IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MELISSA ANSPACH, KURT A. :

ANSPACH, KAREN E. ANSPACH, : CIVIL ACTION

:

Plaintiffs, : No. 05-810

:

v. :

:

:

CITY OF PHILADELPHIA, :

DEPARTMENT OF PUBLIC :

HEALTH, et al, :

:

Defendants. :

:

MEMORANDUM AND ORDER

JOYNER, J. June 27, 2005

Via the instant Motion, Defendants John F. Domzaliski,

Louise Lisi, Maria Fedorova, Mary Gilmore, and the City of

Philadelphia move to dismiss Plaintiffs’ Complaint. Because

Plaintiffs have failed to state a claim under federal law, this

action must be dismissed for lack of federal question

jurisdiction.

Factual Background

On January 26, 2004, Plaintiff Melissa Anspach visited a

Health Center operated by the City of Philadelphia Department of

Public Health. Melissa, who had engaged in sexual activity on

January 23, 2004, believed that she might be pregnant and

requested a pregnancy test. Plaintiffs allege that Melissa was

told by a receptionist that she could not obtain a pregnancy test

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 1 of 16
1 This method of emergency contraception, also known as the

“morning-after pill,” uses a combination of progestin and estrogen to

prevent pregnancy. Depending on the phase of the patient’s menstrual

cycle, emergency contraception may prevent ovulation or fertilization. 

If fertilization has already occurred, emergency contraception may

alter the endometrium to prevent implantation of the fertilized egg. 

If a fertilized egg has already implanted in the endometrium,

emergency contraception will have no effect. See

http://www.fda.gov/cder/drug/infopage/planB/planBQandA.htm.

2

“because it was not family planning day.” Melissa left the

Health Center, but returned shortly thereafter at the prompting

of a friend, who told Melissa to “ask for the morning after

pill.” Melissa followed this advice and was directed to the

pediatric ward, where she provided her name and date of birth,

indicating that she was sixteen years of age. See Complaint, ¶

22-26.

Plaintiffs allege that Melissa next spoke with Defendant

Maria Fedorova, a social worker, for approximately ten minutes,

during which they discussed sexually transmitted diseases, birth

control, and emergency contraception. Ms. Federova allegedly

told Melissa that the Health Center could provide pills “that

would prevent [her] from getting pregnant,” and Melissa agreed to

take these pills. Defendant Mary Gilmore, a registered nurse,

then took Melissa’s temperature and blood pressure, and provided

Melissa with emergency contraception marketed under the trade

name Nordette.1 Nurse Gilmore told Melissa to take four pills

right away and then four more in twelve hours. Plaintiffs

contend that before Melissa took the pills, Nurse Gilmore

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 2 of 16
3

consulted with Ms. Federova “to find out how Melissa should take

the pills,” and consulted with Defendant Jitendra Shah, a

physician, to ask if Dr. Shah wanted to examine Melissa. After

Melissa took the pills in Defendant Gilmore’s presence, she

allegedly asked whether the pills would make her sick. Nurse

Gilmore reportedly consulted with Dr. Shah once again, who

advised Nurse Gilmore to tell Melissa to drink ginger ale. See

Complaint, ¶ 26-34. 

After taking her second dose of pills at approximately 4:00

A.M. on the morning of January 27, 2004, Melissa experienced

severe stomach pains and began vomiting. Melissa’s father,

Plaintiff Kurt Anspach, came to her room and found Melissa lying

on the floor. Mr. Anspach contends that Melissa’s face was

swollen and red, and that Melissa asked if she was going to die. 

Upon learning that Melissa had taken emergency contraception, Mr.

Anspach called their family physician and the poison control

center, and took Melissa to the emergency room. Melissa was

released from the hospital the same day, but returned because of

sub-conjunctive hemorrhaging in her eye resulting from excessive

vomiting. Melissa Anspach and her parents contend that the

events described above have caused them to suffer severe

emotional distress. See Complaint, ¶ 35-38.

Plaintiffs bring the instant action against Defendants,

maintaining that their state and federal Constitutional rights

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 3 of 16
4

were violated as a result of Defendants’ actions. Mr. and Mrs.

