FILED

February 11, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

TERESA MCGLOTHLIN and KATHY ) C/A NO. 03A01-9706-CV-00236

HELTON, )

) SULLIVAN LAW

Appellants, )

) HON. JOHN McLELLAN, III

v. ) JUDGE

)

BRISTOL OBSTETRICS, )

GYNECOLOGY and FAMILY )

PLANNING, INC., )

)

and )

DR. GARY BOYLE, ) AFFIRMED

) AND

Appellees. ) REMANDED

TERRY C. FRYE, Bristol, VA, for Appellants.

CHARLES T. HERNDON, IV, HERNDON, COLEMAN, BRADING & McKEE,

Johnson City, for Appellees.

O P I N I O N

Franks, J.

Plaintiffs, mother and daughter, sued defendants, charging defendants

performed an abortion on daughter, in violation of T.C.A. §39-15-202, and the doctor,

in performing the abortion, was guilty of medical malpractice and battery upon the

daughter.

The Trial Court dismissed the part of the complaint relying upon

violation of the statute, on the grounds that the statute was unconstitutional, and

granted summary judgment on the remaining causes of action. Plaintiffs have
2

appealed.

The disputed statute was passed by the General Assembly in 1989, and

recorded a t Chapter 591, Public Acts of 1989, which Act states, in pertinent part:

Section 39-15-202. Consent of pregnant woman required prior to

abortion-information provided by doctor-Waiting period-Penalty for

violation-Notice to parents or guardians-Requirements inapplicable in

certain cases.

(a) An abortion otherwise permitted by law shall be performed or

induced only with the informed written consent of the pregnant woman,

given freely and without coercion. Such consent shall be treated as

confidential.

(b) In order to insure that a consent for an abortion is truly

informed consent, an abortion shall be performed or induced upon a

pregnant woman only after she has been orally informed by her

attending physician of the following facts and has signed a consent form

acknowledging that she has been informed as follows:

(1) That according to the best judgment of her attending

physician she is pregnant;

(2) The number of weeks elapsed from the probable time

of the conception of her unborn child, based upon the information

provided by her as to the time of her last menstrual period or after

a history, physical examination, and appropriate laboratory tests;

(3) That if more than twenty-four (24) weeks have elapsed

from the time of conception, her child may be viable, that is,

capable of surviving outside of the womb, and that if such child

is prematurely born alive in the course of an abortion her

attending physician has a legal obligation to take steps to

preserve the life and health of the child;

 (4) That abortion in a considerable number of cases

constitutes a major surgical procedure;

(5) That numerous public and private agencies and

services are available to assist her during her pregnancy and after

the birth of her child, if she chooses not to have the abortion,

whether she wishes to keep her child or place him or her for

adoption, and that her physician will provide her with a list of

such agencies and the services available if she so requests; or

(6) Numerous benefits and risks are attendant either to

continued pregnancy and childbirth or to abortion depending

upon the circumstances that the patient might find herself in. The

physician shall explain these benefits and risks to the best of his

ability and knowledge of the circumstances involved.
3

(c) At the same time the attending physician provides the

information required by subsection (b) of this section, he shall inform

the pregnant woman of the particular risks associated with her

pregnancy and childbirth and the abortion or child delivery technique to

be employed, including providing her with at least a general description

of the medical instructions to be followed subsequent to the abortion or

childbirth in order to insure her safe recovery.

(d) There shall be a two (2) day waiting period after the physician

provides the required information, excluding the day on which such

information was given, and on the third day following the day such

information was given, the patient may return to the physician and sign a

consent form.

Violation of this subse ction by a physician is a Cla ss E f elony.

Provided, however, that this subsection (d) shall not apply when

the attending physician, utilizing his experience, judgment, or

professional competence, determines that a two (2) day waiting period

or any waiting pe riod would endange r the life of the pregnant woman. 

Such determination made by the attending physician shall be in writing

and shall state his medical reasons upon which he bases his opinion that

the waiting period would endanger the life of the pregnant woman. This

provision shall not relieve the attending physician of his duty to the

pregnant woman to inform her of the fa cts under subsection (b) of this

section.

(e) The attending physician performing or inducing the abortion

shall provide the pregnant woman with a duplicate copy of the consent

form signed by her.

