SUPREME COURT OF THE UNITED STATES
October Term, 1996__________________________
PROMISE DOE, JANE ROE, KIMBERLY C.,
RUSS C., and SMALL WORLD MINISTRIES, INC.,
- v. -
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, and LINDA RUDOLPH, in her official capacity
as the Commissioner of the Department of Human
Services for the State of Tennessee,
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF OF AMICI CURIAE
IN OPPOSITION TO PETITION
This brief is submitted on behalf of the following
amici curiae, who are described on page 1:
Teresa Evetts Horton
Nancy Lynn Acree
Kathleen F. Baroni
Cheryl B. Hagler
Laura C. Ingram
Sandra Joy Long
Debra Browner Minga
Elaine G. Sabra
Bobby W. Atkins
Diana Gail Atkins
J. Camille Beckwith
Thomas D. Beckwith
Phillip R. Brackett
Brenda Kaye Brewster
Charlisa L. Cato
Mary Elizabeth Clark
Mary Malissa Thompson Doerr
Rachel Marie Lilly
Deborah Sharon Norton
Frank Splann, III
David Michael Swain
Robert D. Tuke
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE 1
The Affected Amici 1
Amici Birth Parents 1
Amici Adoptive Parents 3
Amici Adoptees 4
STATEMENT OF FACTS 5
The Statute at Issue 5
The Prior Adoption Law 9
State Court Proceeding 11
TABLE OF AUTHORITIES
Alma Society, Inc. v. Mellon, 601 F.2d 1225 (2nd Cir. 1979), cert. den., 444 U.S. 995 (1979) 15
Bradey v. Children’s Bureau, 274 S.E.2d 418 (S.C. 1981) 15
Jaffee v. Redmond, 135 L. Ed. 2d 337 (1996) 20
Kirsch v. Parker, 375 So.2d 693 (La. Ct. App. 1979), mod., 383 So.2d 384 (La. 1980) 15
Massey v. Parker, 362 So.2d 1195 (La. Ct. App. 1978), rev’d, 369 So.2d 1310 (La. 1979) 15
Matter of Dixon, 116 Mich. App. 763, 323 N.W.2d 549 (1982) 15
Matter of Spinks, 32 N.C. App. 422, 232 S.E.2d 479 (1977) 15
Mills v. Atlantic City Dept. of Vital Statistics, 148 N.J. Super. 302, 372 A.2d 646 (Ch. 1977) 14, 15
Nixon v. Administrator of General Services, 433 U.S. 425 (1977) 13
Rivera v. Minnich, 483 U.S. 574 (1987) 16
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972) 15
Whalen v. Roe, 429 U.S. 589 (1977) 12, 13, 15
1995 Pub. Ch. 532 5
1996 Pub. Chs. 1054 and 1068 5
Alaska Stat. § 18.50.500(a) 1996) 16
K.S.A. § 59-2122(a) (1994) 16
K.S.A. § 65-2423(a) (Supp. 1996) 16
T.C.A. § 36-1-102(5)(C) 6, 7
T.C.A. § 36-1-102(41)(C) 6, 7
T.C.A. § 36-1-102(42)(C) 6, 7
T.C.A. § 36-1-127(c) 7
T.C.A. § 36-1-127(c)(1)(B) 7
T.C.A. § 36-1-127(e)(1)(A) 7
T.C.A. § 36-1-127(e)(1)(B) 7
T.C.A. § 36-1-127(e)(1)(C) 8
T.C.A. § 36-1-127(e)(2) 7
T.C.A. § 36-1-127(f) 8
T.C.A. § 36-1-128 8
T.C.A. § 36-1-129 8
T.C.A. § 36-1-130 8
T.C.A. § 36-1-131 8
T.C.A. § 36-1-132 8, 9
T.C.A. § 36-1-101 (repealed) 9-10
T.C.A. § 36-1-114(d) (repealed) 10
T.C.A. § 36-1-131 (repealed) 10-11
T.C.A. § 36-1-141 (repealed) 11
42 U.S.C. § 654(4)(A) (1975) 16
Alan Guttmacher Institute, Abortion Factbook, 1992 Edition 18
Alaska Bureau of Vital Statistics, 1994 Annual Report 18
Flango and Flango (National Center for Court Statistics), "How Many Children Were Adopted in 1992," 74 Child Welfare 1018 (1995) 18
Kuhns, Jason, "The Sealed Adoption Records Controversy: Breaking Down the Walls of Secrecy," 24 Golden Gate Univ. L. Rev. 259 (1994) 2
Shakespeare, King Lear, Act I, Sc. II 15
Statistical Abstract 1995, Tables 27 and 90 18
INTEREST OF AMICI CURIAE
This brief is filed on behalf of the various amici curiae who were allowed to participate in the lower courts. These amici fall into two groups.
