Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc.

971 S.W.2d 439, 41 Tex. Sup. Ct. J. 1001, 1998 Tex. LEXIS 104, 1998 WL 326909

• Court: Texas Supreme Court
• Decided: June 23, 1998
• Docket: 97-0889
• Status: Published

Opinions

HANKINSON, Justice,

delivered the opinion of the Court, in which

PHILLIPS, Chief Justice, and HECHT, ENOCH, SPECTOR, OWEN, and BAKER, Justices, joined.

On direct appeal, the Texas Commissioner of Health asks us to reverse the judgment of the trial court declaring rider 14 to the 1997-1999 Department of Health family planning appropriation to be unconstitutional. The rider forbids the use of state funds to dispense prescription drugs to minors without parental consent. Planned Parenthood challenged rider 14 on the grounds that' it conflicts with federal law and violates the unity-in-subject clause of the Texas Constitution. Because we determine that the challenge to rider 14 is not ripe, we vacate the trial court’s judgment and dismiss this case for want of jurisdiction.

The State of Texas voluntarily participates in four federal programs that provide funds for family planning services: (1) Title X of the Public Health Service Act, 42 U.S.C. § 300, which provides project grants to public and private agencies for family planning services; (2) Temporary Assistance to Needy Families, 42 U.S.C. § 701 (TANF,' also known as the Welfare Reform Act), which provides grants to the states to assist needy families; (3) Title XIX of the Social Security Act, 42 U.S.C. § 1396 (Medicaid), which provides medical care to the needy through a cooperative federal-state program; and (4) Title XX of the Social Security Act, 42 U.S.C. § 1397, which provides block grants to the states for social services, including family planning. The funds from these four programs compose the state’s family planning appropriation, identified in the General Appropriations Act as Department of Health Strategy D.1.2. See General Appropriations Act, 75th Leg., R.S., ch. 1452,1997 Tex. Gen. Laws 5535, 5663. The federal government is the sole source of funds for all the programs except Medicaid. As a voluntary participant in the Medicaid program, the state agrees to match every nine dollars of federal funds with one dollar of state funds. See 42 U.S.C. § 1396b(a)(5). In 1997 the legislature appropriated approximately $93 million for family planning services for each year of the coming biennium, with approximately $5.4 million per year representing the state’s required matching funds for Medicaid. In 1997 the legislature also attached rider 14 to the family planning appropriation, declaring that “no state funds may be used to dispense-prescription drugs to minors without parental consent.” General Appropriations Act,

75th Leg., R.S., ch. 1452, 1997 Tex. Gen. Laws 5535, 5675.

As part of its family planning services, plaintiff Planned Parenthood of Houston and Southeast Texas, Inc., provides prescription medication, including contraceptives and drugs for treating sexually transmitted diseases, to minors without requiring parental consent. Planned Parenthood contracts with the state to receive funds for these services under Title X, Title XX, and TANF. Planned Parenthood is also an enrolled Medicaid provider, and is reimbursed on a fee-for-service basis by the Department of Health (through an insurance program) for the family planning services it provides to Medicaid-eligible individuals. The federal regulations governing these programs have been interpreted to proscribe the imposition of a parental notification or consent requirement. See New York v. Heckler, 719 F.2d 1191, 1196 (2d Cir.1983) (invalidating federal regulation requiring parental notification of prescription contraceptives as unauthorized by Title X); Planned Parenthood Ass’n v. Schweiker, 700 F.2d 710, 722 (D.C.Cir.1983) (explaining that federal regulations forbid state from denying Title X services to minors who lack parental consent); T_ H_v. Jones, 425 F.Supp. 873, 878 (D.Utah 1975), aff d in part, 425 U.S. 986 (1976) (invalidating state parental consent requirement for family planning services as conflicting with federal welfare and Medicaid requirements).

Concerned about what it perceived to be a conflict between the federal program rules’ forbidding a parental consent requirement and rider 14’s explicit parental consent requirement, Planned Parenthood asked defendant Texas Department of Health about the Commissioner of Health’s opinion on the effect of rider 14 on family planning funds. The Department of Health and its commissioner are charged with administering and distributing funds the legislature appropriates for family planning services. The Commissioner in turn requested an opinion from the United States Department of Health and Human Services (DHHS). A regional health administrator for DHHS replied by letter that, in his view, rider 14 “is, on its face, inconsistent with the applicable Title X family planning legislative authority and implementing regulations. Because the Title X Family Planning Program operates under total budgeting principles, if this Rider is fully implemented, the Texas Department of Health would be ineligible to receive Title X funding.” The concept of “total budgeting principles” means that if a family planning program receives any money through Title X, Title X regulations apply to all of the funds in that program, “including but not limited to grant funds, grant-related income or matching funds.” 42 C.F.R. 59.2 (1997).

