Doe v. Sundquist

Doe v. Sundquist and the Right to Privacy
by Shea Grimm

(This article first appeared in the Summer 1997 issue of the Bastard Quarterly.)

In 1996, the state of Tennessee became the first state in the Union to pass a substantive open records law since records were first sealed several decades ago. The legislation opened original birth certificates to adult adoptees on demand, although curiously attached to the landmark legislation was a contact veto provision (see Spring issue of the BQ for an analysis of contact veto provisions).

It came as no surprise to the adoption reform movement that within a few weeks, the law was challenged in the form of a lawsuit broughthr' the United States District Court for the Middle District of Tennessee. Plaintiffs Promise Doe, Jane Roe, Kimberly C. and Russ C., and Small World Ministries, Inc., asked for a temporary restraining order (TRO) halting the provisions of the new legislation until the case was heard. Judge Nixon, writing for the district court, granted the TRO, and the battle was on.

The plaintiffs in the lawsuit include two birthmothers, one who had relinquished six years prior at the age of 18 and another who had been told her infant son had died, only to have him show up 20 years later, much to her shock. Also parties to the complaint are an adoptive couple, and Small World Ministries, the only adoption agency in Tennessee affiliated with the National Council for Adoption, a small adoption lobbying organization formed by the Edna Gladney Home in the late 1970s, whose agency members are predominantly affiliated with the Latter Day Saints (Mormon) Church, and who were formed specifically to defeat open records legislation. Also present in the fray was the American Center for Law and Justice, or ACLJ, a Pat Robertson project that serves as the rightwing equivalent of the ACLU.

Deciding initially to pursue their claims in a federal court of law, plaintiffs in the case asserted that open records to adult adoptees violated their federally-guaranteed constitutional rights as follows; the right of privacy as guaranteed by the Fourteenth Amendment of the US Constitution, the parental rights the Fourteenth Amendment of the Constitution and the Equal Protection Clause of the Fourteenth Amendment of the Constitution. They further argued that the Act was in violation of a number of Tennessee constitutional guarantees.

Small World Ministries filed an affidavit claiming that all birth and adoptive parents who went through the adoption procedure at their agency did so under a promise of confidentiality. This article will focus solely on the plaintiffs' claim of a constitutional right to privacy that extends to anonymity for birthparents who surrender a child. A second article in the Fall edition of Bastard Quarterly will tackle the issue of how open records proponents must shift their arguments and strategies to take advantage of the Tennessee decisions. Proponents of open records have long had to defend their position and legislation against claims that open records to adult adoptees violate birthparent's right to privacy, countering that the constitutional right to privacy did not extend to disclosure of personal information.

The ultimate outcome of the TN lawsuit would likely settle once and for all the previously merely theoretical arguments of the two sides, as the right to privacy has not been judicially fleshed out or significantly addressed with regard to birthparents and open records. The "right to privacy" is a slippery legal concept that is not found anywhere explicitly in our Constitution. In the TN case, the plaintiffs relied on the fact that the Supreme Court has recognized that the familial rights to marry, establish a home, and raise children are fundamental privacy interests entitled to constitutional protection. (Prince v. Massachusetts, 321 U.S. 158 [1944], reh'g denied, 321 U.S. 804 [ 1944].) Additionally, the Court has held that a woman's decision whether or not to carry a pregnancy to term is a protected, fundamental privacy right. (Roe v. Wade, 410 U.S. at 152.). They also argued that the "zone of privacy" established in Griswold v. Connecticut, 381 U.S. 479 (1965), encompasses familial privacy, reproductive privacy, and privacy against disclosure of confidential information.

As it was a TN law that was being challenged, defendants in the case were Donald Sundquist, the TN Governor, in his off cial capacity, Charles Burson, Attorney General of the State of Tennessee, in his official capacity and Linda Rudolph, in her offcial capacity as the Commissioner of the Department of Human Services for the State of Tennessee. Round One was heard in the Summer of 1996, with Judge Nixon of the U.S District Court handing down his decision in August. Nixon sided with the defendants, who argued that the right to privacy did not extend to the nondisclosure of personal information. In his opinion, Nixon stated ..." the Court finds that the Plaintiffs' claims are more accurately analyzed in terms of the release of confidential information, rather than in terms of familial privacy. The Act does not directly impinge upon birth parents rights to subsequently marry, have, and raise children as they see fit, or upon adoptive parents' right to raise their adoptive children as they see fit. Thus, the Act does not fall within the scope of a Constitutional right to familial privacy and autonomy as de med by caselaw." The opinion by Nixon goes to the very heart of the right to privacy argument, dismissing it at its most fundamental level.

The plaintiffs appealed the decision to the Sixth Circuit Court of Appeals, which levied a even more devastating blow to opponents of open records in their February 1 Ith opinion. Judges Martin, Engle and Cole upheld Nixon's ruling with prejudice, writing "A birth is simultaneously an intimate occasion and a public event-the government has long kept records of when, where; and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth. The Tennessee legislature has resolved a contlict between that interest and the competing interest of some parents in concealing the circumstances of a birth. We are powerless to disturb this resolution unless the Constitution elevates the right to avoid disclosure of adoption records above the right to know the identity of one's parents." With regard to the plaintiffs' assertion that Whalen v. Roe, 429 U.S. 589 (1977), which describes one type of privacy right as "the individual interest in avoiding disclosure of personal matters," should be applicable, the court retorted "The plaintiffs' argument that it should extend to cover this case runs counter to our decisions in J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981 ) and Doe v. Wigginton,1 F.3d 733 (6th Cir.1994). In DeSanti, we read the Whalen dicta narrowly, 653 F.2d at 1088-89, and held that "the Constitution does not encompass a general right to nondisclosure of private information."

In closing, the justices stated "Here the plaintiffs' ultimate chance of success on their federal claims is so slim as to be entirely ephemeral." With such a strongly worded opinion dismissing their federal claims, the plaintiffs put off filing in the United States Supreme Court, instead switching to the State courts and asking for relief on the basis of their Tennessee constitutional claims. They were rebuffed again by the Fifth Circuit for Davidson County, Tennessee. In his opinion, Judge Kurtz reiterated the federal court's views on the right to privacy claims and further stated "The disclosure of private information is not entitled to constitutional protection. The right to privacy has more to do with the general "right to be let alone" and a protected sphere in which the government may not regulate conduct rather than some amorphous right protecting against the nondisclosure of private information." And finally; "A birth parent has no constitutional right to nondisclosure of his or her identity "

The plaintiffs intend to appeal the state decision to the state Court of Appeals, and then their last redress will be the Tennessee Supreme Court, but they are clearly running out of options. Gambling that their heretofore theoretical arguments on the right to privacy would be solidified by some creativejudicial activism, has thus far blown up in their faces.

There is some irony to the attempts of conservative, right-wing organizations such as the ACLJ and Small World Ministries attempting to win battles based on Roe v. Wade while relying on the doctrine of judicial activism, and this is made only richer by the knowledge that the decisions in this case, instigated by anti-adoptee sealed-records zelaots such as the NCFA, will probably be remembered as the most significant and positive events in the history of open records reform.

Shea Grimm is a reunited adoptee of mixed Native ancestry. She resides with her husband and three children in the Seattle area.

(This article first appeared in the Summer 1997 issue of the Bastard Quarterly.)