*1 such that suggest fore, evidence no all to relationship at any bears
prohibition protection or treatment Golub's public. appeal on suggests Dr. Giles
Although court the trial for permissible was that it fact notice judicial take "could .depressant" a "known is alcohol in treatment unpre- with interact Golub's 22, there p.Br. ways," dictable Appellee's trial suggesting evidence is no this fact. notice judicial take did court there Moreover, no evidence appeal posits Dr. Giles suggestion that trial used actually the rationale was short, this condition. imposing court record no evidence simply there reasons drug use or alcohol about condition, and imposition it imposed. improperly therefore was af- court is judgment trial with part and reversed part firmed conditions special all to strike instructions insofar of commitment the order from care in-patient apply they Golub's prohibiting condition special to strike drugs alcohol consuming from Golub altogether. commitment order of ROBB, J., concur. C.J., KIRSCH, INC., WOMEN, FOR CLINIC et al., Appellant-Plaintiff, a defen BRIZZI, on behalf J. Carl Prosecuting of all class dant Attorneys, Appellеe-Defendant.
No. 49A05-0305-CV-259. Indiana. Appeals Court 17, 2004. Sept. *2 Carter, Attorney General
Steve Fisher, Special Coun- M. Indiana, Thomas Attorney Meilaender, Deputy sel, H. Ellen Clerk, In- Law General, Hagan, Heather *3 Appellee. for IN, Attorneys dianapolis, Firm, Law Koch, The Koch Allan Eric Lin- Benjamin IN, Paul P.C., Bloomington, Amicus IL, Attorneys for Northbrook, ton, Indiana General Members Curiae, Assembly. Gleason, Wood,Tuohy, Wood, J.
William IN, P.C., Indianapolis, Herrin, & Mercer Curiae, Amicus for Attorneys Conference. Catholic
OPINION
VAIDIK, Judge. SUMMARY
CASE Clinic") ("the appeals Women for Clinic its to dismiss decision court's trial constitutionality challenging complaint 16-34-2-1.1, the statute § Indiana Code consent informed voluntary and governing I, § 1 of article find that We to abortion. and is protects Indiana Constitution constitution as a core by privacy animated this state 'and that al value all Indiana extends seeking to obtain including women citizens, Thus, and direct reverse we an abortion. complaint to reinstate trial court purpose hearing for conduct and to requirements determining whether impose consent statute the informed core constitutional burden material find, a matter alsoWe privacy. value I, § 9 of article impression, of first speech free Constitution-the the Indiana refrain right to provision-extends but speech, compelled i.e. speaking, Liberties Falk, Civil Kenneth J. does consent statute Heller, IN, Simon Union, Indianapolis, right.1 unconstitutionally infringe NY, Attorneys York, New Crepps, Janet Reversed. Appellant. asserting that brief "argument" in its graph cursory one-para- presents also 1. The Clinic AND FACTS PROCEDURAL Constitution.3 Specifically, the Clinic chal lenges
HISTORY2 the statutory requirements women seeking abortions receive in-person Clinic, which provides abortions in counseling at least eighteen hours before Indiana, alleges that Indiana Code 16- (the obtaining an abortion "two trip re 34-2-1.1 violates the state constitutional quirement") and that abortion providers right of privacy of women seeking to ob- orally convey information specified in the tain abortions and the providers' abortion statute to women seeking to obtain an abortion.4 to free speech under the Indiana The Clinic maintains that re *4 § Indiana Code 16-34-2-1.1 violates article the court concluded that a woman could be 1, § Constitution, 12 of the Indiana excepted compliance from the due statutory with the provision, course of law informed provisions require- consent because its when she faces ments are rationally not legiti- significant related to a and imminent threats to her life or mate state interest. But because we find either physical her or mental health. Howev- presents er, the Clinic legal a conclusion rather severe but temporary conditions in which cognizable than a argument, we an need abortion not is not medically the necessary process reach the due issue. See Appel- Ind. treatment are not covered exception. the 46(A)(8). late Rule § Indiana Code provides: 16-34-2-1.1 2. We argument heard oral in our courtroom An abortion shall performed not be ex- on November 2003. We thank counsel cept with voluntary the and informed con- for their presentations, commendable pregnant sent of the woman whom assisted us in the determination of this case. the abortion performed. is to be Except in the case of a emergency, medical consent to 3. This statute was previously challenged on an voluntary abortion is only informed grounds different in A Woman's Choice-East if following the conditions are met: Newman, Side Women's Clinic v. (1) eighteen (18) At least hours before the (Ind.1996). case, In that the federal dis- abortion and presence in the preg- the trict questions court certified about the stat- woman, nant physician per- who is to ute to court so that it could abortion, form the referring physician resolve a challenge facial to the law on feder- physician (as or a assistant defined in IC al grounds. The question first 25-27.5-2-10), an practice advanced nurse certified was whether the statute excuses (as 25-23-1-1(b)), defined in IC or a mid- compliance compliance when any would in (as 34-18-2-19) wife defined in IC to whom way pose significant threat to the life or the responsibility delegated has been by the health of the woman. The court determined physician perform who is to the abortion or that the "contemplates law that all relevant referring physician orally has pertaining can, factors to a woman's health pregnant following: woman of the must, indeed be considered when deciding (A) The physician name of the performing dispense whether to with the statute's in- the abortion. provisions." formed consent Id. at 108-09. (B) The nature proposed of