One group of amici are 69 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 amici are 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.
The Affected Amici
The Affected Amici are birth parents, adoptive parents and adult adoptees in Tennessee adoptions who are seeking to enforce their rights under the Act to information in their adoption files. The Affected Amici, rather than Petitioners, represent the vast majority of those birth parents, adoptive parents and adoptees who are affected by the Act.
Amici Birth Parents
The Affected Amici include 17 birth parents who gave birth and surrendered their children for adoption between 1956 and 1975 inclusive. Their children are now from 21 to 41 years old. Throughout those years these amici have wondered whether their children were alive or dead, healthy or ill, normal or retarded, successful or unsuccessful, happy or unhappy. They have endured guilt, insomnia, depression and continual searching of the faces of children similar in age to their own children, looking for similarities. See Jason Kuhns, "The Sealed Adoption Records Controversy: Breaking Down the Walls of Secrecy," 24 Golden Gate Univ. L. Rev. 259, 276 (1994).
Evidence indicates that the position of these amici in welcoming contact from their children is shared by over 99 percent of Tennessee birth parents. Glad Affidavit, Appendix 14. Evidence in the record also shows that in the five other states for which corresponding data is available, the position of amici is shared by 95 percent of the birth parents. Appendices 9-10, 12-14, 17. Figures for those five states are summarized in a footnote.
Affidavits in the record from social workers with years of experience in adoption confirm that when birth mothers consider surrendering their children for adoption, they want to be able to know about their children in the future. Baumann, Rardin and Robinson Affdts., App. 6, 15, 16, ¶ 2.
It is clear that the Affected Amici represent the vast majority of birth parents and that Petitioners’ desire to hide from their children is shared by at most a very small minority of birth parents. This is confirmed by the numbers of birth parents who have already sought access to adoption records. Although the Act denies birth parents access to their children’s adoption records unless such children are adults and have given written consent to such access (p. 7, infra), 134 birth parents had requested such access as of November 18, 1996. Affidavit of Jane E. Chittick, 11/21/96, App. 8.
A number of the Amici birth parents carry dangerous hereditary medical conditions about which their children should be informed as soon as possible. The conditions include cardio-vascular problems, an allergy which can cause severe shock, peripheral neuropathy, glaucoma, malignant melanoma and cancers of the lungs, ovaries, stomach and other organs.
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. The Amici who are adoptive parents, not the Petitioners, represent the majority of adoptive parents in Tennessee.
The Affected Amici include 33 adoptees whose ages range from 25 to 52 years. Many need access to their adoption records and to their birth parents for medical reasons.
One adoptee’s affidavit particularly illustrates the need for the Act. She is the survivor of a pair of twins who requested medical information about their birth family under prior law, but did not receive it until 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. Brewster Affidavit, App. 7.
Other 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. Such information usually can be obtained only by contacting birth parents. Medical information in most adoption files is vague, scanty and at least twenty years out of date. Most of the illnesses in question occur in middle age, and records from young mothers are of little help. Some treatments require donation of body parts.
All of the Amici adoptees need to know who gave them their lives, their bodies, their faces and their hereditary characters. They need to know the roots from which they spring in order to know themselves, to know what they will pass down to their descendants, and to care for their descendants’ health needs.
