UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DOE V. SUNDQUIST

Case No. #3-96-0599

Filed By:
Tennessee Senator Jim Holcomb, Tennessee Congressman Joe Fowlkes, Former Adoption Study Commissioner Caprice East, and Former Adoption Study Commissioner Robert D. Tuke.

TABLE OF AUTHORITY

LEGISLATIVE HISTORY

A. Activities of the Adoption Study Commission
B. Actions of the General Assembly

ARGUMENT

I. TENNESSEE'S ADOPTION ACT ACCOMPLISHES A COMPELLING GOVERNMENTAL INTEREST THROUGH THE LEAST RESTRICTIVE MEANS

A. The Government Has a Compelling Interest in Allowing Adult Adopted Persons Access to Their Adoption Records

B. The Act Accomplishes Its Compelling Interest Through the Least Restrictive Means

Brief Amicus Curiae, Part Two:

III. THE ACT DOES NOT INTERFERE WITH A FUNDAMENTAL
CONSTITUTIONAL RIGHT

A. The Act Does Not Unconstitutionally Interfere With the Freedom to Make Familial and Reproductive Choices

B. There Is No Constitutional Guaranty of the Nondisclosure of Personal Information

IV. THE ACT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT

A. Pregnant Women Who Chose to Place Their Children For Adoption Are Not a Suspect Class for Equal Protection Purposes

B. There Is No Government Selected Classification Which Burdens Plaintiffs' Fundamental Constitutional Rights

V. CONCLUSION

End Notes

II. THE ACT DOES NOT BREACH THE STATE'S ALLEGED CONTRACTUAL
OBLIGATION TO KEEP ADOPTION RECORDS SEALED
EXCEPT BY ORDER OF THE COURT.

Plaintiffs allege that some birth mothers might have relied upon a promise of confidentiality when they placed their children for adoption. They argue that since the Act would retroactively grant adult adopted persons access to portions of their adoption records formerly unavailable except upon consent of the birth parent or court order, the Act breaches the State's alleged contractual obligation to keep those records sealed. As the testimony received by the Adoption Commission and the General Assembly shows, State adoption procedures have never promised total confidentiality to birth parents. Moreover, no promises of confidentiality were made on the forms which birth mothers signed to surrender their parental rights. Under the former law, adopted persons were permitted to have access to their records at the court's discretion, a system which granted adopted persons access to their records in an ad hoc and irregular manner. See Record of Adoption Commission, Exhibits A and B to Affidavit of Caprice East. Indeed, in the judicial procedure formerly in force, the biological parents received no notice or opportunity to be heard and were entitled to no consideration on the question of whether access should be permitted. Thus, any birth mother who decided to place a child for adoption with the expectation of confidentiality, based her decision on an unfounded and misguided belief. Any person or agency who furthered such a belief without appropriate caveats most certainly misled the biological parents.(1)

Furthermore, even if Plaintiffs could convincingly demonstrate that birth parents had reliance interests under the former statute, the legislature was fully within its rights when it created a retroactive, remedial law. Under the Tennessee Constitution, retroactive laws are generally prohibited. Tenn. Const. art. I, § 20. A retroactive law "take[s] away or impair[s] vested rights acquired under existing laws." Morris v. Gross, 572 S.W.2d 902, 907 (Tenn. 1978). However, in Tennessee, retroactive legislation is permitted when it is remedial in nature. Remedial legislation provides the means or methods by which a cause of action maybe effectuated, wrongs redressed, and relief obtained. Morford v. Yong Kyum Cho, 732 S.W.2d G17, 620 (Tenn. App. 1987). Although retroactive, the Act is remedial because it provides a method by which relief may be obtained for adult adopted persons who have been fighting for access to their adoption records under the former law. Thus the Act is constitutional under Tennessee law.

In addition, the Act is constitutional under federal law. The United States Constitution does not contain specific language prohibiting retroactive legislation. Rather, retroactive legislation is prohibited under federal law when it violates the Due Process Clause of the Fifth Amendment by interfering with listed constitutional rights or with a right which the Supreme Court has determined to be an unlisted fundamental right. Since Plaintiffs do not assert that the Act interferes with the fundamental rights listed in the first eight amendments to the United States Constitution, they must demonstrate that the Act infringes upon an unlisted fundamental right, which is a right that the Supreme Court has found to be to be "implicit in the concept of ordered liberty. Griswald v. Connecticut, 381 U.S. 479. if Plaintiffs cannot demonstrate that the Act interferes with a fundamental constitutional right, then their due process claim fails, taking Plaintiffs, unconstitutional retroactive legislation claim along with it.

