IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PROMISE DOE, KIMBERLY C., RUSS C., )

and SMALL WORLD MINISTRIES, INC., )

)

Plaintiffs-Appellants, )

)

v. ) Case No. 96-6197

)

DON SUNDQUIST, Governor of the )

State of Tennessee, in his official )

capacity; CHARLES W. BURSON, )

Attorney General of the State of )

Tennessee, in his official capacity; )

LINDA RUDOLPH, in her official )

capacity as the Commissioner of the )

Department of Human Services for )

the State of Tennessee, )

)

Defendants-Appellees. )

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

OF THE MIDDLE DISTRICT OF TENNESSEE

BRIEF OF AMICI CURIAE TERESA EVETTS HORTON, et al.

Harlan Dodson III, #2368 Robert D. Tuke, #4650

Anne C. Martin, #15536 TUKE YOPP & SWEENEY

Julie K. Sandine, #15880 Suite 1100, NationsBank Plaza

DODSON, PARKER & BEHM 414 Union Street

306 Gay Street, Suite 400 Nashville, TN 37219

P. O. Box 198806 (615) 313-3300

Nashville, Tennessee 37219-8806 Attorney for Amici Curiae

(615) 254-2291 Jim Holcomb, et al.

Attorneys for Amici Curiae

Teresa Evetts Horton, et al.

 

 

Of Counsel:

Frederick F. Greenman, FG 4392

DEUTSCH KLAGSBRUN & BLASBAND

800 3rd Avenue

New York, New York 10022-7604

(212) 758 1100

 

 

The following Amici Curiae are represented by Harlan Dodson III:

Teresa Evetts Horton Diana Gail Atkins Deborah Sharon Norton

Kay Garrett Thomas Swain Julee Spangler

Elaine G. Sabra Bonnie Dudley Holly West

Vickie Mills Valerie Goodman Derek Lind

Cheryl B. Hagler Mary Elizabeth Clark Sherry Griffith Rosemary James Brent Rogers Leslie Swift

Laura C. Ingram Phillip R. Brackett Rachel Marie Lilly

Kathleen F. Baroni Karen Cardosi Amy Crawford

Debbie Collins Janette White Sara Elmore

Betty Sarvis Tracey Peck Kari Tegethoff

Diane Edwards Wanda Roberts Jody Tegethoff

Nancy Lynn Acree Frank Splann, III Annamarie Rose Ross

Donna Asta Sharon Mauk David Michael Swain

Sandra Joy Long Debra Duckett Allison Brown

Debra Brawner Minga Regina Parham Charlisa L. Cato

Bonnie Blackwell Kristi Dodson Paige Yank

Charlotte West Brenda Kaye Brewster Kay Gardner

Bobby W. Atkins Matthew McMurray Mary Malissa Thompson

Doerr

 

The following Amici Curiae are represented by Robert D. Tuke:

Jim Holcomb Caprice East

Senator, Former Commissioner,

General Assembly Adoption Study Commission

State of Tennessee State of Tennessee

Joe Fowlkes Robert D. Tuke

Representative, Former Commissioner,

General Assembly Adoption Study Commission

State of Tennessee State of Tennessee

 

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PROMISE DOE, KIMBERLY C., RUSS C., )

and SMALL WORLD MINISTRIES, INC., )

)

Plaintiffs-Appellants, )

)

v. ) Case No. 96-6197

)

DON SUNDQUIST, Governor of the )

State of Tennessee, in his official )

capacity; CHARLES W. BURSON, )

Attorney General of the State of )

Tennessee, in his official capacity; )

LINDA RUDOLPH, in her official )

capacity as the Commissioner of the )

Department of Human Services for )

the State of Tennessee, )

)

Defendants-Appellees. )

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

OF THE MIDDLE DISTRICT OF TENNESSEE

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to Sixth Circuit Rule 25, the amici curiae, Teresa Evetts Horton, et al., and Jim Holcomb, et al., make the following disclosure:

1. Are any of said amici a subsidiary or affiliate of a publicly-owned corporation? NO

2. Is there a public-owned corporation, not a party to the appeal, that has a financial interest in the outcome?

NO

__________________________________ __________________

Signature of Counsel Date

__________________________________ __________________

Signature of Counsel Date

TABLE OF CONTENTS

TABLE OF CONTENTS iv

TABLE OF AUTHORITIES vi

INTEREST OF THE AMICI CURIAE 1

STATEMENT OF THE FACTS 8

SUMMARY OF THE ARGUMENT 17

ARGUMENT 19

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS OF THEIR RIGHT OF PRIVACY CLAIMS 20

A. The Act Does Not Interfere With The Plaintiffs' Freedom to Make Familial and Reproductive Choices 20

B. The Plaintiffs' claim of a constitutional right of informational privacy was correctly rejected by the District Court 22

C. The Desire of Plaintiffs Doe and Roe To Conceal Their Identities From Their Birth Children Is Not Constitutionally Protected 25

D. Disclosure of the Plaintiffs' Adoption Files To Their Children Does Not Violate Any Constitutional Right of Privacy Under The Tennessee Constitution 29

E. The District Court did not abuse its discretion in finding that Tennessee law never assured birth parents that they could conceal their identities from their birth children 30

II. THE ONLY HARM THAT DENIAL OF A PRELIMINARY INJUNCTION WILL CAUSE TO PLAINTIFFS IS PLAINTIFF ROE'S ANXIETY 33

III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT THE HARM WHICH A PRELIMINARY INJUNCTION WOULD INFLICT ON ADULT ADOPTEES, ADOPTIVE PARENTS AND BIRTH PARENTS OUTWEIGHED ANY INJURY THAT DENIAL OF A PRELIMINARY INJUNCTION WOULD CAUSE TO PLAINTIFFS 35

 

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT THE PUBLIC INTEREST FAVORED DENIAL OF A PRELIMINARY INJUNCTION 37

A. The Vast Majority of Birth Parents Want Communication and Contact With Adoptees, Rather Than Confidentiality or Anonymity 37

B. Opening Adoption Records to Adult Adoptees Serves to Increase Adoptions and Decrease Abortions 38

CONCLUSION 47

ADDENDUM 48

TABLE OF AUTHORITIES

 

Cases

Statutes

 

United States

Miscellaneous

THE AMICI CURIAE

This brief is filed on behalf of the various amici curiae allowed to participate in the District Court. These amici fall into two groups. These two groups were represented by separate counsel and each filed briefs and argued in the District Court. They are filing this brief jointly in this Court.

One group of amici are 55 persons who desire to exercise their rights under the Tennessee statute. They are referred to herein as the "Affected Amici" and are described in more detail below.

The other group of amici is comprised of persons involved with the drafting and passage of the Tennessee statute. Jim Holcomb and Joe Fowlkes were the sponsors in the Tennessee Senate and Tennessee House respectively. Caprice East and Robert D. Tuke were members of the Commission to Study the Adoption Laws of the State of Tennessee, from which the statute at issue arose.

INTEREST OF THE AMICI CURIAE

The Affected Amici are adult adoptees, birth parents and adoptive parents in Tennessee adoptions who are seeking to enforce their rights to information in their adoption files, as provided by the Tennessee statute here at issue.

The Affected Amici, rather than Plaintiffs, represent the vast majority of those adoptees, birth parents and adoptive parents who are affected by the Act.

Amici adoptees

The Affected Amici include 33 adoptees whose ages range from 25 to 52 years. (R. 14, 36-67: Adoptee Affidavits). Many need access to their adoption records and to their birth parents for medical reasons.

A tragic example of the need for enforcement of this statute is one adoptee who is the survivor of a pair of twins who requested medical information about their birth family under prior law and received it only eight years later, by which time the other twin had died from a hereditable type of cancer. The dead twin might be alive today if she had been allowed to know the identities of her birth parents and birth siblings and their medical histories, and obtain their help in such treatments as bone marrow transfers. The surviving twin suffers from tuberculosis, severe depression, heart trouble and sudden weight gain and loss, for all of which she needs current medical information concerning her birth family. (R. 118: Brewster Affidavit).

Other Affected Amici adoptees suffer from multiple sclerosis, blindness, cervical cancer, and progressive kidney problems, all of which require access to current birth family medical information in order to treat their own illnesses and to decide whether to bear children. (R. 104, 107: Affidavits of Jody Tegethoff and Kari Tegethoff).

All the Affected Amici adoptees need to know the roots from which they spring in order to know themselves and to know what they will pass down to their descendants.

These Affected Amici adoptees are typical of Tennessee adoptees in general.

