Abortion and Padford Protection - Indiana Law

Transcription

1 WILL THE INDIANA SUPREME COURT CONTINUE TO DEFER TO THE INDIANA GENERAL ASSEMBLY S ESTABLISHED POLICY IN FAVOR OF LIFE? Michael J. DeBoer 1 Through their representatives in the Indiana General Assembly and the office of the Governor, Hoosiers have established public policy and statutes that honor the dignity of human life, born and unborn. When these legislative enactments have been reviewed by Indiana courts, the courts have generally deferred to the judgments of the political branches and have exercised restraint. During the last two decades, Indiana courts have been asked to resolve a number of cases involving life-related issues, including constitutional challenges to statutes. In these cases, judges have reviewed statutory provisions, evaluated constitutional doctrines, developed the common law, and at times reflected their individual views on life-related issues. This White Paper explores the status of life-related issues in Indiana policy and law. I. LIFE ISSUES To evaluate life-related issues in Indiana policy and law, it is necessary to consider both the positive law enacted by the General Assembly and the judicial opinions of Indiana courts. Although this Section will primarily focus on the Indiana Supreme Court ( Court ) and its handling of life-related issues, it will also survey life-related issues more generally by examining various statutory enactments, common law developments, and a few decisions by the Indiana Court of Appeals. In exploring Indiana policy and law on life-related issues, this Section begins with the subject of abortion, but it also addresses a number of other subjects such as assisted 1 The Author is Assistant Professor of Law at Liberty University School of Law. He is admitted to the practice of law in Indiana and has worked within the state and federal court systems in Indiana. 1

2 suicide, living wills, life prolonging procedures, healthcare rights of conscience, cloning, and stem cell research. Abortion The Indiana General Assembly has enacted a set of statutes to govern abortion in Indiana. In these statutes, the General Assembly regulates the persons who perform abortions and the entities and facilities that permit abortions, prohibits the use of public funds to pay for abortions, prohibits the performance of abortions except in carefully limited circumstances, and provides penalties for those who violate the state s laws governing abortion. Together these statutes demonstrate a public policy against abortion and in favor of the lives and health of unborn children. 2 As a matter of fundamental policy, Indiana has affirmatively declared that [c]hildbirth is preferred, encouraged, and supported over abortion. 3 Indiana law prohibits the state and its political subdivisions from making a payment from any fund under its control for the performance of an abortion unless the abortion is necessary to preserve the life of the pregnant woman. 4 The Indiana Code protects private and religious hospitals, physicians, and employees 2 Article 34 of Title 16 of the Indiana Code establishes the state s public policy regarding abortion, regulates the use of public funds, provides for civil actions in certain cases, sets forth the requirements for performance of abortion, and imposes criminal penalties for certain violations. IND. CODE Article 21 of Title 16 of the Indiana Code contains provisions relative to the adoption of rules, regulations, and licensing requirements for entities and clinics that provide abortions. See, e.g., , , Included within the Indiana Administrative Code are related rules and regulations governing abortion clinics. See 410 IND. ADMIN. CODE art. 26. Article 15 of Title 12 of the Indiana Code governs Indiana s participation in the federal Medicaid program, which has further implications for the abortion issue. See, e.g., IND. CODE & (17). Included within the Indiana Administrative Code are related provisions involving reimbursement for abortion services under the Medicaid program. See 405 IND. ADMIN. CODE & IND. CODE Abortion is the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus Live birth or birth means the birth of a child who shows evidence of life after the child is entirely outside of the mother As a participant in the federal Medicaid program, Indiana is bound by the federal program s requirements. See The Indiana Medicaid program provides low-income Hoosier citizens with virtually all non-experimental, medically necessary health care, including some services for which federal reimbursement is not available. Humphreys v. Clinic for Women, Inc., 796 N.E.2d 247, 250 (Ind. 2003). Coverage includes inpatient hospital services, physicians services, and outpatient hospital or clinic services for all recipients It also includes family planning services, except the performance of abortions (17). Covered services must be medically reasonable and necessary, which means that the service must be required for the care or well being of the patient and is provided in accordance with generally accepted standards of medical or professional practice. 405 IND. ADMIN. CODE Consistent with the statutory prohibition of 2

