CLINIC FOR WOMEN, INC., Appellants (Plaintiffs below) v. Carl J. BRIZZI, Appellee (Defendant below)
No. 49S05-0501-CV-31
Supreme Court of Indiana
Nov. 23, 2005
837 N.E.2d 973
A long line of Court of Appeals opinions has interpreted the language in
To clarify, we agree the Court of Appeals’ analysis of the statute of limitations in the present case correctly focused on the last date “for which” compensation was paid rather than the last date “on which” compensation was paid. We therefore grant transfer, adopt that portion of the opinion of the Court of Appeals that addresses the statute of limitations, and incorporate it by reference. See
All Justices concur.
Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, Simon Heller, Janet Crepps, Pro Hac Vice, Center for Reproductive Rights, New York, NY, Attorneys for Appellants.
William J. Wood, Indianapolis, Attorney for Amici Curiae Indiana Catholic Conference.
Eric Allan Koch, Bloomington, Paul Benjamin Linton, Northbrook, IL, Attorneys for Amici Curiae Members of the Indiana General Assembly.
RUCKER, Justice.
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.
Background
In Roe v. Wade, the United States Supreme Court held that statutes enacted by the legislatures in Texas and Georgia violated an abortion right provided and protected by the United States Constitution. 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147
A few years after Casey was decided, the Indiana Legislature enacted the statute at issue in this case. (A federal court would later note that the text of the Indiana statute “is materially identical to one held constitutional” in Casey. A Woman‘s Choice-East Side Women‘s Clinic v. Newman, 305 F.3d 684 (7th Cir. 2002).) The Indiana statute (1) provides that a woman seeking an abortion must give her informed consent prior to the procedure, and (2) 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.
In 1995, several health care facilities that provided abortion services and a physician who performed abortions filed suit in federal court contending that this Indiana statute violated the abortion right recognized by Roe v. Wade. Ultimately, the federal courts held that the statute did not violate the United States Constitution. See A Woman‘s Choice, 305 F.3d at 693.
The plaintiffs in this case include some of the plaintiffs in the federal litigation just mentioned. They filed this lawsuit in 2003, shortly after the federal litigation came to an end, seeking a permanent injunction against the enforcement of the statute. They contend that although the federal courts have held that this statute does not violate the abortion right recognized by Roe v. Wade, it was nevertheless beyond the power of the Legislature to pass this statute because it violates provisions of the Indiana Constitution. Specifically, they first maintain that the statute violates
After considering the parties’ arguments, the trial court dismissed the complaint without explanation. The Court of Appeals affirmed in part and reversed in part. Clinic for Women, Inc. v. Brizzi, 814 N.E.2d 1042 (Ind.Ct.App.2004). It rejected the plaintiffs’ contention that the statute violates
Discussion
As the Court of Appeals acknowledged, its decision finding a “fundamental right of privacy inherent in and protected by our state constitution” has “never been explicitly stated.” Clinic for Women, 814 N.E.2d at 1048. The State argues to us that the fact that no such constitutional right had been stated before should have caused the Court of Appeals to infer that no such constitutional right exists. Pet. to Transfer at 5-6. The State further contends that
I.
Both the State and the plaintiffs focus on whether
Rationality inquiry . . . has historically centered on whether the impingement created by the statute is outweighed by the public health, welfare, and safety served. “Material burden” analysis involves no such weighing nor is it influenced by the social utility of the state action at issue. Instead, we look only at the magnitude of the impairment. If the right, as impaired, would no longer serve the purpose for which it was designed, it has been materially impaired.
Id. at 960-61 n. 7 (citations omitted).
With one exception, our courts have been faced with the Price “material burden” standard only in the context that certain state action is unconstitutional as applied in a given case.6 Most cases in-
In this case there has been no claim that
The federal circuit courts are in disagreement on the standard governing facial challenges to statutes under the federal Constitution. Before Casey, the standard set forth in United States v. Salerno, controlled:
A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the [statute] might operate unconstitutionally under some conceivable set of circum-
stances is insufficient to render it wholly invalid . . . .
481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (involving a constitutional challenge to the Bail Reform Act of 1984). In Casey, the Supreme Court did not mention or cite Salerno, but rather announced a new standard: “undue burden.” Under this standard a legislative enactment violates the federal Constitution if “in a large fraction of the cases in which [the statute at issue] is relevant, it will operate as a substantial obstacle to a woman‘s choice to undergo an abortion.” Casey, 505 U.S. at 895, 112 S.Ct. 2791. If the “undue burden” standard applies, then a facial challenge no longer needs to demonstrate that application of the statute results in a constitutional violation every time, only that application of the statute results in a constitutional violation “in a large fraction of the cases” in which the statute is relevant. Some federal circuit courts have determined the Salerno test continues to apply in the context of facial challenges to abortion statutes.8 Other circuits have determined that the “undue burden” standard applies.9
Whether the Salerno standard for facial challenges survives Casey for purposes of federal constitutional law is of no moment in this case. Regardless of the standard applicable to legislative enactments challenged under the federal Constitution, this jurisdiction applies the Salerno standard to facial challenges under the Indiana Constitution. More specifically we have determined:
When a party claims that a statute is unconstitutional on its face, the claimant assumes the burden of demonstrating that there are no set of circumstances under which the statute can be constitutionally applied. Although we have never explicitly said that this principle applies to state constitutional analysis as well as federal, we have suggested as much. We now so hold.
Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.1999) (citations omitted) (rejecting plaintiffs’ contention that the Seatbelt Enforcement Act is unconstitutional on its face). This is a heavy burden, which the plaintiffs here have not met.
Challenging the plaintiffs’ complaint, the defendants filed a motion to dismiss under
In this case, even if taken as true, the material allegations contained in the plaintiffs’ complaint do not support their claim that
Although abortion is safer than childbirth, the health risks associated with abortion increase significantly with delay. The longer women delay in obtaining abortion services, the greater the cost of the care. . . . The challenged statute will compel many women seeking abortions to delay in obtaining an abortion; to travel to a neighboring state to obtain an abortion; to carry pregnancies to term; and to pursue alternatives to legal abortion to end their pregnancies. Each of these alternatives will cause foreseeable psychological and physical harm, as well as economic and other injuries.
Appellants’ App. at 14. First, the health concerns outlined in the complaint already have been addressed. The statute itself contains a medical emergency carve-out from the 18-hour waiting period. And responding to a certified question from the federal district court we held, “the statute permits immediate abortion far short of medical calamities. An attending physician may dispense with the statutory informed consent requirements when she concludes in her best clinical judgment that her patient‘s condition indicates an abortion is medically necessary.” A Woman‘s Choice, 671 N.E.2d at 110.