(f) The attending physician or agency performing an abortion

upon a minor of less than eighteen (18) years of age shall inform the

parents or legal guardians of such minor, or if the whereabouts of the

parents cannot be determined and there is no other legal guardian than

the agency or other individual to whom the child’s custody has been

transferred, two (2) days prior to the operation that an abortion is to be

performed upon such minor. Provided however, the provisions of this

section shall in no way be construed to mean, provide for, or authorize

parental objection to, in any way, prevent or alter the decision of the

minor to proceed with the abortion.

Notice shall not be required if:

(1) The minor is emancipated by marriage; or

(2) The attending physician determines that, in his best

medical judgment, the abortion is necessary to preserve the life or

health of the mother and must be performed prior to the

expiration of the two (2) day notice period.

(g) The words “the physician” and “the attending physician” as
4

used in this section shall mean any licensed physician on the service

treating the pregnant woman.

(h) The provisions of this section shall not apply in those

situations where an abortion is certified by a licensed physician as

necessary to preserve the life of the pregnant woman.

In response to the notice of challenge to the constitutionality of the statute the

Attorney General, responded:

The statutory provision at issue, Section 39-15-202(f), was deleted by

amendment in 1995 and is, accordingly, no longer in effect. The

Attorney General declines to defend the constitutionality of this repealed

statutory provision.

The Chancellor, in his opinion, said and we quote with approva l:

The plaintiff, then a minor 17 years and approximately 10 months of

age, contracted for an abortion on September 29, 1990. The statutory

scheme in effect in Tennessee at the time provided that if a person was

under 18 years of age, that the attending physician would inform that

person’s parents of the contemplated procedure two days prior to the

abortive procedure being performed on the minor. The two-day waiting

period set forth in subsection (d)(1) of T.C.A. 39-15-202 applies to a

pregnant woman who has been orally informed by her attending

physician of factors (1) through (6) and requires the signing of a consent

form acknowledging that the patient has been advised of the statutorily

prescribed information. Subsection (f)(1) and (2) is the only statutory

subsection of T.C.A. 39-15-202 solely applicable to an individual less

than 18 years of age. It further appears that the statutory construction in

question represents the effort of the legislature to address the

constitutiona l infirmities contained in prior legislation as it relates to

abortion rights and minors. This statutory scheme was legislatively reestablished in 1995 and is now provided in T.C.A. 37-10-301, et seq.

This legislation has again been found to be constitutionally infirm first

for failure to properly protec t a minor’s confidentiality and anonymity in

seeking a judicial bypass of parental consent and secondly for failure to

provide a sufficiently expeditious bypass procedure. . . . See Memphis

Planned Parenthood, Inc. V. Donald Sundquist, et al., ___ Fed. Supp.

(M.D. Tenn. 1996). It thus appears that both the Tennessee Supreme

Court and the United States District Court reviewed Tennessee’s various

statutory provisions as they apply to a minor’s right to terminate her

pregnancy by taking into consideration not only the provisions regarding

parental consent and two-day waiting period but also consideration of

the four criteria required by the United States Supreme Court in the case

of Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035 (1979). Bellotti

established the four criteria that a judicial bypass procedure in a consent

statute such as Tenne ssee’s must satisfy. The United District Court

found that the 1995 re-enactment failed to meet the two of the Bellottiimposed criteria.
5

The Court finds that Tennessee’s statutory scheme involving

abortions as it relates to a minor is so interwoven with other statutory

provisions, that the Court can not elide a previously declared

unconstitutional portion of a statute and determine that the remaining

provisions are constitutional and effective particularly where so many of

the provisions of the subject statutory scheme has been declared

unconstitutional by state and federal courts.

. . . 

Further as to the issue of plaintiff’s capacity to consent which is

predicated upon T.C.A. 39-15-202, the Court finds that the record fails

to rebut the presumption of capacity by the plaintiff to sign the consent

to abortion document as a mature minor. See Cardwell v. Bechtol, 724

S.W.2d 739 (Tenn.. 1987). De fendants’ medical affidavit is effe ctively

unrebutted. A cause of action by plaintiffs based upon battery for

failure to obtain informed or knowledgeable consent prior to the

abortion being performed is not alleged nor supported by proper medical

or other evidence. 