III. THE ACT DOES NOT INTERFERE WITH A FUNDAMENTAL CONSTITUTIONAL RIGHT

Plaintiffs assert that the Act interferes with birth parents' fundamental privacy rights under both the Tennessee and United States Constitutions. The right to privacy can be subdivided into two broad categories: (1) an interest in independence in making certain kinds of decisions, and (2) an individual interest in avoiding the disclosure of personal information. Whalen v. Roe, 429 U.S. 589, 599 (1977). The United States and Tennessee Supreme Courts have determined the first type of privacy right to be a fundamental constitutional right in situations involving certain familial and reproductive choices. Neither court has found the second type, the right to the nondisclosure of personal information, to be a constitutionally protected right.

A. The Act Does Not Unconstitutionally Interfere With the Freedom to Make Familial and Reproductive Choices

The Supreme Court has recognized fundamental, constitutionally protected privacy rights in a series of cases concerning government interference in decisions regarding marriage, procreation, and child-rearing.(2) See, e.g., Roe v. Wade, 410 U.S. 113 (1973) In Davis v. Davis, the Tennessee Supreme Court recognized a similar "right to procreational autonomy" under the Tennessee Constitution, 842 S.W.2d 588, 600 (Tenn. 1992).

\To bring the issue at hand into the zone of constitutionally protected privacy created by the foregoing line of cases, Plaintiffs argue that the Act interferes with the freedom to make familial and reproductive choices. Plaintiffs attempt to prove their point by linking open adoption and abortion. Specifically, Plaintiffs allege that "because parents rely on anonymity when deciding whether to carry a child to term and place it for adoption, the Act will cause more women to abort their babies. (Pls. Memorandum in Support of Motion for a T.R.O., p. 10).

Plaintiffs, argument that the Act will cause a decrease in adoptions and corresponding increase in abortions is purely speculative. As evidence of a connection between open adoption and abortion, Plaintiffs offer the following unsupported statistics: "Open adoption has resulted in a 51 percent decrease in adoptions in Australia in the last five years since similar legislation took effect, and a 67 percent decrease in Great Britain over the last ten years." (Pls. Am. Compl. P 23). Plaintiffs give no citation for their statistical allegations, but even if they were true, the numbers still do not demonstrate a causal link between open adoptions and abortion. Australian and English government records indicate a pattern of decline in adoption rates which began in 1973 and 1969, respectively, long before open adoption legislation was enacted in either country. In fact, the actual data available from those countries indicates that the effect, if any, of opening adoption records was to reduce the rate of decline of adoptions. See Affidavit of Frederick F. Greenman, filed in this cause and attached hereto.

In any event, a decline in adoptions which began eight or eighteen years before records were unsealed cannot logically be attributed to the laws which, unsealed those records. Indeed, the decline in adoptions since around 1970 may just as easily, and perhaps more logically, be attributed to the increased availability of various forms of birth control, growing social acceptance of single motherhood, and increased government support of single mothers, all of which coincided with the onset of declining adoption rates. Plaintiffs also cite three state court decisions from the 1970's which in dicta speculate about a connection between abortion and open adoption. Again, these speculations are unsubstantiated by any hard evidence which establishes a connection between open adoption and declining adoption rates due to abortion. Thus Plaintiffs' argument in this area is unfounded and speculative.(3)

Even if Plaintiffs could demonstrate a causal connection between allowing adult adopted persons access to their adoption records and declining adoption and increasing abortion rates, their argument would still lack legal merit. Unlike the right to decide, independent of government interference, to have an abortion, marry, use contraception, or send one's children to a religious school, the alleged right to place a child for adoption with the assurance that the adoption record would remain sealed has never been deemed a constitutionally protected right by either the United States Supreme Court or the Tennessee Supreme Court.

The decision to place a child for adoption is no doubt a profoundly personal decision. But the Act neither mandates that women surrender children for adoption nor forbids them to do so. In fact, the Act was in no way intended to interfere with a woman's decision with respect to adoption. Although the Plaintiffs speculate that the new adoption records procedure may factor into some women's decisions about placing a child for adoption, this speculated interference does not rise to constitutional proportions. Moreover, Plaintiffs, speculation that "open" adoption inhibits women from placing their children has been directly refuted by at least one expert in the adoption counseling field who has filed an affidavit in this cause. See Affidavit of Deborah Robinson attached hereto.