3 who object to abortion from being required to permit, provide, assist, or participate in the performance of abortions, and it creates a civil cause of action to enforce this protection. 5 In Indiana, abortion is a criminal act, except according to certain prescribed requirements. 6 The applicable set of requirements varies according to the trimester of the pregnancy 7 and the viability 8 of the unborn child. 9 A physician must determine and certify, before performing an abortion, the trimester of the pregnancy and the viability of the fetus. 10 Except in the case of a medical emergency, 11 Indiana law prohibits the performance of an state funding of abortion except as is necessary to preserve the life of the pregnant woman, IND. CODE , the Indiana Administrative Code provides that Medicaid reimbursement is available for abortions only if performed to preserve the life of the pregnant woman or in other circumstances if the abortion is required to be covered by Medicaid under federal law, 405 IND. ADMIN. CODE Termination of an ectopic pregnancy is not considered an abortion. 405 IND. ADMIN. CODE IND. CODE to See infra Section 1.f (a). The criminal code exempts from the crimes of murder, voluntary manslaughter, and involuntary manslaughter abortions performed in compliance with Article 34 of Title 16 of the Indiana Code Trimester means any one (1) of three (3) equal periods of time of normal gestation period of a pregnant woman derived by dividing the period of gestation into three (3) equal parts of three (3) months each and to be designated as the first trimester, second trimester, and the third trimester, respectively Viability refers to the ability of a fetus to live outside the mother s womb During the first trimester of pregnancy, the abortion must be for reasons based upon the professional, medical judgment of the pregnant woman s physician and under the following circumstances: (1) the abortion is performed by the physician; (2) the woman submitting to the abortion has filed her consent with her physician (except such consent is not required if, in the physician s judgment, the abortion is necessary to preserve the life of the woman); and (3) the woman submitting to the abortion has filed with her physician the written consent of her parent or legal guardian if she is an unemancipated minor (a)(1). After the first trimester but before viability, the abortion must be for reasons based upon the professional, medical judgment of the pregnant woman s physician and under the follow circumstances: (1) all of the circumstances and provisions required for legal abortion during the first trimester are present and adhered to; and (2) the abortion is performed in a hospital or ambulatory outpatient surgical center (a)(2). After viability, the abortion, except as specifically addressed in the partial birth abortion provisions, must be for reasons based upon the professional, medical judgment of the pregnant woman s physician and under the following circumstances: (1) all of the circumstances and provisions required for legal abortion before viability are present and adhered to; (2) the abortion is performed in compliance with Indiana Code ; and (3) before the abortion the attending physician certifies in writing to the hospital in which the abortion is to be performed that in the attending physician s professional, medical judgment, after proper examination and review of the woman s history, the abortion is necessary to prevent a substantial permanent impairment of the life or physical health of the pregnant woman (a)(3) Medical emergency means a condition that, on the basis of the attending physician s good faith clinical judgment, complicates the medical condition of a pregnant woman so that it necessitates the immediate termination of her pregnancy to avert her death or for which a delay would create serious risk of substantial and irreversible impairment of a major bodily function