Anspach contend that they were deprived of their right to

familial privacy when Defendants provided Melissa with medication

without her parents’ consent. Similarly, Melissa contends that

Defendants’ actions deprived her of the opportunity for parental

consultation and guidance. She has also raised a claim of

assault and battery against Defendants Federova and Gilmore for

dispensing medication without Melissa’s informed consent. 

Melissa contends that she was told that emergency contraception

would prevent her from becoming pregnant, but was never informed

that the pills could cause miscarriage or termination in the

event she was already pregnant. Plaintiffs further bring claims

of negligent supervision against Dr. Shah, and negligent and

intentional infliction of emotional distress against the

individual Defendants. 

Standard of Review

In considering a motion to dismiss, a court must consider

only those facts alleged in the complaint and accept all of the

allegations as true. Morse v. Lower Merion Sch. Dist., 132 F.3d

902, 906 (3rd Cir. 1997). However, the court need not credit the

plaintiff’s “bald assertions” or “legal conclusions” where such

conclusions are unsupported by the pleadings. Morse, 132 F.3d at

906. A motion to dismiss may only be granted where the

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 4 of 16
5

plaintiff’s allegations fail to state any claim upon which relief

could be granted. Morse, 132 F.3d at 906. 

Discussion

To state a cause of action for state deprivation of a

constitutional right, a plaintiff must allege that he was

deprived of a federal right by a defendant acting under color of

state law. 42 U.S.C. § 1983; Gomez v. Toledo, 446 U.S. 635, 640

(1980). In Count I, Mr. and Mrs. Anspach contend that they were

deprived of their fundamental right to direct the rearing and

education of their minor child as a result of Defendants’ course

of conduct. In Count II, Melissa Anspach alleges that Defendants

deprived her of her right to parental guidance and advice in

matters relating to medical care. Both counts arise out of the

liberty interests granted by the Due Process Clause of the

Fourteenth Amendment. Plaintiffs also allege that Defendants

violated their First Amendment right to free exercise of religion

by providing Melissa with a medication that can cause termination

of a pregnancy, defined under Pennsylvania law as commencing with

fertilization. 18 Pa. C.S. 3203. 

I. Rights of Parental Guidance and Familial Privacy

It is well established that the fundamental right of parents

to direct the upbringing and education of their children is

protected by the Due Process Clause of the Fourteenth Amendment. 

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 5 of 16
6

Troxel v. Granville, 530 U.S. 57, 65 (2000); Wisconsin v. Yoder,

406 U.S. 205, 232 (1972); Prince v. Massachusetts, 321 U.S. 158,

166 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-35

(1925). This right, however, is not absolute. The state has a

wide range of power to limit parental freedom in matters relating

to child welfare. Prince, 321 U.S. at 167. Furthermore, the

right of a parent to direct a child’s upbringing cannot be

understood in isolation. Minors, as well as adults, are

protected by the Constitution and possess fundamental rights that

may in some instances outweigh those possessed by their parents. 

Carey v. Population Servs. Int’l, 431 U.S. 678, 692 (1977)

(quoting Planned Parenthood of Central Missouri v. Danforth, 428

U.S. 52, 74 (1976)).

A. No State Interference with Parent-Child Relationship 

Even viewing the facts of the Complaint in their most

favorable light, Plaintiffs have failed to state a valid claim

for relief arising from violation of the above-described parental

rights. Plaintiffs maintain that when Melissa Anspach visited

the Health Center, Defendants were aware that she was only

sixteen, but never asked Melissa whether her parents knew of her

predicament, nor advised her to consult with her parents before

deciding whether to take emergency contraception. Complaint, ¶

27, 28. In Counts I and II of their Complaint, Plaintiffs

conclude that Defendants’ course of conduct “was intended to

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 6 of 16
7

influence Melissa to refrain from discussing with her parents her

possible pregnancy and what course of conduct was appropriate,”

and violated Mr. and Mrs. Anspach’s rights “by usurping the

parental role.” Id., ¶ 67, 68, 72, 77. This Court cannot credit

Plaintiff’s legal conclusions, however, as they are entirely

unsupported by the factual allegations in the Complaint

concerning Melissa’s interaction with the Health Center staff. 

