims.”). pursue his or her own [patients]” in having access to confidential Heckler, contraception. 719 F.2d at Court has also 1195. recently Physicians noted that have also quite “[w]e have allowed to been been as forgiving with these sert their patients’ criteria in certain cir .... cumstances example,] [For abortion. See sever Planned ‘[i]n Parenthood Of cases, Heed, al this Court N. standing Eng. 53, has allowed New v. 2 390 56 n. (1st Cir.2004) (“Because litigate the rights parties of third when of their close rela enforcement challenged tionship decision, restriction to the abortion and the against the litigant rights involved, would indirectly result providers [abortion] rou ” in the parties’ violation third rights.’ tinely jus standing tertii to assert the 130, 543 rights U.S. at 125 S.Ct. 564 of women whose access to abortion Kowalski Warth, (quoting 510, 422 restricted.”), U.S. 95 S.Ct. grounds, vacated on other added)).11 (emphasis Ayotte That is the case Planned Parenthood N. New — here, since Eng., -, enforcement of the reporting 961, U.S. 126 S.Ct. (in statute against Plaintiffs (2006); the context of L.Ed.2d 812 Planned Parenthood sex) Idaho, age-mate Wasden, minor would al 908, Inc. v. 376 F.3d legedly (9th Cir.2004) violate the minor patients’ and 916-18 (“[Pjhysicians and rights. clients’ We apply therefore performing clinics abortions are routinely third-party standing recognized test a deferential as having standing bring statutes.”), manner and physician conclude broad facial challenges to abortion may Plaintiffs assert the rights denied, of their 948, t. 544 U.S. cer patients.12 minor 1694, (2005). S.Ct. 161 L.Ed.2d 524 Final- Essence, 11. See also City Inc. v. governmental Federal interference with the abortion ” 1272, Heights, (10th Cir.2002) (quoting decision.' Singleton, 428 U.S. at ("A exception 118, well-established 2868). However, to the bar 96 S.Ct. Singleton’s against third-party standing is the exer- when discussion of third-party standing joined was rights cise of party the third is intertwined only by a plurality. four-member See id. at activities.”). litigant’s with the 108, 2868; 96 S.Ct. see Immigration also Am. Reno, Lawyers Ass’n v. 1360 & 12. Because physician (D.C.Cir.2000). we conclude that the n. 10 A fifth Justice voted for qualify Plaintiffs third-party standing, standing we solely "(1) grounds on the need not non-physician evaluate whether the plaintiff-physicians have a financial stake in Plaintiffs qualify. See Babbitt v. United Farm litigation, the outcome of the Union, WorkersNat'l 442 U.S. 299 n. impairs that the claim their own con- (1979). 99 S.Ct. 60 L.Ed.2d 895 rights.” stitutional 428 U.S. at 96 S.Ct. (Stevens, J., concurring). Many cases mistakenly assert that this case speak Singleton nonetheless of the court in as Singleton Wulff, controlled having physician "held” that the had third- (1976), 49 L.Ed.2d 826 standing. Clinic, which parfy E.g., Volunteer Med. they contend "held physician Rescue, that a could Operation Inc. v. 'assert of women against Cir.1991). recog align Plaintiffs’ interests and commentators have those of ly, courts generally physician- patients, their minor such that can nized more relationship typically meets patient provide proper representation of those Na relationship” requirement. See “close rights. They satisfy therefore the “close (3d Morgan, 350 F.3d Cir. sir relationship” element.

2003) (noting recognized that “courts have b. Genuine obstacle relationships number of