Plaintiffs’ complaint predicates their cause of action upon

defendants’ failure to comply with T.C.A. 39-15-202(b) and (e) (battery

or lack of informed consent and strict liability); thus, plaintiffs’ cause of

action rests solely within the confines of the provisions of T.C.A. 39-15-

202. Therefore, the viability of plaintiffs cause of action based on

battery or lack of informed consent and strict liability rests upon the

viability of the statute. . . . Additionally, T.C.A. 39-15-201, et seq., fails

to create a civil cause of action (although it does contain criminal

sanctions) for failure to notify such parents or guardians and is

additionally constitutionally unsound in that it fails to provide a judicial

by-pass procedure which the United States supreme Court manda ted in

order to provide to minors their constitutional guarantee s. Bellotti v.

Baird, supra at 642-44 (1979). 

Plaintiffs appeal that part of the decision holding the statute

unconstitutional, the allegation of interference with family relations, and the summary

judgment as to the allegations of battery and medical malpractice.

First, plaintiffs argue that we should uphold T.C.A. 39-15-202(f) and

assert that the United States Supreme Court has never expressly required a by-pass

procedure in order for a notification statute to be valid. Citing H.L. v. Matheson, 450

U.S. 398 (1981). The Matheson Court held that it would not entertain the

constitutional challenge to the statute bec ause the plaintiff did not have standing. Id.

101 S.Ct. 1189. In Matheson Mr. Justice Powell in a concurring opinion states the
6

rule succ inctly:

Numerous and significant interests compete when a minor decides

whether or not to abort her pregnancy. The right to make that decision

may not be unconstitutionally burdened. Roe v. Wade, 410 U.S. 113,

154, 93 S.Ct. 705, 727, 35 L.Ed.2d 174 (1973); Planned Parenthood of

Central Mo. V. Danforth, 428 U.S., at 74-75, 96 S.Ct. At 2843-2844. In

addition, the minor has an interest in effe ctuating her decision to abort,

if that is the decision she makes. Id. at 75, 96 S.Ct., at 2844; Bellotti II,

443 U.S. at 647, 99 S.Ct., at 3035. The State, aside from the interest it

has in encouraging childbirth ra ther than abortion, cf. Maher v. Roe, 432

U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Harris v. McRae, 448

U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), has an interest in

fostering such consultation as will assist the minor in making her

decision as wisely as possible. Planned Parenthood of Central Mo. V.

Danforth, supra, 428 U.S., at 91, 96 S.Ct. At 2851 (STEWART, J.,

concurring); post, at 1178 (STEVENS, J., concurring in judgment). The

State also may have an interest in the family itself, the institution though

which “we inculcate and pass down many of our most cherished values,

moral and cultural.” Moore v. East Cleveland, 431 U.S. 494, 503-504,

97 S.Ct., 1932, 1937-1938, 52 L.Ed.2d 531 (1977). Parents have a

traditional and substantial interest in, as well as a responsibility for, the

rearing and welfare of their children, especially during immature years. 

Bellotti II, supra, 443 U.S., at 637-639, 99 S.Ct. At 3045-3046.

None of these interests is absolute. Even an adult woman’s right

to an abortion is not unqualified. Roe v. Wade, supra, 410 U.S., at 154,

93 S.Ct., at 727. Particularly when a minor becomes pregnant and

considers an abortion, the relevant circumstance s may vary widely

depending upon her age, maturity, mental and physical condition, the

stability of her home if she is not emancipated, her relationship with her

parents, and the like. . . . In sum, a State may not validly require notice

to parents in all cases, without providing an independent decision maker

to whom a pregnant minor can have recourse if she believes that she is

mature enough to make the abortion decision independently or that

notification otherwise would not be in her best interests. (Empha sis

supplied).

Clearly, under the Constitution of the United States and the case law decisions dealing

with this issue, it is established that the statute as written offends the individual’s

constitutional safeguards. Moreover, the statute impermissibly restricts the

individual’s libe rty and privacy interests under this State’s Constitution. See: Hawke

v. Hawke, 855 S.W.2d 573 (Tenn. 1993), and Davis v. Davis, 842 S.W.2d 588 (Tenn.

1992), cert. denied 113 S.Ct. 1259 (1993).

Next, plaintiffs contend that the Trial Court erred in finding the
7

remaining sections of that statute to be unconstitutional, i.e., (a), (b), (c), (d) and (e). 

Under the familiar rule that we will only consider constitutional issues if

the matter may not otherwise be resolved, we conclude that no private civil right of

action exists for the alleged viola tions of the remainder of the statute. See Roddy v.