Amici Birth Parents

The Affected Amici include 17 birth parents who gave birth and surrendered their children for adoption between 1956 and 1975 inclusive. (R. 15-30, 109: Birth Parent Affidavits). Their children are now from 21 to 40 years old. Throughout those years they have wondered whether their children were alive or dead, healthy or ill, normal or retarded, successful or unsuccessful, happy or unhappy. As an author of this brief (Greenman) has experienced, birth parents have endured guilt, insomnia, depression and continual searching of the faces of children similar in age to their own children, looking for similarities. See also Jason Kuhns, "The Sealed Adoption Records Controversy: Breaking Down the Walls of Secrecy," 24 Golden Gate Univ. L. Rev. 259, 276 (1994). As such, they want improved access to adoption records and believe this is necessary for them to come to terms with the experience. (R. 15-30, 109: Birth Parent Affidavits).

Evidence submitted to the District Court in opposition to Plaintiffs' motion for a stay pending appeal indicates that the position of these amici in welcoming contact from their children is shared by over 99 percent of Tennessee birth parents. (R. 105: Glad Affidavit). Furthermore, evidence submitted to the District Court in opposition to Plaintiffs' motion for class certification shows that in five other states for which corresponding data is available, namely, Arizona, New Jersey, New Mexico, North Carolina and Washington, the position of amici is shared by 95 percent of the birth parents. (R. 115: Motion, attached Declarations of Torin Scott, Frederick Greenman/Gerald Gioglio, Sally File, Lynn Giddens and Marilyn Dean). Figures for those five states are summarized in a footnote.

Affidavits in the record from social workers with years of experience in adoption counseling and placement confirm that when birth mothers consider surrendering their children for adoption, they want to be able to know about their children in the future. (R. 68-70: Baumann, Rardin and Robinson Affidavits, 2).

It is clear that Affected Amici represent the vast majority of birth parents and that Plaintiffs' desire to maintain complete anonymity is shared by at most a very small minority of birth parents. The Plaintiffs continually speak vaguely of some mass of affected persons opposing the Act. However, the facts are consistently to the contrary. See also Kuhns, supra, at 277.

This is also reflected by the disproportionate numbers of Affected Amici birth parents and Plaintiff birth parents. In the ten months between August 24, 1995, the date the Act was enacted, and the commencement of this lawsuit, only two birth parents elected to become plaintiffs. After this action was begun, the amici had barely three weeks in which to retain counsel, prepare affidavits and move to intervene or be recognized as amici. Nevertheless, almost ten times as many birth parents so moved in that short time.

A number of the Affected Amici birth parents suffer from dangerous hereditary medical conditions about which their children should be informed as soon as possible. The conditions include an allergy which can cause severe shock, peripheral neuropathy, glaucoma, melanoma and other cancers. (R. 106, 108-09, 112: Collins, Sarvis, Akers and Blackwell Affidavits).

Amici Adoptive Parents

The Affected Amici also include 19 adoptive parents. They support the right of their children to know the identities of their birth parents and to see the records of their adoptions. Their children should have the right to know their true origins because this will strengthen them and set them free of their uncertainties, doubts and fears. It will also strengthen their adoptive families. (R. 31-35: West, B. Atkins, D. Atkins, Swain and Dudley Affidavits). The affidavits in this case indicate that the Affected Amici who are adoptive parents, not the Plaintiffs, represent the majority of adoptive parents in Tennessee.

Damage to Amici

The temporary restraining order imposed by the District Court (R. 10), and the stay imposed by this Court's orders, (R. 116), have for four months damaged the Affected Amici and thousands of other adoptees, birth parents and adoptive parents. The preliminary injunction sought by Plaintiffs would continue that damage through the months and perhaps years that it will take to bring this case to judgment.

In addition, the stay and temporary restraining order have prevented the vast majority of persons who favor enforcement of the Act from proceeding under it to obtain needed information solely to protect the records of one or two Plaintiffs. Certainly a preliminary injunction as to the records of these one or two persons is the most restraint possibly indicated.

Lack of Alternatives for Affected Amici

The Affected Amici, and others seeking information, have no adequate remedy other than enforcement of the Act. This Court's order of September 26, 1996, suggested that amici who need medical information should petition the Tennessee courts under T.C.A.  36-1-138.

However, as the Tennessee Legislature concluded, this remedy is inadequate. First, the medical information in existing adoption records is several decades old and in most cases was superficial and inadequate when entered. Most of the diseases as to which adoptees need information, such as cancer and cardiovascular problems, manifest themselves in middle age and later. What the adoptees and their descendants need is full and current medical information about their birth families, not sketchy records twenty to fifty years out of date.

Furthermore, the inconsistent, uncertain and contradictory responses of the Tennessee courts and government agencies to adoptees' petitions under the predecessor section, T.C.A.  36-1-131 (1991), was a principal reason the legislature decided to make adoption records accessible to adoptees as of right, rather than to rely upon court orders or administrative discretion. (R. 87: Fowlkes Affidavit, Exh. C).

The only other route by which adoptees can obtain medical information under the Act is a new provision, T.C.A.  36-1-135(c). Pursuant to that provision, upon receipt of "written evidence from a licensed health care professional and or a licensed health care facility," the Department of Children's Services is to attempt to "contact the persons who have access to or who have or may have knowledge of such [medical] information" and ask them to supply the information for transmittal back to the inquiring doctor, clinic or hospital. This is an untested provision intended only to provide an alternate route in the event a birth parent lodges a contact veto. The Department of Children's Services interprets it to apply only in medical emergencies. (R. 110: Clark Affidavit, attachment). This provision was not intended to be the primary source of medical information to adoptees, however, and cannot fulfill that function.

For all the above reasons, the amici curiae respectfully file this brief in support of affirmance of the District Court's decision denying a preliminary injunction.

STATEMENT OF THE FACTS

The NCFA Information

The National Council for Adoption ("NCFA") has filed an amicus brief seeking overturn of the District Court's ruling. NCFA has attached to its brief an affidavit of William Pierce, its Executive Director, dated September 6, 1996, together with an unsigned, undated NCFA handout and a letter dated March 23, 1992, to the National Conference of Commissioners on Uniform State Laws (NCCUSL). Neither Pierce's affidavit nor its attachments were ever submitted to the District Court and consist of unsupported statements of opinion and questionable assertions of unsupported facts. These items are inadmissible on this appeal. Brandl v. Comm'r of Internal Revenue, 513 F.2d 697, 700 (6th Cir. 1975); United States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983). Should the Court elect to open the record to include such items, we would respectfully request the opportunity to respond to the misstatements contained.

The Statute at Issue

The statutory provisions at issue were initially enacted in August 1995 as Chapter 532 of the Tennessee Public Acts of 1995. They were subsequently amended on May 15, 1996, by Chapters 1054 and 1068 of the Tennessee Public Acts of 1996. The amended version is referred to herein as "the Act."

The Act was the product of three years of study, drafting and revision by the Commission to Study the Adoption Laws of the State of Tennessee ("the Adoption Commission"), by the Judiciary and the Finance, Ways and Means Committees of both houses of the Tennessee legislature, by various subcommittees in both houses and by a special Joint Ad Hoc Committee of the Legislature. (R. 87: Fowlkes Affidavit, Exh. C).

Commencing in 1951 and continuing until passage of the Act, Tennessee law provided for certain procedures for limited access to adoption records. As the Tennessee Legislature concluded, based upon the Adoption Commission and its own hearings, those provisions were not adequate in wording or in practice. The Act continues the prior practice of providing limited access, but changes the access provided, the procedures, and the protections for those who do not want to be contacted.

To cure the arbitrary application of the former adoption law, the Tennessee legislature undertook to clarify the adoption laws by articulating a standard procedure to access adoption records.

After spending three years redrafting and debating the State's adoption laws, the Tennessee legislature voted for the Act, which is designed "to provide means and procedures for the adoption of children and adults that recognize and effectuate to the greatest extent possible the rights and interests of persons affected by adoption, especially those of the adoptees." T.C.A.   36-1-101(a).

The Adoption Commission and the legislature tried to draft a law which was sensitive to the needs of all the interested parties. The stated purpose of the Act is to "permit [adopted persons] to obtain information about themselves from the adoption records . . to which they are entitled, but also to recognize the rights of parents and adopted persons not to be contacted by the persons who obtain such information, except in compliance with this part." T.C.A  36-1-101(c) (Public Chapter No. 1054,  2).