This leaves, then, the increased cost of care that will be occasioned by the 18-hour delay and that many women may (i) delay obtaining abortions, (ii) travel to other states to obtain abortions, (iii) carry pregnancies to term, or (iv) seek alternatives to legal abortions. Setting aside the fact that “many” is not readily quantifiable, the fact that some unknown number of women may be adversely affected by the delay obviously means that not all or perhaps not even most will be so affected.
As for the increased cost of care, even assuming all women on whom the 18-hour waiting period is imposed will face economic hardship, “a law or ordinance does not violate the Constitution solely because it directly or indirectly results in economic hardship . . . .” Martin v. Stites, 203 F.Supp.2d 1237, 1251 (D.Kan.2002) (rejecting claim that economic hardship arising out of method by which towing contracts were awarded deprived plaintiff of protected liberty interest). See also Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) (Court upheld constitutionality of statute requiring fetal viability testing, despite the fact that tests would increase costs of abortion by several hundred dollars).
Again, it is important to emphasize that in this facial challenge to the constitutionality of
II.
Although we are of the view that the plaintiffs’ challenge to the constitution-
If presented with a claim that a legislative enactment or other state regulation as applied infringes upon a constitutional right, the degree of the alleged infringement will be assessed to determine whether it is constitutional. This assessment must be made using the appropriate standard of review. We first address the appropriate standard for reviewing whether the statute here violates any right to privacy or right to abortion provided or protected by
A.
As a matter of federal constitutional law, Casey announced that the proper standard of review for the constitutionality of restrictions on the abortion right before viability would henceforth be whether “state regulation imposes an undue burden on a woman‘s ability to make” the decision to terminate her pregnancy. Casey, 505 U.S. at 874, 112 S.Ct. 2791.
The Supreme Court explained the undue burden standard as follows:
A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman‘s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman‘s choice cannot be considered a permissible means of serving its legitimate ends. . . .
Some guiding principles should emerge. What is at stake is the woman‘s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman‘s exercise of the right to choose. Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal.
Id. at 877-78, 112 S.Ct. 2791 (citations omitted).
B.
The standard of review applicable to federal constitutional review does not control state constitutional review.10 As a matter of state constitutional law, Indiana courts have used a number of different standards of review, depending upon the particular constitutional right alleged to be infringed and the magnitude of it. The most exacting of these standards has been that established in Price, 622 N.E.2d at 959 n. 4, where we famously declared
In this case, as already stated, the Court of Appeals concluded that
In order to set to one side the question of whether the Indiana Constitution embodies a core constitutional value of privacy that includes a right to abortion, we assume the applicability of the Price “material burden” standard where the petitioners bring an as applied constitutional challenge to a statute.
Price declared that “[a] right is impermissibly alienated when the State materially burdens one of the core values which it embodies.” Id. at 960. “Material burden” analysis does not involve weighing nor is it influenced by the social utility of the state action at issue. City Chapel Evangelical Free, Inc., 744 N.E.2d at 447 (citing Price, 622 N.E.2d at 960 n. 7). As enunciated in Price, we look only at the magnitude of the impairment. If the right, as impaired, would no longer serve the purpose for which it was designed, it has been materially impaired. Id. The Court in Whittington v. State elaborated on these points: “[S]tate action does not impose a material burden on expression if either the ‘magnitude of the impairment’ is slight, or the expression threatens to inflict ‘particularized harm’ analogous to tortious injury on readily identifiable private interests.” 669 N.E.2d at 1370 (citations to Price omitted).12
C.
We find the operation and effect of the “material burden” standard of Price and “undue burden” standard of Casey to be
In Casey, that central principle—“[w]hat is at stake“—is “the woman‘s right to make the ultimate decision” to terminate her pregnancy. A regulation would be unconstitutional, i.e., it would impose an undue burden, if it had “the effect of placing a substantial obstacle in the path of a woman‘s choice.” This is so even if the regulation “further[s] the interest in potential life or some other valid state interest.” Casey, 505 U.S. at 877, 112 S.Ct. 2791.
Under Price, the central principle is “the purpose for which [the core constitutional value] was designed.” It seems apparent that if there is a core constitutional value of privacy implicated here, the purpose for which it is designed is a woman‘s right to make the ultimate decision to terminate her pregnancy—the same central principle at stake in Casey. A regulation would be unconstitutional, i.e., it would impose a material burden, if it has the effect of “the right, as impaired, . . . no longer serv[ing] the purpose for which it was designed,” Price, 622 N.E.2d at 961 n. 7; in this case, no longer permitting a woman to make the ultimate decision to terminate her pregnancy.
Price‘s more abstract language can be read to give the State somewhat more regulatory leeway than does Casey. Price can be read to say that a state regulation would constitute a material burden only if it totally blocked the path of a woman‘s choice—if it made it so that the right no longer served the purpose for which it was designed—whereas a regulation could fail Casey‘s undue burden test short of total blockage merely by placing a substantial obstacle in that path. We think this reading would incorrectly lessen Price‘s mandate. It is true, as Price says, that the material burden test is failed if a state regulation totally blocks the purpose for which the constitutional right was designed. But Price does not foreclose a lesser impairment also constituting a material burden. We believe and hold that a state regulation creates a material burden if it imposes a substantial obstacle on a core constitutional value serving the purpose for which it was designed; and we hold that in most circumstances, less than a substantial obstacle does not.
More broadly, we hold that Price‘s material burden test is the equivalent of Casey‘s undue burden test, at least for purposes of assessing whether a state regulation violates any fundamental right of privacy that may include protection of a woman‘s right to terminate her pregnancy that might exist under
III.
As previously noted, material burden review has only been applied to claims regarding the freedom of political expression protected by
When the Justices turned their attention to the waiting period requirement, they found that, “in theory,” it was “a reasonable measure to implement the State‘s interest in protecting the life of the unborn, a measure that does not amount to an undue burden.” Id. at 885, 112 S.Ct. 2791. The Justices then considered whether the waiting period requirement was “nonetheless invalid because in practice it [was] a substantial obstacle to a woman‘s choice to terminate her pregnancy.” They deemed this to be “a closer question,” in part because “the practical effect” of the waiting period meant that “a woman seeking an abortion [must] make at least two visits to the doctor.” While the Justices found to be troubling the findings of the district court that the waiting period requirement would be “particularly burdensome,” they held that the requirement did “not demon-
[U]nder the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. And while the waiting period does limit a physician‘s discretion, that is not, standing alone, a reason to invalidate it. In light of the construction given the statute‘s definition of medical emergency . . . ,13 we cannot say that the waiting period imposes a real health risk.