In light of this express suggestion that Texas might lose its federal family planning funds, Planned Parenthood filed this action against the Department and its commissioner seeking a declaration that rider 14 is unconstitutional. It alleged that the rider violates the Supremacy Clause, Article 6, Clause 2, of the United States Constitution by imposing a parental consent requirement in conflict with federal law, and violates the unity-in-subject clause, article III, section 35, of the Texas Constitution by amending or repealing certain provisions of the general law in an appropriations act.

At trial before the court, the parties stipulated to a number of facts, including that “ [effective September 1, 1997, Planned Parenthood will no longer be eligible to receive Medicaid funds for providing prescription medication to minors without consent.” Planned Parenthood called as its sole witness Carol Pavlica, the director of the family planning program for the Department of Health. She explained that although the Department had not yet made any final or official decisions, it was considering two plans in its efforts to implement rider 14. Under the first plan (identified by the parties as “Plan A”), the state would simply require all minors receiving prescription drugs from family planning programs to have parental consent. She acknowledged that in her opinion this plan would jeopardize all federal family planning funds.

To avoid potentially jeopardizing federal family planning funds, the Department was considering a second plan (“Plan B”). Under Plan B, the state would continue to pay for prescriptions to minors without parental consent, but would pay for those prescriptions with federal funds other than Medicaid funds (Medicaid being the only program with a matching state component), including prescriptions for Medicaid-eligible minors. Thus under this plan, in Pavliea’s opinion, the state could comply with the legislature’s dictate that no state funds be used to dispense prescription drugs to minors lacking parental consent, without violating the federal rules that receipt of family planning services cannot be conditioned on parental consent, or jeopardizing other federal family planning funds. She made clear that under Plan B, neither Planned Parenthood nor its minor clients (including those eligible for Medicaid) would suffer any change in requirements, services, or funding; in other words, the state does and will continue to pay for prescriptions for minors even if they lack parental consent, but from federal funds without a state matching fund component. She also testified she believed the state would not be jeopardizing its federal funds by implementing Plan B because the state would not in fact be imposing a parental consent requirement.

The trial court declared rider 14 unconstitutional on the bases that (1) it conflicts with the federal laws governing the four federal programs in the family planning appropriation, and (2) it violates article III, section 35, of the Texas Constitution by attempting to repeal or amend certain provisions of Chapter 32 of the Texas Human Resources Code. The court rendered judgment enjoining the Commissioner from implementing rider 14. It also issued detailed findings of fact and conclusions of law..

Under federal law, the trial court concluded that the rules governing the federal family planning programs in which the state participates forbid imposition of parental consent requirements, and preempt any state law to the contrary that would affect programs drawing on those federal funds. Although the trial court termed it “an admirable effort” to comply with both federal law and rider 14, the court concluded that the Department’s proposed plan to track prescriptions and payments (Plan B) and use federal funds without a state matching component to pay for prescriptions without parental consent would not avoid t íe conflict with federal law: “While a state <an restrict the use of state money appropriated solely for state purposes, a state cannot restrict the use of state money appropriated to match federal money. Under federal law, matching money must come without restrictions or it is not matching money.”

Under Texas law, the trial court rejected Planned Parenthood’s assertion that the rider amended or repealed Chapter 32 of the Family Code (permitting consent by a non-parent to treatment of a minor under certain circumstances), but ruled that it did amend or repeal certain provisions of Chapter 32 of the Human Resources Code (governing the state’s medical assistance program for needy individuals). It determined that section 32.024(a) of the Human Resources Code requires the Department of Health to provide medical services to the needy in accordance with federal law, and section 32.031(b) authorizes the Department to spend state funds to do so. Thus the trial court concluded that the rider unconstitutionally amended general law by bringing the state out of compliance with the federal rules governing family planning funds: “Texas has chosen in its own general law to spend its funds consistent with federal law, and a rider cannot amend or repeal that general law.” The trial court also concluded that Planned Parenthood had standing to bring its claims because it receives part of the funds that the state is placing at risk by enforcing a rider in conflict with federal law, and that even the Department’s proposed plan to use federal funds without a state matching component did not resolve that conflict. Based on the letter from DHHS, the court concluded that “[t]his threatened cut-off of federal funds — which directly threatens Planned Parenthood — is sufficient to give Planned Parenthood standing to force compliance with the law.” The court also premised standing on its finding that the administrative costs of implementing Plan B would be paid for with funds that would otherwise be available to Planned Parenthood to assist needy individuals.