a reasonable third-party standing,” includ give rise to Plaintiffs also meet the require- second Psychiatric ing “doctor/patient”); Penn. third-party ment for hin- standing: “a Inc., Servs., Spring Health Soc. Green inability drance or of the party third (3d Cir.2002) 280 F.3d 289 n. Terrell, pursue his or her own claims.” (“Courts generally recognized physi 809; 157 F.3d at see also S & S Pawn authority claims of pursue cians’ Shop City City, Inc. v. Del 947 F.2d (finding, at patients.”); id. 289-90 (10th Cir.1991) (“One 438 n. 5 of the re- of the based on the “inherent closeness quirements party standing third doctor-patient relationship,” psy that the genuine prevents a obstacle that the third chiatrist-patient relationship suffices for party asserting rights.”). from his or her third-party standing); see also 13 Charles Although have not we addressed detail Wright, Alan Arthur R. Miller & Edward qualifies “genu- what as a “hindrance” or H. Federal Practice and Proce Cooper, obstacle,” ine other courts have shed some (2d n. & dure 3531.9 & 64 ed. 1984 light subject. on this For a example, plu- Supp.2003) (listing physician-patient that, rality in Singleton concluded as to a constitutionally adequate a relationship as woman’s assertion of her own to an relationship). close abortion, weight In addition to the of these au- there are several obstacles. For one thorities, policy we conclude that the be- may thing, she be chilled from such standing third-party hind served protect very assertion desire to finding physician that the Plaintiffs in this publici- of her decision from the sufficiently relationship case have a close A ty of a court suit. second obstacle is patients’ rights. to assert their The con- mootness, at in the the imminent least relationship” cern behind the “close ele- sense, any technical individual wom- “the can rea- party ment is whether third months, Only an’s claim. a few at the sonably expected properly to frame the be most, maturing after the of the decision present issues and them with the neces- abortion, undergo her there- sary Sec’y adversarial zeal.” State of irrevocably lost. to will have been Co., Inc., Joseph Md. v. H. Munson 428 U.S. at 96 S.Ct. 2868. 947, 956, L.Ed.2d U.S. S.Ct. The Third Circuit has also discussed Nasir, (1984); also at 376 see element, psychia- in the context of whether (“A relationship third-party ‘close’ third-party standing to raise trists have standing third-party plain- must allow the patients. the claims of their mental See operate ‘fully, very nearly, tiff to Psychiatric Society, Penn. proponent,’ potential effective a of the pa- considering whether those 289-90. him- plaintiffs rights plaintiff as would the suit, bringing tients were “hindered” from arises, self. Such situation as described according to one trea- the court noted above, contexts, the' professional where tise, plaintiff third- potential (citation require an abso- criterion does plaintiff neatly align.”) [t]his omit- party words, ted). Here, In other physician we lute bar from suit.... conclude party need not face Taking insurmountable hur- guidance, these cases as we con- dles to warrant third-party standing.... patients clude that Plaintiffs’ do indeed One treatise insists that “genuine “cases do not face a asserting obstacle” to demand impossibility an absolute of suit own claims. alleged rights that Plain- in order to fall [impediment] within tiffs assert on of their behalf exception. At spec- the other end of the privacy rights patients’ desire to —the trum, practical keep disincentive to sue may information their sexual about activi- suffice, although a private. Therefore, mere disincentive ties is as Plaintiffs ar- persuasive less a impedi- gue, than concrete seeking “adolescents health care re- ment.” sexuality lated to or mental health care counseling ‘may be chilled from [asserting Id. at (quoting 290 & n. 14 15 James Wm. rights] own a by protect desire to al, Moore et Moore’s Federal Practice very privacy of they [the care seek] from 101.51[3][c]). § The court concluded that ” the publicity of a court suit.’ (quoting stigma “[t]he associated with receiving 2868). Singleton, 117, 428 U.S. at 96 S.Ct. mental health presents services a consider- litigation” able deterrent to and that “men- Additionally, the fact that patients those tal patients’ health impaired condition are minors an is additional obstacle—mi- may prevent being them from able to as- generally nors are legally sophisticated sert their claims.” Id. at 290. The court and are often even to maintain unable suits patients’ concluded that fear of stig- “the representative without a guardian. or See matization, coupled with potential in- (“The Kan. Stat. Ann. period 38-101 capacity pursue legal remedies” was a minority extends in all persons to age sufficient hindrance. Id. (18) eighteen years, except that every In Health, Freilich v. Upper Chesapeake person years sixteen age or over Inc., (4th Cir.2002), 313 F.3d 205 however, who is or has been married shall be consid- the Fourth Circuit concluded that a doctor ered of the age majority in all matters did not have third-party standing to bring relating to ... the capacity to sue and be a claim sued.”). on behalf dialysis patients. of her Furthermore, may minors be hin- Id. at 215. The court held that “we cannot dered reprisal the fear parents from simply assume every disabled or should information about their sexual ac- chronically ill person incapable tivity assert- reasons, be disclosed. For these we ing his or fact, her own claims. such conclude that patients Plaintiffs’ are suffi- persons typical and frequent plaintiffs ciently hindered bringing from suit for this under both the ADA and RA.” Id. second criterion to met.14 be reject 14. We also Defendants' Connecticut, claim that Tile Court case of Griswold v. Ullman, ston v. 63 S.Ct. U.S. 14 L.Ed.2d 510 (1943), requires L.Ed. 603 that we find that (1965), was allowed to assert the of his third-party standing. Plaintiffs lack In Tile- appealing his pro- conviction for ston, physician argued a pre that a statute viding contraceptive advice. Id. at venting giving contraceptives him from pa Supreme S.Ct. 1678. The Court distin- tients whose lives would be threatened guished Tileston: pregnancy patients’ violated his to life. different, Tileston v. Ullman ... for there Id. at Supreme 63 S.Ct. 493. The Court plaintiff seeking represent held that others “there is no basis on which we can say declaratory judgment. asked for a physician] standing [the In that to secure adjudication patients’ thought situation we requirements that the his life, strict, standing which do not be assert in their should lest the stan- own behalf.” Id. at controversy’ S.Ct. 493. In dards of 'case or in Article III contrast, physician in the later become Constitution blurred. Here Cir.1989) (“Because it consti- 888-89 Preliminary Injunction B. provided to be drastic relief tutes whether address next We injunction caution, should be preliminary Plain granted improperly court district necessity only cases where granted injunction. preliminary for request tiffs’ established.”). clearly it prelimi of a grant “This court reviews court, Here, in the district abuse of discretion.” nary injunction rigorous stan argue that the less Satellite, Inc. v. EchoStar Video Dominion Autoskill, Inc. v. announced in dard we 1149, 1153 Corp., 269 Satellite Inc., 994 F.2d Support Sys., Nat’l Educ. dis Cir.2001). court abuses its “A district (10th Cir.1993), apply. should or legal error it where commits cretion in Au applied we The “liberal definition” findings, factual clearly erroneous relies showing a sub the need for lessens toskill rational basis in is no there where the merits: of success on stantial likelihood Mineta, ruling.” Davis for its evidence for a requirements three other “when the Cir.2002) (cita (10th 1104, 1111 F.3d 302 satisfied, it will injunction are preliminary omitted). pre Generally, to obtain tions has enough plaintiff that the ordinarily be estab plaintiff must liminary injunction, merits so to the questions going raised (1) likelihood success a substantial lish: doubtful, substantial, serious, difficult (2) will merits, plaintiff that the the litiga ground fair for them a as to make injury preliminary if the irreparable suffer investi for more deliberate tion and thus (3) denied, that the threat injunction is citations, (quotations, at 1487 gation.” Id. the outweighs plaintiff injury to the ened omitted). However, in Heide alterations defendant(s) by the caused the injury to F.3d 1182 City, Lake 348 man v. S. Salt in that an injunction, preliminary (10th Cir.2003), “[w]here we held that inter public to the is not adverse junction stay gov injunction seeks preliminary Satellite, 269 F.3d Dominion Video est. inter public action taken the ernmental injunction preliminary “a 1154. Because at regulatory statutory to a pursuant est extraordinary remedy, scheme, fair-ground-for- rigorous less unequivocal.” clear and must be relief applied.” should not be litigation standard 1253, Colo., 427 v. Bane, Univ. Schrier 996 Sweeney v. (quoting Id. 1189 omitted); (further (quotation Cir.1993)) (2d 1258 1388 omitted). omitted) (citations Band ex rel. Citizen quotations also United States see the “liberal En to apply Okla. decline Tribe We therefore Indian Potaivatomi Inc., of Autoskill15 Consultants, definition” Mgmt. ter. Bickel, self,” Supreme M. of a Alexander reason doubts are removed those Virtues, The Passive Foreword: serving Court 1960 for married conviction criminal (1961). Given 58 aiding-and-abet- Harv. L.Rev. of an couples in violation as- patients face in minor Plaintiffs' obstacles ting statute. given rights, argue serting own their Defendants 85 S.Ct. 1678. Id. at infringement of their own crimi- assert have not been Plaintiffs that because Plaintiffs rights of they de- as well as process because seek due nally convicted and control in they patients, stand- Tileston does claratory judgment, therefore lack their patients’ minor claims. case. ing assert this However, aas has been described Tileston 15. rule argue that the Heideman fully patients were able "[t]he case where requiring Baird, "the inapplicable because action action,” Eisenstadt bring own public inter- reporting is not 'in automatic n. ” However, govern- presume that all we (1972), est.’ physician and where L.Ed.2d statutory scheme to a pursuant mental action infringement of own allege any his "did not public interest.” in the is "taken any him- inconvenience to rights, nor even 1. Substantial Likelihood of privacy rights Success a. Informational agree We with the district court’s The district court determined that Plain- initial determination that minors do pos tiffs substantially likely to succeed on sess a right to privacy. informational See their claim mandatory reporting of Women, Aid For F.Supp.2d at 1285. minors’ with age- is, That fact are minors does mates violates the informational not foreclose from pri them rights of Plaintiffs’ minor patients and vacy protection. Women, clients. Aid 327 F.Supp.2d at 1288. We conclude district court ‘While Constitution does its making abused discretion in this deter- not explicitly establish a right privacy, mination. Court recognized nearly years that a of personal We our reasoning discuss in more detail privacy does exist.” Dep’t Eastwood v. However, below. to avoid it confusion Okla., Corr. helpful here at the to specify exactly outset Cir.1988). right protects This “two kinds are, not, what we and what we are ad- of privacy interests: the individual’s inter dressing. The following list will empha- avoiding est in personal disclosure of mat size how ruling narrow our is: ters and the interest in being independent First, for purposes of interlocutory when making of personal certain kinds de appeal, Plaintiffs asserting any are not 630-31; cisions.” at Id. see also v. Whalen constitutional rights of They their own. Roe, 589, 599-600, 429 U.S. 869, asserting only of their pa- (1977) (“The 51 L.Ed.2d 64 cases some tients and clients. times characterized as protecting ‘privacy’ have in fact involved at least two Second, different purposes of this interlocu- of kinds interests. One is the tory individual appeal, the challeng- Plaintiffs are not interest in avoiding personal disclosure of ing validity of the Kansas statutes matters, and another is the interest criminalizing sexual conduct with a minor independence in making certain of kinds age under the of 16 where that even decisions.”) (footnotes important omitted). activity among age-mates. interest, The first which is often termed Third, for purposes of interlocutory this privacy,” “informational “protects the indi appeal, Plaintiffs asserting are not that governmental vidual from inquiry into their minor and clients have been matters in which it does not have legiti or will be forced or coerced into disclosing mate and proper Eastwood, interest.” 846 information illegal about their behavior to F.2d at 631. An individual is protect thus the Plaintiffs. Plaintiffs have and will ed from disclosure of information where possession come into of this information by the individual a ‘legitimate “has expecta lawful means. ” tion ... that it will remain confidential.’ Finally, we are not confronted here with Sheets v. Salt Lake County, 45 F.3d a claim (10th under the Fourth Amendment Cir.1995) or 1387 (quoting Mangels v. the Fifth Pena, Amendment. (10th Cir.1986)). 789 F.2d 839