The drafters of the Act not only took great pains to balance the birth parent's privacy interests with the adopted person's interest in accessing his or her records, but they also afforded birth parents greater protection than they enjoyed under the former law. Under the old law, an adopted person went to court and either was or was not granted access to his or her records. The only criterion was "the best interest of the child or of the public." T.C.A. 36-1-131(a) (1991). At no time in this process was the birth parent notified, represented or considered in the proceedings. The only legal recourse birth parents had to protect themselves from unwanted contact with their adult children was through stalking laws and restraining orders.

Under the new law, adult adoptees (at least twenty-one years old) no longer are required to obtain a court order to gain access to their original birth certificates and certain other adoption records. T.C.A.  36-1-127(c). For such adoptees in adoptions finalized after March 15, 1951, original birth certificates and such other records are accessible as of right to adult adoptees beginning July 1, 1996. T.C.A.  36-1-127(c). Birth parents and other birth relatives may obtain identifying information about an adoptee only if the adoptee is twenty-one years of age and has

given the Department express written consent for such disclosure. T.C.A. 36-1-127(c)(1)(C)(i).

Under the new law, birth parents are notified when their adult children request access to their adoption records and are given the opportunity to sign a contact veto. T.C.A.   36-1-132 (Public Chapter No. 1054,  119). The contact veto affords birth parents the strongest legal protection available, criminal sanction. Should an adult child (or a person acting on his or her behalf) knowingly violate the birth parent's contact veto, he or she will be criminally liable.

In addition, violation of a contact veto is punishable by a civil cause of action for damages including punitive damages, attorney's fees and injunctive relief. Id.; T.C.A.  36-1-128(b)(1). Thus, any use of information obtained under the Act to cause injury to anyone identified in such information is a misdemeanor and may also be the subject of a civil action for both compensatory and punitive damages. T.C.A.  36-1-132(f), as amended by 1996 Pub. Ch. 1068.

Concerns about public disclosure of the identity and history of biological parents, thereby exposing birth parents who wish to remain anonymous to blackmail and public embarrassment, have also been effectively addressed by the Act. Nothing in the former law protected birth parents whose children either received information through the courts or through private detectives from this kind of threat. Birth parents' only recourse was a civil suit for defamation. The new law, however, makes the disclosure of any information gained under the Act a criminal offense, in addition to providing civil liability for defamation. T.C.A.   36-1-132 (Public Chapter No. 1068,  1).

The new law also excludes from the disclosed adoption records any information relating to "crisis pregnancy counseling" and other protected professional information. T.C.A.  36-1-102(7)(C), (Public Chapter 1054,  7). Plaintiff Doe's information about the circumstances leading to her pregnancy and her letter explaining her decision (Doe Affidavit, 6-7) would not, therefore, be released under the new law.  Similarly, no identifying information may be released without the written consent of the birth parent if the birth parent was the victim of rape or incest. T.C.A.  36-1-127(e).

In addition, the Act sets forth a detailed procedure by which birth parents or other relatives will be contacted by the State and given a chance to file a contact veto if the registry does not indicate that a veto has been filed. T.C.A.  36-1-131 (Public Chapter No. 1054  88). This provides additional protection to those individuals who did not have the opportunity to file a contact veto. The adoptee is forbidden to contact them until the Department has completed its search and advised the adoptee whether or not a contact veto is in effect. At the time the adoptee requests information, the adoptee must swear not to contact or attempt to contact anyone eligible to file a contact veto until the Department has advised the adoptee whether or not a contact veto has been filed and remains in effect. Furthermore, the adoptee must acknowledge under oath that he or she understands the civil and criminal penalties for violation of the contact veto. T.C.A.  36-1-127(f), 36-1-130, 36-1-131.

Fears that the Act will discourage adoptions because potential adoptive parents will fear the possible future disclosure of the highly personal material contained in their home studies have also been addressed by the Act's provisions. Under the Act, home study information is not contained in the information which would be made available to adult adoptees unless included in a report to the court. T.C.A.  36-1-102(7)(C) (Public Chapter 1054,  7). Thus, home studies and any other information about adoptive parents obtained in connection with an adoption may not be released, unless and to the extent that such studies are "expressly included" in a report to the court that approved the adoption. T.C.A.  36-1-102(7)(C). Such reports may include at most only a summary of a home study, not the home study itself.

The Act narrowed the judicial power to order disclosure of adoption records. Under the Act, that power can be exercised only to satisfy one of seven specifically enumerated requirements (e.g., a need to treat a specific illness), the information to be disclosed is limited to that necessary to satisfy the requirement,

and the contact veto provisions apply to any such disclosure. T.C.A.  36-1-138(c), (d) and (g).

The Contact Veto Provision

The Commission based the contact veto provisions upon the experience of New South Wales, Australia, which created the contact veto under its Adoption Information Act of 1990. (R. 87: Fowlkes Affidavit, Exh. C). The Commission received and studied the report on the operation of that act by the New South Wales (N.S.W.) Law Reform Commission. After the N.S.W. act had been in effect for two years, the N.S.W. Law Reform Commission noted evidence of only one breach of the contact veto and concluded it was highly unlikely that more than a very small number of such breaches occurred. N.S.W. Law Reform Commission, Report 69, Review of the Adoption Information Act of 1990, pp. 186, 188-89 (1992) (See R. 83: East Affidavit, Exh. B). The N.S.W. Commission further noted that such compliance "overwhelmingly points to the conclusion that the vast majority of birth parents, like the vast majority of adoptees, seek information or contact in a way that is sensitive and responsible." Id.

The N.S.W. Commission also observed that although opponents of the contact veto had argued that it would be ineffective in protecting privacy, the experiential evidence demonstrated the opposite result. As a result, the N.S.W. Commission concluded that "the combination of rights to information with a prohibition on contact where this is requested has been a remarkable success." Id.

Plaintiffs and Their Information which is at Issue

It is critical to realize that only one of the Plaintiffs can be affected by a preliminary injunction. Under the Act, only the names of Plaintiff Roe and the birth father of her child can be disclosed before 2011. No other information that can be released under the Act before a final judgment is identified in the evidence.

Plaintiff Promise Doe gave birth to a child in 1990 who was surrendered for adoption through Plaintiff Small World Ministries, Inc. ("Small World"). (R. 2: Doe Affidavit,  2-3). No information can be released as to this adoption prior to 2011.

Plaintiffs Kimberly C. and Russ C. adopted two children in Tennessee, who are now one and five years old. (R. 2: Affidavit of Kimberly C. and Russ C.,  2). Consequently no information concerning these adoptions can be released before 2012.

Plaintiff Small World is an adoption agency founded in 1985. Since its founding, Small World has received for adoption approximately 111 children born in the United States and 120 children born abroad. These children were apparently placed for adoption shortly after their birth, since the birth parents are said to have chosen between adoption and abortion. (R. 2: Savley Affidavit, 3, 8). Therefore, there is no possibility of disclosure prior to approximately 2006.

Plaintiff Jane Roe had a child in 1956 and thus meets the 21 years of age test. However, the facts of her case are certainly not typical. She stated that she signed some papers in the

hospital which she does not remember and a few days after leaving the hospital, she was told that her child was dead.

Then in 1988, the Tennessee Department of Human Services told Ms. Roe that her child was seeking her, but she refused to allow her name to be released. (R. 8: Roe Affidavit,  2-12). Ms. Roe never consciously surrendered her child for adoption; she never sought and never relied upon any assurances of confidentiality before her child was taken from her. In addition to her unique facts, there is no showing she could not protect her interests under the Act by filing a contact veto.

In this matter, where this Court is reviewing the Trial Court's denial of a preliminary injunction, the lack of actual potential harm to the Plaintiffs is a stark statement for affirmance. When compared with the potential harm to those who wish to proceed under the Act, the comparison is beyond question.

SUMMARY OF THE ARGUMENT

The District Court's denial of the Plaintiffs' request for a preliminary injunction should be affirmed because the decision was not an abuse of discretion, and was in fact correct. In making its determination, the District Court did not rely upon clearly erroneous findings of fact, nor did it improperly apply the governing law or use an erroneous legal standard.

Consideration of the four factors involved demonstrates that the preliminary injunction was correctly denied. As an initial matter, the Plaintiffs have failed to demonstrate a likelihood of success on their constitutional claim of privacy. Their desire for confidentiality and anonymity, even from children they surrendered for adoption or have adopted, is not a constitutionally protected right. The facts of this case illustrate that the Plaintiffs' claims involve simply a change in the procedure for continued limited release of confidential or personal information, which does not implicate the United States or Tennessee Constitution.