We also disagree with the District Court‘s conclusion that the “particularly burdensome” effects of the waiting period on some women require its invalidation. A particular burden is not of necessity a substantial obstacle. Whether a burden falls on a particular group is a distinct inquiry from whether it is a substantial obstacle even as to the women in that group. And the District Court did not conclude that the waiting period is such an obstacle even for the women who are most burdened by it. Hence, on the record before us, and in the context of this facial challenge,14 we are not convinced that the 24-hour waiting period constitutes an undue burden.
Id. at 886-87, 112 S.Ct. 2791.
To repeat, as a declaration of federal constitutional law, Casey does not in any way direct our determination of state constitutional law on this point. But both Casey and the case before us contend that virtually identical state regulations violate women‘s rights to terminate their pregnancies; Casey found that the regulation was not an undue burden on those rights;
When the Indiana statute at issue in this case was reviewed by the United States Court of Appeals for the Seventh Circuit, the court (like the Supreme Court in Casey itself) was in the procedural posture of reviewing a District Court judgment that had found, after trial, that the evidence presented by the plaintiffs demonstrated that the two trip requirement imposed an undue burden. The Court of Appeals reversed, concluding that the evidence the District Court found persuasive was not of the character to justify “depart[ure] from the holding of Casey that an informed-consent law is valid even when compliance entails two visits to the medical provider.” A Woman‘s Choice, 305 F.3d at 692. The court‘s reason for reversing was essentially that, while the District Court had relied upon studies showing that the number of abortions in Mississippi and Utah had decreased after the adoption of similar waiting period statutes, those studies did not prove what would happen in Indiana if the waiting period requirement took effect here. Id. at 692. (At the time of the Seventh Circuit‘s decision, the waiting period requirement had never taken effect because of the District Court‘s injunction.)
Of value to our analysis here are two other points made by the Seventh Circuit. First, it pointed to the language in Casey quoted above that held that Pennsylvania‘s waiting period requirement did not impose an undue burden, even assuming that the District Court in Casey had been correct in finding the waiting period requirement to be “particularly burdensome.” Id. at 691-92. Second, the Seventh Circuit took the position that, although it acknowledged that it did not have Supreme Court authority for this position and so rested its holding on alternative grounds, in order to assure a nationally uniform approach to enforcing the undue burden standard, “constitutionality must be assessed at the level of legislative fact, rather than adjudicative fact determined by more than 650 district judges.” Id. at 688. These two points together form a strong argument that we should assess the constitutionality of the statute based on the language of the statute itself and not on the outcome of the evidentiary hearing ordered by the Indiana Court of Appeals.
Shortly after Casey was decided, a challenge to a similar 24-hour waiting period statute came before the Ohio Court of Appeals. That court concluded that, as a matter of state constitutional analysis, the undue burden test was appropriate. Finding that the challenged Ohio statute was indistinguishable from the Pennsylvania enactment at issue in Casey, it held that there was no basis for concluding that the relevant provisions of the “Ohio Constitution impose[d] greater restrictions upon the state than [were] imposed by the United States Constitution as construed by the plurality opinion in [Casey].” Preterm Cleveland v. Voinovich, 89 Ohio App.3d 684, 627 N.E.2d 570, 578 (1993). The Ohio court went on to say:
In this case, we are guided by [Casey], which does establish the standards under the United States Constitution. Although the state is free to apply its own constitution differently from the way the United States Supreme Court determines the federal constitution should be applied, we find no reason under the circumstances of this case to find that the Ohio Constitution confers upon a pregnant woman a greater right to choose whether to have an abortion or bear the child than is conferred by the United States Constitution, as explained in the plurality opinion of [Casey].
More recently, the Mississippi Supreme Court decided a similar case. Under the Mississippi Constitution, there is a state constitutional right to privacy that includes “an implied right to choose whether or not to have an abortion.” Pro-Choice Miss. v. Fordice, 716 So.2d 645, 654 (Miss.1998). To analyze a claim that a 24-hour waiting period requirement violated that constitutional right, the court adopted Casey‘s reasoning that “the undue burden standard is the appropriate means of reconciling the State‘s interest with the woman‘s constitutionally protected liberty. . . . A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id. at 655 (quoting Casey, 505 U.S. at 876-77, 112 S.Ct. 2791). In adopting this reasoning, the Mississippi court said:
While we have previously analyzed cases involving the state constitutional right to privacy under a strict scrutiny standard requiring the State to prove a compelling interest, we are not bound to apply that standard in all privacy cases. The abortion issue is much more complex than most cases involving privacy rights. We are placed in the precarious position of both protecting a woman‘s right to terminate her pregnancy before viability and protecting unborn life. In an attempt to create a workable framework out of these diametrically opposed positions, we adopt the wellreasoned [sic] decision in Casey, applying the undue burden standard to analyze laws restricting abortion. We do not limit any future application of the strict scrutiny standard for evaluating infringement on a person‘s right to privacy in other areas.
Fordice, 716 So.2d at 655. The court went on to conclude that the 24-hour waiting requirement did not create an undue burden, in part because it ensured that “a woman has given thoughtful consideration in deciding whether to obtain an abortion.”15
IV.
We held that Price‘s material burden test is the equivalent of Casey‘s undue
Conclusion
Having previously granted transfer, thereby vacating the opinion of the Court of Appeals,
SHEPARD, C.J., and SULLIVAN, J., concur.
DICKSON, J., concurs in result with separate opinion.
BOEHM, J., dissents with separate opinion.
DICKSON, Justice, concurring in result.
I would affirm the trial court‘s dismissal of the complaint, thus reaching the same outcome as the majority opinion, but for different reasons. The majority leaves open the question of whether
It is important to realize what this case is not about. The issue before the Court is not whether abortion is morally right or wrong, or whether it is wise or unwise. These questions are vigorously debated among our citizens. Regardless of one‘s personal opinion on these issues, the proper resolution of this case is properly grounded on well-established principles of Indiana law.
Central to this case are the opening words of Section 1 in Article 1 of Indiana‘s 1851 Constitution:
WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being.