Having clarified scope of inqui- our This yet has not circuit deter ry, we now address whether Plaintiffs have mined whether right of informational met their burden showing a substantial privacy minors; extends to we now con likelihood of success on the merits of their clude that it In Carey does. v. Population claim. Services, International, plurality of the

1117 prevailing likelihood ing a substantial right “the that opined Court statute vio- that the claim their affect- decisions in connection privacy and clients’ in- patients’ minor their lates well minors as extends ing procreation making privacy rights. formational 678, 693, 97 S.Ct. as adults.” determination, only address narrow we (1977).16 cir- Other 675 L.Ed.2d 52 have met of whether the question pos- that minors recognized also cuits have and shown proof burden of Parent- rights. See Planned sess unequivo- ... clear and “right [is] to relief Lawall, F.3d Az. v. hood S.of Schrier, F.3d at 1258. We con- cal.” Cir.2002) young “a wom- (9th (recognizing not met their burden clude avoiding disclosure interest in an’s likelihood of suc- showing a substantial information.”); Doe v. personal of sensitive cess, two reasons. Cir.1980) (6th Irwin, First, precedent Circuit there is Tenth broader has somewhat the state (“Though may not have indicates that minors of chil- the conduct regulate authority concededly in their any privacy rights adults, possess do minors than that dren cases have conduct. Our criminal sexual priva- right constitutionally protected places law validly that “a enacted held Carey, cy.”); Wynn thereof do notice that violations citizens on (“[A] (7th possesses minor privacy. Crim the realm not fall within right protected ... not defined as inal right privacy, Layton City, privacy.” Nilson of unwarranted ... to be free individual Cir.1995) (citation 369, 372 deci- intrusion into governmental omitted); v. Peace Stds. & Stidham child, Officer beget [but] to bear sion whether 1144, 1155 Cir. Training, (internal unqualified.”) 2001) (same); Mangels, 789 F.2d see also omitted) (alterations original); citations drug put laws (“Validly enacted Mo. Cent. Parenthood also Planned see not a this realm is on notice that citizens 96 S.Ct. Danforth, con Accurate information one. private (“Constitutional 49 L.Ed.2d activity is en unlawful cerning such being into and come not mature rights do right of confidentiali by any compassed the state- only when one attains magically .”). Nilson, filed a plaintiff the In ty... majority.”). agree We age of defined privacy his claiming that action mi- and circuits conclude our sister police officer when rights were violated pri- right to informational nors do information reporter to a news disclosed vacy.17 conviction for plaintiffs prior the about We at 370-71. abuse. 45 F.3d claim, part in be rejected plaintiffs the privacy

b. sexual abuse proscribing “[l]aws cause that violations on notice Mr. Nilson place constitution whether next address do not fall within We thereof Id. at realm.” 372.18 privacy ally protected burden of show- have met their minors, undoubtedly true “the it is but that this Although district court stated 16. authority regu- Court, state has somewhat broader a footnote Supreme was “held” than that of of children the conduct Supreme lan- late quoted Court encompassing 1166; Irwin, see at also 615 F.2d opinion adults.” part “this guage clarifies that BRENNAN, (describing priva- Wynn, at 1384 582 F.2d expresses the views of Justices unqualified”). cy right minors as “not STEWART, BLACKMUN.” MARSHALL n. Carey, U.S. at 691 above, any sexual in- described 18.As is “sexual younger than 16 volving precise a minor not need to determine 17. We do supra part I.A. law. See under Kansas abuse” right the context of in parameters of this Stidham, Similarly, Thus, in peace lenge officer those applying laws. ra- employer claimed that his violated his tionale from Nilson and Stidham to this privacy by spreading (allegedly case would lead a conclusion that Plain- false) allegations that he had raped a tiffs’ minor and clients have no young woman. 265 F.3d at 1149. We in illegal sexual activ- allega noted that the information in the ity though information about that —even tions “is sensitive nature and consider activity is “sensitive in may nature” and ably stigmatizes Appellant.” Id. at 1155. stigmatize if those minors disclosed.20The However, again we pri concluded that no argues dissent that the above-cited cases vacy rights implicated were because “a distinguishable and suggests several Stidham, validly enacted [in law the law grounds for distinguishing them. It is cer- against rape] places citizens notice that tainly possible ultimately the cases violations thereof do not fall into the realm however, will distinguished; be no Tenth Nilson, privacy.” Id. (quoting Circuit or yet Court case has 372); at Wimberly City see also Clo so, done and we feel that the dissent’s vis, (D.N.M.2004) WL *3 grounds for distinguishing the cases are (“It undisputed that the information at grounds on rely. which those cases did not illegal issue concerned activity. And al event, any because this line cases though may that information be sensitive potentially applies to exclude information may nature and stigmatize plain [the illegal about all sexual activity by minors tiff], it is not constitutionally protected.”); from the privacy,” “realm of we cannot Assoc., Mgmt. Trade Waste Inc. v. Hu agree that the Plaintiffs have met their (3d Cir.1986) ghey, burden of showing a substantial likelihood (“While may it be that when conduct re of success on the merits their informa- sulting charges [criminal] convictions or tional claims. engaged was person engaged who it expected that such participation would Our second reason for concluding that secret, remain that expectation was never Plaintiffs have not met their burden of law.”).19 reinforced showing a substantial likelihood of success above, on the