the procedure explained It its belief that these factors would or treatment. be taken into consideration when the doctor (C) The risks of and pro- alternatives to the at issue formed his or judg- her "clinical cedure or treatment. determines, ment." If the doctor in his or (D) probable gestational age of the fe- judgment, her clinical that an abortion tus, including provide: an offer to medically necessary, may then it per- be (i) picture fetus; drawing of a formed delay. without "The references to (ii) fetus; the dimensions of a death impairment or substantial simply focus (iii) relevant information potential physician's judgment clinical on medical fetus; survival of an unborn stage at this necessity rather regular than lesser con- development. normally ditions associated pregnancy." with (B) The medical risks associated with car- (footnote omitted). Id. at 109 rying the fetus to term. The court de- termined that granted the statute pro- women (2) (18) eighteen At least hours before the abortion, tection from risks connected pregnant delay gen- with woman will be oral- erally, just eighteen-hour Thus, delays. ly following: informed of the of the application in its court «erred trial trips to make two women quiring of the grant trial court's Id. The law. hours eighteen at least provider abortion apparent if it is proper dismiss is motion to the see- counseling and first apart-the complaint in the alleged that the effectively procedure-may ond for facts any under relief supporting incapable areas of in rural live who women prevent Id. circumstances. Furthermore, set because obtaining abortions from any will determining support whether gain must travel they the distance facts complaint claim, we look only provider. to an abortion access any other evidence resort to may not February complaint filed a The Clinic record. Id. in the enjoin enforcement 2003, seeking to Privacy Right of I. it violates ground statute the constitu challenges The Clinic April Constitution. tionality 16-34-2-1.1, Code of Indiana the Clinic's motion to dismiss filed a re trip "two statute's asserting claim. Fol- that the to state for failure complaint the combina granted quirement"-resulting court the trial hearing, lowing a counseling require *5 in-person an appealed tion of motion, the Cliniс and the State's waiting mandatory 18-hour a ment and this Court. a material burden period-imposes privacy right of constitutional state AND DECISION DISCUSSION The abortions. seeking to obtain women is this case note that outset we At the Indiana Constitution that the denies State court's the trial appeal before us ar privacy; a protects pursu complaint Clinic's dismissal if a state alternatively that even such gues 12(B)(6). In Rule ant to Indiana Trial exist, the chal right does to dismiss a motion grant reviewing unconstitutionally does not lenged statute 12(B)(6), our stan Trial Rule pursuant begin analysis our right. We violate that Lawson v. is well settled. of review dard and Indiana privacy an overview with in. Co., 786 Mortgage First Union constitution as a core discuss then 12(B)(6) A 279, (Ind.Ct.App.2003). I, § 1 of animating article al value failure to state to dismiss motion Constitution, provides: which _ granted can relief be claim DECLARE, are people That all claim, not WE sufficiency of legal tests the by they are endowed Therefore, equal; that created we it. Id. supporting the facts inalienable certain with their CREATOR most favor light in the complaint view the drawing ev non-movingparty, life, liber able to the these are among rights; all happiness; pursuit of ty, and the of that inference ery reasonable favor and People; in the inherent power ruling on reviewing a party. Id. are, and of governments free that all dismiss, in the shoes of we stand motion to be, their au- founded on ought to if the must determine court and the trial (C) available adoption alternatives may That (A) be medical assistance That benefits childbirth, care, may legally pay adoptive parents prenatal and that available for county office of fam- care, childbirth, from the care neonatal prenatal costs of f ily and children. care. neonatal (B) fetus is (3) writ- of the unborn the father pregnant woman certifies That The support of required to assist in legally performed, that ing, the abortion before rape, the informa- the case of the child. In (1) required subdivisions the information may be this clause required under (2) provided. has been omitted. thority, and instituted for peace, their hydration. In discussing parameters safety, and well-being. For the ad- of the right to make health decisions, care " ends, vancement of these the People the court stated: 'Every human being of have, times, аt all an indefeasible right years adult and sound mind a right has to alter and reform government. their determine what shall be done with his own body'" Id. (quoting v. Soc'y We find that privacy only animates Schloendorff New York Hosp., 125, N.Y. I, 1,§ article permeates but the atmo- (1914), N.E. sphere created our constitution and ex- overruled on other grounds). The court § then cited 1 and tends to all citizens, our including women noted: seeking to exercise their right to obtain an
abortion. This common law has evolved in a legal governed culture by the Indiana Consti- Privacy
A. in Indiana tution, which begins by declaring that the liberty of our citizens is conflict, "[Indiana] was born in inalienable. indi- vidualism. It debates of seem to follow that constitutional con- vention key suggest constitution's values are not civili- those who wrote ty, equality, tranquility, order, constitution believed but that liberty liber- in- ty, opportunity, cluded the vigor, privacy." opportunity Pat- to manage one's Baude, rick own life except Has the yielded those areas Constitution up body Found its Epic? politic. Ind. L.J. (1994). Privacy is not only a core value Id. at 89 (citing 1) Ind. I, Const. art.