In addition, the record is devoid of any evidence indicating that mere identification, absent contact, would subject the Plaintiffs to any actual injury at all. The Act's contact veto provision amply protects the Plaintiffs and prevents irreparable injury. In contrast, the previous statutory devices have proven ineffective for those Affected Amici attempting to obtain important information in the past and, therefore, they have been harmed and will continue to experience such injury if denied a meaningful way to obtain the necessary information.

Finally, it is in the public interest to deny the preliminary injunction. The Act provides the means by which adoptees can obtain necessary information, while at the same time protecting participants in the adoption process who do not wish to have contact. Furthermore, the evidence indicates that increased accessibility of adoption records increases the likelihood of adoption, decreases the likelihood of abortion, and enhances the participants' ability to adjust and resolve conflicts that may have resulted.

Finally, and critically, the record shows that the vast majority of birth parents do not want anonymity and sealed records, but in fact would welcome contact from the children they surrendered for adoption. The Plaintiffs attempt to travel on an emotional evocation of unidentified persons who fear harm. However, the proof shows that this same argument was considered and rejected by the Tennessee Legislature, and by the Trial Court.

ARGUMENT

In deciding whether to grant the Plaintiffs' request for a preliminary injunction, the District Court was required to consider the following factors:

(1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction.

Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1480 (6th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1421, 134 L.Ed.2d 545 (1996) (quoting Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994)). These factors are to be balanced by the court and, therefore, "`the degree of likelihood of success required may depend on the strength of the other factors.'" Dayton Area Visually Impaired Persons, 70 F.3d at 1480 (quoting In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)). The appellate court reviews a challenge to the denial of a preliminary injunction under the abuse of discretion standard. Dayton Area Visually Impaired Persons, 70 F.3d at 1480. Therefore, the decision of the lower court in balancing the above interrelated considerations is generally given great deference and in fact will be disturbed "only if the court `relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.'" Id.; Washington, 35 F.3d at 1098 (quoting Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)).

In this case, the evidence demonstrates that the District Court did not abuse its discretion in denying the Plaintiffs' motion for a preliminary injunction because all of the above factors supported the District Court's denial of a preliminary injunction. The second factor is impacted only to the extent that Plaintiff Roe may experience anxiety, but she is protected by the contact veto provisions. In addition, alleged possible harm to one such person does not support a blanket injunction.

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS OF THEIR RIGHT OF PRIVACY CLAIMS.

A. The Act Does Not Interfere With The Plaintiffs' Freedom to Make Familial and Reproductive Choices

The Plaintiffs contend that the Act interferes with their constitutional right to privacy, apparently because family and human relationships are involved, albeit tangentially. However, the District Court correctly concluded that the Plaintiffs' claims are not the type of fundamental privacy issues protected by the Constitution.

Although the United States Constitution does not expressly include a right of privacy, the United States Supreme Court has recognized the existence of a constitutional right of personal privacy, "or a guarantee of certain areas or zones of privacy." Roe v. Wade, 410 U.S.113, 152 (1973). However, only personal rights that are "fundamental" or "implicit in the concept of ordered liberty" are included in the guarantee of personal privacy. Id.

The Supreme Court has recognized fundamental, constitutionally protected privacy rights in specific situations involving government interference with decisions about marriage, procreation, contraception, family relationships and child-rearing and education. See, e.g., Roe v. Wade, 410 U.S. 113, 152-53 (1973); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965).

The Act does not intrude upon birth parents' constitutional rights to marry, bear and raise children as they see fit, nor upon adoptive parents' right to raise their adopted children and, therefore, the constitutional right of privacy is not implicated. (R. 94: District Court's Memorandum, at p. 15). Furthermore, because the Act does not prohibit adoption, it is not analogous to the types of governmental restraints on personal and fundamental decision-making which have previously been found unconstitutional. Id. at pp. 15-16. See, e.g., Roe v. Wade, 410 U.S. 113 (1973) (laws criminalizing abortion); Loving v. Virginia, 388 U.S. 1 (1967) (laws prohibiting interracial marriage); Griswold v. Connecticut, 381 U.S. 479 (1965) (laws prohibiting married couple's use of birth control).

Nor does the Act even indirectly hinder adoption. The evidence demonstrates that if the Act has any effect on adoption, it will promote adoption. (See infra, at pp. 37-41). There is no evidence that the Act will have any negative effect on adoption.

 

B. The Plaintiffs' claim of a constitutional right of informational privacy was correctly rejected by the District Court

The District Court correctly concluded that the Plaintiffs' claims were more accurately characterized as release of confidential information, rather than a familial or reproductive privacy issue. (R. 94: District Court's Memorandum, at p. 11). As discussed previously, the personal rights found in the Fourteenth Amendment's guarantee of personal privacy are limited to fundamental rights, those "implicit in the concept of ordered liberty." Paul v. Davis, 424 U.S. 693, 713 (1976). Simple disclosure of factual information does not rise to this level of constitutional protection.

In Paul v. Davis, the plaintiff had been arrested for shoplifting and subsequently found his name and photograph on a flyer designating "active shoplifters" and distributed to merchants in the area. The plaintiff filed suit, alleging in part the deprivation of his right to privacy. Id. at 696. The Supreme Court characterized the plaintiff's claim in seeking constitutional protection "against the disclosure of the fact of his arrest on a shoplifting charge" as being far different from protected rights. Id. The Court declined enlarging its substantive privacy decisions to encompass a claim that "the State may not publicize a record of an official act such as an arrest." Id.

Similarly, in Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court refused to extend privacy to include nondisclosure of the identities of patients receiving prescription drugs. The Court concluded that the New York statute requiring compilation of this information did not pose a sufficiently grievous threat to the plaintiffs' interest in the nondisclosure of private information or their interest in independently making important decisions. Id. at 600.

The Plaintiffs' claims present precisely the same type of situation as those involved in the above cases. Just as the plaintiff in Paul v. Davis sought protection against disclosure of his shoplifting arrest, Plaintiffs seek protection against disclosure of the fact of their involvement in adoption. 424 U.S. at 696. Just as the Court declined enlarging constitutional protection to include a claim that "the State may not publicize a record of an official act such as an arrest," id., protection should not be extended to disclosure limited to the participants of the official act of adoption.

In addition, the Plaintiffs' concerns about reputation or stigma possibly associated with the adoption process are no more worthy of constitutional protection than the Whalen plaintiffs' worries about being considered drug addicts. 429 U.S. at 602. Significantly, safeguards exist in this situation that provide restrictions on the extent of disclosure similar to those in Whalen. Id. at 600-01. Moreover, the Plaintiffs have not been deprived of the right to make independent decisions about adoption because the Act does not prohibit or inhibit adoption. (See infra, at pp. 36-41). In Whalen, the Court rejected the plaintiffs' similar argument, noting that the state had not totally prohibited use of the drugs or conditioned access on another's consent. Id. at 603. Finally, the Act was the product of careful and rational legislative decision-making in an attempt to deal with a problem of vital local concern, just as occurred in Whalen. Id. at 596.

This precedent is consistent with the conclusion of the United States Court of Appeals for the Sixth Circuit that the Constitution does not encompass a general right to nondisclosure of private information. J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981). In DeSanti, the Sixth Circuit refused to enjoin the compilation and dissemination of social histories prepared by state probation officials in conjunction with juvenile legal proceedings. 653 F.2d at 1082. The Court noted that the Supreme Court had previously refused to address the existence of such a general right by stating in Whalen, "We . . . need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data -- whether intentional or unintentional . . . ." Id. at 1090 (quoting Whalen, 429 U.S. at 605-06)).

This Court reiterated its conclusion that "the Constitution does not encompass a general right to nondisclosure of private information" in Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir. 1994). In that case, a prisoner alleged, among other things, that his right to privacy was violated when a prison officer learned of his HIV positive status after testing was done at the prison at his request. Id. at 735. The Court concluded that Doe's privacy argument was the same as that made in DeSanti and again rejected it. Id. at 740.

Similarly, this Court concluded that the disclosure of a person's confidential medical records did not constitute a violation of a constitutional right. Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir. 1995). In Jarvis, the plaintiff sued Kentucky corrections officials after learning that her father had obtained access to her confidential medical records while serving a sentence for rape and sexual abuse of his children. Id. at 125. She alleged that the defendants' negligence in implementing the inmate work program, through which her father had purportedly gained access to her records, resulted in an unconstitutional invasion of her privacy rights. Id. at 125-26.