As we have repeatedly emphasized, the interpretation and application of provisions of the Indiana Constitution require a search for the common understanding of both those who framed it and those who ratified it. Furthermore, the intent of the framers of the Constitution is
In Sanchez v. State, this Court emphasized that “courts must be careful to avoid substituting their judgment for those of the more politically responsive branches.” 749 N.E.2d 509, 516 (Ind.2001). Identifying the phrase “all power is inherent in the people” in Section 1 as a “constitutional directive,” we found that it “suggests deference to legislation that does not run afoul of a specific constitutional provision.” Id. As we explained in Baldwin v. Reagan: “In our separation of powers democracy, the constitution empowers the legislative branch to make law. For this reason, every statute stands before us clothed with the presumption of constitutionality unless clearly overcome by a contrary showing.” 715 N.E.2d 332, 337-38 (Ind.1999) (citations omitted). It is clear that “[t]he legislature has wide latitude in determining public policy, and we do not substitute our belief as to the wisdom of a particular statute for those of the legislature.” State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind.1992). “When a statute can be construed to support its constitutionality, such construction must be adopted.” Miller v. State, 517 N.E.2d 64, 71 (Ind.1987).
To support their claim that Section 1 is violated, the plaintiffs present the following line of reasoning: (a) that Section 1 encompasses a right to privacy, (b) that such right incorporates a woman‘s right to an abortion, (c) that a right to abortion is a core constitutional value that is not subject to governmental regulations that materially burden the right; and (d) that the challenged statutory requirements materially burden the right.
As to the plaintiffs’ first two points, it is inconceivable to me that our Constitution‘s framers intended to create a right to abortion. Beginning in 1835, it was a statutory criminal offense to perform an abortion.1
This statute was in force at the time of the drafting and adoption in 1851 of Indiana‘s present Constitution including Section 1. In fact, the people of Indiana, through their elected representatives in the Indiana General Assembly, have continued to consider abortion to be a criminal offense for the past 170 years.2
There was no discussion at the 1850-51 Constitutional Convention suggesting or implying any intention to nullify, curtail, or limit this statute. Significantly, several cases immediately after the adoption of Section 1 involved appeals following convictions for violation of the criminal abortion statute, and none of the resulting opinions even hinted at any concern that the statute violated Section 1 or any other provision in the Indiana Constitution. Willey v. State, 52 Ind. 421 (1876); Adams v. State, 48 Ind. 212 (1874); Basset v. State, 41 Ind. 303 (1872); Carter v. State, 2 Ind. 617 (1851). Clearly, the framers and ratifiers of Section 1 did not intend to recognize a right to abortion, and their intention is of paramount importance.
Furthermore, expansively construing Section 1 to provide abortion rights is directly contrary to two express provisions included in this same Section 1.
First, the text of Section 1 expressly recognizes the inalienable right of “life.” Every decision to terminate a pregnancy denies this right to an unborn child. Our present statutory provisions requiring medical information and a slight delay to facilitate thoughtful consideration serve to protect this inalienable right as to fetal life.
Second, in addition to the explicit reference to “life” as an inalienable right in Section 1, the individual rights protected by this section are each also expressly subject to the right and obligation of government to provide for “the peace, safety, and well-being” of its citizens, often referred to as the “police power.” The plaintiffs acknowledge that liberty rights under Section 1 are not unlimited, and that such rights “may be intruded upon when there is a valid reason to exercise the police power to do so.” Appellants’ Brief at 15.
Numerous Indiana cases have emphasized that rights protected by the Indiana Constitution are nevertheless subject to
Under the police power possessed by every state as a sovereign, the General Assembly was within its rights in enacting the several sections of the questioned statute. In so doing it exercised that full final power involved in the administration of the law as the means to the attainment of practical justice upon which the very existence of government depends, as well as the security of the social order, the life and health of the citizen, the enjoyment of private and social life, and the beneficial use of property. 225 Ind. 360, 366-67, 74 N.E.2d 914, 917 (1947).3
In numerous ways, Indiana government presently uses its police power to provide for the health and safety of citizens even though it may involve restrictions upon personal freedom with respect to an individual‘s own body. For example, drivers are required to wear seat belts,
By enacting the pre-abortion, in-person counseling requirement and mandatory eighteen-hour waiting period, our legislature has provided important protections for the safety and well-being of pregnant women contemplating an abortion. A considerable body of research recognizes and explores the fact that a significant number of women who voluntarily terminate pregnancies by abortion may suffer serious harmful psychological consequences, with the onset of such distress often delayed until later in life.4 The reality of such
Our present statutory provisions requiring advisement of medical information and a slight delay to facilitate thoughtful consideration also serve the state‘s legitimate interest in preserving fetal life. In the exercise of its constitutional responsibility to provide for public welfare, our legislature has explicitly declared Indiana‘s public policy on this issue: “Childbirth is preferred, encouraged, and supported over abortion.”
The plaintiffs acknowledge that individual liberties may be subject to government regulation to assure public safety and well-being. But they seek exclusion from this principle on the ground that the alleged right to abortion is a core constitutional value, which cannot be materially burdened. In Price v. State, Chief Justice Shepard observed that “in Indiana the police power is limited by the existence of certain preserves of human endeavor, typically denominated as interests not ‘within the realm of the police power,’ upon which the State must tread lightly, if at all.” 622 N.E.2d 954, 960 (Ind.1993) (citations omitted). He then explained: “Put another way, a right is impermissibly alienated when the State materially burdens one of the core values which it embodies.” Id. This Court has been reluctant to expand the list of such “core constitutional values.”5
Even if such an abortion right were a core value,
I concur with the majority that the trial court‘s dismissal of the plaintiffs’ complaint should be affirmed.
another way, there is within each provision of our Bill of Rights a cluster of essential values which the legislature may qualify but not alienate. A right is impermissibly alienated when the State materially burdens one of the core values which it embodies.” Id. (citations omitted).The majority opinion finds it “apparent that if there is a core constitutional value of privacy implicated [under Article 1, Section 1], the purpose for which it is designed is a woman‘s right to make the ultimate decision to terminate her pregnancy.” Opin. at 984. But as noted above,7 even from before the adoption of Indiana‘s Constitution in 1851, abortion has been considered a criminal offense under Indiana law. Even if we were to imagine that our framers and ratifiers intended Section 1 to protect some aspect of individual privacy, it is historically and logically unacceptable to suppose that they designed such protection for the purpose of assuring a right to abortion.
