« Ind. Law - Heirs argue that deed required land to be used for a public purpose | Main | Ind. Courts - Yet another story about Judge Pfaff's replacement in Elkhart Superior Court 1 »

Wednesday, November 23, 2005

Ind. Decisions - Supreme Court upholds abortion waiting period

Clinic for Women v. Carl Brizzi (11/23/05)*

The majority opinion is written by Justice Rucker, with Shepard and Sullivan concurring. Justice Dickson concurs in the result with a separate opinion. Justice Boehm dissents with a separate opnion. Confusingly, each opinion is numbered separately - the majority opinion is 21 pages; the concurring opinion starts again at p. 1 and is 9 pages, and the dissent is 18 pages. The opinion totals 48 pages.

Justice Rucker writes:

The Indiana Legislature has passed a law that requires a woman seeking an abortion to give her informed consent prior to the procedure and, except in the case of a medical emergency, specifies that a physician (or other medical personnel) must “orally” and in her presence provide her with certain information at least 18 hours before the abortion is performed. The plaintiffs in this case contend that this law on its face violates the right to “liberty” set forth in Article I, Section 1, of the Indiana Constitution. We hold that this law is not unconstitutional because the plaintiffs cannot demonstrate that there are no set of circumstances under which the statute can be constitutionally applied. We further hold that even if the law were challenged as unconstitutional as applied in a particular case, the challenge would fail because the law does not impose a material burden on any right to privacy or abortion that may be provided or protected by Article I, Section 1.
Justice Dickson's opinion begins:
I would affirm the trial court's dismissal of the complaint, thus reaching the same out-come as the majority opinion, but for different reasons. The majority leaves open the question of whether Article 1, Section 1, of the Indiana Constitution should be interpreted to provide protec-tion for a right to abortion. I prefer this Court to address that question and to explicitly declare that the Indiana Constitution does not protect any alleged right to abortion. In addition, because the challenged statutory pre-abortion requirements not only discourage harm to fetal life, but also protect the health of pregnant women, particularly in light of the risks to women from post-abortion psychological harm, I am convinced that these requirements not only are a proper exer-cise of legislative power but also are in direct harmony with and furtherance of core values of Article 1, Section 1, of the Indiana Constitution, which declares the inalienable right of "life" and the institution of government for the "peace, safety, and well-being" of the people.
Justice Boehm's dissent begins:
For the reasons given below, I respectfully dissent. I believe the Court of Appeals correctly held that the inalienable right to liberty enshrined in Article I, Section 1 of the Indiana Bill of Rights includes the right of a woman to choose for herself whether to terminate her pregnancy, at least where there is no viable fetus or her health is at issue. I also believe the plaintiffs have alleged facts which, if they can be established, show that the statute in question imposes a material burden on the exercise of that right. Accordingly, I agree with the Court of Appeals that the trial court’s dismissal of the complaint in this case should be reversed and this case should be remanded for a trial on the merits of the plaintiffs’ claims.
Michele McNeil writes in a brief article for the Indianapolis Star website:
The Indiana Supreme Court today upheld a state law requiring women to wait 18 hours before having an abortion.

In a 4-1 decision released this morning, the justices said the law doesn't impose a "material burden" on any right to privacy or abortion. * * *

Supreme Court Justice Brent Dickson thought the court should go even further. "I prefer this Court . . . to explicitly declare that the Indiana Constitution does not protect any alleged right to abortion."

Justice Theodore Boehm was the lone vote to strike down the law. "Forcing someone to incur a substantial financial burden or forego altogether (the) exercise of the person's right to choose is surely a material burden," he wrote.

The Washington Post has an AP story by Deanna Martin. A quote:
"We're disappointed," said Fran Quigley, executive director of Indiana Civil Liberties Union. He said the law poses a financial burden for some women because it forces them to make two trips to a clinic that in many cases is not in their home county.

Quigley said his group would discuss with the abortion providers who filed the lawsuit whether to seek another hearing before the state Supreme Court, which has the final say in the matter because it concerns the state constitution.

Federal courts have upheld the 1995 law, which didn't go into effect until 2003 because of court challenges.

The state lawsuit, filed by abortion providers, was dismissed by a Marion County judge, but the Court of Appeals had ruled that they could continue their challenge.

Abortion counseling is required in 31 states, and 23 states also require a subsequent waiting period _ usually 24 hours, according to the Guttmacher Institute, a nonprofit group that researches reproductive health issues. Indiana is one of only six states that requires the counseling sessions to be conducted in person.

______________
*A copy of the opinion has now been posted at the usual opinions location. So now there are two, one on the main page of the Courts site -- that is the one cited at the beginning of this entry. The other on the Supreme Court opinions page. To add to the confusion, the version just posted on the opinions page is 49 pages, rather than the 48 pages of the earlier posted version.

Posted by Marcia Oddi on November 23, 2005 11:14 AM
Posted to Ind. Sup.Ct. Decisions