Patti PATTERSON, M.D., Interim Commissioner of Health, in her official capacity, William Reyn Archer, recently appointed Commissioner of Health, in his official capacity, and the Texas Department of Health, Appellants, v. PLANNED PARENTHOOD OF HOUSTON AND SOUTHEAST TEXAS, INC., Appellee.
No. 97-0889
Supreme Court of Texas
June 23, 1998
Argued Feb. 4, 1998.
Edward P. Watt, Daniel R. Castro, Austin, Kelly J. Shackelford, Dallas, Dedra L. Wilburn, Dan Morales, Toni Hunter, Laquita A. Hamilton, Austin, for Appellants.
Martha S. Dickie, David C. Duggins, Charles R. Burton, Austin, for Appellee.
HANKINSON, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HECHT, ENOCH, SPECTOR, OWEN, and BAKER, Justices, joined.
On direct appeal, the Texas Commissioner of Health asks us to reverse the judgment of
The State of Texas voluntarily participates in four federal programs that provide funds for family planning services: (1) Title X of the Public Health Service Act,
As part of its family planning services, plaintiff Planned Parenthood of Houston and Southeast Texas, Inc., provides prescription medication, including contraceptives and drugs for treating sexually transmitted diseases, to minors without requiring parental consent. Planned Parenthood contracts with the state to receive funds for these services under Title X, Title XX, and TANF. Planned Parenthood is also an enrolled Medicaid provider, and is reimbursed on a fee-for-service basis by the Department of Health (through an insurance program) for the family planning services it provides to Medicaid-eligible individuals. The federal regulations governing these programs have been interpreted to proscribe the imposition of a parental notification or consent requirement. See New York v. Heckler, 719 F.2d 1191, 1196 (2d Cir. 1983) (invalidating federal regulation requiring parental notification of prescription contraceptives as unauthorized by Title X); Planned Parenthood Ass‘n v. Schweiker, 700 F.2d 710, 722 (D.C. Cir. 1983) (explaining that federal regulations forbid state from denying Title X services to minors who lack parental consent); T.H. v. Jones, 425 F. Supp. 873, 878 (D. Utah 1975), aff‘d in part, 425 U.S. 986 (1976) (invalidating state parental consent requirement for family planning services as conflicting with federal welfare and Medicaid requirements).
Concerned about what it perceived to be a conflict between the federal program rules’ forbidding a parental consent requirement and rider 14‘s explicit parental consent requirement, Planned Parenthood asked defendant Texas Department of Health about the Commissioner of Health‘s opinion on the effect of rider 14 on family planning funds. The Department of Health and its commissioner are charged with administering and distributing funds the legislature appropriates for family planning services. The Commissioner in turn requested an opinion from the United States Department of Health and Human Services (DHHS). A regional health administrator for DHHS replied by letter that, in his view, rider 14 “is, on its face, inconsistent with the applicable Title X fami-
In light of this express suggestion that Texas might lose its federal family planning funds, Planned Parenthood filed this action against the Department and its commissioner seeking a declaration that rider 14 is unconstitutional. It alleged that the rider violates the Supremacy Clause, Article 6, Clause 2, of the
At trial before the court, the parties stipulated to a number of facts, including that “[e]ffective September 1, 1997, Planned Parenthood will no longer be eligible to receive Medicaid funds for providing prescription medication to minors without consent.” Planned Parenthood called as its sole witness Carol Pavlica, the director of the family planning program for the Department of Health. She explained that although the Department had not yet made any final or official decisions, it was considering two plans in its efforts to implement rider 14. Under the first plan (identified by the parties as “Plan A“), the state would simply require all minors receiving prescription drugs from family planning programs to have parental consent. She acknowledged that in her opinion this plan would jeopardize all federal family planning funds.