As the Supreme Court has written, "Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution." Katz v. United States, 389 U.S. 347, 350 (1967) . The Act does not prohibit adoption. Thus it is unimaginable that the Supreme Court would find that the Act is analogous to the government interference in private decisions on par with laws that criminalize abortion, Roe, 410 U.S. 113; prohibit interracial marriage, Loving v. Virginia, 388 U.S. 1; outlaw married couples, use of contraceptives, Griswald v. Connecticut, 381 U.S. 479; or forbid children's attendance at parochial schools, Pierce v. Society of Sisters, 268 U.S. 510. Furthermore, the evidence considered by the Adoption Commission and the General Assembly, and submitted to this court, indicates that because the Act makes the adoption process fairer to all the parties involved, it may actually lead to an increase in adoptions. See Affidavit of Deborah Robinson, supra.

B. There Is No Constitutional Guaranty of the Nondisclosure of Personal Information

Plaintiffs next allege that since the Act would allow adult adopted persons access to their adoption f files, and necessarily to information regarding their birth parents, it interferes with birth parents' "right to privacy," specifically their alleged right to the nondisclosure of "personal information" and is therefore unconstitutional. But the disclosure at issue is not to the public, but to the birth parent's own adult child, and the principal "personal information" disclosed is the identity of that child's parent. Neither the statute nor the constitution (United States or Tennessee) has ever made that information private from the child. Paternity proceedings are ancient; their constitutionality has never been questioned. Prior Tennessee adoption law directed courts to release the parent's information whenever release was in the best interest of the adopted person. Former T.C.A § 36-1-131(a). No court has ever found that parents have a constitutional right to conceal their identities from their children. If there were such a right, both paternity actions and former T.C.A.§ 36-1-131 would have been unconstitutional.

Indeed, neither the Tennessee nor the United States Constitution recognizes a specific right to the nondisclosure of personal information. Therefore, Plaintiffs, claim to such a right is without merit. Plaintiffs cite the United States Supreme Court's observation in Roe v. Whalen that a person has "an individual interest in avoiding the disclosure of personal matters," 429 U.S. at 599, as support for the proposition that there is a constitutional right to the nondisclosure of personal information. In fact, while the Whalen Court might have recognized an individual interest in the nondisclosure of personal matters, it held that such an interest did not rise to the level of a constitutionally protected right. Id. at G04 (holding that a New York law which required that prescriptions of certain drugs be written in triplicate and reported to a state registry was constitutional) The Court further noted that:

[Although the Constitution affords protection against certain kinds of government intrusions into personal and private matters, there is 'no general constitutional right to privacy, ... [The protection of a person's general right to privacy... is, like the protection of his property and his very life, left largely to the law of the individual states."' Id. at 607-08 (J. Stewart concurring, citing Katz, 389 U.S. at 350-51). In addition, in J.P. v. Desanti, the Sixth Circuit held that the United States Constitution does not encompass a right to the nondisclosure of personal information. 653 F.2d 1080, 1088-89 (6th Cir. 1981). The court in Desanti specifically held, in the context of a claim to a constitutional right to nondisclosure of juvenile court records, that the right to privacy under the Constitution was restricted to "those personal rights that can be deemed 'fundamental, or implicit in the concept of ordered liberty,'" and the safeguards against the nondisclosure of private information "must be left to the states or the legislative process." Id. at 1090-91. The Sixth Circuit recently reaffirms its Desanti opinion in Doe v. Wigginton. 21 F.3d 733 (6th Cir. 1994). Thus, the Plaintiffs, claim that the Act violates birth parents, federal constitutionally protected "right to privacy" fails.

Plaintiffs, rights under the Tennessee Constitution are similar to those under the United States Constitution. In Davis v. Davis, the Tennessee Supreme Court recognized a right to privacy in matters of "procreational autonomy," 842 S.W.2d at 600, much like the zone of privacy in reproductive decision-making the Court found in Roe and Griswald. Similarly, the Tennessee Supreme Court has never held that a general right to privacy extends to the nondisclosure of personal information, and any determination of such rights has been left to the legislature. Thus, under the Tennessee Constitution, there is no right to the nondisclosure of personal information, and Plaintiffs' claim under the Tennessee Constitution necessarily fails.