The record below shows that, as of November 18, 1996, the Tennessee Department of Children’s Services had received 682 requests from adoptees for access to their records pursuant to the Act. App. 8.
STATEMENT OF FACTS
Petitioners misstate both the statute at issue ("the Act") and the prior Tennessee adoption law. They also fail to apprise the Court of their state court proceeding.
The Statute at Issue
The Act consists of amendments to the existing adoption law which were enacted by the Legislature in August of 1995 and May of 1996. (1995 Pub. Ch. 532; 1996 Pub. Chs. 1054 and 1068).
The Legislature amended the prior adoption statute after three years of public hearings, study, drafting and revision, first by the legislatively created Commission to Study the Adoption Laws of the State of Tennessee ("the Adoption Commission"), and then by the Judiciary Committees and the Finance, Ways and Means Committees of both houses of the Legislature, by various subcommittees in both houses and finally by a special Joint Ad Hoc Committee of the Legislature. Exh. C to Fowlkes Affidavit, App. 11.
The Adoption Commission found that judicial and administrative responses to adoptees’ requests for information under the prior law had been inconsistent, uncertain and contradictory. Ibid.
The Act allows adult adoptees, i.e., at least 21 years old, (or if incompetent, their legal representatives) to obtain limited access to their adoption records. T.C.A. § 36-1-127(c), App. F to Petition. Adoptees’ access is subject to numerous limitations and exclusions which Petitioners omit to mention.
Information relating to "crisis pregnancy counseling" of a birth mother is not subject to disclosure at all, without court order. T.C.A. §§ 36-1-102(5)(C), (41)(C) & (42)(C), App. 1. The circumstances of Promise Doe’s pregnancy and her letter explaining her surrender (Promise Doe Affidavit, ¶¶ 6-7, Appendix K to Petition) would therefore be exempt from disclosure.
All information, including home studies, obtained by any agency or person as part of the evaluation of prospective adoptive parents is exempt from disclosure, except and to the extent that such studies are expressly included in a report to the court that approved the adoption. Ibid.
If the adoption records indicate that the adoptee was the product of rape or incest, no identifying information may be released without the written consent of the biological parent who was the victim. T.C.A. § 36-1-127(e)(2), App. F to Petition.
Birth parents and other birth relatives cannot obtain access to adoption records unless (a) the adoptee is at least 21 years old, and (b) the adoptee expressly consents to such disclosure in writing. T.C.A. § 36-1-127(c)(1)(B) and (e)(1)(A), App. F to Petition.
If the birth parent’s rights were involuntarily terminated for cause, she or he may not obtain any disclosure (with or without the adoptee’s consent) without a court order. T.C.A. § 36-1-127(e)(1)(B), App. F to Petition.
If the adoption records indicate that the birth parent or other birth relative was guilty of a crime of violence or neglect involving the adoptee, the birth parent or relative may not obtain any disclosure (with or without the adoptee’s consent) without a court order. T.C.A. § 36-1-127(e)(1)(C), App. F to Petition.
The Act limits contact between adoptee and birth relatives, limits the use of information obtained from adoption records and punishes violations of those limits.
Under the Act, birth parents may prohibit contact from adoptees by filing a contact veto. T.C.A. §§ 36-1-128 and 36-1-129, App. G to Petition. If a birth parent has not filed a contact veto before the adoptee requests access, the state must contact or attempt to contact the birth parent and allow opportunity to file a contact veto. T.C.A. §§ 36-1-130 and 36-1-131, App. G to Petition. The adoptee is forbidden to contact such persons until the State has completed its search and advised the adoptee whether or not a contact veto is in effect. T.C.A. § 36-1-130(a)(3), App. G to Petition. Before receiving any information from the adoption files, the adoptee must execute an affidavit agreeing to abide by these restrictions and acknowledging that he or she understands the civil and criminal penalties for violation of a contact veto. T.C.A. § 36-1-127(f), App. F to Petition.