Volunteer Medical Clinic, Inc., 926 S.W.2d 572 (Tenn. App. 1996). As the Supreme

Court in Planned Parenthood Association v. McWherter, 817 S.W.2d 13 (Tenn. 1991)

observed, the legislature adopted the statute as a pa rt of Chapter 591 of the Public

Acts of 1989 when the legislature revised Tennessee criminal laws and sentencing

procedure and this statute is a part of that massive revision and includes a criminal

penalty for certain violations, i.e., a felony. Plaintiffs cite the 1988 Public Act,

Chapter 929, which contains the following provision:

Failure to obtain consent pursuant to the requirements of this Act is

prima fac ie evidence of failure to obtain informed consent and of

interference with family relations in appropriate civil actions. The law

of this State shall not be construed to preclude the awa rd of exemplary

damage s in any appropriate civil action relevant to the violation of this

Act. Nothing in this Act shall be construed to limit the common law

rights of parents.

They insist that “it only stands to reason that it would also be applicable to the similar

issue of pa rental notifica tion”. This provision ha s no effica cy here. It is contained in

another chapter of the Code and the Court in McWherter, in discussing Tennesse e’s

1988 Parental Consent Statute and Tennessee’s 1989 Parental Notification Statute,

held that the two statutes were in “direct conflict” and observed at page 15:

Despite the absence of an explicit repealer bill, there can be little

question about the legislative intent with regard to the two conflicting

statutes involved here. . . . Because of an irreconcilable conflict between

the revisions of the 1988 Parental Consent Statute . . . and those of the

1989 Pa rental Notification Statute . . . the latter Statute has effective ly

repealed the former by implication . . . .

The Rule relating to whether a private cause of action is created by a 

statute is stated in 73 Am.Jur.2d §432, p. 530:

In this respec t, the general rule is that a statute which does not purport to
8

establish a civil liability, but merely makes provision to secure the safety

or welfare of the public as an entity, is not subject to a construction

establishing a civil liability.

Under the test we set forth in Bucke r v. Carlton, 623 S.W.2d 102 (Tenn. App. 1981),

we conclude that the legislature did not create a private right of action for damages, as

it relates to the remaining sections of the Act. This is reinforced when the remainder

of the Statute is considered independent of the provision which we have held

unconstitutional. The gravamen of the complaint as to both plaintiffs is the violation

of the statutory provision requiring parental notice.

As to the claims of battery and medical malpractice, defendant doctor

submitted an unrebutted affidavit stating that he wa s familiar with the standard of care

applicable to the procedure performed, and at all relative times exercised care required

under that standard. No affidavit was filed in rebuttal of the doctor’s affidavit, and

summary judgment wa s appropriate on the issue of medical malpractic e. 

As to the remaining issue of battery, the affidavits filed by defendants

present evidence that the plaintiff was a mature minor, and no countervailing affidavit

disputes this evidence. The Supreme Court in Bechtol teaches that a minor fourteen

years of age or older is pre sumed to have the capacity to consent to treatment. Id. at

745. This presumption is not rebutted on this record, and indeed is reinforced by the

affidavits filed by defendants. Before leaving this issue, we point to our decision in

Roddy at page 576, where we said:

Determining whether defendant failed to obtain informed consent from

Ms. Roddy is dependent upon the standard of care of the profession or

speciality. If informed consent is not effectively obtained, the

defendant’s departure from the standard of care is not negligence, but

battery, because the doctrine of battery is applicable to cases involving

treatment performed without informed or knowledgeable consent. 

Malpractice is based on the lack of care or skill in the performance of

services contracted for, and battery is predicated upon wrongful trespass

on the person, regardle ss of the skill employed. The assertion of one is

the denial of the other. . . . (Emphasis supplied).

For the foregoing reasons, we affirm the judgment of the Trial Court and
9

remand a t appellants’ cost.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

_(Separate Concurring Opinion) 

Houston M. Goddard, P.J.
FILED

February 11, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION

TERESA McGLOTHLIN and )

KATHY HELTON )

 )

Appellants )

)

v . )

)

BRISTOL OBSTETRICS, ) SULLIVAN COUNTY 

 GYNECOLOGY and ) 03A01-9706-CV-00236

FAMILY PLANNING, INC. )

)

 and )

 )

DR. GARY BOYLE )

)

Appellees )

 CONCURRING OPINION

 Goddard, P.J. 

I concur in the opinion authored by Judge

Franks. I write separately to point out that judges are

always required to follow the law as pronounced by

superior courts, but they are not required to agree with

those pronouncements.

_______________________________
1 1

Houston M. Goddard, P.J.