IV. THE ACT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT

Plaintiffs contend that the Act violates their equal protection rights. Again, their argument is obscure since Plaintiffs have not briefed this cause of action. Presumably, plaintiffs contend that the Act discriminates against the class of pregnant women who place their children for adoption as compared to the class of pregnant women who choose to have an abortion. Apparently, they reason that if adult children of members of the former class have access to parts of their adoption records when they are twenty-one, and necessarily information regarding their birth mothers, then some members of the former class might feel their privacy has been invaded, whereas as members of the latter class will have no adult children who might someday access their adoption records.

To be successful in their equal protection claim, Plaintiffs must demonstrate that either (1) they have been burdened by a state action because they are members of a suspect class or (2) that their fundamental constitutional rights have been burdened because they are a member of a government selected classification.

A. Pregnant Women Who Chose to Place Their Children For Adoption Are Not a Suspect Class for Equal Protection Purposes

To cause this court to apply strict scrutiny to the Act the Plaintiffs must establish that pregnant women who place their children for adoption are members of a suspect class. So far, the only suspect classes the Supreme Court has identified have been classed based on race and national origin.(4) City of Richmond v. J.A. Croson, 488 U.S. 469 (1989). Since birth mothers are not a category based on race or national origin, and they have not been singled out for deprivation of their constitutional rights under color of state law, they are not a suspect class. Therefore, they are not entitled to demand strict scrutiny of the Act.

Plaintiffs may alternatively argue that birth mothers are a "semi-suspect" class. Even if this claim were successful, semisuspect classes only merit middle-level scrutiny. To survive middle-level scrutiny, the government need only demonstrate that the classification be "substantially" related to the achievement of "important" government objectives. Craig v. Boren, 429 U.S. 190 (1976) . The Act would survive middle-level scrutiny because making adoption records available to adult adopted persons is substantially related to the important government objective of instituting adoption procedures which are fair to all the parties involved. Therefore, Plaintiffs, claim would fail under this argument as well.

B. There Is No Government Selected Classification Which Burdens Plaintiffs Fundamental Constitutional Rights

If a classification burdens a fundamental right, the Court applies strict scrutiny regardless of the characteristics of the people who are burdened. The Court has only recognized fundamental rights for equal protection purposes in certain limited circumstances, however, including: (1) the right to vote, see e.g. Harper v. Virginia Board of Election, 383 U.S. 663 (1963) (2) the right to have access to the court, see e.g. Griffin v. Illinois, 351 U.S. 12 (1956) ; and (3) the right of interstate migration, see e.g. Shapiro v. Thompson, 394 U.S. 618 (1969). Since the alleged right to have adoption records sealed except by court order has not been recognized by the Supreme Court as a fundamental right for equal protection purposes, Plaintiffs, equal protection claim is without merit.

Adoption was unknown at common law and is a purely statutory creation. Mills v. Atlantic City Dept. of Vital Statistics, 372 A.2d 646, 648 (1977) . Courts have long granted state legislatures broad deference when reviewing adoption laws. In the past, this broad deference upheld the constitutionality of sealed adoption record laws. ALMA Society v. Mellon, 601 F. 2d 1225 (2d Cir. 1979) ; In re Assalone , 512 A. 2d 1383 (R.I. 1986) ; Bradley v. Children's Bureau of South Carolina, 274 S.E.2d 418 (S.C. 1981); Mills, 327 A.2d 646. These cases hold that it is for the legislatures to balance the interests of birth parents and adopted persons who want disclosure and those who do not. E.g., Assalone, 512 A.2d at 1390. No case has ever suggested that the United States Constitution requires any legislation to seal adoption records.

Tennessee should be granted the same broad deference in the court's review of the Act. The revised adoption laws do not breach a contractual obligation of the State, nor do they violate any rights which are fundamental for either due process or equal protection purposes. Furthermore, the Act accomplishes a compelling state interest through the least restrictive means. The States are to be granted broad latitude in experimenting with possible solutions to social problems. Whalen, 429 U.S. at 597. In the words of Justice Brandeis: "To stay experimentation in things social and economic is a grave responsibility. Denial of the of the right to experiment may be fraught with serious consequences for the Nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments. New State Ice Co. v. Leibmann, 285 U.S. 262, 311 (dissenting opinion)." Tennessee chose to serve as such a laboratory when it undertook to enact adoption legislation which more fairly balances the interests of all the parties involved in adoptions. In doing so, the General Assembly acted completely within its powers, and the resulting statute is fully constitutional.

Respectfully submitted,
Robert D. Tuke
TUKE YOPP & SWEENEY
Suite 1100, NationsBank Plaza
414 Union Street
Nashville TN 37219
(615) 313-3300
Counsel for Amicus Curiae