To avoid potentially jeopardizing federal family planning funds, the Department was considering a second plan (“Plan B“). Under Plan B, the state would continue to pay for prescriptions to minors without parental consent, but would pay for those prescriptions with federal funds other than Medicaid funds (Medicaid being the only program with a matching state component), including prescriptions for Medicaid-eligible minors. Thus under this plan, in Pavlica‘s opinion, the state could comply with the legislature‘s dictate that no state funds be used to dispense prescription drugs to minors lacking parental consent, without violating the federal rules that receipt of family planning services cannot be conditioned on parental consent, or jeopardizing other federal family planning funds. She made clear that under Plan B, neither Planned Parenthood nor its minor clients (including those eligible for Medicaid) would suffer any change in requirements, services, or funding; in other words, the state does and will continue to pay for prescriptions for minors even if they lack parental consent, but from federal funds without a state matching fund component. She also testified she believed the state would not be jeopardizing its federal funds by implementing Plan B because the state would not in fact be imposing a parental consent requirement.
The trial court declared rider 14 unconstitutional on the bases that (1) it conflicts with the federal laws governing the four federal programs in the family planning appropriation, and (2) it violates
Under federal law, the trial court concluded that the rules governing the federal family planning programs in which the state participates forbid imposition of parental consent requirements, and preempt any state law to the contrary that would affect programs drawing on those federal funds. Although the trial court termed it “an admirable effort” to comply with both federal law and rider 14, the court concluded that the Department‘s proposed plan to track prescriptions and payments (Plan B) and use federal funds without a state matching component to
Under Texas law, the trial court rejected Planned Parenthood‘s assertion that the rider amended or repealed
While the trial court framed this issue as one of standing, we view it more precisely as one of ripeness. Ripeness, like standing, is a threshold issue that implicates subject matter jurisdiction, Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), and like standing, emphasizes the need for a concrete injury for a justiciable claim to be presented. See DAVIS & PIERCE, II ADMINISTRATIVE LAW TREATISE, § 15.12, at 361 (3d ed. 1994) (“In many cases the two problems of standing and ripeness are merged; a party may lack standing because what has happened to him is not far enough developed, but the lack of development may be the essence of unripeness.“). But if standing focuses on the question of who may bring an action, see Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 626-627 (Tex. 1996), ripeness examines when that action may be brought. At the time a lawsuit is filed, ripeness asks whether the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote. See Nichol, Ripeness and the Constitution, 54 U. CHI. L. REV. 153, 169 (1987); 13A WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE, § 3532.1, at 130 (2d ed. 1984). Ripeness thus focuses on whether the case involves “uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” WRIGHT, supra, § 3532, at 112. By maintaining this focus, the ripeness doctrine serves to avoid premature adjudication. While the standing doctrine has been much criticized, ripeness, especially in its pragmatic focus, has found the approval of commentators. See, e.g., Mansfield, Standing and Ripeness Revisited: The Supreme Court‘s “Hypothetical” Barriers, 68 N.D. L. REV. 1, 19-20 (1992); WRIGHT, supra, § 3532, at 112 (“As compared to standing, ripeness decisions have developed a generally satisfactory method for resolving the problems of prematurity.“).
The constitutional roots of justiciability doctrines such as ripeness, as well as standing and mootness, lie in the prohibition on advisory opinions, which in turn stems from the separation of powers doctrine. See
The courts of this state are not empowered to give advisory opinions. Wessely Energy Corp. v. Jennings, 736 S.W.2d 624, 628 (Tex. 1987); United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 859 (Tex. 1965); Alamo Express v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815, 827 (1958). This prohibition extends to cases that are not yet ripe. See Camarena v. Texas Employment Comm‘n, 754 S.W.2d 149, 151 (Tex. 1988); Public Util. Comm‘n v. Houston Lighting & Power Co., 748 S.W.2d 439, 442 (Tex. 1987); City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex. 1985); California Prod., Inc. v. Puretex Lemon Juice, 160 Tex. 586, 334 S.W.2d 780, 783 (1960). A case is not ripe when its resolution depends on contingent or hypothetical facts, or upon events that have not yet come to pass. See Camarena, 754 S.W.2d at 151 (holding trial court could not grant relief based on “a hypothetical situation which might or might not arise at a later date. District courts, under our Constitution, do not give advice or decide cases upon speculative, hypothetical or contingent situations“).