4 abortion without the voluntary and informed consent of the mother. 12 After viability, certain additional requirements apply, and affirmative duties are placed upon physicians to protect the lives and health of viable unborn children. 13 Indiana law prohibits the performance of partial birth abortion, 14 except when a physician reasonably believes that performing the partial birth abortion is necessary to save the mother s life and no other medical procedure is sufficient to save the mother s life. 15 Specific requirements also apply when the pregnant mother seeking an abortion is an unemancipated minor. 16 Indiana law requires physicians to provide the Indiana 12 Except in the case of a medical emergency, for an abortion to be performed legally, the pregnant woman must give voluntary and informed consent, which occurs only when the following three conditions are satisfied (a). First, at least 18 hours before the abortion and in the presence of the pregnant woman, the health care provider must orally provide specific information, including: the name of the physician performing the abortion; the nature of the proposed procedure; the risks and alternatives; the probable gestational age of the fetus, including an offer to provide such things as a picture or drawing of a fetus, the dimensions of a fetus, and information regarding the unborn fetus s potential survival; the medical risks of carrying the child to term; and the availability of fetal ultrasound imaging and auscultation of fetal heart tone services (a)(1). (Probable gestational age is what, in the judgment of the attending physician, will with reasonable probability be the gestational age of the fetus at the time an abortion is planned to be performed ) Second, at least 18 hours before the abortion, the pregnant woman is to be informed orally regarding the availability of public medical assistance benefits for prenatal care, childbirth, and neonatal care; the legal requirement that the father assist in the support of the child; and the alternative of adoption and the possible payment by the adoptive parents of the costs of prenatal care, childbirth, and neonatal care (a)(2). Third, before the abortion, the pregnant woman must certify in writing that the required information was provided (a)(3). Under the abortion statute, consent is a written agreement to submit to an abortion: (1) after the consenting party has had a full explanation of the abortion procedure to be performed, including disclosures and information required by statute; and (2) as it is evidenced by the consenting party s signature on a consent form prescribed by the state department of health The statute authorizes the pregnant woman, upon her request, to view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone (b). Additionally, when a medical emergency necessitates an abortion, the physician must inform the woman of the medical indications supporting the physician s judgment that an abortion is necessary to avert either the woman s death or a substantial and irreversible impairment of a major bodily function The following are among the additional requirements to perform an abortion after viability: the abortion must be performed in a hospital having premature birth intensive care units (unless compliance would increase the risk to the mother s life or health), and the abortion must be performed in the presence of a second physician, who must take control of and provide immediate care for a child born alive as a result of the abortion (a), (b). The physicians must take all reasonable steps to preserve the life and health of the viable unborn child, and a failure to do so, in keeping with good medical practice, subjects the physicians to potential criminal and civil liability (b), (c). Any fetus born alive must be treated as a person under the law, and a birth certificate shall be issued, even if the child subsequently dies (c). 14 Partial birth abortion is an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery (b). 16 A physician is prohibited from performing an abortion on an unemancipated pregnant woman under 18 years of age without first obtaining the written consent of a parent or legal guardian (a). A minor who objects to this consent requirement or whose parent or legal guardian refuses to consent may petition the juvenile court for a 4

5 Department of Health with certain information regarding the performance of each abortion. 17 Experiments (except pathological examinations) on any aborted fetus and transportation of any aborted fetus out of Indiana for experimental purposes are prohibited. 18 Indiana law prescribes criminal sanctions for violations of the laws governing abortion. 19 In addition to the statutes enacted by the Indiana General Assembly, several important decisions by the Indiana Supreme Court should be considered. In these cases, the Indiana Supreme Court has been asked to determine Indiana common law and to review several of the Indiana statutes that govern abortion. One such case involved wrongful birth, wrongful life, and medical malpractice actions issues. In 2000, in Bader v. Johnson, the Indiana Supreme Court expanded Indiana common law to recognize a claim by parents for damages against healthcare providers who allegedly breached a medical duty that deprived the parents of the opportunity to decide whether to terminate a pregnancy because of pre-natal abnormalities. 20 The unborn child in this case had hydrocephalus, which was discovered at 33 weeks gestation. The child had multiple birth defects and died four months after being born. However, at 19 1/2 weeks gestation, Dr. Bader waiver (b). A physician may petition the juvenile court for a parental consent waiver when he believes compliance would adversely affect the welfare of the minor or her pregnancy (c). The juvenile court must rule within 48 hours and consider the concerns expressed (d). The court may waive the requirement if the court finds the minor to be mature enough to make an independent decision or the abortion to be in the child s best interest (d). The statute also addresses related issues such as representation of the minor, fees and costs, appeals, and the confidentiality of records (e)-(h). The statute provides an exception to these requirements when an emergency exists requiring an abortion because of an immediate threat and grave risk to the life or health of the child as certified by the attending physician (i). 17 The abortion statute requires the Indiana Department of Health to supply forms to every medical facility and mandates physicians to complete and transmit the forms to the department These forms are designed to obtain certain information and are intended to help improve maternal health and life and to monitor the performance of all abortions in Indiana (a) [A] person who knowingly or intentionally performs an abortion not expressly provided for [in the Indiana Code] commits a Class C felony (a). A woman upon whom a partial birth abortion is performed may not be prosecuted for violating or conspiring to violate the provisions governing partial birth abortion (d). A physician who performs an abortion intentionally or knowingly in violation of the parental consent requirements commits a Class A misdemeanor, (b), and a person who knowingly or intentionally performs an abortion without satisfying the consent requirements commits a Class A infraction, (c). Each failure to file timely one of the required forms is a Class B misdemeanor (b). A violation of the prohibition against experimentation on (and transportation of) an aborted fetus is a Class A misdemeanor Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000). Chief Justice Shepard and Justice Boehm concurred in Justice Rucker s opinion, and Justice Sullivan concurred in part and in result. 5