within the Indiana Constitution but per- (footnote omitted). *6 meates the atmosphere crеated our In State ex rel. Mavity Tyndall, v. constitution. In I, 1, addition to § article supreme court held that citizens of Indiana privacy underlies a number of other rights have right to privacy protection and guaranteed by provisions in our Bill of guaranteed by I, § article 21 of the Rights,. These protections include the pro- Indiana Constitution, provides which that vided for the natural right to worship, Ind. no services or property may be taken with I, Const. 2;§ art. freedom of religions just out compensation. Mavity, 225 Ind. opinions and rights of conscience in Ind. 360, 365, 914, (1947); see I, § Const. art. 3; freedom of religion, also Voelker Tyndall, v. 43, 44-45, Ind. I, Ind. 4;§ Const. art. rights to free (1947) N.E.2d (stating, in a thought and speech, I, Ind. Const. art. case involving a police department's reten 9;§ freedom from unreasonable search or of fingerprints, that right of priva seizure, I, Ind. 11; § Const. art. freedom cy is a doctrine, "well-established derived of emigration, I, Ind. 36; § Const. art. from natural guaranteed law and by both and numerous other rights enumerated in the Federal Constitutions"). and State the Indiana Constitution. Our supreme court has also held that the
Our courts have at least implicitly as individual's right to engage in a lawful sumed in previous cases that right business, to to determine the price of his or privacy is embodied in the Indiana labor, Consti her and to fix his or her business tution. In Lawrance, Maiter hours, except as they conflict with of N.E.2d (Ind.1991), 38-39 police power, our supreme personal are privileges and court was asked to decide per whether a liberties within protection son in a persistent vegetative state could Indiana Bill Rights. of State Bd. Bar of be removed from artificial nutrition and Cloud, ber Exam'rs v. 220 Ind. 572- facts), reh'y private disclosure public (1942); also see 972, 980 73, 44 N.E.2d not did interests privacy These 175, 179, 84 denied. State, Ind. v.
Kirtley (1949) (interpreting atmo in the but 712,714 a vacuum up N.E.2d spring Constitu Indiana by the Indianap created 1); sphere I, City § by art. created \ Serv., Inc., 440 tion. Wrecker v. Clint's olis (con (Ind.Ct.App.1982) 737, 741-42 N.E.2d cer- right underlies Further, privacy this I, art. - violated statute sidering whether including legislature, of our acts tain Eagle-Union Meury 1). And § 16-86-4-8, allows which Code held Court Corp., Cmty. Sch. to execute adults mentally competent necessary "the to show failed had plaintiffs declaration, will life-prolonging-procedures con their state to a violation" predicate recog- voting, which relating to laws such not rights, privacy stitutional privacy tо are entitled that Hoosiers nize Meury, 714 not did exist. rights voting their the exercise to regard with denied. trans. (Ind.Ct.App.1999), 233, 242 (re- § 3-11-10-28 Ind.Code See rights. "state consti to a case in that referred We to given be privacy degree same quiring Id. privacy." invasion for tort tutional at voters enjoyed as voters absentee arenas, rec we have (re- other countless I.C.>§ 3-11-15-18.3 places); polling justified are citizens ognized given be degree of same quiring matters that some their belief en- voters visually impaired blind For display. public involuntary subject to voters). priva- by other joyed evalua "employee an found example, we § 5- Code in Indiana recognized cy is also Door Open to Indiana's law exception tion" excep- numerous 14-3-4, provides take evaluations employee "permit{ ] requirements disclosure public tions preven n the] [and] private place personnel for session records governmental embar public experiencing employee test scores employees, public files of 'or of his critique related rassment diaries, personal examinees, journals, need avoid[ ] performance her work in- identifying records, and notes, medical reputation." employee's injury to less cus- library patrons about formation *7 N.E.2d Middlebury, 753 Town Baker v. of utilities, among others. public of tomers denied. trams. (Ind.Ct.App.2001), 67, 72-73 crimi- even $ 35-46-1-15.1 Indiana Code that Hoosiers recognized have also We of an "invasion regarded actions nalizes their to regard with privacy to right have privacy." deliberations, see and jury service privacy right that the recognize We 1019, 1032 State, 798 N.E.2d v. Williams of as one stated explicitly been has never denied; telephone their (Ind.2003), reh'g Therefore, we dimension. constitutional State, 790 v. conversations, Henson see has been heretofore explicit what make trans. (Ind.Ct.App.2008), 524, 534 N.E.2d of citizens implicit: communications, marital denied; their have and inherent privacy of right fundamental 1140, State, N.E.2d 783 v. see Overstreet -- constitution. state by our protected denied, U.S. (Ind.2003), cert. 1155 today precisely not decide we need While 1044 1145, L.Ed.2d ---, 124 S.Ct the substan- privacy-or right what law addition, common (2004). 1, by I, § animated of article content tive principle embraces doctrine tort privacy-encompasses, core value Creel See interеst. cognizable is a privacy it extends no doubt have we Assocs., Inc., 771 N.E.2d I.C.E. & v. health our about decisions to make right torts (recognizing (Ind.Ct.App.2002) minds and bodies. integrity intrusion by privacy invasion life, At the extremes of right includes pendence of the individual and a concept right to make procrea- decisions about of natural individual rights that form the tion and about the cessation of life-sustain- basis for political sovereignty and self- ing devices and treatments. Included government. Thus, life, liberty, and the within protection to make pursuit of happiness are the categories decisions about our healthcare the in- of rights specified in this section. The tegrity of our minds and bodies is the specific, substantive content of these in- decision to terminate pregnancy. volves variety of liberties ranging from Privacy