The concerns addressed by the ripeness doctrine encompass more than a question of constitutional prohibition. The doctrine has a pragmatic, prudential aspect that is directed toward “[conserving] judicial time and resources for real and current controversies, rather than abstract, hypothetical, or remote disputes.” Mayhew, 964 S.W.2d at 928; see also Nichol, supra, at 174 (“ripeness analysis carries the banner of prudence rather than power“). Refraining from issuing advisory opinions and waiting for cases’ timely factual development is also essential to the proper development of the state‘s jurisprudence. See Entman, Flawed Activism: The Tennessee Supreme Court‘s Advisory Opinions on Joint Tort Liability and Summary Judgment, 24 MEM. ST. U.L. REV. 193, 199 (1994); Frankfurter, A Note on Advisory Opinions, 37 HARV. L. REV. 1002, 1002-03 (1924). “Litigation based upon hypothetical possibility rather than concrete fact is apt to be poor litigation. The demand for specificity, therefore, stems from a judicial desire for better lawmaking.” Nichol, supra, at 177; WRIGHT, supra, § 3532.3, at 147 (“adjudication may be postponed until a better factual record is available, ‘[e]ven though the challenged statute is sure to work the injury alleged‘“) (quoting Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 300 (1979)). Moreover, avoiding premature litigation prevents courts from “entangling themselves in abstract disagreements over administrative policies” while at the same time serving to “protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” City of El Paso v. Madero Dev. & Constr. Co., 803 S.W.2d 396, 398-99 (Tex. App.—El Paso 1991, writ denied) (citing Abbott Lab. v. Gardner, 387 U.S. 136 (1967)); see also DAVIS & PIERCE, supra, § 15.12, at 360 (explaining that ripeness law “limits the ability of courts to intrude excessively on the policymaking domains of the politically accountable [branches of government]“); Nichol, supra, at 178 (similarly noting that ripeness doctrine “allows the courts to postpone interfering when necessary so that other branches of government . . . may perform their functions unimpeded“).
We examine the ripeness of Planned Parenthood‘s claims in light of these principles. Planned Parenthood argues that any implementation of rider 14 will result in it losing federal funds, at the very least those provided through Title X. Thus Planned Parenthood urges that it is in immediate danger
The record does not support Planned Parenthood‘s assertions. Pavlica, the sole witness, explained that the Department had not finalized its plans, but was leaning to Plan B, and had only just begun investigating what automation demands Plan B might require. She emphasized that Planned Parenthood and its clients would experience no change in actual services provided or paid for under Plan B, but that only the funding source for some of the prescriptions would change. She testified that the Department would not in fact require parental consent before paying for prescriptions to minors under Plan B: “We would not change the parental consent requirements so minors would continue to be served.” The letter from DHHS does not specifically address Plan B, but refers to rider 14 “on its face,” states that Texas may be ineligible to receive Title X funds “if [rider 14] is fully implemented,” and clearly assumes that parental consent will be required before any drugs are prescribed. (Emphasis added.) Nothing in the record demonstrates that the federal government has actually considered Plan B, much less suggested revoking or withdrawing funding based on it. Likewise, no evidence supports the trial court‘s conclusion that the administrative costs of implementing Plan B would come from family planning program funds that would otherwise have gone to Planned Parenthood, or even the actual amount of what those administrative costs would be. Pavlica testified that although she was “not exactly sure” what the administrative costs might be, based on her experience, she “would guess . . . [that] it would be several hundreds of thousands of dollars” to segregate the funds. She did not suggest or even speculate about where the administrative funds would come from. This testimony is not specific enough to support the conclusion that harm to Planned Parenthood is imminent.