As described merits is that even if Kansas crimi- the rationale laws minors, nalizes all sexual conduct with from Nilson see and Stidham not apply, does I.A, swpra part and Plaintiffs do not chal- Plaintiffs “clear[ly] have not unequivo- It is only clear that this rule apply rape can Department's law regulations, 19. or of the validity where the the of criminal law is not yet he would have us hold that acts is, challenged. making That aif law a certain amounting statutory rape protected to by activity challenged a crime is as violative of a privacy.”). the of privacy right, government the cannot defend the arguing law that be course, Of there are other constitutional activity illegal, cause the privacy there is no protections limiting government how the can See, Griswold, activity. e.g., in that 381 conduct, obtain illegal information about even 479, Here, however, at U.S. 85 S.Ct. 1678. if that conduct not "do[es] fall within the expressly challenge "do not the con constitutionally protected privacy realm." stitutionality of the making any Kansas statute Nilson, 45 F.3d at point 372. As Plaintiffs sexual with an adolescent under 16 a out, power "the to obtain evidence and infor- Hill, City crime.” Signal Fleisher v. 829 Cf. of mation severely about conduct circum- 1491, (9th Cir.1987) ("The F.2d 1498 illegality Rights, scribed primarily the Bill of the plaintiff's] of [the behavior creates a substan Fourth, Fifth and Sixth amendments.” How- tial barrier to successfully asserting pri his a ever, presented no such claims are to us in vacy plaintiff] claim. challenged [The has not interlocutory appeal. this constitutionality statutory California's

1119 1345, 1351, Co., 98 S.Ct. Fox 434 U.S. W. between that balance cal[ly]” shown (1977) J., 359, (Rehnquist, government’s 54 L.Ed.2d 439 and the rights privacy Justice) (“[A]ny is substan- time a State is reporting Circuit requiring in interests favor. weigh effectuating in their from stat- tially likely enjoined by a court peo- of its by representatives enacted utes individual Typically, “[i]f inju- of irreparable it suffers a form ple, confiden expectation of legitimate has a implicates The statute ry.”). reporting infor of such tiality, then ‘[disclosure this interest. compelling a state advance must mation addition, ac which, must be Second, strong parens the state has interest man intrusive in the least complished the best in protecting interest in patriae ” Sheets, (quoting 1387 45 F.3d at ner.’ Reynolds, v. 890 of minors. Davis terests 839). However, F.2d at Mangels, (10th Cir.1989) (“[Safe 789 1105, 1110 F.2d court the district agree we psychological physical guarding privacy test where is not this ... well-being compelling a minor is a of minors. are those at issue rights [interest].”) Newspaper Co. (quoting Globe Women, F.Supp.2d at 1286. 327 Aid County, 457 U.S. v. Super. Ct. Norfolk the re Rather, question whether 2613, 596, 607, L.Ed.2d 102 S.Ct. 73 248 ‘any significant “serve[s] statute porting Sidoti, 429, (1982)); v. 466 U.S. Palmore present that is interest state (1984) 1879, 421 433, L.Ed.2d 104 S.Ct. ” Carey, 431 U.S. an adult.’ the case (“The State, course, duty of has a opinion) (plurality at 97 S.Ct. protect the interests of highest order 74, 96 Danforth, 428 U.S. (quoting children, those of ten particularly minor rel. 2831); ex see also S.Ct. Schleifer Sterling Morton years.”); Pesce v. J. der Charlottesville, 159 City v. Schleifer Ill., Sch., County, Disk High Cook (4th Cir.1998); Johnson F.3d Cir.1987) (7th (concluding 797-98 1065, 1073 City Opelousas, rights a minor’s informational Cir.1981); at 1384. Wynn, “compel by the state’s outweighed were requires balanc Answering question abused children” protecting ling interest at issue minors’ ing the Court has noting “[t]he interests. countervailing state with the interest the substantial recognized test, balancing conducting children”); see also protecting all state important three overlooked court district Minnesota, Hodgson strengthen that accentuate and factors 111 L.Ed.2d n. in this balance. interest government’s “legitimate (referring to state’s strong inter First, government from minor women protecting interest of its in the enforcement generally est immaturity”). own Proceedings Jury laws. Grand criminal gain government enables the States, Doe v. United John viola abuse and about information that a claimed (holding allow it law that of the criminal tions “outweighed privilege First Amendment minors. of the best interests promote investigat in interest government’s the Third, has an interest in government the criminal enforcing the ing crimes health, particularly the public promoting Jorn, laws”); v. States United Draper, City minors. Clark of health 547, 543 L.Ed.2d 27 of (noting 1189 168 “very vital government’s the (noting public in interest laws”). strong government’s “the criminal in enforcement of interest N.M. Sch. health”); Buchwald Univ. v. Orrin Bd. Cal. Motor Vehicle New Cf. (10th Cir.1998) Thus, Med., privacy be. interests this of (“[PJublic govern a compelling health is case are diminished. interest....”); Hollingsworth v. ment factors, Although we note the we above (10th Cir.1997) Hill, 110 F.3d definitively how need conclude (“[T]he state’s interest in the health and ultimately balance would decided. be parent’s a welfare of its children constrains Rather, simply we conclude now that even care, liberty custody, interest in the and if balancing applies, given test then children.”); management of her Garra factors, above Plaintiffs have not met their Romo, mone v. 94 F.3d substantially that it showing burden of Cir.1996) (same). instances of Reporting likely that weigh the balance would illegal sexual abuse enables the state Therefore, favor. the district court abused citizens, health of protect Kansas its concluding its discretion that Plaintiffs especially children. have shown substantial likelihood of suc- also There are two factors diminish cess on the merits. privacy rights of the Plaintiffs’ minor patients and clients this balance. First Preliminary Injunction 2. Other Fac- foremost, underlying sexual activi- tors ty concededly criminal. if our Even addition, In we conclude that the precedent generally is not read to exclude district court abused its discretion as to activity information about criminal from of a in preliminary other elements privacy rights, the realm of enforceable junction. apparently The court did not criminality activity nonetheless even evaluate those elements.21 Aid See must at least diminish the minors’ (“[T]he Women, F.Supp.2d at 1288 Second, activity. interest in such the fact plaintiffs likely court finds to succeed privacy rights asserted are the on informational claim. rights strength of minors diminishes the Thus, grants plaintiffs’ the court motion rights those somewhat. As we noted earli- preliminary injunction for a on this ba er, undoubtedly it is true that “the state sis.”). obviously, Most the court did not authority has somewhat to regu- broader even evaluate whether there would be ir late the conduct of children than that of Irwin, reparable injury in the absence of this adults.” 615 F.2d at 1166. Minors’ preliminary injunction.22 privacy rights personal Dominion See Satellite, strong are not as as adults’ rights would Video Inc. v. Echostar Satellite Hoover, ry.” 21. require showing Kiowa Indian Tribe Okla. v. Because our cases Cf. (10th Cir.1998) (”[T]he movant,” "irreparable injury Valley to the Mineta, only district irrep Cmty. court relied on the issue of Pres. Comm’n v. (10th Cir.2004) omitted), arable harm and did not address the other (quotation in- required jury three conditions for issuance of a patients may to Plaintiffs’ minor be insuf- preliminary injunction. Accordingly, we re satisfy requirement prelim- ficient to for a prelimi verse the district court's denial inary injunction. ruling Because of our earlier nary injunction....''). merits, likelihood of success on we on do whether, definitively not here need to decide irrepara- third-party standing, Plaintiffs assert that there will be ain case of a movant injury ble rely irreparable injury because automatic “will can to the third obtaining parties deter adolescents from being needed whose interests are asserted. care,” event, specifically any health alleged "will deter adoles- as to the "harm to the being open cents from plaintiffs,” and candid‘with their we note providers,” health care and because "the that the district court concluded that the stat- rights plaintiffs harm to the process of ute does not violate Plaintiffs’ due per and irreparable inju- se to fair notice. Therefore, district court because the 1256, 1266 Corp., 356 three analyze the last adequately to in- failed a preliminary of grant the (reversing factors, we conclude injunction preliminary stipulation parties’ the junction because that its discretion on basis that it abused the district and “[b]eeause insufficient was to sub- as well. ground no other court articulated harm”). irreparable finding of