Plaintiffs do not maintain that Defendants instructed Melissa not

to consult with her parents or otherwise prevented her from

seeking their guidance and advice with respect to reproductive

matters. At best, Plaintiffs have alleged only that Defendants

failed to encourage Melissa to seek her parents’ assent. Such

passive failure on the part of a state agency and its employees

cannot form the basis of a constitutional claim of the kind

raised by Plaintiffs. 

In the key cases defining the scope of the fundamental

parental right to control a child’s rearing and education, the

Supreme Court has held that a state may not forbid parents from

educating their children in accordance with their beliefs. See

Yoder, 406 U.S. at 232-34 (compulsory high school education as

applied to Amish minors); Pierce, 268 U.S. 510, 534-35

(compulsory education within the public school system); Meyer v.

Nebraska, 262 U.S. 390, 400 (1923) (statute prohibiting teaching

of foreign languages). Plaintiffs have identified no authority,

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 7 of 16
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however, to suggest that the scope of these cases can be expanded

to allow constitutional claims against states that permit

parental involvement but merely fail to take steps to encourage

more active parental participation. This fundamental legal

distinction was highlighted in 1980 by the Sixth Circuit Court of

Appeals, in connection with a challenge to the Michigan Health

Department’s provision of contraceptive information and services

to minors without parental notification. Doe v. Irwin, 615 F.2d

1162, 1168 (6th Cir. 1980), cert. denied, 449 U.S. 829 (1980). 

The Sixth Circuit found that earlier Supreme Court cases dealt

only with states “either requiring or prohibiting some activity.” 

Id. In contrast, the state of Michigan, in establishing a

voluntary birth control clinic, “imposed no compulsory

requirements or prohibitions” affecting the rights of the parentplaintiffs. Id. The court explained its findings as follows:

There is no requirement that the children of the

plaintiffs avail themselves of the services offered by

the Center and no prohibition against the plaintiffs'

participating in decisions of their minor children on

issues of sexual activity and birth control. The

plaintiffs remain free to exercise their traditional

care, custody and control over their unemancipated

children. Id.

We find the Sixth Circuit’s interpretation of Supreme Court

precedent on the issue of parental rights to be compelling. See

also Parents United for Better Schs. Inc. v. Sch. Dist. of Pa.

Bd. of Educ., 148 F.3d 260, 276 (3rd Cir. 1998) (favorably citing

the reasoning of Irwin in upholding a voluntary condom

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 8 of 16
9

distribution program in Philadelphia schools). In establishing a

voluntary health clinic, the state of Pennsylvania has neither

required that minors within the Commonwealth avail themselves of

its services, nor prohibited parents from participating in their

children’s educational, moral, or physical upbringing. Thus,

Plaintiffs have failed to state a constitutional claim for

violation of Mr. and Mrs. Anspach’s right to direct the

upbringing of their minor child, Melissa. For the same reasons,

Plaintiff Melissa Anspach has failed to state a constitutional

claim for violation of her right to receive parental guidance. 

B. No Parental Right to Be Notified of a Minor Child’s

Exercise of Reproductive Privacy Rights 

Even if Plaintiffs’ Complaint did allege facts sufficient to

support a finding that Defendants’ actions prevented Mr. and Mrs.

Anspach from counseling their daughter, there is an alternative

ground for dismissal of Plaintiffs’ claims. There is simply no

constitutional basis to support Plaintiffs’ contention that

parents have a constitutional right to be informed of their minor

child’s request for family planning services.

Minors, as well as adults, have a fundamental right to

privacy in the intimate area of reproductive decision-making. 

See Carey, 431 U.S. at 692 (citing Danforth, 428 U.S. at 74). 

States that have adopted policies aimed at protecting this

privacy right, however, often face challenges from parents

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 9 of 16
10

alleging intrusion upon the sphere of familial privacy and

parental guidance. In Danforth, for example, the Supreme Court

considered the interplay between the reproductive rights of

minors and the rights of their parents in the context of a

Missouri law requiring parental consent to abortion for minors. 