To the contrary, as previously discussed, there is strong evidence that the framers and ratifiers did not intend to protect a right to abortion, and certainly they did not consider it a core constitutional value. In its decision reversing the trial court, the Court of Appeals asserted its view that the “inalienable rights” clause of Section 1 was intended for the protection of natural rights, and that among these natural rights is “the decision to terminate pregnancy.” Clinic for Women v. Brizzi, 814 N.E.2d 1042, 1048-49 (Ind.Ct.App.2004). But the proposition that a right to abortion is a core value because it is a “natural” right appears self-contradictory. Becoming pregnant after intercourse is natural. Giving birth to the resulting child is natural. Intentionally terminating a pregnancy is unnatural. Procreation is a natural right. Abortion is not.
In addition to the evidence that the creators of Section 1 did not intend to protect a right to abortion, and certainly not as a core constitutional value, consideration of the obvious core values of Section 1 confirm the authority of our legislature to enact the challenged medical advisement and waiting period requirements. Any core values in Section 1 must certainly include the items expressly enumerated: the rights of “life, liberty, and the pursuit of happiness,” and the fact that governments are instituted for the “safety and well-being” of its people. By protecting the safety and well-being of pregnant women and discouraging harm to fetal life, the pre-abortion counseling requirement and the mandatory 18-hour waiting period do not burden but rather serve these core values.
Notwithstanding his admonition in Sanchez that “constitutional rights not grounded in a specific constitutional provision should not be readily discovered,” 749 N.E.2d at 516, Justice Boehm now urges in his dissent that Section 1 should be expansively construed to provide protection for rights not specifically mentioned in our constitution but related to individual decisions such as whom to marry, whether to have a child, and whether to terminate a pregnancy. But individual liberty in these areas is not absolute and unrestrained. Statutory provisions have long imposed
Justice Boehm‘s dissent proposes that government should not take sides by enacting legislation regarding matters involving individual conscience and religious belief. But such a proposition could be used to attack the constitutionality of much of our criminal code, particularly laws prohibiting murder, theft, and perjury because these enactments reflect values taught in the Ten Commandments. His argument could likewise be the basis for a challenge to public assistance for the needy, largely an outgrowth of the values of Christian charity, or to legislation seeking racial equality, which resulted substantially from religious movements of the mid-1800s and again in the past fifty years, especially considering the instrumental leadership role of Rev. Dr. Martin Luther King, Jr. and churches and religious adherents galvanized and inspired by his sermons. Legislative enactments should not be invalidated merely because they may foster or coincide with social values deriving from a particular set of religious beliefs or personal convictions.
The opinions of the majority and Justice Boehm disagree on whether the “material burden” test created in Price is essentially equivalent to the “undue burden” or “substantial obstacle” test presented in Planned Parenthood v. Casey, 505 U.S. 833, 876-77, 112 S.Ct. 2791, 2820, 120 L.Ed.2d 674, 714-15 (1992). Because of my firm conviction that the Indiana Constitution does not recognize or protect any right to abortion, these issues regarding how and whether the material burden test applies do not arise and are unnecessary to address.
In conclusion, while disagreeing with the rationale of the majority opinion, I concur with its result in affirming the trial court‘s dismissal of the plaintiffs’ action.13
BOEHM, Justice, dissenting.
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
The Inalienable Rights to Life, Liberty, and the Pursuit of Happiness
There is no provision in the Indiana Constitution that adopts verbatim the prohibition found in the federal Fifth and Fourteenth Amendments against the government‘s depriving a person of “life, liberty, or property, without due process of law.” That is, of course, the source of a woman‘s right to choose an abortion famously declared in Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This does not mean the Indiana Constitution imposes no restraints on legislative incursions into the lives of individual citizens. To the contrary, Article I, Section 1 of the Indiana Bill of Rights is a more straightforward declaration that “all people” have “certain inalienable rights” and that “among these are life, liberty, and the pursuit of happiness.” As a textual matter, it is indisputable that this is a stronger affirmation of a right to individual liberty than can be found in the Federal Constitution.
Inherent and inalienable rights. WE DECLARE, that all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.
This language appeared in its current form for the first time in the 1851 Constitution, and for our purposes has remained unchanged since that time. It traces its lineage to the 1816 Constitution, which included a similar, but slightly different declaration of natural rights.1 Both the 1816 Constitution and the 1851 Constitution affirmed the “liberty” right of all people.2 Both clearly derived from and tracked the Declaration of Independence,3 and the source of this language—“the immortal Jefferson“—was repeatedly ac
Judicial Enforcement of Article I, Section 1 Rights
On its face, the text of Section 1 declares “certain inalienable rights.” This language appears, not in a preamble, but as Section 1 of Article I, significantly entitled “Bill of Rights.” There can be no doubt other provisions of the Bill of Rights are enforceable by the courts.7 The State does not dispute the principle of judicial review, but contends that Article I, Section 1 of the Indiana Constitution is essentially advisory, or directional, and has no content. I think the text of the Constitution, its history, and precedent all make clear that no vote of a legislative body and no executive action is permitted to deprive the people of those rights. As Justice Jackson eloquently put it:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One‘s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.8
The debates surrounding the adoption of this provision reflect the same view. Delegate William Dunn, in the course of the debates on this section, declared that “the very object of a Constitution is to protect the minority in the enjoyment of their rights—to put a restraint upon the hot blood and the strong arm of the majority.”9 No one disputed that proposition. If the Constitution is to restrain the “hot blood” of the majority, it must identify some rights that the legislature cannot invade, and those rights must be enforceable by the courts, even in the face of legislation.