6 performed an ultrasound test revealing that the unborn child had a larger than expected cavity within the brain and an unusual head shape. Dr. Bader requested that his staff schedule the mother for follow-up testing, but as a result of an office error, the mother was not scheduled. Additionally, the ultrasound report was not forwarded to the mother s treating physician. The parents brought an action against the healthcare providers, claiming that the failure to inform deprived them of the opportunity to terminate the pregnancy. Writing for the Court, Justice Rucker avoided characterizing the action as a wrongful birth action, stating that [i]t is unnecessary to characterize the cause of action here as wrongful birth because the facts alleged in the [parents ] complaint either state a claim for medical malpractice or they do not. 21 Having characterized the action as a medical malpractice action, the majority observed that medical malpractice cases are no different from other kinds of negligence actions regarding that which must be proven. 22 The Court observed that Indiana physicians have a duty to disclose to their patients material facts relevant to their patients decisions about treatment. 23 If the healthcare providers did not provide the [parents] with the result of the ultrasound, then [they] breached [their] duty, and expert medical testimony was not necessary to determine whether the conduct of the healthcare providers failed to meet the applicable standard of care. 24 As to the elements of causation and compensable injury, the parents claimed that but for [the healthcare providers ] failure to provide them with the result of the ultrasound test, the pregnancy would have been terminated. 25 The Court determined that carrying to term and giving birth to a severely deformed child is a natural and probable consequence of the healthcare providers breach that they should have foreseen or anticipated. 26 The Court found it significant that the parents had not alleged that the injury was the child s defects themselves but that the injury was the loss of the ability to terminate the pregnancy and thereby avoid the costs 21 Id. at Id. at Id. at Id. at Id. at Id. at

7 associated with carrying and giving birth to a child with severe defects. 27 Thus, the Court distinguished this case from precedent that rejected the wrongful life action. 28 The Court concluded that the parents could recover all damages that are directly attributable to the wrong done. 29 In Bader, the parents sought the following damages: (1) hospital and related medical expenses associated with the pregnancy and the delivery; (2) costs associated with providing the infant with care and treatment; (3) lost income; (4) emotional distress; and (5) loss of consortium. 30 The Court concluded that the mother s continued pregnancy and the physical transformation her body underwent as a result, satisf[ied] the direct impact requirement allowing her recovery of damages for emotional distress. 31 The father, however, did not suffer a direct impact as a result of the alleged negligence, and his ability to recover damages for emotional distress would depend upon the evidence adduced at trial to provide a basis for recovery as a relative bystander. 32 Justice Dickson dissented and expressed his disagreement with the Court s expansion of the common law to permit parents to seek damages in such a case. 33 For Justice Dickson, this case presented a claim for wrongful birth, contrary to the parents and the majority s characterizations of the case as a medical malpractice action. 34 Justice Dickson explained that wrongful birth and wrongful life actions are distinguished only by whether damages are sought on behalf of the child or the parent. 35 He urged that the primary concern that had led Indiana courts to reject the wrongful life action (namely, that life, even life with severe defects, cannot be an injury in the legal sense) applied to this case. 36 Justice Dickson observed that the majority s decision left open a range of issues, particularly as to the nature and the extent of damages: 27 Id. at Id. at (distinguishing Cowe v. Forum Group, Inc., 575 N.E.2d 630 (Ind. 1991)). 29 Id. at Id. at Id. at Id. at Id. 34 Id. at Id. at Id. at