While the trial court framed this issue as one of standing, we view it more precisely as one of ripeness. Ripeness, like standing, is a threshold issue that implicates subject matter jurisdiction, Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), and like standing, emphasizes the need for a concrete injury for a justiciable claim to be presented; See Davis & Pierce, II AdminisTRATIVE LAW TREATISE, § 15.12, at 361 (3d ed. 1994) (“In many cases the two problems of standing and ripeness are merged; a party may lack standing because what has happened to him is not far enough developed, but the lack of development may be the essence of unripeness.”). But if standing focuses on the question of who may bring an action, see Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 626-627 (Tex.1996), ripeness examines when that action may be brought. At the time a lawsuit is filed, ripeness asks whether the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote. See Nichol, Ripeness and the Constitution, 54 U. Chi. L.Rev. 153, 169 (1987); 13A Wright et al., Federal Practice and Procedure, § 3532.1, at 130 (2d ed.1984). Ripeness thus focuses on whether the case involves “uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” Wright, supra, § 3532, at 112. By maintaining this focus, the ripeness doctrine serves to avoid premature adjudication. While the standing doctrine has been much criticized, ripeness, especially in its pragmatic focus, has found the approval of' commentators. See, e.g., Mansfield, Standing and Ripeness Revisited: The Supreme Court’s “Hypothetical" Barriers, 68 N.D. L.Rev. 1, 19-20 (1992); Wright, supra, § 3532, at 112 (“As compared to standing, ripeness decisions have developed a generally satisfactory method for resolving the problems of prematurity.”).

The constitutional roots of justiciability doctrines such as ripeness, as well as standing and mootness, lie in the prohibition on advisory opinions, which in turn stems from the separation of powers doctrine. See Tex. Const, art. II, § 1 (separation of powers), art. IV, §§ 1, 22 (attorney general is part of the executive department, and is empowered to issue advisory opinions to the governor and other officials), art. V, § 8 (district court jurisdiction); Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993) (explaining that “we have construed our separation of powers article to prohibit courts from issuing advisory opinions because such is the function of the executive rather than the judicial department”); Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 646 (1933) (explaining that under the constitution, appellate court jurisdiction does not extend to issuing advisory opinions); see also Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex.1997) (reviewing justiciability principles in light of 1985 constitutional amendment to district court jurisdiction).

The courts of this state are not empowered to give advisory opinions. Wessely Energy Corp. v. Jennings, 736 S.W.2d 624, 628 (Tex.1987); United Sens. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 859 (Tex.1965); Alamo Express v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815, 827 (1958). This prohibition extends to cases that are not yet ripe. See Camarena v. Texas Employment Comm’n, 754 S.W.2d 149, 151 (Tex.1988); Public Util. Comm’n v. Houston Lighting & Power Co., 748 S.W.2d 439, 442 (Tex.1987); City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex.1985); Califor nia Prod., Inc. v. Puretex Lemon Juice, 160 Tex. 586, 334 S.W.2d 780, 783 (1960). A case is not ripe when its resolution depends on contingent or hypothetical facts, or upon events that have not yet come to pass. See Camarena, 754 S.W.2d at 151 (holding trial court could not grant relief based on “a hypothetical situation which might or might not arise at a later date. District courts, under our Constitution, do not give advice or decide cases upon speculative, hypothetical or contingent situations”).