stantiate III. CONCLUSION injunction preliminary remaining to the As analysis was factors, court’s the district reasons, agree we foregoing For the note, for We inadequate. very least the Plaintiffs have the district court that with factor— the third as example, that for the and to raise bring this suit standing to injury to the threatened the whether patients. We rights of their minor privacy injury to the defen- outweighs the plaintiff conclude, however, district court that the injunc- dants) preliminary caused the determining that its discretion abused even did not identi- district court tion—the likelihood have a substantial to the Defendants harm any possible fy addition, the on the merits. success Plaintiffs, And, as to injunction. the from by fail- its discretion district abused court limit- “even a merely stated the court analyze the additional adequately to ing concerning confidentiality breach ed injunction factors. We preliminary three information intimate unique and such in- preliminary the VACATE therefore for the well- large implications have could and the court junction district issued Women, 32A Aid minors.” being of for in con- proceedings further REMAND course, im- “large Of at 1288. F.Supp.2d with that decision. nection harm, and equivalent is not plications” indicate the does not vague language such HERRERA, Judge, District Court involved analysis properly evalu- sort part.1 dissenting concurring part this factor. ating majority’s the decisions I with concur challenge standing to that Plaintiffs injunction preliminary the final As to statute, supra, Majority Op., reporting the only factor, “[i]t said district court informational II.A, possess minors § un- operated parties that the is persuasive II.B.l.a, and that rights, id. opinion for a sub- advisory the 1992 der its discretion abused district court discernible without period time stantial balancing injury, irreparable respect may mean that Id. This problems.” elements public interest injury, and would not discerni- injunction preliminary analysis, id. injunction preliminary interest because under public bly harm de- majority’s from the § II.B.2. I dissent there opinion Attorney old General not demonstrat- Plaintiffs have However, cision that problems.” no “discernible were on the merits of success a likelihood in a ed engage we conclude failure vio- that the their claim public interest analysis explicit more in information minors’ lates abuse of discretion. address without revisions initially filed dissent was dissent majority opinion and 27, 2006, opinion. Be- majority January aspects non- certain were filed judgment. 04-3310, longer Aid Women binding order no time constraints cause those Foulston, No. been revised dissent applicable, the U.S.App. LEXIS WL 2006 (10th opinion and majority with the accordance 27, 2006). of time As a result Jan. Cir. order to the the dissent differs from therefore arising impending Janu- from constraints judgment. court, 30, 2006, the district ary trial in regarding voluntary their majority sexual conduct The holds that because Kansas with a age (“age- adolescents of similar has criminalized all activity sexual mates”). §Id. ILB.l.b. adolescents under years age, sixteen may adolescents not have a constitutional The district court preliminary issued a right to informational privacy that would injunction against enforcement of the re- prohibit mandatory reporting or disclosure porting statute to the extent it requires of information regarding voluntary sexual reporting voluntary sexual activity be- acts with agemates. § their Id. II.B.l.b agemates.2 tween parties The do not dis- “ (voluntary activity sexual does ‘not fall pute constitutionality reporting of the ” within the realm privacy’ because and requirements disclosure where evi- “ activity ‘[c]riminal protected is force, power differential, incest, dence of a ”) by privacy’ (quoting Nilson (“actu- or sexually similar abusive conduct (10th v. Layton City, 45 F.3d abuse”) Thus, al present. sexual Cir.1995)) citing and Stidham v. Peace presented issue here is not whether the Of- Training, Standards & 265 F.3d reporting of actual sexual abuse between ficer (10th Cir.2001). majority The minors violates pri- minors’ informational therefore concludes that Plaintiffs have not vacy rights, but rather mandatory whether “ ” demonstrated a ‘clear unequivocal’ reporting voluntary sexual conduct be- right to relief on the merits of their claim tween agemates adolescent violates their mandatory that reporting and rights. subsequent disclosure of concerning information mi- Significant to analysis fact is the nors’ voluntary sexual conduct violates that SRS “screens out” and does not refer privacy, informational to law reports enforcement concerning that the district court abused its discretion “lifestyle” issues that directly do not harm in finding otherwise. Id. (quoting Schrier by child. As majority, noted SRS Colo., v. Univ. 427 F.3d investigate does not mutual explora- sexual Cir.2005)). Because I believe that Plain- by tion agemates where there is no evi- tiffs have by proof demonstrated clear force, power differential, dence of or likely to succeed on the merits of § incest. significant See id. I.B. Also privacy claim, informational I dis- the fact required toas sent.3 minor alleged victims of the crimes—not just perpetrators The fact that Kansas crimes—and criminalizes cer- not, itself, information tain conduct pertaining does determine sexual conduct and confidential medical existence of a federal right privacy. matters is not public but If private rather federal courts adopted per se rule information to which providing Kansas would not that an individual has no federal have access but for the fact compels that it privacy right in information concerning disclosure from minors. conduct criminalized, that a state has Voluntary 2. (10th Cir.1975). includes more requirement that a mov- includes, than sexual intercourse. It also ant demonstrate that it has met its burden among things, "fondling other touching.” Schrier, unequivocal” proof, "clear and See, e.g., Kan. Stat. Ann. 21-3522. F.3d at preliminary does not alter the injunction requirement that a movant need satisfy proof only To their burden of and obtain a demonstrate a "substantial likelihood of preliminary injunction, merits,” only Plaintiffs need success on the Dominion VideoSatel- lite, "by show proof” clear they "probably Inc. v. Corp., EchoStar Satellite prevail [will] Cir.2001), when the merits are tried.” and not "clear Hosp., Penn v. San Juan unequivocal” success on the merits.