B. as a procreation, Core Constitutional travel to holding Animating office, Value I, § Article entering into contracts practic- ing religion, and engaging in business When a claimant alleges that a practices to voting. state action violates a constitutional guaranteed by a provision William P. McLauchlan, of the Indiana The Indiana State Constitution, we look to analysis Constitution: A set Guide 83 Reference (1996). forth our supreme court in. Price v. State, 622 (Ind.1993), N.E.2d 954 reh'g de The seope of article 1 has been of I, nied. explained As by the Price court: interest judges since the unveiling of "[There is within each provision of our the 1851 Constitution. In Justice Bill of Rights a cluster of essential values Perkins of the supreme court considered which the legislature may qualify but not provision light of history. Mad- alienate. A right is impermissibly alienat ison & Indianapolis R.R. Whiteneck, ed when the State materially burdens one (1856). Ind. 217 Justice Perkins contrast- of the core values which it embodies." Id. ed the tyranny of governments adminis- at 960. The court then explained that tered the principle that the people determining which core values animate a were utterly destitute of all rights-gov- particular guarantee judicial ais question; ernments actuated "a restless desire of it, deciding a reviewing court must look governing too much"-with the type of to the purpose for which guarantee government people who came to this was adopted and the history of Indiana's country put place in order to emanci- 961; scheme. Id. at see also pate themselves from tyranny such and to City Chapel Evangelical Free, Inc. v. City safeguard their natural rights: South Bend ex rel. Dep't Redev., Such object was the and intention of the (Ind.2001) (applying this framers of our constitution, in regard to analysis to claim that statute violated natural rights. They designed the first *8 guarantee of freedom of religion in Indiana section of it aas provision, fundamental Constitution). binding up the power. It was: Looking to history the of Indiana's con- necessarily general. They could not stitutional scheme and the purpose of arti- look down the stream of time and see all I, 1,§ cle we hold that privacy is a core the cases wherein it proper would be for constitutional value embodied by pro- this a government state to exert legislative vision. As stated in The Indiana State power, specify them and exelude all oth- Constitution: A Guide: ers, Reference thus protecting rights reserved; the
The rights inalienable protected guar- nor they could anticipate all the various anteed I, here [in § 1] are those attempts might that be made to invali- article rights and liberties inherent in а sense date rights, these expressly prohibit of democracy that derives from the inde- them. They did specifically prohibit rich unwise; the the weak; than the wise But experienced. had they such as the man than the white poor; than the not exclude did attempts
naming such Delegate Smith And at 967. by general the Id. black." others of prohibition the right equally the Further, we "Have we inquired,; provision. fundamental it, enjoy in- the were happiness, pursue restraints ... these may say that Id. at legislative it?" the to obtain upon operate and the tended this will that suppose we though power, substantive, en judicially Although the to the con- come We denied.... not be have his provision this rights of forceable de- should then, courts clusion, that the acknowledged primarily torically been fun- of in violation a clare void law rights, of economic context the constitution-a principle damental have demonstrat decisions Court Supreme of rights the natural of in violation law limited. not so is provision the that ed =_ man. Lawrance, 579 N.E.2d See, Matter e.g., of fully persuaded .We at Id. 227-29. I, source § 1 as the (citing article at 39. just, privacy personal right of the op "the includes liberty, which inalienable necessary right, a a natural such correlate except life one's own manage portunity life, liberty, and guarantees body up 'to yielded areas in those protected explicitly happiness pursuit at Tyndall, Voelker politic"); I, § 1. article police a involving case in a (stating, consider- to Justice In addition Perkins' fingerprints, retention department's re- various provision ation of is a "well-estab right of that the Con- at the 1850 marks made delegates law natural doctrine, derived lished confirm Convention stitutional Federal by both guaranteed foremost was rights ofnatural protection Constitutions"). today's hold Given of our state framers minds of in the con considering the Clinic's court ing, the article they considered when constitution § 16- to Indiana Code challenge stitutional Conven- I, § Debates 1. See 1 stat whether determine must 34-2-1.1 (1850). Rariden Delegate As 952-974 "material burden" imposes ute stated, I, § 1. in article privacy enshrined right of opinions for respect A. decent restriction explained As Price duty should it makes world that we burden" a "material amounts changed have that we mankind tell impaired, right, if the core value We government. theory of civil whole it for which purpose serve the longer no theory, power that all upon the out start n. Price, at 960 designed. was have people people; in the 7.5 they self-government-that capacity Requirement" Trip the "Two Does II. natural is a and there rights, innate have Privacy? Materially Burden rights.... equality require trip "two statute's Gordon Delegate Further, Id. at 955. anof from the combination ment" results equality natural only "The opined, among *9 and a requirement counseling in-person and in this rights; equality an men is waiting period-re mandatory 18-hour strong all men respect equal. Baker, Judge that, by as noted quirements than rights natural no more have right to ob- underlying their privacy value of instance, then, burden a material this 5. In j equivalent to a tain abortions. access to abortion women's core constitutional burden material exist for no other procedure medical in Ultimately, the court concluded that Indiana. Because a woman seeking to twenty-four ob- hour waiting period did not tain an abortion has a constitutionally-pro- impose an undue burden on a woman's tected right privacy, the court consider- to terminate a pregnancy. Id. at ing the constitutionality 887, statute S.Ct. 2791. must determine whether its two trip re- Given today's recognition of a right of quirement materially burdens that right. privacy protected by the Indiana Constitu- As court, stated the Price "material tion, this Court is unwilling agree analysis, burden" a rationality unlike inqui- the 18-hour waiting period does not im- ry, only looks to the magnitude of the pose a material burden-our state stan- impairment: "If right, impaired, dard-on the core constitutional value of longer no serve the purpose for privacy simply because a 24-hour waiting
which it
designed,
was
it has been materi-
period
upheld
was
in Casey. We find that
ally
Price,
impaired."