The concerns addressed by the ripeness doctrine encompass more than a question of constitutional prohibition. The doctrine has a pragmatic, prudential aspect that is directed toward “[conserving] judicial time and resources for real and current controversies, rather than abstract, hypothetical, or remote disputes.” Mayhew, 964 S.W.2d at 928; see also Nichol, supra, at 174 (“ripeness analysis carries the banner of prudence rather than power”). Refraining from issuing advisory opinions and waiting for cases’ timely factual development is also essential to the proper development of the state’s jurisprudence. See Entman, Flawed Activism: The Tennessee Supreme Court’s Advisory Opinions on Joint Tort Liability and Summary Judgment, 24 Mem. St. U.L.Rev. 193, 199 (1994); Frankfurter, A Note on Advisory Opinions, 37 Harv. L.Rev. 1002, 1002-03 (1924). “Litigation based upon hypothetical possibility rather than concrete fact is apt to be poor litigation. The demand for specificity, therefore, stems from a judicial desire for better lawmaking.” Nichol, supra, at 177; Wmght, supra, § 3532.3, at 147 (“adjudication may be postponed until a better factual record is available, ‘[e]ven though the challenged statute is sure to work the injury alleged.’ ”) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 300, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). Moreover, avoiding premature litigation prevents courts from “entangling themselves in abstract disagreements over administrative policies” while at the same time serving to “protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” City of El Paso v. Madero Dev. & Constr. Co., 803 S.W.2d 396, 398-99 (Tex.App. — El Paso 1991, writ denied) (citing Abbott Lab. v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)); see also Davis & Pierce, supra, § 15.12, at 360 (explaining that ripeness law “limits the ability of courts to intrude excessively on the policymaking domains of the politically accountable [branches of government]”); Nichol, supra, at 178 (similarly noting that ripeness doctrine “allows the courts to postpone interfering when necessary so that other branches of government ... may perform their functions unimpeded”).

We examine the ripeness of Planned Parenthood’s claims in light of these principles. Planned Parenthood argues that any implementation of rider 14 will result in it losing federal funds, at the very least those provided through Title X. Thus Planned Parenthood urges that it is in immediate danger of sustaining some direct injury because of the Department’s planned implementation of rider 14. Planned Parenthood further argues that it is unclear whether the Department can legitimately separate federal and state funds, and that even if the Department can lawfully implement such a plan, Planned Parenthood is harmed by the administrative costs of implementation.

The record does not support Planned Parenthood’s assertions. Pavlica, the sole witness, explained that the Department had not finalized its plans, but was leaning to Plan B, and had only just begun investigating what automation demands Plan B might require. She emphasized that Planned Parenthood and its clients would experience no change in actual services provided or paid for under Plan B, but that only the funding source for some of the prescriptions would change. She testified that the Department would not in fact require parental consent before paying for prescriptions to minors under Plan B: “We would not change the parental consent requirements so minors would continue to be served.” The letter from DHHS does not specifically address Plan B, but refers to rider 14 “on its face,” states that Texas may be ineligible to receive Title X funds “if [rider 14] is fully implemented,” and clearly assumes that parental consent will be required before any drugs are prescribed. (Emphasis added.) Nothing in the record demonstrates that the federal government has actually considered Plan B, much less suggested revoking or withdrawing funding based on it. Likewise, no evidence supports the trial court’s conclusion that the administrative costs of implementing Plan B would come from family planning program funds that would otherwise have gone to Planned Parenthood, or even the actual amount of what those administrative costs would be. Pavlica testified that although she was “not exactly sure” what the administrative costs might be, based on her experience, she “would guess ... [that] it would be several hundreds of thousands of dollars” to segregate the funds. She did not suggest or even speculate about where the administrative funds would come from. This testimony is not specific enough to support the conclusion that harm to Planned Parenthood is imminent.

This is precisely the kind of case in which resolution of the claim presented depends on the occurrence of contingent future events that may not occur as anticipated or may not occur at all. We simply do not know what the federal government will do if the state carries out its plan to segregate the funds, and the record does not even demonstrate what exactly the state will do. Without knowing what the federal government will do, Planned Parenthood cannot show a conflict between federal and state demands or that the state’s proposed action will cause it any injury. While Planned Parenthood does not have to wait until its funds are actually revoked or cut off, its potential injury must be more certain; the threat must be established by something more definite than the DHHS letter presented in this case, which does not address whatever final action the Department of Health may take to meet its statutory obligations to the legislature and Congress. Because its alleged injury remains contingent, Planned Parenthood’s claim is not yet ripe for review.

The essence of the ripeness doctrine is to avoid premature adjudication of just such a situation; to hold otherwise would be the essence of an advisory opinion, advising what the law would be on a hypothetical set of facts. Neither this Court nor the trial court has the power to do so. Accordingly, we vacate the trial court’s judgment and dismiss this case for want of jurisdiction.

GONZALEZ, J., filed a concurring opinion, in which ABBOTT, J., joined.