Danforth, 428 U.S. at 74-75. Finding the absolute parental

consent requirement unconstitutional, the Court held that a

parent’s independent interest in terminating or continuing a

minor daughter’s pregnancy is “no more weighty than the right of

privacy of the competent minor mature enough to have become

pregnant.” Id. at 75. In a plurality opinion the following

year, the Supreme Court found that the decision in Danforth “a

fortiori foreclosed” any absolute prohibition on the distribution

of contraceptives to minors without parental consent. Carey, 431

U.S. at 694. Thus, to the extent that Plaintiffs object to

Defendants’ failure to obtain the consent of Mr. and Mrs. Anspach

before prescribing emergency contraception to Melissa Anspach,

their constitutional claims must fail as a matter of law.

To the extent that Plaintiffs seek recovery on the basis of

Defendants’ failure to notify Melissa’s parents of her request

for emergency contraception, their claim must fail as well. 

There is absolutely no authority before this Court to support the

proposition that a parent’s right to be notified that their child

has sought out family planning services outweighs the minor

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 10 of 16
2 Plaintiffs contend that the standards governing abortion should

govern discussion of emergency contraception, because emergency

contraception can result in the termination of a pregnancy, defined

under Pennsylvania law as a fertilized embryo. See 18 Pa. C.S. 3203 . 

This Court declines to determine whether emergency contraception is

closer in kind to traditional methods of birth control or to

chemically-induced abortion. For this reason, we will consider the

law governing parental notification in the context of both abortion

and contraception.

3 The Supreme Court has similarly held that statutes imposing an

absolute requirement of parental consent are unconstitutional, finding

that the failure to provide judicial bypass or other exemption

procedures imposes an undue burden on a minor’s right to choose. See

Ohio v. Akron Center for Reproductive Health, 497 U.S. at 511; City of

Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 440

(1983); Bellotti v. Baird, 443 U.S. 622, 651 (1979) (plurality).

11

child’s interest in reproductive privacy. 

While the Supreme Court has upheld the constitutionality of

parental notice requirements under some circumstances, the Court

has never held that parents have a constitutional right to such

notification, either with respect to contraception or abortion.2

See, e.g., Lambert v. Wicklund, 520 U.S. 292, 297-98 (1997) (per

curiam); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S.

502, 510-11 (1990); H.L. v. Matheson, 450 U.S. 398, 409-10

(1981); See also Irwin, 615 F.2d at 1169 (finding that the

opinions in Carey do not indicate that parents have a

constitutional right to notification). Rather, the language used

by the Supreme Court suggests that parental notification

requirements pose significant constitutional challenges, and may

be struck down if they do not provide minors seeking abortions

with opportunities for exemption or judicial bypass.3 See, e.g.,

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 11 of 16
12

Hodgson v. Minnesota, 497 U.S. 417, 450-55, 461 (1990) (finding

Minnesota’s two-parent notice statute unconstitutional without

procedures for judicial bypass); Lambert, 520 U.S. at 297-98

(upholding Montana notice statute with judicial bypass

procedure); Ohio v. Akron Ctr. for Repro. Health, 497 U.S. at

510-11 (applying Bellotti bypass procedures to uphold Ohio notice

statute); Matheson, 450 U.S. at 409 (upholding Utah parental

notification law as applied to an immature, unemancipated minor

seeking abortion); See also Planned Parenthood v. Heed, 390 F.3d

53 (1st Cir. 2004); Planned Parenthood of the Rocky Mts. Servs.

Corp. v. Owens, 287 F.3d 910 (10th Cir. 2002); Planned Parenthood

v. Miller, 63 F.3d 1452 (8th Cir. 1995). 

Furthermore, numerous courts have held that parental notice

requirements in the context of contraception and family planning

services are inconsistent with Title X, which imposes a burden of

confidentiality on providers of such services. 42 C.F.R. §

59.11; See, e.g., County of St. Charles v. Missouri Family Health

Council, 107 F.3d 682, 684-85 (8th Cir. 1997); New York v.

Heckler, 719 F.2d 1191, 1196-97 (2nd Cir. 1983); Planned

Parenthood Fed. of Am. v. Heckler, 712 F.2d 650, 656-61 (D.C.

Cir. 1983).

In light of the above authorities, Plaintiffs are wrong to

suggest that they have a constitutional right to be notified of

their daughter’s request for emergency contraception. Thus,

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 12 of 16
13

Counts I and II fail to state valid constitutional claims. 