Violations of a contact veto and premature contacts are punishable by injunction, compensatory damages, punitive damages and attorney’s fees. T.C.A. § 36-1-132, App. 2.
In addition, any use of information obtained under the Act to cause injury to anyone identified in the adoption records is a misdemeanor and may also be the subject of a civil action for compensatory damages, punitive damages and an injunction. T.C.A. § 36-1-132(f), App. 2.
The Act is, in sum, a detailed, complex effort by the Tennessee legislature to balance the interests of all parties with respect to information in adoption records.
The Prior Adoption Law
The prior Tennessee adoption law was not intended to guarantee birth parents confidentiality from their children and did not do so. The statutory statement of purpose said nothing about confidentiality. On the contrary the legislature assumed correctly (p. 2, supra) that birth parents were more likely to want continued contact with their children. The statute was intended to:
Protect [adoptees] from interference, long after they have become properly adjusted to their adoptive homes, by natural parents who may have some legal claim because of a defect in the adoption procedure [and]
To prevent later disturbance of [adoptive parents’] relationship to the child by natural parents whose legal rights have not been fully protected.
T.C.A. § 36-1-101(a)(3) & (b) (repealed), Appendix 3.
The statutory purposes of the former adoption law specified:
When the interests of a child and those of an adult are in conflict, such conflict should be resolved in favor of the child, and to that end this part shall be liberally construed.
T.C.A. § 36-1-101(c) (repealed), App. 3.
The former Tennessee adoption law prescribed a form of surrender to be signed by birth parents. The form assumed that birth parents were likely to want future contact with their children. The form contained no assurance of confidentiality from the adoptee. On the contrary, the birth parent was required to agree "not to attempt to disrupt this child’s future relationship by visiting [or] attempting to communicate with" the child. T.C.A. § 36-1-114(d) (repealed), App. 4.
The former adoption law allowed disclosure of adoption records by several courts. T.C.A. § 36-1-131(a) (repealed), App. H to Petition. Such a proceeding could be brought by the adoptee (even if an infant) or by any member of the public. The information requested was to be disclosed if it was "in the best interest of the child or of the public to have such information disclosed." T.C.A. § 36-1-131(a) (repealed), App. H to Petition. No notice to the birth parent was required, and the birth parent had no right to appear, intervene, be heard or appeal. Only the Commissioners of Human Services and Health were required to be notified and were allowed to intervene and to respond. Only the moving party and the Commissioners had standing to appeal. T.C.A. § 36-1-131(b) & (c) (repealed), App. H to Petition.
Under the former procedure for court-ordered disclosure, in short, birth parents were not entitled to notice, intervention, hearing, consideration or appeal.
Under the former adoption law as under the new (Petition, p. 11), the identity of birth parents was also subject to disclosure if the Department of Human Services could not locate the birth parents. If an adoptee at least 21 years old requested identifying information concerning the birth parents, the Department was required to search for the birth parents. If the Department could locate them, information would be released or not, as the birth parents directed. If the Department could not locate the birth parents, however, the adult adoptee was automatically entitled to a copy of the original birth certificate. T.C.A. § 36-1-141 (repealed), App. 5.
State Court Proceeding
On March 26, 1997, Petitioners herein began another action in the Tennessee Circuit Court for Davidson County, alleging that the Act violated the Tennessee Constitution. On March 27, 1997 the Tennessee Circuit Court issued a temporary restraining order enjoining enforcement of the Act. On May 2, 1997 that court ruled against Petitioners on all points and denied their motion for a temporary injunction, but left the temporary restraining order in effect until May 9, 1997. On May 8, 1997 petitioners moved the Tennessee Court of Appeals for an extraordinary appeal and a stay in enforcement of the Act pending appeal. On May 9, 1997 that court granted the request for a stay pending the decision whether to accept the appeal. The motion for extraordinary appeal is presently sub judice.