8 If such claimants may recover all damages naturally flowing from a medical provider s breach of duty, would this not also include the costs of raising and educating such unwanted children? Will the birth of a child with even slight congenital anomalies entitle the parents to claim medical malpractice damages, contending that if they had only known their child would have a birth defect, they would have terminated the pregnancy? Will our courts face actions by parents seeking child-rearing costs because the gender of their child was not as expected, when they had sought genetic counseling for the purpose of terminating the pregnancy in the event that the child was of the wrong gender? Will defendant health-care providers be entitled to claim a reduction in damages by presenting evidence and arguing that, if the plaintiff-parents had elected to terminate the pregnancy, they would likely have suffered substantial and continuing psychological trauma? Will the process of jury selection (and resulting appeals) become a new battleground for intense disagreements regarding the issue of abortion? 37 For Justice Dickson, this case and the majority s decision raised complex philosophical, moral, and political questions as to which [c]ourts are ill-equipped to provide fair, reasonable, and intelligent resolutions. 38 Another such case dealt with voluntary and informed consent, oral advisement, and 18- hour waiting period issues. In 1996, in A Woman s Choice-East Side Women s Clinic v. Newman, the Court, in an opinion written by Chief Justice Shepard, answered several certified questions from the United States District Court for the Southern District of Indiana. 39 addressing these questions, the Court considered federal abortion jurisprudence 40 and the Indiana statute requiring voluntary and informed consent by patients, and determined whether three specific situations would be within the definition of medical emergency 41 and thus outside the consent requirement. 42 In 37 Id. 38 Id. 39 A Woman s Choice-E. Side Women s Clinic v. Newman, 671 N.E.2d 104 (Ind. 1996). 40 Id. at (citing Roe v. Wade, 410 U.S. 113 (1973), and discussing Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992)). 41 For the statute s definition of medical emergency, see supra Section 1.a.(1). 42 Id. at 106 (addressing IND. CODE ). The Seventh Circuit eventually determined that this statute does not violate the United States Constitution. A Woman s Choice-E. Side Women s Clinic v. Newman, 305 F.3d 684 (7th Cir. 2002). 8

9 First, the Court held that, under the statute s definition of medical emergency, an exception from compliance arises when compliance would in any way pose a significant threat to the life or health of the woman. 43 The Chief Justice explained: Where a woman faces imminent, serious harm absent prompt action, the attending physician may perform the medically-indicated abortion. We think 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 the patient s condition indicates an abortion is medically necessary. The General Assembly intended the medical emergency exception to apply to all significant factors relevant to a woman s health. 44 Second, the definition would not allow an exception from the consent requirement when compliance threatens to cause severe but temporary physical health problems for the woman. 45 As the Chief Justice indicated, the statute allows only death or substantial and irreversible impairment to excuse compliance with its informed consent provisions. Temporary problems pass and are not ordinarily of such severity that they necessitate treatment by abortion. 46 Third, the definition would allow an exception from compliance when such compliance threatens to cause severe psychological harm to the woman, and [s]uch circumstances are covered by the exception, assuming they are not temporary. 47 The Chief Justice summed up his view of the exception: The Legislature has attempted to ensure that women receive the best information available when making this decision and to provide an exception when the information is not helpful because an abortion is medically necessary. [The] medical emergency exception excuses a woman from the informed consent requirement when there is a significant threat to her life or health, physical and mental Newman, 671 N.E.2d at Id. at Id. at Id. 47 Id. 48 Id. 9

10 Justice Dickson concurred in result with a separate opinion, in which he indicated his agreement with the majority s answers to the three certified questions but his view that the answers should rest on different grounds. For Justice Dickson, the majority s construction of the definition of medical emergency was necessitated by federal constitutional considerations. Thus, were it not for the requirement to construe statutes in such a way as to render them constitutional if reasonably possible, Justice Dickson would agree with Justice Sullivan s literal interpretation. 49 Justice Sullivan concurred and dissented with a separate opinion, reading the statute more restrictively: The plain language of the medical emergency definition allows for abortions only when a pregnant woman s medical condition is so complicated that either (i) immediate termination of her pregnancy is necessitated to avert her death or (ii) delay in termination of her pregnancy would create serious risk of substantial and irreversible impairment of a major bodily function.... [T]he grammatical construction of this provision simply will not lend itself to including within the definition of medical emergency such serious threats to the health of a pregnant woman as (i) substantial but reversible impairments of major bodily functions and (ii) irreversible impairments of minor bodily functions.... I think the legislative history shows that the Legislature intended this very restrictive abortion control system. 50 For Justice Sullivan, an exception to the voluntary and informed consent requirement would not arise when compliance would pose a significant threat to the life or health of the woman, would threaten to cause severe but temporary physical health problems for the woman, or would threaten to cause the woman severe psychological harm. 51 concurred in Justice Sullivan s result. 52 In a separate opinion, Justice Selby In 2005, in Clinic for Women, Inc. v. Brizzi, the Court considered a challenge to the statutory provisions requiring that a woman give informed consent to an abortion and that a physician provide certain information at least 18 hours before performing the abortion. 53 In this 49 Id. 50 Id. at Id. at Id. at Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973 (Ind. 2005). 10