II. Right to Free Exercise of Religion

Plaintiffs also maintain that Defendants violated their

right to free exercise of religion by providing Melissa with a

medication that can cause termination of a pregnancy. Although

the parties have not briefed this issue, this Court finds that

Plaintiffs have failed to state a valid cause of action for

violation of their rights under the Free Exercise Clause of the

First Amendment.

In merely alleging that Defendants “gave [Melissa] a

substance that, in some cases, may result in the termination of a

pregnancy,” and that Melissa would not have taken the pills had

she known of this potentiality, Plaintiffs have failed to plead

any constitutionally relevant injury in fact. See Complaint, ¶

74, 80. Plaintiffs do not allege that Melissa was pregnant at the

time she took the emergency contraception, nor do they allege

that Defendants’ actions actually resulted in the termination of

a pregnancy in violation of Melissa’s religious beliefs.

Furthermore, the facts of the Complaint, viewed in the light

most favorable to Plaintiffs, do not suggest that Defendants

“placed a substantial burden on [Plaintiffs’] observation of a

central religious belief or practice.” See Hernandez v.

Commissioner, 490 U.S. 680, 699 (1989). Plaintiffs admit that

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 13 of 16
14

Melissa voluntarily requested “the morning after pill,” and do

not allege that she made any inquiries as to the effect of

emergency contraception on a fertilized ovum. Rather, Plaintiffs

merely contend that Melissa was misled by the designation

“emergency contraception” in the literature provided by the

Department of Health. Moreover, Plaintiffs do not maintain that

Defendants compelled Melissa to take the pills, or otherwise

prevented her from consulting with her parents or religious

advisors regarding the implications of her decision. 

Finally, it is well established that parental liberty

interests are not violated merely because religious beliefs are

implicated in the claim. Irwin, 615 F.2d at 1168 (citing Prince,

321 U.S. at 166).

Conclusion

This Court recognizes that parental guidance is invaluable

to a child’s moral, social, and religious development. Parental

involvement is particularly important during the period of

adolescence, when children struggle with weighty issues of peer

pressure and sexuality. Within any family unit, parents and

their adolescent children have a shared responsibility to engage

in discussion of personal and family values, and to learn from

each other’s perspectives. These ideals are reflected in the Due

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 14 of 16
15

Process Clause of the Fourteenth Amendment, which protects the

fundamental right of parents to direct the upbringing and

education of their children. 

Plaintiffs interpret this parental right to require that

public health centers disclose to parents a minor child’s request

for family planning services. In doing so, Plaintiffs stretch

the boundaries of this constitutional doctrine to the breaking

point. The Health Center’s failure to notify Mr. and Mrs.

Anspach of their daughter’s request for emergency contraception

in no way prevents Plaintiffs from discussing responsible sexual

activity or religious doctrine at home. Furthermore, Mr. and

Mrs. Anspach’s rights under the Due Process Clause do not include

the right to receive state notification upon their minor

daughter’s exercise of her fundamental right to privacy in

reproductive decision-making. 

In sum, Plaintiffs’ allegations fail to state any

constitutional claim upon which relief could be granted. As

there is no federal question remaining before this Court, this

action shall be dismissed for lack of jurisdiction.

An appropriate Order follows.

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 15 of 16
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MELISSA ANSPACH, KURT A. :

ANSPACH, KAREN E. ANSPACH, : CIVIL ACTION

:

Plaintiffs, : No. 05-810

:

v. :

:

:

CITY OF PHILADELPHIA, :

DEPARTMENT OF PUBLIC :

HEALTH, et al, :

:

Defendants. :

ORDER

AND NOW, this 27th day of June, 2005, upon consideration of

the Motion to Dismiss filed by Defendants John F. Domzaliski,

Louise Lisi, Maria Fedorova, Mary Gilmore, and the City of

Philadelphia (Doc. No. 6), and Plaintiffs’ response thereto (Doc.

No. 14), it is hereby ORDERED that the Motion is GRANTED and this

action is dismissed for lack of subject matter jurisdiction.

BY THE COURT,

s/J. Curtis Joyner 

J. CURTIS JOYNER, J.

Case 2:05-cv-00810-JCJ Document 19 Filed 06/27/05 Page 16 of 16