As a result of the temporary restraining orders and stays granted by various courts in this action and in Petitioners’ state court action, the State of Tennessee has been prevented from enforcing the Act except for the five days between March 21 and March 27, 1997. As a result, the State has been unable to process over 1,600 requests for access to records that had been submitted as of April 2, 1997 (pp. 3, 5, supra), plus whatever number have been filed since that date.
The Decision Below is Consistent with
the Decisions of this Court and of
Other Federal and State Courts
Concerning Disclosure of Personal Information
and Access to Adoption Records.
The Act is similar to the New York statute concerning computer records of drug patients which this Court found did not "constitute an invasion of any right or liberty protected by the Fourteenth Amendment" in Whalen v. Roe, 429 U.S. 589, 603-04 (1977). As in Whalen,
The … statute challenged in this case represents a considered attempt to deal with such a problem [of vital local concern]. It is manifestly the product of an orderly and rational legislative decision. It was recommended by a specially appointed commission which held extensive hearings on the proposed legislation, and drew on experience with similar programs in other States [and countries].
Whalen, 429 U.S. at 597.
As this Court stated in rejecting former President Nixon’s invasion of privacy claim:
[T]he merit of [petitioners’] claim of invasion of [their] privacy cannot be considered in the abstract; rather, the claim must be considered in light of the specific provisions of the Act, and any intrusion must be weighed against the public interest.…
Nixon v. Administrator of General Services, 433 U.S. 425, 458 (1977).
Petitioners’ claim with respect to "familial privacy rights" boils down to speculation that the Act will disrupt birth parents’ families (Petition, pp. 9-11). Virtually all the assumptions underlying petitioners’ argument are incorrect. Rather than permitting "parents, siblings, lineal ancestors and lineal descendants" of adoptees to have unlimited access (Petition, p. 9), the Act denies them access entirely, unless the adult adoptee consents (p. 7, supra). Even adult adoptees cannot obtain access to "all adoption records" (cf. Petition, p. 9); home study and similar information about the adoptive family is excluded, as is "crisis pregnancy counseling" information (pp. 6-7, supra). Disclosure is entirely prohibited in cases of rape or incest, unless the victim birth parent consents (p. 7, supra). Likewise, disclosure to culpable birth parents is entirely barred, even if the adult adoptee consents (pp. 7-8, supra). The contact veto and its related waiting period are enforced by multiple sanctions; unlawful disclosure of information obtained under the Act is subject to both criminal and civil penalties (pp. 8-9, supra).
The issue in this case, therefore, is not public disclosure of intimate information, but disclosure of birth parents’ identities to their own children. No case has held that the Constitution prohibits such disclosure. The decisions cited by petitioners as conflicting hold only that it is within the discretion of the state legislatures to decide whether, how and to what extent adoption records may be sealed and unsealed.
Petitioners’ unsupported speculation that adoptees will violate contact vetoes or recklessly disclose information about their birth parents to the world at large (Petition, pp. 10-11) is not evidence and cannot invalidate the Legislature’s carefully crafted act. Whalen, 429 U.S. at 601-02 ("assumption that the security provisions of the statute will be administered improperly" and "remote possibility that judicial supervision … will provide inadequate protection against unwarranted disclosures" insufficient for invalidation).
There is and can be no constitutional right to conceal one’s identity from one’s child. Kansas and Alaska have always allowed adoptees access to their original birth certificates as of right. Alaska Stat. § 18.50.500(a) (1996); K.S.A. § 59-2122(a) (1994); K.S.A. § 65-2423(a) (Supp. 1996). If the Fourteenth Amendment gave birth parents the right to conceal their identities from their children, such statutes would be unconstitutional.
Petitioners’ theory would also invalidate paternity suits, which have been authorized for over four centuries for the express purpose of establishing the fact of parentage at the behest of the state, the child, or the mother. Federal law requires states to maintain effective procedures to establish paternity. 42 U.S.C. § 654(4)(A) (1975). Such procedures would be unconstitutional under Petitioners’ theory.