The information disclosed in the foregoing cases was of a sensitive nature and sometimes degrading or incriminating. In addition, the disclosure was either to total strangers or, as in Jarvis, to a father who was a convicted felon and menace to the plaintiff. The information to be disclosed here is limited to the fact of parentage and the disclosure is made only to the parent's own child. Disclosure of one's identity to a biological child hardly comprises "public disclosure" and is certainly much more confined than disclosure to the governmental employees or other uninvolved people in the above cases.

C. The Desire of Plaintiffs Doe and Roe To Conceal Their Identities From Their Birth Children Is Not Constitutionally Protected

Counsel for both plaintiffs and NCFA systematically attempt to confuse "confidentiality" from the world at large with confidentiality from one's own child. (Appellants' Br., at pp. 18-20; NCFA Br., passim). However, the issue in this case is not disclosure to the world, but disclosure to one's child. That a birth mother may not have wanted an unmarried pregnancy known to the entire world does not mean that she wants it concealed from her own child, even after that child comes of age. That one maintains an unlisted phone number to preserve privacy does not mean that one keeps it secret from one's children, so that they cannot call home.

There is simply no Constitutional right to conceal from one's child the fact of parentage, much less a "fundamental" right or one that is "implicit in the concept of ordered liberty."

The states of Alaska and Kansas have always allowed adoptees access to their original birth certificates as of right. Alaska Stat.  18.50.500(a); Kan. S.A.  59-2122(a), 65-2423(a). Incidentally, Plaintiffs' brief misconstrues these statutes (Appellants' Br., at p. 36, n. 11). Neither have "provisions protecting the confidentiality of the natural parent" from the adult adoptee. Under Plaintiffs' theory, those statutes are unconstitutional because they violate the alleged privacy rights of birth parents. Needless to say, no such claim has ever been litigated, much less upheld.

For over four centuries, paternity suits have been authorized for the express purpose of establishing the fact of parentage at the behest of the state, the child, or the mother. Krause, Illegitimacy: Law and Social Policy 105 (1971). They are authorized by the law of every state. Since 1975, federal law has required states to maintain effective procedures to establish paternity. Pub. L. 93-647,  101(a) (1975); 42 U.S.C.  654(4)(A). If birth parents had a constitutional right to keep their identities confidential or "private" from their children, paternity actions would violate that right and be unconstitutional.

Far from holding paternity actions unconstitutional, the Supreme Court has held that they must meet minimum standards of effectiveness with respect to statutes of limitation. Clark v. Jeter, 486 U.S. 456 (1968) (Pennsylvania six-year statute of limitations for paternity actions violates Equal Protection Clause; Due Process claim not reached); Pickett v. Brown, 462 U.S. 1 (1983) (Tennessee two-year paternity statute of limitations violates Equal Protection Clause).

In fact, in 1984, Congress mandated a minimum 18-year paternity statute of limitations as a condition of federal aid. 42 U.S.C.  666(a)(5)(A), as added by P.L. 98-378,  3(b), 98 Stat. 1306.

Even if the Plaintiffs had a constitutionally protected interest in informational privacy, the ultimate issue in this case is whether the Constitution forbids a state to allow adoptees to know the identities of their birth parents. When considered from the perspective of those few birth parents who do not wish to be known to their children, the issue is whether the Constitution guarantees them that their identities will not be known to their children to the detriment of all of those who desire such disclosure.

While Plaintiffs' papers are full of vague generalities about "confidentiality" and "public disclosure," no such issues are actually presented in this case. The Act allows disclosure as of right only to adult adoptees. Birth parents and other birth relatives can obtain no information unless the adoptee files an express written consent with the Department of Children's Services. The Act forbids public disclosure. Misuse of information obtained under the Act is subject to criminal and civil penalties. (See supra, at p. 12).

Similarly, no issue is presented in this case as to the release of other information. Home studies are not subject to disclosure, except such excerpts as are "expressly included" in the report to the court which has approved the adoption. (See supra, at p. 13). No such excerpts have been identified in this case. Moreover, such excerpts are extremely unlikely to contain any embarrassing information, since the adoptions were approved.

Furthermore, birth parents' statements in the course of crisis pregnancy counseling, such as those of Plaintiff Doe, are also

not subject to disclosure. (See supra, at p. 12).

The only issue in this case, therefore, is the disclosure of the birth parents' identities, a disclosure desired by the vast majority of birth parents (see supra, at pp. 3-4), but opposed by Plaintiffs Doe and Roe, who claim that their personal preferences override the findings and vote of the Legislature and are protected by the Constitution of the United States.

D. Disclosure of the Plaintiffs' Adoption Files To Their Children Does Not Violate Any Constitutional Right of Privacy Under The Tennessee Constitution

While the Tennessee Supreme Court has recognized a right of individual privacy in the Tennessee Constitution, Davis v. Davis, 842 S.W.2d 588, 601 (Tenn. 1992), cert. denied sub. nom. Stowe v. Davis, 507 U.S. 911 (1993), it does not extend to protect a person from the limited disclosure of information allowed by the Act. As correctly noted by the District Court, the Tennessee Supreme Court has never held that the nondisclosure of personal information is encompassed within a general right to privacy. (R. 94: Court's Memorandum at p. 18).

Although the Plaintiffs contend that their privacy rights are implicated by the Act under Tennessee law, the Davis decision simply held that "the right of procreation is a vital part of an individual's right to privacy." Davis, 842 S.W.2d at 602. The Davis case involved a divorced couple's dispute over custody and disposition of frozen embryos. The ex-husband contended that his right to privacy would be violated if the frozen embryos were allowed to be used contrary to his wishes. The Tennessee Supreme Court concluded that forcing Mr. Davis to become a parent by allowing implantation of the contested frozen embryos would violate his constitutional right to privacy. 842 S.W.2d at 602.

The facts of this case are completely distinguishable from those in Davis. Unlike the possibility of embryos being implanted in Davis, contrary to Mr. Davis' wish not to become a father, the limited disclosure of identifying information in adoption records does not prohibit, limit or restrict in any way the Plaintiffs' ultimate decision whether or not to procreate. The Act does not impact the Plaintiffs' ability to independently make decisions concerning childbearing, adoption and childrearing. There is no evidence in the record supporting the Plaintiffs' conclusion that such disclosure deter the decisions of individuals to choose adoption.

E. The District Court did not abuse its discretion in finding that Tennessee law never assured birth parents that they could conceal their identities from their birth children

Plaintiffs seek to bolster their constitutional claims with assertions that Plaintiffs Doe and Roe and certain birth parent clients of Plaintiff Small World relied upon assurances of "confidentiality" when they surrendered their children. (Appellants' Br., at pp. 10-12, 31-33). However, neither the record nor the law supports these claims.

The District Court correctly found that prior Tennessee law never guaranteed confidentiality to birth parents. (R. 94: Court's Memorandum at p. 11). The prior statute and the record in this case compel such a finding. For example, under the prior statute, a Tennessee court could at any time grant an adoptee access to the adoption records if the court found that such access was in the "best interest" of the adoptee. T.C.A. 36-1-131(a) (1991). In making such a determination, no notice to the birth parent was required, the birth parent was not entitled to be heard, the birth parent's interest was not entitled to consideration, and the birth parent had no right of appeal. (See supra, at p.10).

This statutory pattern of disclosure whenever such disclosure was in the best interest of the adoptee, without notice to or consideration of the birth parent, could give the birth parent no reasonable expectation of confidentiality from the adoptee. "An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all." Upjohn Co. v. United States, 449 U.S. 383, 393 (1981) ("control group" limitation would vitiate attorney-client privilege); Jaffee v. Redmond, 518 U.S. , 135 L. Ed. 2d 337, 349, 116 S. Ct. 1923 (1996) (balancing component would vitiate psychotherapist-patient privilege).

The requisite surrender forms prescribed by statute and by the Department of Human Services, which surrendering birth parents were required to sign, clearly stated that birth parents surrendered all right of contact or visitation with their children. However, the forms contained no statement whatever that birth parents' identities or information would remain confidential from their children. (R. 78: Chittick Affidavit, 2-5; T.C.A. 36-1-114 (1991). In addition, according to Ms. Vallie Miller, Tennessee State Supervisor for Adoption for approximately thirty years after the 1951 legislation was enacted, the state authorized no promise of confidentiality to biological parents after the 1951 legislation. (R. 87: Fowlkes Affidavit, Exh. C).

Furthermore, the purpose of the confidentiality imposed upon adoption records was to protect adoptees and adoptive families from interference by birth parents, not to protect the birth parents. T.C.A. 36-1-101(a)(3), (b) and (c).