1123 Ass’n, Ry. Labor Executives’ Skinner v. to eliminate power have the state would 1402, 617, 602, 109 103 S.Ct. 489 U.S. by declaring simply rights privacy federal (1989) (urinalysis ille- test for L.Ed.2d 639 a Such result to be criminal. conduct the a for Fourth Amend- drugs is search gal of primacy normal only inverts the not upon it “intrudes purposes ment because law,4 appears it also state law over federal society that has privacy of expectations precedent Supreme Court contradict to reasonable”); also see long recognized privacy federal upheld specifically has that v. Unit- Treasury Employees Union Nat’l efforts to criminal- a despite state’s rights F.Supp. 838 Dep’t Treasury, ed States v. Connecti- Griswold the conduct. See of ize (D.D.C.1993) 631, (holding that 636-37 1678, 485-86, 14 cut, 479, 85 S.Ct. 381 U.S. likely to on claim plaintiffs were succeed (1965) a state (invalidating 510 L.Ed.2d which includ- employee questionnaire, that of dispensing use the prohibiting law past prior use and questions drug ed about by cou- to or married birth control devices by arrests, protected information solicited to the right violated because the law ples privacy).5 informational right the to Texas, 558, 539 v. U.S. Lawrence privacy); (2003) 2472, L.Ed.2d 508 578, 156 123 S.Ct. the to recognized, court has As this and invali- v. Hardwick (overruling Bowers upon “not privacy is founded informational it a crime making a Texas statute dating deeply rooted provisions upon but state engage to the same sex of persons personal for two interests fundamental notions of relations because Mangels intimate consensual the Constitution.” derived from interests); liberty private Pena, law violated 839 789 Charleston, omitted). City (citation statutes Ferguson “While state compare of 149 judgement 121 our may S.Ct. inform regulations 532 U.S. (acknowledging of constitutional scope regarding L.Ed.2d (citation Nilson, privacy to informa- 45 F.3d at rights,” right it- drug omitted), urine not positive they do define regarding tion fact that ingest- self, Accordingly, of the act see id. though even test results law, types criminalized certain state Kansas has drugs ing illegal violated not lead conduct should voluntary urine sexual positive holding reporting have no that minors se conclusion per police resulted unreason- drug tests conduct and concerning that consent); privacy patient absent searches able distinguishes carefully (4 jurisprudence See, Maryland, tional e.g., McCulloch v. U.S. 4. conduct, 316, 425, (1819) ("This Wheat.) prohibit which power to 4 L.Ed. 579 between the is, deference, power the constitution and great principle given and the has been su- pursuance thereof are laws made about compel disclosure information control the constitution preme; that conduct, severely circum- which has been states, and respective cannot the laws example, in For the Constitution. scribed them."). be controlled crime, tangible evidence the case Fourth government typically must meet challenge do not The fact re- warrant and reasonableness Amendment's constitutionality statute crimi- the Kansas Ohio, U.S. Mapp v. quirements. See voluntary conduct of minor nalizing sexual (1961); see 6 L.Ed.2d 1081 untenable agemates does render not the case 18-19. Appellee's Br. also mandatory and disclo- claim that attorney, the state to an disclosed information regarding their sure of information having access to from generally prohibited rights acts violates their informa- con- information even if the the information Majority Op., supra, Compare privacy. tional States, United illegal activity. Coplon v. cerns Supreme at n. 18. The Court II.B.l.b (D.C.Cir.195'1); also see requirement its grafted onto such never Moreover, Appellees Br. 19. jurisprudence. constitu- Baird, 438, 453, should relieve the court from deter- Eisenstadt v. (1972). law, mining, question as a S.Ct. federal L.Ed.2d 349 recognized Court also legitimate expecta- whether minors have a Law rence v. Texas that “sexual behavior” is tion of in information regarding private conduct,” “the most human voluntary sexual conduct and confi- personal that the nature of that conduct dential communications with their health- against State, attempts by “counsels] providers. care court, or a to meaning define the of the In answering question under federal relationship or to set its boundaries absent law, I legiti conclude minors have a injury 567, to a person.” 539 U.S. expectation privacy mate inti 2472. Additionally, S.Ct. in A.L.A. v. West mate sexual and confidential medical infor Valley City, expressly this Court held mation. right This court has extended the right privacy to encompasses informa privacy protect against to intrusion into provided tion in the course of seeking personal sexual matters. In Eastwood v. A.L.A, 989, healthcare. 26 F.3d Corrections, Department spe court Cir.1994) (“[t]here is no dispute that confi cifically held that the “constitutionally pro dential medical information is entitled to right tected privacy] implicated is [to when (cita privacy constitutional protection”) an individual is forced to disclose informa omitted); tions see also City v. Lankford regarding personal tion sexual matters.” Hobart, (10th Cir.1994) 477, 27 F.3d of (there “ Cir.1988); 846 F.2d see also question ‘no that an employee’s Livsey v. County, Salt Lake records, medical may which contain inti (10th Cir.2001) (recognizing that a le personal nature, mate facts of a are well gitimate expectation privacy may exist within the ambit of materials entitled to in “information pertaining highly ”) (citations omitted). privacy protection’ 45 n personal behavior”); Nilson, sexual subject The information to disclosure F.3d at 372 (“[expectations of privacy are under the reporting statute concerns legitimate if the information which the highly personal and voluntary intimate possesses state highly personal or inti sexual and confidential medical matters mate”). “Supreme Court decisions [also] entitled to protection by right pri- ‘make it clear that privacy] [to vacy. The fact that Kansas has criminal- has some extension to relating activities voluntary ized sexual conduct between marriage, procreation, contraception, fami agemates adolescent put does not adoles- ly relationships, and child rearing and edu cents “on notice” that should have ” Dobbs, cation.’ Douglas no expectation of privacy in information (10th Cir.2005) (citations 1101-02 omitted), concerning that conduct because volun- n — n denied, U.S.-, cert. tary sexual relationships age- between (2006). 163 L.Ed.2d 1001 protection This mates, and relationships between extends to intimate choices unmarried and their providers, healthcare are tradi- See, persons. as well as married e.g., Car tionally private relationships fall ey Int’l, Population Servs. within constitutionally protected zone (1977); S.Ct. 52 L.Ed.2d 675 of intimate relationships.6 Accordingly, expectation privacy A minor’s respect in his or not do so with to information about relationship her provider with healthcare such conduct disclosed provid- to healthcare particularly compelling given Thus, multiple example, ers. an individual has no protections state and federal legitimate for the expectation confiden- that information about tiality relationship. To illegal drug whatever extent gathered police use investiga- in a gives a statute notice of a lack of private, tion would Mangels, remain see. regarding criminalizes, the conduct it it does person F.2d at consulting but with a older, age or years are sixteen EasUvood, ners A.L.A., under conduct, illegal engaged have not pri- granting precedent Court ar the ambit of the and intimate fall outside personal therefore highly vacy of conduct voids illegality rela- that the gument such matters have a for information protections minors I conclude that tionships, Indeed, in their these minors expectation of that conduct. legitimate about medical older are victims partners and confidential sixteen or voluntary sexual Kansas law. The sexual assault under information. pri majority’s holding today infringes volun- criminalizes fact that Kansas victims, though these even vacy rights of mi- deprive conduct tary sexual does heightened, of have a victims sexual crimes privacy to right pre-existing their nors of See, diminished, privacy. right not and confidential voluntary in their sexual Lucas, 145, 149, v. 500 U.S. e.g., Michigan crimi- Kansas information. That medical (1991) 1743, 114 205 111 L.Ed.2d S.Ct. may inform the conduct such nalizes in right privacy a victim’s to (noting that scope regarding judgment court’s her sexual assault regarding information cannot rights, but federal constitu outweigh even a may defendant’s right. privacy extinguish a federal alone confrontation); v. Ri right to Bloch tional Nilson, Although See, 45 F.3d at 372. e.g., (6th Cir.1998) bar, 156 F.3d 685-86 under illegality and Stidham in Nilson sexual assault has (holding that a victim of in favor of find- weighed heavily law state about the de keep to information right possess plaintiffs ing that did (relying part private) of the assault tails in their privacy expectation of legitimate in Eastwood this court’s decisions upon of the instant activity, the facts illegal own Mangels). and and from Nilson distinguishable are case EasUvood, to analogous and Stidham in- Second, and Stidham involve Nilson A.L.A., and the aforementioned already public in the that was formation cases. Court pos- in the state’s and legitimately sphere Nilson, information dis- In session. First, involve Nilson and Stidham expunged criminal record. was an closed regarding privacy information the state’s part was information This conduct. own criminal plaintiffs’ record, negated the therefore public which contrast, at issue expectation plaintiffs of the legitimacy infringement priva- requires here Stidham, the alle- Similarly, in privacy.7 victims, just perpetra- and not cy rights of Mr. against gations rape assault Kansas tors, Under of criminal conduct. agency by a state disseminated Stidham law, years age under sixteen a minor the certification of regulate empowered activity only breaks in sexual engages who in the already likewise were peace officers engages in the the law if he or she in the legitimately public sphere adolescent under sixteen. another Here, however, in- sixteen, possession. state’s part- minors under whose Those attempting his free td “restrict state was not treatment for physician in an effort to seek sphere to be contended dom of action in legitimate expectation of drug has a addiction "); Mgmt. Ass’n Waste Appellees 'private' see also Trade Br. privacy as to that information. (3d Hughey, 234 22-23. privacy right of a (rejecting plaintiff's claim pending 693, 713, Davis, conviction records of a criminal 7. See Paul charges such “matters because (rejecting criminal S.Ct. L.Ed.2d Op., Majority public”), cited in definition plaintiff had a claim supra, § II.B.l.b. because the act such as an arrest” “an official formation to be disclosed is not otherwise during is discovered the state the nor- public legitimately in the record or in the mal course of its business. Instead, state’s possession. it is contained already This court held in Eastwood and solely in minors’ confidential conversations A.L.A. that the privacy protects with their providers healthcare —conversa- against personal intrusion into sexual and tions that in multiple are shrouded state Eastwood, medical matters. 846 F.2d at protections and federal upon based 631; A.L.A., Moreover, relationship profes- between healthcare the facts of Nilson and Stidham are not See, sionals and patients. e.g., sufficiently analogous to those of this case