This is precisely the kind of case in which resolution of the claim presented depends on the occurrence of contingent future events that may not occur as anticipated or may not occur at all. We simply do not know what the federal government will do if the state carries out its plan to segregate the funds, and the record does not even demonstrate what exactly the state will do. Without knowing what the federal government will do, Planned Parenthood cannot show a conflict between federal and state demands or that the state‘s proposed action will cause it any injury. While Planned Parenthood does not have to wait until its funds are actually revoked or cut off, its potential injury must be more certain; the threat must be established by something more definite than the DHHS letter presented in this case, which does not address whatever final action the Department of Health may take to meet its statutory obligations to the legislature and Congress. Because its alleged injury remains contingent, Planned Parenthood‘s claim is not yet ripe for review.
The essence of the ripeness doctrine is to avoid premature adjudication of just such a situation; to hold otherwise would be the essence of an advisory opinion, advising what the law would be on a hypothetical set of facts. Neither this Court nor the trial court has the power to do so. Accordingly, we vacate the trial court‘s judgment and dismiss this case for want of jurisdiction.
GONZALEZ, J., filed a concurring opinion, in which ABBOTT, J., joined.
GONZALEZ, Justice joined by ABBOTT, Justice, concurring in the judgment.
I concur with the Court that the challenge to rider 14 is not ripe. I write separately to address the threshold issue the Court leaves open—whether Planned Parenthood has standing to challenge rider 14, even assuming the case is ripe. I would dismiss the case because Planned Parenthood lacks standing either in its own right or on behalf of the minors of the State of Texas.
In Texas, “[a] two-part test governs whether a plaintiff has standing to challenge a statute.” Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 626 (Tex. 1996). First, the “plaintiff must . . . suffer some actual or threatened restriction under that statute.” Texas Workers’ Comp. Comm‘n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995). “Second, the plaintiff must contend that the statute unconstitutionally restricts the plaintiff‘s rights, not somebody else‘s.” Id.
Planned Parenthood maintains that rider 14 “unconstitutionally restricts its own rights” in two ways. First, if the United States Department of Health and Human Services (DHHS) determines that Texas Department of Health‘s implementation of rider 14 will result in a loss of federal family planning funds, then Planned Parenthood “will not be able to subsidize all the costs of providing expensive prescription drugs to minor patients who cannot obtain parental consent.” Second, even if the DHHS is satisfied that “Plan B” does not violate federal regulations, Planned Parenthood claims it is harmed by the administrative costs expended to implement Plan B. However, Planned Parenthood fails to identify the source of its “right” or “entitlement” to Texas tax revenues or to the most efficient and cost-effective administration of those tax revenues.
In Texas Ass‘n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993), we held that “[t]he standing requirement stems from two limitations on subject matter jurisdiction: the separation of powers doctrine and, in Texas, the open courts provision.” Id. at 443 (emphasis added). The open courts provision provides:
All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.
Planned Parenthood, therefore, must have some arguable basis for asserting that rider 14 abrogates some legal or liberty interest of its own. Planned Parenthood has not alleged that rider 14 abridges any common law right arising under property, tort, or contract law. It has not identified any fundamental right to state subsidization, see Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, indeed, have a legitimate claim of entitlement to it.“), or to the most efficient and least wasteful administration of the state‘s health care resources. Cf. Flast v. Cohen, 392 U.S. 83, 102 (1968) (“[To establish Article III standing] [i]t will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.“). Generally, a state‘s choice of whether to fund a particular program or the efficiency of its administration is not actionable. Furthermore, Planned Parenthood does not identify any implicit right or entitlement owing it under the
The unity-in-subject clause of the
Planned Parenthood asserts that rider 14 conflicts with the purposes of
(a) This chapter shall be liberally construed and applied in relation to applicable federal laws and regulations so that adequate and high quality health care may be made available to all children and adults who need the care and are not financially able to pay for it.