Only the claim of Plaintiff Roe is relevant to this appeal, since hers is the only identity or other information that might be disclosed prior to the final judgment in this case. (See supra, at pp. 15-16). She never consciously surrendered her child and she never sought or received assurances of confidentiality prior to the time her child was taken from her. (See supra, at p. 15).

Plaintiff Doe alleges that she relied upon assurances from plaintiff Small World that certain information she disclosed would remain confidential from her child. However, as noted above, these assurances were unsupported by Tennessee law and therefore false when they were given. (See supra, at pp. 30-31). The Act, however, has now exempted that information from disclosure to her child because it was disclosed in the course of "crisis pregnancy counseling." (See supra, at p. 12). Consequently there is simply no issue as to disclosure of Plaintiff Doe's records except her identity and she does not allege that she was given any assurances that her identity would remain confidential. (R. 2: Doe Affidavit).

Mr. Savley alleges that certain unnamed other clients of Small World relied on assurances of "confidentiality." (R. 2: Savley Affidavit,  8, 12). This statement is another attempt to confuse "confidentiality" from the world at large with confidentiality from one's own child. (See supra, at pp. 25-26). Mr. Savley is careful not to say that any birth parent clients of Small World relied upon assurances that their children would never learn their identities.

II. THE ONLY HARM THAT DENIAL OF A PRELIMINARY INJUNCTION WILL CAUSE TO PLAINTIFFS IS PLAINTIFF ROE'S ANXIETY

Plaintiffs' brief assiduously avoids specifying the alleged harm Plaintiffs would suffer as a result of denial of a preliminary injunction. (Appellants' Br., at pp. 25-28). In fact, the only such irreparable harm is Plaintiff Roe's anxiety or "fear and concern." (R. 94: Court Memorandum at p. 9). Ms. Roe is protected from contact or other misuse of disclosed information by the criminal and civil sanctions against such misuse. (See supra, at pp. 11-12). Information concerning Plaintiffs Doe, Kimberly C. and Russ C. cannot be released before 2011. (See supra, at p. 15). Only a final injunction will be relevant to them; a preliminary injunction would expire more than a decade before it could have any effect.

Plaintiffs' brief attempts to avoid the lack of any substantial irreparable harm by assuming an infringement of

constitutional rights, which is erroneous, (See supra, at pp. 19-32), and by misstating Elrod v. Burns, 427 U.S. 347, 373 (1976) (Appellants' Br., at p. 26). Elrod concerned the firing of and threats to fire political employees unless they immediately supported the political party which had just taken power. The plurality opinion's remark about "minimal periods of time" concerned the "loss of First Amendment freedoms," specifically, "political speech," rather than "fundamental constitutional rights" as misstated in Plaintiffs' brief. 427 U.S. at 373-74, n. 29.

Plaintiffs' brief quotes the District Court's findings as to psychological harm to Plaintiffs. (R. 94: Court Memorandum at p. 9). However, the Court's remarks concerned Plaintiffs' standing to bring the action, not the need for a preliminary injunction. (Appellants' Br., at p. 26).

Plaintiffs' brief speculates that adoptees will broadcast information from adoption files to birth parents' "in-laws, friends, . . . aunts and uncles, or nieces and nephews." (Appellants' Br., p. 27). However, such speculative comments have no factual support. Indeed, the evidence indicates that when records are opened, most adoptees will "seek information or contact in a way that is sensitive and responsible." (See supra, at p. 14).

Whatever the reason for the imaginative, but unfounded, speculations in Plaintiffs' brief, the "remote possibility" that the statutory safeguards "will provide inadequate protection against unwarranted disclosures is surely not a sufficient reason for invalidating the entire  . . . program" of adult adoptee access to records. Whalen, 429 U.S. at 601-02.

Finally, Plaintiffs misstate the provisions of the Act and, in particular, fail to mention the statutory provision making it a Class A misdemeanor to use any information obtained under the Act to injure any person whose name was so obtained. (Appellants' Br., at pp. 9-10, 27-28). See T.C.A.  36-1-132(f), as amended by 1996 Pub. Ch. No. 1068,  1. Such misstatement and omission by Plaintiffs is astonishing since they introduced evidence concerning this statute into the record below. (R. 89: Chumney Affidavit, Exh. H).

The District Court found that any financial injury to Small World, caused by a possible decline in the number of adoptions it may handle, was speculative. (R. 94: Court Memorandum at p. 20-21). Indeed, as discussed below, the evidence indicates that, if anything, opening records will improve Small World's business.

III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT THE HARM WHICH A PRELIMINARY INJUNCTION WOULD INFLICT ON ADULT ADOPTEES, ADOPTIVE PARENTS AND BIRTH PARENTS OUTWEIGHED ANY INJURY THAT DENIAL OF A PRELIMINARY INJUNCTION WOULD CAUSE TO PLAINTIFFS

The medical injuries, psychological damage, and emotional pain and anguish that the present stay of this Court is causing and that the proposed preliminary injunction would extend for many months, if not years, have been previously described. (See supra, at pp. 1-7).

The record shows that the vast majority of those affected favor enforcement of the Act. The record demonstrates real harm that can occur if enforcement is stayed.

As against this continuing medical, psychological and emotional damage to hundreds and perhaps thousands if a preliminary injunction is granted, there is only Plaintiff Roe's "fear and concern," not that her child will contact her, but that he will learn her name. Although the District Court naturally sympathized with Ms. Roe because of the pain inflicted on her by her mother's deception, the court was certainly well within its discretion in concluding that the welfare of hundreds of adoptees and their birth parents outweighed any psychological injury to Ms. Roe. (R. 94: Court Memorandum at p. 21-22). Indeed, the court could scarcely have concluded otherwise without abusing its discretion.

Contrary to Plaintiffs' claims, (Appellants' Br., at pp. 16-21, 26-27, 29-30, 33), they do not and cannot represent classes of birth parents or adoption parents. The District Court has not certified Plaintiffs to represent any such classes, nor can it properly do so, because the majorities of both proposed classes oppose Plaintiffs. (See supra, at pp. 3-5). Hansberry v. Lee, 311 U.S. 32, 45 (1940); East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 405 (1977); Smith v. Babcock, 19 F.3d 257, 265 n.13 (6th Cir. 1994). Plaintiffs, in short, represent only themselves.

Even if this Court were to agree that Plaintiffs Doe and Roe have a constitutional privilege to conceal their identities and other information from their children, Plaintiffs' requested relief is limited only to an injunction prohibiting the disclosure of their own records. See United States v. Nat'l Treasury Employees Union, 513 U.S. ___, 130 L.Ed.2d 964, 986 (1995) (citations omitted) (Supreme Court declines to provide relief to non-parties challenging the constitutionality of a statute when a narrower remedy would fully protect the litigants).

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT THE PUBLIC INTEREST FAVORED DENIAL OF A PRELIMINARY INJUNCTION

The District Court found that the public interest favored denial of a preliminary injunction because such an injunction would cause more harm to adult adoptees, adoptive parents and birth parents than denial of an injunction would cause to Plaintiffs. (R. 94: Court Memorandum at p. 22). As discussed below, such finding was well within the court's discretion.

A. The Vast Majority of Birth Parents Want Communication and Contact With Adoptees, Rather Than Confidentiality or Anonymity.

The public interest includes an issue that runs through the papers of Plaintiffs and of NCFA. Plaintiffs and NCFA repeatedly claim that "confidentiality" and "privacy," by which they would have this Court understand concealment of birth parents' identities from their children, is relied upon by birth parents and is essential to adoptions. (Appellants' Br., at pp. 18-20, 25; NCFA Br., passim).

However, the evidence in the record and in the literature is overwhelming that the vast majority of birth parents welcome contact from their surrendered children. (See R. 15-30: Birth Parent Affidavits). See also Kuhns, supra, at 275-76. The testimony of social workers in the record is also unanimous that many birth mothers would not surrender their children for adoption unless they could later know that their children were well, which is only possible with open records. (R. 68-70: Baumann, Rardin and Robinson Affidavits). Indeed, one social worker testified that many pregnant women choose not to abort when they learn they can surrender their children under a form of adoption which allows them to remain informed about their children's well-being. (R. 70: Robinson Affidavit,  3).

B. Opening Adoption Records to Adult Adoptees Serves to Increase Adoptions and Decrease Abortions

The Plaintiffs also assert that opening adoption records increases abortion. (Appellants' Br., at pp. 18-20, 25; NCFA Br., at pp. 7, 12). However, the evidence in the record below and also in published adoption and abortion data indicate exactly the opposite, namely, that where adult adoptees are granted access to adoption records, adoption rates are higher and abortion rates lower than where adoption records are sealed.