A.L.A., 990; supra F.3d at see also note deprive privacy rights minors of their and accompanying text. The fact that under these eases. I therefore conclude regarding the information minors’ volun- that, though even Kansas has criminalized tary public, sexual acts is not but rather voluntary sexual activity age- between intensely private information to which mates, legitimate expecta- minors have a Kansas would not have access but for the tion of fact compels that it disclosure of the infor- and confidential medical information. mation, renders expectations minors’ The fact that no Tenth Circuit or Su- privacy greater far than the expectation of preme has, yet, Court case distin- privacy possessed by Mr. or Nilson Mr. guished Nilson or Stidham does not alter Stidham. Compare Ferguson City v. analysis. daily this Courts engage in the Charleston, 78,121 532 U.S. S.Ct. task of distinguishing and analogizing (2001) 149 L.Ed.2d 205 (noting that “the cases-to determine applicable reg- law and expectation privacy enjoyed reasonable ularly grant preliminary injunctions even by typical the patient undergoing diagnos- binding when no directly case law is tic tests in a hospital is that the results of Moreover, here, point. upon the reliance those tests will not be shared with non- Nilson and per Stidham to se eliminate personnel consent,” medical without her privacy rights minors’ federal is inconsis- that, holding and weighing after the indi- tent Court and Tenth Cir- vidual’s in privacy interest against precedent federal, cuit providing that and detecting state’s interest in preventing state, not law determines the existence of use, illegal drug production of the re- See, a federal right. e.g., sults of such tests constitutes an constitutional. illegal (4 McCulloch v. Maryland, 17 U.S. search in violation of the Fourth Amend- Wheat.) 316, 425, (1819); ment). 4 L.Ed. 579 Pena, Mangels v. Third, in Nilson and Stidham the infor- Cir.1986); Nilson, 45 F.3d at 372. Be- mation disclosed was by obtained the state primacy cause of the of federal law over through the normal course of the state’s law, state and because the facts Nilson Here, operations. Kansas obtains the in- significantly and Stidham are distinguish- through formation not the normal course case, able from the facts of this operations, its but compelling rather clearly unequivocally demon- incriminating information from the mi- strated that possess legitimate minors nors through themselves the mandatory expectation of privacy. reporting of their confidential communica- tions physicians, with their Once a court determines that a psychologists, privacy exists, and therapists. right right A to privacy is far the court next must determine greater in information that compelled is whether “disclosure compelling serves a from an individual whose the state state interest” and whether “disclosure can seeks to infringe than in information that be made the least intrusive manner.”