The United such a States Supreme burden. Court con Dismissal sidered a therefore was statute inappropriate. Instead, with a similar waiting fur- period ther requirement-but proceedings are necessary not an in-person order to permit the counseling requirement-in Clinic an opportunity to present Planned Par enthood evidence. Southeastern Pennsylvania v. Casey, 833, 505 U.S. 2791, S.Ct. presented Evidence in cases in which (1992). L.Ed.2d 674 In Casey, plain waiting periods are struck reveals down tiffs challenged a Pennsylvania law that myriad there are practical difficulties required a woman seeking an abortion to mandatory and health risks associated with
receive counseling at
least
twenty-four
lays;6
conversely, there appears to
de
hours before the abortion is performed,
be scant evidence that an externally-im
arguing that the law violated the United
posed waiting period actually leads to fur
States Constitution. The court reaffirmed
ther reflection or soul-searching on the
the essential holding of Roe v. Wade that
part of the woman seeking to obtain an
the decision to terminate a pregnancy is
abortion.
instance,
For
one state court
within a
liberty
woman's
interest but stat
down,
that struck
post-Casey, waiting
ed that
is not unlimited and that
period requirement
aas
violation of may
limit or cireumseribe this
state constitutional right
wrote:
right. See Casey, 505
845-46,
U.S. at
... suggest
"Studies
that a large majority
2791; Roe,
S.Ct.
113,
410 U.S.
98 S.Ct.
of women who have endured waiting peri
(1973).
1052 entitled to is pregnancy her to terminate by the troubled also
Moreover, arewe waiting de- as a woman who underlying respect the same assumption implicit con- in the abortion «The requirement fetus to term. period carry the cides Stevens, by Justice denies women As discussed mandatory waiting period text. in dissented part in who concurred respect. equal that Casey opinion: from the part 918, 112 2791 S.Ct. at Casey, 505 U.S. argu- ... wаiting period 24-hour The and dis- (Stevens, J., concurring part in inter- Commonwealth's ably furthers senting part). of which is in neither ways, in two ests First, it constitutionally permissible opportu- an allowed should be The Clinic delay is 24-hour that the argued may be nity present evidence nature likely that it is fact the mere justified by the severity of 'the burden imposed abortions, thus the number to reduce in-person waiting period statute's interest furthering the Commonwealths Moreover, requirements. counseling argument an But such life. potential in considered not be should requirements coercion that form of any justify imposition as it is the separately, path. in the woman's an obstacle placed appears so burden- its further two tandem cannot The Commonwealth wearing down consent stat- simply informed interests some. Under to exer- woman pregnant ability seeking an issue, at a woman ute here Second, it right. constitutional cise her in-person counseling must receive abortion argued that reasonably be more hours eighteen at least must do so and she can the Common- delay furthers 24-hour thus, performed; is procedure before the ensuring that interest wealths standing alone requirement either while decision woman's muster, that is may pass constitutional no evidence there But thoughtful. legislation. by the mandated procedure delay benefits women the mandated trip the two plausible it is Because necessary to enable the it is or that Code 16-84-2- of Indiana requirement infor- convey any relevant physician impose a material found to 1.1 could be mandatory patient. mation to the constitutional value on the core burden outmoded to rest on delay appears thus granting court erred the trial privacy, assumptions about unacceptable 'and therefore di- We the motion to dismiss. women.... capacity decisionmaking com- reinstate the trial court to rect the liberty to Part of the evidentiary hearing an and conduct plaint each dignity to which equal choose is the on this issue. who decides A woman of us is entitled. Health, League v. Mass. Bellot Planned Parenthood 462 Reproductive Center
Akron see, 2481, 1006, Cir.1981); ti, (1st 416, 76 L.Ed.2d S.Ct. F.2d U.S. 772, Carey, 627 F.2d 785-86 eg., v. waiting period Charles (1983), down struck (24-hour (7th Cir.1980) waiting period); number of as unconstitutional-a requirement 22, Stumbo, F.Supp. 24-26 v. requirements un waiting period Wolfe found courts (24 hours); 1981, Margаret S. v. Ed (W.D.Ky.1980) As one court wrote constitutional. (E.D.La wards, F.Supp. 212-13 proven a requirements have 'Waiting period Olson, hours); regulation in recent .1980) (24 F.Supp. Leigh abortion popular form of (48 hours); yet (D.N.D.1980) Supreme Court has years, 1347-48 and while Cohen, 477 validity they generated a Ctr. v. Cmty. have pass on their Women's Health (48 hours). (D.Me.1979) decisions. These F.Supp. lower court 550-51 proliferation of divided, holding these majority or all of with a some It is not clear whether courts have by Casey. implicitly reversed have been cases requirement. unconstitutional." such
1053
III.