History also supports the view that these rights are intended to limit legislative discretion and are judicially enforceable. It is noteworthy that the liberty right was first declared in the original Indiana Constitution of 1816, more than a decade after the principle of judicial review of legislation for conformity to the Constitution was established in Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803). The current Bill of Rights, including the liberty right, was adopted in 1851, almost a half century after that landmark decision and long after
Moreover, Section 1 is just that—the first section of the Indiana Constitution. And it is not accidentally so. Arguing for retention of the 1816 language that would expressly affirm “natural, inherent, and inalienable rights, among which are the enjoying and defending life and liberty and of acquiring, possessing, and protecting property,” Mr. Dunn pleaded “[l]et us give to this sentiment the first place in our bill of rights, that our children and our children‘s children may early learn it, and cherish it in their hearts as one of the fundamental principles of our government.”13 The version that was finally adopted omitted the express right “of acquiring, possessing, and protecting property,” but only after the point was made that the rights would exist whether or not specifically listed in the written Constitution.14 The courts agreed, finding such a right only five years later.15
Given this text, structure, and history of Article I, Section 1, it is not surprising that only four years after the adoption of the 1851 Constitution, two decisions of this Court invalidated legislation on the ground that it violated the Article I, Section 1
I conclude that Article I, Section 1 does indeed have substance and is designed to assure all persons in this state “certain inalienable rights” which are enforceable by the courts. As Chief Justice Shepard put it: “[T]here is within each provision of our Bill of Rights a cluster of essential values which the legislature may qualify but not alienate.”19 The issue before this Court is therefore whether the liberty rights of a pregnant woman under the
The Right to Choose as Incident to the Right to Liberty
There can be no doubt that abortion was a crime in 1851. Presumably it is fair to assume that no delegate to the Convention believed that, by adopting Section 1, the framers were creating a right in pregnant women to choose to terminate their pregnancies. The State argues for a static view of the “inalienable” rights, “among which” are the three listed, and also that there is no “liberty” right to elect an abortion. I think the contention that the liberty rights guaranteed by Section 1 were frozen as of that date is not tenable. In 1851 we had slavery in many states and
It is no answer to say that amendments to the constitutions of the United States and of Indiana have since corrected the former, and statutory changes have dealt with the latter. Fortunately that is the case, and the courts have long since invalidated even the Indiana constitutional provisions as violative of the Federal Constitution. But these examples show that if there were no privileges and immunities clause in the Indiana Constitution, and no Fourteenth Amendment to impose federal due process and equal protection limitations on this state, we would now nonetheless readily conclude that the liberty right in Section 1 renders both of these legal anachronisms unconstitutional invasions of fundamental liberty rights. I therefore disagree that the legal status of abortion in 1851 establishes that there is no present Indiana constitutional liberty right to choose.
It is also noteworthy that the framers of our state Constitution were well aware that the “great principle that all men are created equal” had “not yet fulfilled its destiny, nor will it until universal liberty prevails throughout the earth.”23 This contemplated not only geographic spread of the seeds sown by the American Revolu
Delegates expressed the view that some rights were innate and immutable, whether or not they found textual expression in the Constitution.27 Finally, the text of Section 1 itself—“among which are life, liberty, and the pursuit of happiness“—reflects an open-ended iteration of the rights conferred, not an exhaustive list. In sum, there was no common understanding among the framers that the text of the Constitution delimited or constituted an exhaustive listing of the rights conferred upon individual citizens by Section 1. There is no reason to suppose the people they represented who ultimately ratified the 1851 Constitution had any different view.
As Justice Dickson points out, my opinion for the majority in Sanchez v. State, 749 N.E.2d 509, 516 (Ind.2001), observed that “constitutional rights not grounded in a specific constitutional provision should not be readily discovered.” However, as Sanchez, 749 N.E.2d at 515 also noted “fundamental fairness in judicial proceedings” is constitutionally required, despite the absence of any language directly addressing that issue, and despite the absence of a provision prohibiting the deprivation of liberty without due process of law. There are therefore some rights that are “assumed and required by our state constitution,” even if found in no specific language. Id. That point is largely irrelevant here, because the liberty clause of Section 1 is a specific provision, albeit a vaguely worded one. It has been held to guarantee to each individual the freedom to contract, the freedom to decide what to eat and drink, and the freedom to engage in lawful businesses.28 Though we have only a few square precedents under the Indiana Constitution as to the specifics embraced within the inalienable liberty right, we also have some more generalized expressions. In Matter of Lawrance, 579 N.E.2d 32, 39 (Ind.1991), Chief Justice Shepard attributed to the framers the belief that the liberty guaran
The right to privacy, and the branch of that right that specifically identifies a right to reproductive choice, has been established in the Federal Constitution for several decades. Over sixty years ago, recognition that “[m]arriage and procreation are fundamental to the very existence and survival of the race” required strict scrutiny of any statute that purported to establish a classification of individuals who might be sterilized.32 Justice Harlan, in a 1961 dissent, articulated a right to privacy that ultimately was embraced by the majority in holding unconstitutional a state statute that prohibited use of contraceptives.33 As it has evolved, I think the label “right to privacy” somewhat misleadingly describes this bundle of rights. The fundamental rights now recognized by the Federal Constitution include parent-child relationships,34 and freedom of choice in marriage,35 among others. Many of these rights are less in the nature of rights to be out of the public eye than rights to be free to make one‘s own decisions on fundamentally protected areas, notably family relations and sex and reproduction. As such, I believe these rights are more properly described as a bundle of liberty rights than rights to privacy. Whatever their appellation, ultimately one such right was famously held to invalidate state legislation preventing abortion.36
These rights to marriage, parent-child relationships, and decisions as to procreation are nowhere to be found in the text of the Federal Constitution. Rather they derive ultimately from what Justice Brandeis
The State argues that our deference to legislative judgment in other areas applies equally here. It is, of course, true that we have upheld a variety of statutes designed one way or another to regulate businesses, land use, and other activities. Specifically, the State analogizes the plaintiffs’ claims here to an effort to resurrect the “now-discredited” notion of substantive due process. To be sure, both the federal and state constitutions were at one time cited as barriers to child labor laws, licensing requirements, etc., all in the name of a liberty right to conduct a business as one chooses. The poster child for this federal doctrine, Lochner v. New York, 198 U.S. 45 (1905), was overruled in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 392 (1937). Some Indiana counterparts are cited in footnote 18. As we observed in McIntosh v. Melroe Co., 729 N.E.2d 972, 975 (Ind.2000), the Lochner doctrine is no longer credited. But even as it discarded Lochner, the U.S. Supreme Court was careful to note the potentially significant difference between constitutional constraints on economic regulatory measures and the limits the constitution places on laws affecting minority or individual rights. First in the list of those areas of suspect legislation identified in Chief Justice Stone‘s famous footnote was the scope of the Bill of Rights.42 Ultimately, individual rights in family relationships and decisions as to procreation, among others, were recognized as fundamental in federal jurisprudence, and any legislation restricting them is subject to strict scrutiny, usually resulting in its invalidation.43
The same considerations that gave rise to the federal recognition of substantive rights to privacy under the due process clause require recognition and enforcement of the more explicit liberty right under the Indiana Constitution. We are not talking here about licensing of some types of business, or restrictions on the use of property based on environmental concerns, both of which are grounded in the generally accepted need for government to provide for the common health and safety, and both, if individual liberty is carried to excess, involve infringing the liberties and perhaps the health and well being of others. In both federal and state jurisprudence, today the only debate is as to the degree or specific means of regulation that is appropriate, and whether it is “reasonably related” to some legitimate state interest.44 Nor are we dealing with the situation presented in Melroe, which asserted a constitutional right to a particular remedy or right of action. The power of the legislature to create or abolish civil claims is well accepted, and there is no property or liberty right to any particular form of legal relief beyond what the legislature or the common law choose to make available.