This Court has held, on the contrary, that a "putative father has no legitimate right and certainly no liberty interest in avoiding financial obligations to his natural child that are validly imposed by state law." Rivera v. Minnich, 483 U.S. 574, 580 (1987). Birth parents have still less "legitimate right" and "liberty interest in avoiding" simple disclosure of their identities.
Petitioners’ "reproductive privacy rights" argument rests on their assumption that the Act will burden adoptions and promote abortions. The Court of Appeals declined to find that the Act would have any such effect, but correctly held that "any burden that does exist is incidental and not undue." 106 F.2d at 706, App. A to Petition, p. 6a.
The record and statistical evidence clearly indicate that the assumptions of legislative fact underlying Petitioners’ argument are false. Petitioners claim that birth "parents rely on anonymity" and "confidentiality." Petition, pp. 13, 15. The only relevant "anonymity" or "confidentiality" is from their children, since only adoptees have a right of access. The record evidence shows that the vast majority of birth parents never wanted and do not now want any such anonymity or confidentiality; on the contrary, they want the opportunity to know that their children are alive and well and to have their children contact them (pp. 2-3, supra).
Because the great majority of birth parents desire knowledge of and contact with their surrendered children, any effect of opening records under the Act must necessarily be in the direction of increasing adoptions and decreasing abortions. Published statistics confirm this. Alaska and Kansas are the only two states which have always allowed adult adoptees access to their birth records (p. 16, supra). As the table below shows, adoption rates are higher and abortion rates are lower in those states than in the United States as a whole or in any of the four states that surround Kansas, all of which have closed adoption records.
Adoption and Resident Abortion Rates
Adoptions per Thousand Resident
Thousand Persons Live Births Abortion Rates
State (1992)10 (1992)10 (1987)
U. S. .498 31.2 26.7
Alaska 1.068 53.5 21.5
Kansas .730 48.4 13.4
Colorado .409 26.0 21.1
Missouri .404 27.5 19.6
Nebraska .619 42.4 15.5
Oklahoma .706 47.6 14.7
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.
Alan Guttmacher Institute, Abortion Factbook, 1992 Edition, p. 80.
The Act is not Retroactive; Prior Tennessee Law Did Not Promise Confidentiality from Adoptees.
Petitioners’ retroactivity argument, as well as their "confidentiality privacy rights" argument, rests on the erroneous premise that Tennessee promised birth parents and adoptive parents "secrecy" from adoptees (Petition, pp. 19, 21). As the State of Tennessee recog-nized in its prior law, the vast majority of birth parents wanted no such assurance or promise (pp. 2-3, 9-10, supra). Consequently the prior Tennessee law author-ized no such promises or expectations, and the State Department of Human Services neither made nor authorized any such assurances (pp. 10-11, supra).
The former Supervisor of Adoptions, who held that position for three decades, testified to the Adoption Commission that she had authorized and was aware of no promise of confidentiality to birth parents at any time under the former law. Exhibit C to Affidavit of Joe Fowlkes, Appendix 11.
Under the prior Tennessee adoption law, any of several courts could order adoption information released to adoptees without notice to, participation of or consideration of birth parents (pp. 10-11, supra). Under the prior law, the identities of birth parents could be released without court order if the Department of Human Services could not locate them (p. 11, supra). The Tennessee Adoption Commission found that judicial and administrative implementation of these statues was in fact unpredictable (p. 6, supra).
Such laws and implementation supported no reasonable expectation of privacy from adoptees. "An uncertain privilege, or one which purports to be certain that results in widely varying applications by the courts, is little better than no privilege at all." Jaffee v. Redmond, 135 L. Ed. 2d 337, 349 (1996).
If any of the individual petitioners were misled by Small World Ministries or other agencies as to the provisions of prior law (see nn. 4 and 5, supra), their remedy, if any, must be against those who misled them, not against the innocent adoptees, nor against the vast majority of birth parents who want their children to be able to know of them.
The petition should be denied.
Attorneys for Amici Curiae
June 13, 1997