112'/ case, In this howev- have such interests. v. Li Ass’n Protective Denver Policemen’s er, majority, the cases cited Cir. unlike chtenstein, , omitted). compelling are neither nor 1981) (citation majority- the interests steps Kansas takes no rights significant because privacy that where of vol and disclosure mandatory reporting Majority supra, I.B. Op., conduct. See weak particularly conduct is untary sexual pay lip than does no more That Kansas test. meet either and not does interests belies to its asserted service in the interests of those very existence cases, notes majority, citing various activity voluntary sexual specific context in has an interest generally that Kansas contrast, in In agemates. between laws, inter- of its criminal enforcement majority, the states did by cases cited the best protecting in parens patriae est in interests simply assert minors, pro- in and an interest interests abstract, specific govern- took but rather minors. Ma- health of moting public enforce, and protect, action to mental Admittedly, § II.B.l.b. jority Op., supra, Accordingly, the those interests.8 may serve government in instances certain Reynolds, v. guilty); Davis 890 See, if found Jury Proceedings Doe ment John e.g., Grand Cir.1989) (govern- States, F.2d 1110 248 842 v. United " physical 'safeguarding the interest in ment's ("government's interest investi ” well-being aof minor’ psychological enforcing and the criminal gating crimes during by closing a courtroom by requiring mi served and served protected laws” testimony victim of a crime where of minor govern testify grand jury before where nor to protect the minor closing would of courtroom sought presumably to obtain indictment ment omitted); scrutiny) (quotation public from subsequently conduct against accused Sidoti, 104 S.Ct. accused); 466 U.S. United Palmore prosecution of criminal (1984) (government's 470, 479, 421 Jorn, 80 L.Ed.2d U.S. 91 S.Ct. States v. "protect[ing] the inter- "highest” "very interest (government’s L.Bd.2d allowing served children” ests of minor laws” enforcement of criminal vital interest custody in the determinations courts to by requiring make defendants protected and served where such determi- of a child best interests defen trial for their crimes where to stand taken into consider- presumably are subsequent punish- nations faced presumably dants Moreover, clearly unequivocally vacy protection). evidence estab- compelling that Kansas has no or lishes greater interest is even it when is viewed significant interest at work here. perspective from the of minors who are victims, perpetrators, and not crimi contrast,

By minor’s interest main conduct, nalized because victims of crimi taining privacy concerning his or her vol untary particularly sexual conduct nal heightened expectation have a “ alone,’ strong. right ‘The to be left See, Lucas, privacy. e.g., Michigan v. said, has is ‘the most Supreme Court 145, 149, 500 U.S. 111 S.Ct. ” Eastwood, by civilized men.’ valued (1991); Ribar, L.Ed.2d 205 Bloch v. (quoting F.2d at 631 Olmstead United (6th Cir.1998). 685-86 Finally, a 438, 478, States, 564, 72 minor’s particularly compelling interest (1928) (Brandéis, J., L.Ed. dissent under the facts of this case because auto Furthermore, ing)). information concern upon matic intrudes his or her ing voluntary a minor’s sexual conduct is privacy right at the intersection of two (ex intimate, highly private and see id. traditionally private relationships, volun tending to protect tary relationships sexual and physician-pa against forced disclosure of information re relationships, tient enjoy where individuals matters), garding personal sexual and in expectation a clear privacy. “personal identity deed at the core of the which, prevailing precedent, under is enti Because Kansas has not established a protection,” tled to constitutional Mangels, substantial or compelling government in- (citation omitted). 789 F.2d at 839 terest obtaining disclosing informa- addition, a minor a strong interest in tion related minors’ maintaining a confidential relationship agemates activities with sufficient to out- with his or her provider healthcare and weigh legitimate expectation minors’ not having the threat of disclosure of confi privacy in concerning information that con- dential impede information that relation duct, I conclude that Plaintiffs have dem- ship or serve as a obtaining deterrent unequivocal onstrated clear and proof A.L.A., healthcare in the place. first Cf. likely to succeed on the 26 F.3d at (confirming that confiden merits.9 Accordingly, I dissent. tial medical information pri- is entitled to awarding custody); ation when Pesca presumably v. J. because likely residents are more Sch., Sterling High Morton to remain in New 830 F.2d 797- Mexico and therefore assist Mexicans); (7th Cir.1987) (state's ensuring the health of New "compelling interest Hill, Hollingsworth protecting by abused children” served re- (government's "interest in the quiring mandatory reporting of child abuse health and welfare of its children” served where there was no evidence in the record allowing emergency removal of children indicating investigate reported failure to from their homes where there was no evi- abuse); City Clark v. Draper, 168 F.3d dence in the record that the state failed to 1185, 1187, (10th Cir.1999) ("govern- abuse). investigate suspected strong public ment's pro- interest in health” by requiring tected and served immediate argues 9. Kansas that if minors have informa- testing for rabies of wild animals that bite conduct, privacy rights tional in sexual all persons testing per- where such was in fact age states' of consent laws are unconstitution- formed); Buchwald v. Univ. N.M. Sch. argument al. This does not have merit. aIf Med., (10th Cir.1998) (com- state can demonstrate that disclosure serves a pelling government public interest in health compelling significant state interest that is

protected interest, and served the consideration of properly tailored to the the fact that residency "plus” as a factor in admissions minors have a to informational BOLDEN, Plaintiff- L. James

Appellant, KANSAS, TOPEKA, CITY OF Defendant-Appellee.

No. 04-3306. Appeals, Court of United States Tenth Circuit. 21, 2006. March force, (¿.e., with evidence sexual reporting laws unconstitu- not render will Here, differential, incest) dispute, fact that parties do not or the power tional. challenge, the fact the dissent does not to the extent reporting laws are compelling state interest the state has abuse. they require reporting of such actual abuse mandatory of actual notes minors, enforce, question protect, is or serve interests those issue are voluntary con- “serve[s] of the in the context whether agemates. Compare interest of adolescent significant state duct ‘any ” Texas, 558, 570-73, Ma an adult.’ in the case of Lawrence present (quoting Car § II.B.l.b 156 L.Ed.2d 508 supra, jority Op., Int’l, 431 historically pres- Servs. U.S. ey Population (noting states (1977)) 52 L.Ed.2d criminal- to enforce laws ently have failed S.Ct. (additional citations opinion) voluntary sexual conduct and (plurality izing certain omitted). this di Plaintiffs maintain that legitimate state interest crim- finding no “incorrect” because Eastwood, conduct); standard minished inalizing that only “to applied it Supreme Court (finding at 630 a violation minors, not rights of privacy the decisional into the the intrusion where mi to the informational sexual matters had “little plaintiffs private (citing n. 24 Car Br. 30 Appellees nors.” purport- the defendants’ correlation” with 2010). 15, 97 S.Ct. at 693 n. ey, 431 U.S. interest). recognizes, majority theAs ed applies the court of whether Regardless regarding any once information in state “significant” “compelling” adolescents of between sexual conduct case, I test, the facts this under terest SRS, SRS age reported similar interest Kansas’s asserted believe that out,” investigate, or does not “screens

Case Details

Case Name: Aid for Women v. Foulston

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jan 27, 2006

Citation: 441 F.3d 1101

Docket Number: 04-3310

Court Abbreviation: 10th Cir.