Natural rights provided the philosophical grounding of “inalienable” rights as understood by the framers of both the federal and state constitutions. It does not matter whether today we accept the idea that every person has some rights conferred by a higher power, or consider these rights as inherent in nature, or see them established simply as a matter of choice. Irrespective of the source of these rights, the Indiana Constitution insulates some areas of human activity and guarantees that they are free from interference by the legislature. To the extent it is a matter of choice, the constitution makes that choice for us. The issue, of course, is how to identify the areas of human activity that are within the sphere of the inalienable rights guaranteed by Section 1.
One critical difference between the liberty and property rights historically asserted under the rubric of substantive due process and the liberty rights often associated with a right to privacy is the vast difference in the degree of societal interest in the consequences of one‘s choices to others. Violations of land use regulations, or
A second perhaps more important difference lies in the nature of the value judgments reflected in the decision, say, to operate a landfill and the decision to bear a child. To be sure, in the view of many, the decision whether to complete a pregnancy involves society‘s interest in promoting human life, and many others consider the fetus as entitled to the same rights and considerations as any human already. Some have suggested that the attending physicians, other family members, and perhaps others are also entitled to weight in the constitutional balance.45 But the decision is nevertheless an intensely personal one. The factors that may bear on that decision undoubtedly vary widely from individual to individual. Some will place a high priority on the mental or physical health of the woman herself. Others will assign the greatest significance to the anticipated health of the child. Yet others will give greatest weight to the social or economic consequences of giving birth. And, of course, many consider the intrinsic value they place on a potential, or, as some view it, already realized human life as the dominant consideration. Each of these judgments turns on the degree, if any, to which one considers each of these and other factors to be legitimate and relevant. And every individual‘s answer to those issues turns pivotally on the philosophical and religious outlook of the individual. The question whether to terminate a pregnancy, indeed each individual‘s way of approaching and thinking about that decision, therefore ultimately becomes one of personal outlook. As the Montana Supreme Court recently put it:
The fundamental right to personal and procreative autonomy and, in the broader sense, to individual privacy, prohibits the government from dictating, approving or condemning values, beliefs and matters ultimately involving individual conscience, where opinions about the nature of such values and beliefs are seriously divided; where, at their core, such values and beliefs reflect essentially religious convictions that are fundamental to moral personality; and where the government‘s decision has a greatly disparate impact on the persons whose individual beliefs and personal commitments are displaced by the State‘s legislated values.46
Of course I do not suggest that because there may be religious underpinnings of moral values reflected in legislation, the liberty right immunizes each individual from society‘s judgment as to the lawfulness of any given practice. Specifically,
In sum, this Court has found “core values” enshrined in the Indiana Constitution that cannot be alienated by a “material burden.” As Justice Dickson pointed out in City Chapel, Indiana of 1850 was home to followers of a wide array of religious beliefs and also to many who adhered to no faith.47 I believe one of these core values is the right to be free from legislation that restricts individual liberty based on essentially philosophical or religious views as to which there is no general consensus. In addition to the explicit prohibition against a law that “interferes with...rights of conscience,” that value is expressed repeatedly throughout the debates, though not in precisely that language. Most commonly it appears as a desire to protect rights of minorities and concern for the potential tyranny of the majority.48 It also appears in the strongly expressed respect for the diversity of opinion on matters of conscience that prevailed in 1851 and remains today. For that reason, I believe this liberty right is entitled to the greatest deference as an exercise of personal liberty, and conclude that the liberty right guaranteed by the Indiana Constitution includes the right of a pregnant woman to terminate her pregnancy, at least where she carries a nonviable fetus or her own health is at issue.
Federal “Obstacles” and Indiana “Burdens” on Liberty Rights
The majority assumes an Indiana constitutional right to choose an abortion, but finds that the statute imposes no material burden on this right. I do not share either the majority‘s view of the material burden doctrine or its description of federal jurisprudence. I therefore do not find federal precedent, specifically Planned Parent-
Under Indiana constitutional doctrine, these “core values” cannot be subjected to “material burdens.”49 The “material burden” standard is different from, and more stringent than the federal constitutional test. In Stenberg v. Carhart, 530 U.S. 914 (2000), a majority of the Supreme Court embraced the standard first articulated in Justice O‘Connor‘s plurality opinion in Casey. The federal standard requires a showing that the state law “has the purpose or effect of placing a substantial obstacle in the path” of a person‘s exercise of a liberty right.50 Casey involved a Pennsylvania statute very similar to the Indiana statute the plaintiffs challenge. The Supreme Court upheld the Pennsylvania law against a federal constitutional challenge, holding that the test is whether the statute imposed an “undue burden on a woman‘s ability to make this decision,” but explaining that this was “shorthand” for the “substantial obstacle” formulation.51 Under this formulation, a statute is unconstitutional if either its purpose or its effect is to place such an obstacle. It is not clear whether a purpose without effect is suffi
The Indiana standard is “material burden,” not “substantial obstacle,” with its ultimate dependence on reasonableness. The difference is significant. As Price explained, in distinguishing the similar “rational relationship” weighing process under federal equal protection jurisprudence: “‘Material burden’ analysis involves no such weighing nor is it influenced by the social utility of the state action at issue. Instead, we look only at the magnitude of the impairment. If the right, as impaired, would no longer serve the purpose for which it was designed, it has been materially impaired.”55 Because federal juris
The Claims of “Material Burden” on Liberty Rights
This case comes to us on appeal from the grant of a motion to dismiss the complaint for failure to state a claim for relief by the courts. Accordingly, we assume the allegations of the complaint are true. If the allegations, even if true, are not enough to state a claim for relief, then the trial court properly dismissed this action. However, if the allegations are sufficient to state a claim, whether the plaintiffs will be able to prove them or not is not before us today and remains a matter for trial.
As explained above, Indiana adopts precisely the mode of viewing these rights that Casey rejected—the Indiana Constitution permits a statute to impair a Section 1 right only if there is no material burden. This is no balancing test. Price initially explained material burden as one that significantly affects the exercise of the right. Whittington v. State, 669 N.E.2d 1363 (Ind.1996), further explained that a material burden will be found if the expression of the right inflicts “‘particularized harm’ analogous to tortious injury on readily identifiable private interests.”56
The Indiana cases that Justice Dickson cites balancing liberty rights against “police power” are remnants of the post-Lochner era where freedom of contract and property disposition were held subject to police power. We have not held that individual core values are subject to any such balancing. To the contrary, as Price teaches, a material burden on a core value is unconstitutional irrespective of its legislative purpose. Indeed, Price itself involved a government action—maintenance of order in the streets—at the center of public safety concerns. Yet public safety concerns were not permitted to override individual liberty if the results placed a material burden on political speech. The constitution‘s reference to government‘s deriving its authority from the people does not suggest a balancing test where core values are concerned. It simply reflects a recognition that governments are essential and that the people who ratify the constitution are the ultimate source of power, including the provisions of the constitution that limit the authority of the legislative, executive, and judicial branches. The legislature is not the people. It is a branch of the government created by the people and subject to the limitations imposed by the constitution.