Because birth parents want contact with their children and therefore want open records, it follows that jurisdictions which open adoption records to adult adoptees can expect higher adoption rates and lower abortion rates than those which seal records. The evidence in the record and outside it consistently confirms this expectation.

The notion that denying adoptees access to their original birth certificates and other adoption records is essential to successful adoption, (NCFA Br., passim; Appellants' Br., at pp. 18-20, 25), is only a myth and is not supported by experience. The fact that Alaska and Kansas have never restricted adult adoptees' access to their birth parents' identities and yet those states have higher adoption rates than the nation and neighboring states demonstrates the falsity of the myth. (See supra, at p. 26; infra, at pp. 40-42). Likewise, the uncontradicted testimony of social workers in the record indicates that access to the records is desired and needed. (R. 68-70: Baumann, Rardin and Robinson Affidavits). (See supra, at pp. 4, 35-36).

In the complaint, Plaintiffs alleged that declines in adoption rates in England and in Australia were caused by the unsealing of adoption records in those countries. (R. 7: Amended Complaint,  23). Contrary to the District Court's statement, (R. 94: Court Memorandum at 21), Plaintiffs introduced no evidence to support this allegation.

To the contrary, amici introduced evidence of the annual numbers of adoptions reported by the governments of England and Wales and of New South Wales (the most populous state in Australia) covering several decades. (R. 74: Greenman Affidavit). Those numbers show that the decline in adoptions in both jurisdictions began many years before adoption records were unsealed and that the unsealing of the records did not cause any decline in adoptions. Indeed, the numbers show that in England and Wales, the effect of unsealing records was to reduce the decline in adoptions, i.e., to increase adoptions over the numbers that otherwise would have obtained. (R. 74: Greenman Affidavit,  3-8 and Exhs. 1-4).

Amici also introduced published data on the annual numbers of abortions in England and Wales for several years before and after adoption records were opened there. They show that the only effect of opening adoptions records was a slight decrease in abortions. (R. 74: Greenman Affidavit,  10 and Exh. 5).

Published data as to the numbers of adoptions and abortions in American states with sealed and open records confirm that where adoption records are open to adult adoptees, adoption rates are higher and abortion rates lower than where adoption records are sealed. Alaska and Kansas are the only two states in which adoption records are and have long been accessible as of right to adult adoptees. (See supra, at p. 26).

In the table below we show the numbers of adoptions and the rates of adoptions per thousand persons and per thousand live births in the United States as a whole, in Alaska and Kansas, and in the four states which surround Kansas, namely Colorado, Missouri, Nebraska and Oklahoma.

The rates of adoptions in Alaska and Kansas, whether measured against population or against live births, are substantially higher than those in the United States as a whole. Even more striking is the fact that adoption rates in Kansas are higher than in any of the four states that surround Kansas. This tends to confirm that it is the openness of adoption records, rather than any other local differences, which accounts for the difference in adoption rates.

Adoption Rates, 1992

Adoptions Live Adoptions

No. of Population per Thousand Births per Thousand

State Adoptions (Thousands) Persons (Thousands) Live Births

U.S. 126,951 255,028 .498 4,065 31.2

Alaska 627 587 1.068 11.7 53.5

Kansas 1,838 2,518 .730 38.0 48.4

Colorado 1,416 3,463 .409 54.5 26.0

Missouri 2,099 5,193 .404 76.3 27.5

Nebraska 993 1,604 .619 23.4 42.4

Oklahoma 2,265 3,206 .706 47.6 47.6

Sources: Flango and Flango (National Center for Court Statistics), "How Many Children Were Adopted in 1992", 74 Child Welfare 1018, 1021-22 (1995)

Alaska Bureau of Vital Statistics, 1994 Annual Report, p. 59.

Statistical Abstract 1995, Tables 27 and 90.

Published data on abortion rates, by states, also confirm what common sense would indicate, namely, that abortion rates are lower where adoption records are open to adult adoptees than where they are sealed. In the table below, we show the rates of abortions obtained by residents in the United States as a whole, in Alaska and Kansas, and in the four states surrounding Kansas. We show the rates for 1987, which is the last year for which rates have been published, and also for 1992, for which the rates have been compiled but not published.

The table shows that the resident abortion rates for Alaska and Kansas are both less than the rate for the United States as a whole. The table further shows that the rate for Kansas is lower than (or in one case equal to) that for any of the four states surrounding it.

 

 

 

Resident Abortion Rates*, 1987 and 1992

State 1987 1992

United States 26.7 25.8

Alaska 21.5 19.4

Kansas 13.4 12.7

Colorado 21.1 21.9

Missouri 19.6 17.0

Nebraska 15.5 13.9

Oklahoma 14.7 12.7

Sources: 1987 - Alan Guttmacher Institute, Abortion Factbook, 1992 Edition, p. 80

1992 - Alan Guttmacher Institute, unpublished data.

*Numbers of abortions obtained by residents, divided by numbers of women aged 15-44, in thousands.

The conclusions are simple. The vast majority of birth mothers are decent human beings. They love their children; although circumstances have compelled them to surrender their children for adoption, they want and need to know what has happened to these children. Sealed records are not essential to adoption. On the contrary, they make adoption like death of the child. Where adoption records are open, adoptions are more likely and abortions less likely than where records are sealed.

The Adoption Decisions of the Late 1970s and Early 1980s

Counsel for plaintiffs and NCFA rely heavily on decisions concerning sealed adoption records rendered in the late 1970s and early 1980s, e.g., Mills v. Atlantic City Department of Vital Statistics, 148 N.J. Super. 302, 372 A.2d 646 (1977); Application of Maples, 563 S.W.2d 760 (Mo. 1978); Massey v. Parker, 362 So. 2d 1195 (La. App. 1978), rev'd, 369 So. 2d 1310 (La. 1979); Kirsch v. Parker, 375 So. 2d 693 (La. App. 1979), aff'd as modified, 383 So. 2d 384 (La. 1980); Alma Society, Inc. v. Mellon, 601 F.2d 1225 (2d Cir. 1979), cert. denied, 444 U.S. 95 (1979); Bradey v. Children's Bureau of South Carolina, 274 S.E.2d 418 (S.C. 1981); Linda F.M. v. Department of Health, 52 N.Y.2d 236, 418 N.E.2d 1302, 437 N.Y.S.2d 283 (1981); In re Roger B., 84 Ill. 2d 323, 418 N.E.2d 751 (1981); Matter of Dixon, 116 Mich. App. 763, 323 N.W.2d 549 (1982); In re Assalone, 512 A.2d 1383 (R.I. 1986).

The constitutional holding of all of those cases was that it was within the discretion of the state legislatures to determine whether and how adoption records would be disclosed. Those cases generally recognized that in some cases privacy rights of adoptees and birth parents might conflict, e.g., Mills, 372 A.2d at 651, but that it was for the legislature to reconcile any such conflicts:

The protection of a person's general right to privacy - his right to be let alone by other people - is, like the protection of his property and of his very life, left largely to the law of the individual states.

Mills, 372 A.2d at 651 (citing Katz v. United States, 389 U.S. 347, 350-51 (1967)).

We believe that the Legislature, as the creator of the adoption process, is the appropriate forum to articulate changes in the procedure for releasing [adoption record] information in order to reflect changes in societal attitudes.

In re Assalone, 512 A.2d at 1390. The Tennessee Legislature and its Adoption Commission has done just that, after exhaustive investigation, consultations, drafting and revisions, which took more than three years.

Those cases also contain observations on the attitudes of birth parents and their alleged reliance upon "confidentiality." With the possible exception of Alma Society, 601 F.2d at 1233, these observations appear to have been based upon no quantitative information about or testimony from birth parents. Instead they appear to have been based largely upon the preconceptions of the judges.

Since those decisions were rendered, however, a vast amount of evidence has accumulated concerning the attitudes of birth parents, the consequences of adoptee searches and reunions, and the results of various statutory and administrative procedures, including the contact veto. This information was considered by the Tennessee Legislature.

As discussed in detail above, the evidence introduced in this record already demonstrates the near total falsity of the basic assumption of most of these decisions, namely, that the majority of birth parents relied upon an assurance of secrecy from their children when they surrendered them. This case is the first to contain extensive record evidence, incorporating the developments over the last two decades, upon which any such findings of legislative fact can be based.