Speech
Freedom of
prohibiting speech, the First Amendment
may also prevent
government
The Clinic also asserts that
in
compelling individuals to express certain
formed consent statute violates its state
views. United States v.
Foods,
United
right
constitutional
to freedom
speech
of
Inc.,
405, 410,
533 U.S.
by
121
"compel[ling]
2334,
S.Ct.
physicians
to state and
(2001).
to hear the
L.Ed.2d 438
message
State's
as a
"There is
certainly
women
some
condition
provision
difference
and receipt
compelled
of
speech
between
and compelled silence,
abortion
Appellant's
services."
Br.
but in
p. 20.
the contеxt of
speech,
protected
presents
the differenceis without
This
question
of first impres
sion in Indiana: Does the right
significance,
to freedom constitutional
for the First
of speech protected by
I, §
article
9 of the Amendment
guarantees
'freedom of
Indiana Constitution extend to
right
speech,
a term necessarily comprising the
refrain from speaking,
i.c. compelled decision both what
say
and what not
of
speech?
does,
We hold that it
but we find
say."
Riley v. Nat'l Fed'n
the Blind
of
that the informed
statute at issue
N.C., Inc., 487
781,
U.S.
796-97,
consent
in this case does not unconstitutionally in-
2667,
S.Ct.
(1988) (Court's
The United Supreme States has mandates that providers abortion orally Court stated unequivocally just as the convey specified First information to women Amendment to the United States Constitu- seeking abortion, to obtain an violates the may prevent government from abortion providers' state *12 Id. at parties. upon determinable making tort law In speech.8 freedom
right to 964. determination, that statutes we note this until constitutional presumptively Here, argues that the State the Clinic Wrecker Clint's clearly proven otherwise. that an "abuse" proving has the burden The bur
Serv., Inc.,
at 740.
infor-
informed consent
occur if the
would
is on
presumption
the
overcoming
den
the woman
withheld from
mation was
must be
all doubts
challenger,
the
argues:
The Clinic
an abortion.
seeking
him. Id.
against
resolved
situation
compelled speech
In the
the
I, §
that
9 must
Here,
of its contention
of article
support
portion
"abuse"
violates the
consent statute
com-
properly
be
speech
mean
can
the
that
speak
pelled
lead to
if
to
the
speak,
not to
providers'
abortion
failure
First,
the
arguments.
Therefore,
two
advances
show-
Cliniс
absent somé
abuse....
compel
speech
the
that the Indiana
of the need to
ing
Clinic asserts
Legislature
pro-
abuse,
beyond
it
the
to order abortion
to avoid
here
authority
lacks the
mandatory
Legislature
information
to
'authority of
provide
to
viders
the Indiana
provide
to
compel
providers
abortion
to
showing
"of the need
is a
there
unless
...
to avoid abuse."
speech
the
compel
information.
mandated
Second,
22.
the Clinic
p.Br.
Appellant's
agree
cannot
p.Br.
22. We
Appellant's
by the
speech compelled
the
asserts that
application of
interpretive
with the Clinic's
materially bur-
statute
informed consent
com-
analysis in the context of
"abuse"
politi-
value
core
dens the
pelled speech.
each
consider
speech. We
cal/ideological
Price, a claimant
According to
in turn.
argument
ap
an
constitutionality of
challenging the
in the Context
A. Abuse
disorderly conduct statute
plication
Compelled Speech
proving that
the burden of
"retains
First,
Legisla-
reasonably conclude that
asserts
could not
State
that
Clinic
was an 'abuse.'"
restricted
providers to the
compel abortion
ture cannot
expression
669 NE.2d at 1869.
Whittington,
information 'unless See
certain
communicate
Nonetheless,
no affirmative bur
there is
required
prevent
information
that
expression
"lies
that
Abuse
abuse.
that
of the
part
prove
den
was
challenged
of a
statute
of indi-
the enactment
injures
rights
the retained
remedy 'an "abuse" that
necessary to
efforts
or undermines
State's
viduals
Price,
in the absence of the statute.
622 would occur
enjoyment."
their
to facilitate
consti
Price,
presumptively
statutes are
In
court stated
at 959.
Indeed,
N.E.2d
clearly proven
until
otherwise
tutional
unconstitutional
to sanction
that
it was
Serv.,
Wrecker
challenger.
in-
See Clint's
speech
speech
unless the
pure political
Inc.,
determining
at 740.
under
required
similar
flicted harm
government's
(holding that the
constitutionality
S.Ct. 1428
Analyzing
of a statute
8.
significantly
sufficiently
requires
§
different
com-
under
were
asserted interests
employed
the First
approach
under
than
outweigh
Amendment in-
pelling to
the First
Conkle,
See Daniel O.
stake).