The complaint here alleges, among other things, that this statute requires delay in medical procedures and that health risks and the cost of the procedure both increase as time goes on. It also alleges that the effect of this statute is to cause some women to travel to other states, or to pursue alternatives other than legal abortion, which can cause physical and psychological harm as well as economic loss. Forcing someone to incur a substantial financial burden or forego altogether exercise of the person‘s right to choose is surely a material burden. If these allegations can be proven, they are sufficient to state a claim that the statute imposes a material burden on the exercise of a woman‘s liberty right to determine for herself whether to abort a nonviable fetus. The additional requirement that the expression of the right not inflict injury in the nature of a tort is also met. Some would attribute to the fetus a status as an independent individual that would permit characterizing an abortion as a wrong to the fetus. But
Finally, I do not agree with the majority‘s view that this complaint asserts a facial challenge that requires a showing that there are no factual settings in which the statute may be constitutional. The only instance in which that doctrine has been addressed in Indiana constitutional jurisprudence is Baldwin v. Reagan, 715 N.E.2d 332 (Ind.1999). That case dealt with the constitutionality of the seat belt requirement. It addressed whether there may be modes of enforcing a statute that are consistent with the constitution. It did not deal with a claim that the statute invaded any core value. It does not, in my view, justify an unconstitutional impact or a material burden on the core rights of some individuals simply because not everyone is affected.
Baldwin relied on federal constitutional authority. 715 N.E.2d at 337 (citing Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); United States ν. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). As pointed out, the federal constitutional doctrine regarding “overbreadth” has been limited to First Amendment rights. The basic notion is that a statute that may be a valid restriction on speech in some circumstances nonetheless has a chilling effect on the rights of expression on others. Bd. of Airport Comm‘rs of the City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 576, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). Moreover, a statute that is broad in its terms but narrowed only by the choice to enforce it opens the door to abuse. Id. The same reasoning applies here. We cannot know who among potential candidates will be significantly deterred by this statute from exercising her rights, but if it is found to impose a material burden as to a significant number of individuals its chilling effect is equally pernicious as an overbroad restriction on speech. There may be issues of standing that preclude some plaintiffs from asserting claims that in effect assert invasions of the rights of others. See, e.g., H.L. v. Matheson, 450 U.S. 398, 407, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981). But the plaintiffs here are providers, not individuals seeking a declaration as to their status. The providers serve the entire range of potential individual claimants, and as such are not subject to an “overbreadth” deficiency. There may be a de minimis threshold as to which only an individually affected plaintiff can assert a claim. But where, as here, the plaintiffs contend that “many” of the people they seek to serve are affected, they are in my view entitled to a day in court to prove that claim. Otherwise stated, the providers’ claim is not “facial.” It attacks the statute as they contend it affects them by deterring others from availing themselves of their services.
Joseph KINCAID, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 20S04-0511-CR-611.
Supreme Court of Indiana.
Nov. 29, 2005.
Notes
An abortion shall not be performed except with the voluntary and informed consent of the pregnant woman upon whom the abortion is to be performed. Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if the following conditions are met:
(1) At least eighteen (18) hours before the abortion and in the presence of the pregnant woman, the physician who is to perform the abortion, the referring physician or a physician assistant (as defined in IC 25-27.5-2-10), an advanced practice nurse (as defined in IC 25-23-1-1(b)), or a midwife (as defined in IC 34-18-2-19) to whom the responsibility has been delegated by the physician who is to perform the abortion or the referring physician has orally informed the pregnant woman of the following:
(A) The name of the physician performing the abortion.
(B) The nature of the proposed procedure or treatment.
(C) The risks of and alternatives to the procedure or treatment.
(D) The probable gestational age of the fetus, including an offer to provide:
(i) a picture or drawing of a fetus;
(ii) the dimensions of a fetus; and
(iii) relevant information on the potential survival of an unborn fetus;
at this stage of development.
(E) The medical risks associated with carrying the fetus to term.
(F) The availability of fetal ultrasound imaging and auscultation of fetal heart tone services to enable the pregnant woman to view the image and hear the heartbeat of the fetus and how to obtain access to these services.
(2) At least eighteen (18) hours before the abortion, the pregnant woman will be orally informed of the following:
(A) That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care from the county office of family and children.
(B) That the father of the unborn fetus is legally required to assist in the support of the child. In the case of rape, the information required under this clause may be omitted.
(C) That adoption alternatives are available and that adoptive parents may legally pay the costs of prenatal care, childbirth, and neonatal care.
(3) The pregnant woman certifies in writing, before the abortion is performed, that the information required by subdivisions (1) and (2) has been provided.
The 1835 statute, in existence at the time our Constitution was adopted, provided:[E]very person who shall wilfully administer to any pregnant woman, any medicine, drug, substance or thing whatever, or shall use or employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall upon conviction, be punished by imprisonment in the county jail any term of time not exceeding twelve months, and be fined any sum not exceeding five hundred dollars. Ind.Rev.Stat., ch. XXVI, § 3, p. 224 (1838).
That the general, great and essential principles of liberty and free Government may be recognized and unalterably established; WE declare, That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights; among which are the enjoying and defending life and liberty, and of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.
WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.
Indiana enacted its first abortion statute on February 7, 1835, only nineteen years after Indiana became a State. See 1835 Ind. Acts ch. XLVII, § 3, in Laws of Indiana 66 (1834-Applying the strict scrutiny test, the Tennessee court found that the State had failed to carry its burden of showing that Tennessee‘s two-day waiting period requirement was “narrowly tailored to further its compelling interest in maternal health.” Sundquist, 38 S.W.3d at 24. The court went on to conclude that “the two-day waiting period has the effect of placing ‘a substantial obstacle in the path of a woman seeking an abortion,’ ” such that it also failed the undue burden test. Id. (citing Casey, 505 U.S. at 878, 112 S.Ct. 2791).
Whiteneck, 8 Ind. at 230.