Moreover, many other concerns articulated in prior cases are no longer relevant because numerous myths about adoption and its participants have been dispelled. For example, the idea that most birth parents, especially birth mothers, want only to be quit of their children, that they do not want to know if their children are alive and well, and that they do not want contact from their children is not supported in the evidence. (Appellants' Br., at pp. 18-20; NCFA Br., at pp. 18-19). The evidence is precisely to the contrary. (See R. 15-30, 109: Affidavits of Birth Parents; supra, at pp. 3-5).

Likewise, the myth that birth parents, especially birth mothers, chose to bear their children (rather than abort them) and to surrender them for adoption only because they were promised that they would never have contact with their children and that their children would never learn who they are is not factually supported. (Appellants' Br., at pp. 18-20,25; NCFA Br., at pp. 1, 10-13, 16-17). The evidence indicates exactly the opposite. (See supra, at pp. 3-5).

Yet another myth is that adoptees will make known their existence to their birth mothers' husbands, who may not know of their existence, and destroy their birth mothers' marriages. (Appellants' Br., at pp. 16, 31; NCFA Br. at pp. 11-12, 19). Adoptee searches for their birth parents, often using private detectives, have been common over the last three decades. There have been tens or hundreds of thousands of adoptee-birth parent reunions without any statutory assistance, as well as all those pursuant to statutes that unsealed records, such as in Tennessee since July 1, 1995 (as to pre-1951 adoptions), England since 1976 (Children's Act, 1975, c. 72,  26) and New South Wales since 1991 (Adoption Information Act 1990). Any destroyed marriages, with all their melodramatic aspects, would have been publicized by the media, which have already made adoptee-birth parent unions a staple of talk shows, sitcoms, film comedies and human interest articles. Any such destroyed marriages would have been cited repeatedly by groups that lobby for closed adoption records, such as NCFA. Plaintiffs and NCFA can point, however, to only one such report, and that was a hearsay report of a "disrupted" marriage at least twenty years ago. Mills, 148 N.J. Super. 302, 372 A.2d 646, 655-56 (Ch. 1977) (cited in Appellants' Br., at p. 16).

In the vast majority of cases - 19 out of 20 - birth parents do not want to be "protected" from discovery by their children; instead, they want the children to find them. (See supra, at pp. 3-4). Nevertheless, such cases as Alma Society, Inc. v. Mellon, 601 F.2d 1225 (2d Cir. 1979), cert. denied, 444 U.S. 995 (1979), and In re Assalone, 512 A.2d 1383, 1386 (R.I. 1986), have held that it is within the discretion of the state legislatures to decide whether, to what extent and by what means adoption records may be sealed and unsealed. No case has held that the Constitution obliges a state to seal its adoption records and prevent adult adoptees from learning who gave birth to them.

CONCLUSION

For the reasons stated above, the decision of the District Court should be affirmed. If any injunction should be granted, however, it should be limited to the records of plaintiff Roe.

Respectfully submitted,

 

Harlan Dodson, III, #2368

Anne C. Martin, #15536

Julie K. Sandine, #15880

DODSON, PARKER & BEHM

306 Gay Street

Post Office Box 198806

Nashville, Tennessee 37219

(615) 254-2291

Attorneys for Amici Curiae

Teresa Evetts Horton, et al.

 

Of Counsel: Robert D. Tuke, #4650

TUKE YOPP & SWEENEY

Frederick F. Greenman, FG 4392 Suite 1100, NationsBank Plaza

DEUTSCH KLAGSBRUN & BLASBAND 414 Union Street

800 3rd Avenue Nashville, TN 37219

New York, New York 10022-7604 (615) 313-3300

(212) 758 1100 Attorney for Amici Curiae

Jim Holcomb, et al.

 

CERTIFICATE OF SERVICE

This will certify that a true and foregoing copy has been sent to Larry L. Crain and Kevin H. Theriot, The American Center for Law and Justice, 101 Westpark Drive, Suite 250, Brentwood, Tennessee 37027; Jay A. Sekulow, The American Center for Law and Justice, 1000 Thomas Jefferson St., N.W., Suite 520, Washington, D.C. 20007; and Charles Burson, Attorney General, and Dianne Stamey Dycus, Deputy Attorney General, 450 James Robertson Parkway, Nashville, Tennessee 37219, on the 31st day of October, 1996.

___________________________________

 

 

ADDENDUM

Designated Parts of Record To Be Included in Joint Appendix

Index

 

Item Page

 

1. Plaintiffs' Consent for Amicus Brief by

Teresa Evetts Horton, et al., and Jim Holcomb, et al.

2. Defendants' Consent for Amicus Brief by

Teresa Evetts Horton, et al., and Jim Holcomb, et al.

3. Motion to intervene and attachment

4. Affidavit of Valerie Goodman

5. Affidavit of Teresa Evetts Horton

6. Affidavit of Kay Garrett

7. Affidavit of Elaine G. Sabra

8. Affidavit of Vickie Mills

9. Affidavit of Cheryl B. Hagler

10. Affidavit of Rosemary James

11. Affidavit of Laura C. Ingram

12. Affidavit of Kathleen F. Baroni

13. Affidavit of Debbie Collins (entry date 7-18-96)

14. Affidavit of Betty Sarvis (entry date 7-18-96)

15. Affidavit of Diane Edwards

16. Affidavit of Nancy Lynn Acree

17. Affidavit of Donna Asta

18. Affidavit of Sandra Joy Long

19. Affidavit of Debra Browner Minga

20. Affidavit of Bonnie Blackwell (entry date 7-18-96)

21. Affidavit of Charlotte West

22. Affidavit of Bobby W. Atkins

23. Affidavit of Diana Gail Atkins

24. Affidavit of Thomas Swain

25. Affidavit of Bonnie Dudley

26. Affidavit of Mary Elizabeth Clark (entry date 7-18-96)

27. Affidavit of Brent Rogers (entry date 7-18-96)

28. Affidavit of Phillip R. Brackett

29. Affidavit of Karen Cardosi

30. Affidavit of Janette White

31. Affidavit of Tracey Peck

32. Affidavit of Wanda Roberts

33. Affidavit of Frank Splann, III

34. Affidavit of Sharon Mauk

35. Affidavit of Debra Duckett

36. Affidavit of Regina Parham

37. Affidavit of Kristi Dodson

38. Affidavit of Brenda Kaye Brewster

39. Affidavit of Matthew McMurray

40. Affidavit of Deborah Sharon Norton

41. Affidavit of Julee Spangler

42. Affidavit of Holly West

43. Affidavit of Derek Lind

44. Affidavit of Sherry Griffith

45. Affidavit of Leslie Swift

46. Affidavit of Rachel Marie Lilly

47. Affidavit of Amy Crawford

48. Affidavit of Sara Elmore

49. Affidavit of Kari Tegethoff (entry date 7-18-96)

50. Affidavit of Jody Tegethoff (entry date 7-18-96)

51. Affidavit of Annamarie Rose Ross

52. Affidavit of David Michael Swain

53. Affidavit of Allison Brown

54. Affidavit of Charlisa L. Cato

55. Affidavit of Paige Yank

56. Affidavit of Kay Gardner

57. Affidavit of Mary Malissa Thompson Doerr

58. Affidavit of Carol Baumann

59. Affidavit of Ellen Rardin

60. Affidavit of Deborah Robinson

61. Affidavit of Frederick F. Greenman and attachments

62. Affidavit of Jane Chittick and attachments

63. Affidavit of Caprice East and attached N.S.W. report,

pp. i-xi, 115-19, 183-89 (Ch. 5) and Appendix A

(statute and regulations) from Exhibit B

64. Affidavit of Joe Fowlkes and attached exhibits

65. Affidavit of Jody Tegethoff (entry date 9-3-96)

66. Affidavit of Marianne D. Glad

67. Affidavit of Betty Sarvis (entry date 9-3-96)

68. Affidavit of Kari Tegethoff (entry date 9-3-96)

69. Affidavit of Debbie Collins (entry date 9-3-96)

70. Affidavit of Janice Akers (entry date 9-3-96)

71. Affidavit of Mary Elizabeth Clark (entry date 9-3-96)

72. Affidavit of Brent Rogers (entry date 9-3-96)

73. Affidavit of Bonnie Blackwell (entry date 9-3-96)

74. Motion for leave to file amicus brief, as amended by

letter entered 7-23-96

75. Memorandum of District Court (entered 8-23-96)

76. Order of District Court (entered 8-23-96)

77. Order of District Court (entered 9-4-96)

78. Motion of Teresa Evetts Horton for permission to file a response to Plaintiffs' motion for class certification and attachments