Amendment.
at
As stated
terest
Emerging
Supreme
Free
Court's
court,
speak
trigger
"[The
Doctrine,
(1994);
Speech
69 Ind. LJ. 857
of restriction.
In constru-
clause is the notion
notably,
analysis
Most
does not involve
concept, we
the siren
ing
important
resist
balancing
competing interests of
test of the
jurisprudence."
song
Amendment
of First
challenging
government
person
and the
Whittington, 669 N.E.2d
at
Wooley,
legislation.
430 U.S. at
See
constitutionality
statute,
of a
have ceded a quantum of their "natural"
Court
only
looks
legislative
act it
rights in exchange for "receiving the
self, limiting ourselves "to the narrow role
advantages of mutual commerce." The
of determining whether challenged state
aggregate of
concessions,
these
often
*13
action has some reasonable relation to or
called the state's police power, consti-
tendency to promote the
legitimate
state's
tutes the authority by which the advan-
interests." Whittington, 669 N.E.2d at
tages of political community are secured.
1369; see
State,
also Hanley v.
234 Ind.
light,
Viewed
police power is
326, 334,
(1954) (stat
123 N.E.2d
properly understood as the right of indi-
ing that
if
legislative
act is properly
viduals, collectively, to ensure
pro-
and
challenged, "it then becomes
duty
the
mote
order,
the
safety, hеalth, morals
the
courts
review
legislation
such
and general welfare of the community.
determine whether
it relates to and is Price,
(internal
Interpretation of at 960 (citing Milharcic v. Metro. Constitution is by itself, controlled Bd. Zoning the text Appeals, illuminated history purpose (Ind.Ct.App.1986)). and structure of our constitution and the [There is within each provision of our case law Price, surrounding it. Bill Rights a cluster of essential val-
N.E.2d at 957. Our court, in ues which legislature may qualify State, Price v. set forth the following his but not alienate. A imрermissi- is torical analysis of our Constitution: bly alienated when the State materially design [The] reflects the influence of the burdens one of the core values which it natural rights paradigm ascendant dur embodies. Accordingly, while violating ing Indiana's years. formative Under a rational statute will generally consti- theory, individuals are deemed to 9,§ tute abuse under may at issue expression Because placed. doing so would when expression
punish bur material a Price speech, political a core not burden a material impose inappropriate.9 analysis den value. Price, omitted). (internal citations Id. requirement. speech Instead, that' concluded ultimately the court within falls statute consent case was in that scrutiny under speech police state's ambit of regulatory constitu- core speech"-a political "pure only a satisfy such, and, must power ap- $ 9-and enshrined value tional This review. reasonableness rationality or conviec- conduct disorderly plication two-step following adopted has Court free burden material imposed *14 the constitutional determining analysis for at 964-65. Id. speech. of free exercise permissi the against act legislative ity of to restric challenges Price, § 9 Since power: police of the ble bounds directed been have speech free on tions health, the promote First, it tend to does the disor application the exclusively to education, good order morals, peace, Seq, Whitting e.g., statute. conduct derly specifical- More people? welfare State, 1363; v. ton, N.E.2d 669 Radford or some evil correct tend to it ly, does trams. (Ind.Ct.App.1994), N.E.2d If of the state? interest some promote not has court And denied. wisdom, necessity the yes, is the answer category any other recognized yet solely within the law policy cluster core value the within speech The legislature. the jurisdiction the Thus, See id. speech:. political except narrow, equal- but more inquiry, second persuade to attempt generally claimants particular the is whether ly important, political pure speech their that the court a reason- serutiny bears under statute ac protections the invoke to so as speech to accom- relation and substantial able If a claim speech: category corded this step established purpose the plishing expressive her or that his show ant can © one. the burden then political, activity was its to demonstrate Inc., the at Serv., to 440 N.E.2d shifts Clint's Wrecker materially Gorton, not burdened has Towing, action Inc. Crane (quoting free engage (1977)); to opportunity claimant's P.2d 89 Wash.2d at Whittington, 669 expression. Money, 228 ex rel. v. State Bruck see also (1950) ("Our 1369. 349, 353 189, 91 N.E.2d Ind. consistently held have courts matter, find the Clinic's we general aAs public protect to used or means methods val core constitutional Price's on reliance morals, or welfare safety order, health, mis to be in this instance analysis ue law," the Clin- we decline under color statute argues challenged "the Clinic 9. The expand that definition govern- invitation provide ic's compels providers Whittington, speech. policy "ideological" favor- espousing social message include ment's .abortion, forcing Second, effect ing proper over in- childbirth at 1370. speech with engage political from to refrain them to is whether quiry here Reply Br. Appellant's may agree." they not in thе contained conveying the information First, conten- disagree with the value; we p. 16-17. a core constitutional implicates statute tion, consent language of the informed politi- speech is not we find that because as it does speech," "political statute right to cal, whether not decide we need action, whether government "comment speech making. political refrain a new proposing policy or applauding an old heightened deserving of the itself be same or one, for office opposing a candidate protection. acting of an official criticizing conduct must have ing to obtain an reasonable relation to the abortion.11 Accordingly, some view."). end in reject we the Clinic's contention that the speech unconstitutionally statute's statute requirement infringes on does promote providers' tend to abortion health welfare speech. free seeking women abortion, obtain an Reversed. which is a legitimate interest, by state advising women of the proce risks of the KIRSCH, C.J., concurs. Moreover, dure. requiring pro abortion viders among other things to orally convey BAKER, J., concurs in part and dissents the information contained in the informed in part with separate opinion. consent statute to women seeking to obtain an abortion undoubtedly bears reason BAKER, Judge, concurring in part and able and substantial relation pur ~- dissenting in part.