(b) If a provision of this chapter conflicts with a provision of the Social Security Act or any other federal act and renders the state program out of conformity with federal law to the extent that federal matching money is not available to the state, the conflicting provision of state law shall be inoperative to the extent of the conflict but shall not affect the remainder of this chapter.
What the Legislature gives the Legislature can take away. The adults and children deprived of further entitlements may have a remedy if the process by which the Legislature terminates them does not accord with due process. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 263-64 (1970) (holding that procedural due process requires that evidentiary hearing be held before public assistance payments to welfare recipients are terminated); Goldsmith v. United States Bd. of Tax Appeals, 270 U.S. 117, 123 (1926) (holding that Board‘s refusal to admit petitioner to the practice of law without a prior hearing or statement of reasons for denial violated due process). Planned Parenthood has no standing in its own right to challenge rider 14‘s alleged conflict with the provisions of the
In its Original and First Amended Original Petition, Planned Parenthood argued that it has standing to represent the interests of the minors of the State of Texas. Under Texas law, however, only the parents or guardians of a minor may represent their legal interests. See
The question of Planned Parenthood‘s standing to represent the minors of the state of Texas obscures the larger issue underlying this case—parental rights. The purpose of rider 14 was to withhold state funds from a program that, as currently implemented, interferes with parental supervision over the health care and sexual behavior of minor children. Indeed, Planned Parenthood‘s policy of providing minors prescription drugs without parental consent, for which it seeks this state‘s subsidies, is inconsistent with Texas law.
(a) A parent of a child has the following rights and duties:
. . .
(6) the right to consent to the child‘s marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological and surgical treatment . . . .
The importance of parental involvement in minors’ decisions to avail themselves of contraceptive or abortion services is aptly illustrated in the amicus brief of several families supporting rider 14 who unsuccessfully attempted to intervene at the trial level. The daughter of one of the individuals filing the amicus brief was impregnated on two separate occasions by her mother‘s boyfriend while she was living with her mother. Both times, the live-in boyfriend took the daughter—once when she was twelve and once when she was thirteen—to an abortion clinic in order to conceal his criminal deeds. A parental consent requirement would have prevented the live-in boyfriend from being able to continue his abuse. The irony of Planned Parenthood‘s argument that it represents the state‘s minors is that when some of those minors sought to intervene to speak for themselves—through their lawful representatives—Planned Parenthood opposed their intervention.
Unlike the federal authorities the Court cites early in its opinion, other courts, including our own, have strongly affirmed the ancient and well-established right of parents to guide and direct the decisions of their minor children. “The natural right which exists between parents and their children is one of constitutional dimensions.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). Only a generation ago, this Court recognized the fundamental importance of parental rights in reaffirming the doctrine of parental immunity:
We trust that it is not out of date for the state and its courts to be concerned with the welfare of the family as the most vital unit in our society. We recognize that peace, tranquility and discipline in the home are endowed and inspired by higher authority than statutory enactments and court decisions. Harmonious family relationships depend on filial and parental love and respect which can neither be created nor preserved by legislatures or courts. The most we can do is to prevent the judicial system from being used to disrupt the wide sphere of reasonable discretion which is necessary in order for parents to properly exercise their responsibility to provide nurture, care, and discipline for their children.
Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex. 1971). These principles cannot be reiterated often enough, especially in the context of a minor‘s health and sex-related decisions. To grant Planned Parenthood standing to represent the state‘s minors would usurp this vital parental role.
Accordingly, I would hold not only that the case is not ripe, but also that Planned Parenthood has failed to otherwise establish standing to challenge rider 14.
PAT BAKER COMPANY, INC. and Baker Brothers, Inc., Petitioners, v. Gwendolynn Kay WILSON, individually and a/n/f of Karly Wilson, a minor, Brenda Wilson a/n/f of Savannah L. Wilson and Ryan A. Wilson, minors, and Tucker Wireline Services, Inc., Respondents.
No. 97-1215.
Supreme Court of Texas.
June 23, 1998.