pose of health, promoting the safety, and The law is dialectic in deeper sense welfare of such Appellee's women. Br. p. than its process. It Indeed, mediates adversary consent statutes ex *15 most significantly between right ist in many and areas of medical care addi 1 right." Today we are See, charged to with pre abortion.10 eg., Ind.Code cisely type of mediation-the woman's § 16-28-14-2 (immunizations); Ind.Code right to an abortion government's (court-ordered the § 16-41-6-2 tests for com right diseases); regulate municable the § same. I fully Ind.Code 16-41- concur to (blood donation); with III of the majority's Part 12-15 opinion. § Ind.Code 16-41- (semen donation); However, 14-13 I § must Ind.Code 34- dissent from majori the ty's 18-12-38 (generally). Although the in determination that a right to privacy formed consent may statute at be I, issue in found in this case Article section 1 of the differs somewhat from general Indiana Constitution. I further disagrеe consent statutes that exist question for that the proce other of whether the eighteen- dures, we find that hour and in-person the statute requirements are a nonetheless falls within the regulatory ambit of the material burden is a question of fact that police State's power and has some reason should be to the trial court. remanded able to relation or tendency promote to the Because I believe that requirements these State's legitimate interest in promoting facially the are discriminatory and not ration health, safety, and welfare of women ally seek related to a legitimate goal, state I 10. And of regulatory course the ambit of agree the 11. We with the Clinic that is an there police power State's is not limited to health ideological component to the informed con- instance, care. For § Indiana Code 22-2-2-8 statute, (1)(D) (2) sent sections particu- requires employers subject to the minimum lar. But we find that the statute nonetheless wage post copy law to wage regula- the bears a rational relation to the State's inter- conspicuous tions in a place in the area est. where employees employed. are Indiana § Code requires 15-5-13-6 the labels of com- Freund, 1. Paul "Legal Frameworks for Hu mercial livestock feed to contain certain infor- Experimentation," man Experimentation mation, while § Indiana Code 16-42-2-1 re- Subjects (Paul Freund, with Human quires designation the optional ingredients ed.1969), quoted Dworkin, Roger B. Limits be named on food labels required by where i (1996). Also, the state department. Code requires 24-4.5-3-301 by disclosure borrowers, lenders of consumer loans to to name examples. a few Therefore, supreme our as articulated re without trial court reverse I, in Article lies court, right privacy manding. Constitution. 21 of the Indiana section job in superb have done colleagues
My
right
pri-
has a
why Indiana
explaining
Indiana Constitution
under the
Rights
rather,
However,
the conclusion
question
I
vacy.
but
penumbras,
hide within
cannot
may
found
be
source
that the
Indiana Con
arising under the
"questions
Con-
I,
1 of the Indiana
section
examining
in Article
resolved
be
stitution
suggested
court
supreme
Our
stitution.
framers,
language
of the
intent
may instead be
privacy
right to
history sur
in the context
the text
ex
I,
in Article
section
found
ratificatiоn, and
drafting and
rounding its
court
supreme
Tyndall, Mavity v.
rel.
specific provi
interpreting the
law
case
it was
whether
issue of
faced with
was
Deery,
ex rel. Jordan
Jordan
sions."
Amendment
Fourteenth
a violation
(Ind.2002).
Our
N.E.2d
Arti-
Constitution
States
to the United
Law
in Matter
indicated
supreme court
21 of the
I,
1 and
sections
cle
(Ind.1991),
rance,
the de-
to hold
police
Constitution
op
liberty "include[s]
principle
fingerprints
photographs
fendant's
except
life
manage one's own
portunity
(Burns
47-857,
seq.
et
to section
pursuant
body
yielded up
in those areas
(1947)
1940).
cireumstances, and which Weinberg v. know." want to person (Ind.1999). n. 5 Bess, purpose Thus, only plausible requirements in-person eighteen-hour patient. information provide is to no medical uncovered has My research FAMILY MUTUAL FARM UNITED abortion, than other in Indiana procedure COMPANY, INSURANCE only performed be can by definition Appellant-Defendant, attending woman, in which upon a informa provide required is physician eighteen presence patient's in the MICHALSKI, and Riverside Harold A woman's procedure. Marina, Inc., hours before Lounge & about decision an informed make ability to Appellees-Plaintiffs. by the fact affected is not health
her own 45A03-0310-CV-00393. No. therefore, and, there pregnant, that she legitimate relationship to the no rational Indiana. Appeals of Court medical providing interest government Sept.20,2004. to receive women requiring information *18 men. differently than information must re women Nothing indicates differently from information medical
ceive facially discrimi men, suggest so and to natory. it is unnec- sum, I am convinced inas- trial court to the remand
essary to in-person eighteen-hour much discriminatory facially requirements relationship to no rational and bear pa- information goal providing no more do requirements tient. These