11 case, several health care providers claimed that these requirements violated Article I, Section 1 of the Indiana Constitution, which recognizes life, liberty, and the pursuit of happiness as inalienable rights. 54 The Court, in a decision written by Justice Rucker and in which Chief Justice Shepard and Justice Sullivan concurred and Justice Dickson concurred in result, held that the statute is not unconstitutional on its face and that, even if the statute were challenged as applied in a particular case, the challenge would fail. 55 The Court observed that the relevant state constitutional standard was the material burden standard, which prohibits the state from impos[ing] a material burden upon a core constitutional value. 56 Under this test, a legislative enactment or governmental regulation [is] unconstitutional if it impose[s] a material burden on a fundamental right that constitute[s] a core constitutional value. 57 A litigant presenting a facial challenge to the constitutionality of a state statute carries the heavy burden of showing that no set of circumstances exists under which the statute can be constitutionally applied. 58 The Brizzi Court determined that the Indiana material burden test and the federal undue burden test of Planned Parenthood v. Casey are virtually indistinguishable [in operation and effect] for purposes of th[e] analysis. 59 In the Court s words, the material burden test is the equivalent of Casey s undue burden test, at least for purposes of assessing 54 Id. at Id. at 988. The plaintiffs filed this lawsuit seeking a permanent injunction against the enforcement of the statute. The lawsuit presented a facial challenge to the statute under Article I, Sections 1, 9, and 12 of the Indiana Constitution. The plaintiffs did not claim that the statute was unconstitutional as applied to any particular plaintiff. The trial court dismissed the complaint. Id. at 977. The Indiana Court of Appeals affirmed the trial court s dismissal of the challenges under Article I, Sections 9 and 12 but reversed the trial court s dismissal of the challenge under Article I, Section 1. Clinic for Women, Inc. v. Brizzi, 814 N.E.2d 1042 (Ind. Ct. App. 2004). The Court of Appeals held that Article I, Section 1 provides [t]he citizens of Indiana... a fundamental right of privacy that includes protection of the right to make... the decision to terminate pregnancy. Id. at On remand, the trial court was directed to conduct an evidentiary hearing to determine whether the statute imposes a material burden on this right. Id. at Brizzi, 837 N.E.2d at (citing Price v. State, 622 N.E.2d 954 (Ind. 1993)). In Price, which challenged the disorderly conduct statute, the Court articulated the material burden standard: [T]he State may not punish expression when doing so would impose a material burden upon a core constitutional value. Price, 622 N.E.2d at Brizzi, 837 N.E.2d at Id. at Id. at (citing Planned Parenthood v. Casey, 505 U.S. 833 (1992)). 11

12 1. 63 Justice Dickson concurred in the result with a separate opinion. 64 Justice Dickson wrote: 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 Article I, Section 1, of the Indiana Constitution. 60 The Court avoided deciding whether Article I, Section 1 in fact establishes a fundamental right of privacy that includes protection of a woman s right to terminate her pregnancy ; instead, the Court resolved the case by determining that the statute would not impose a material burden on a right that might exist under Article I, Section Nevertheless, whether the challenge to the statute were simply a facial challenge or an as-applied challenge, the statute did not impose a substantial obstacle to a woman s ability to terminate her pregnancy, regardless of any right she may have to do so that is protected by Article I, Section The statute would not impose a material burden upon any fundamental right of privacy that includes protection of a woman s right to terminate her pregnancy that might exist under Article I, Section The majority leaves open the question of whether Article 1, Section 1, of the Indiana Constitution should be interpreted to provide protection for a right to abortion. I prefer this Court to address that question and to explicitly declare that the Indiana Constitution does not protect any alleged right to abortion. In addition, because the challenged statutory pre-abortion requirements not only discourage harm to fetal life, but also protect the health of pregnant women, particularly in light of the risks to women from post-abortion psychological harm, I am convinced that these requirements not only are a proper exercise of legislative power but also are in direct harmony with and furtherance of core values of Article 1, Section 1, of the Indiana Constitution, which declares the inalienable right to life and the institution of government for the peace, safety, and well-being of the people Id. at Id. at Id. at Id. 64 Id. at Id. at

13 Justice Dickson observed that the proper resolution of this case is properly grounded on wellestablished principles of Indiana law, [r]egardless of one s personal opinion on [whether abortion is morally right or wrong], or whether it is wise or unwise. 66 Justice Dickson then traced established legal principles back to an early period in Indiana history and commented: 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. 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. 67 Additionally, according to Justice Dickson, finding Section 1 to provide abortion rights would directly contradict two express provisions in Section 1: First, the text of Section 1 expressly recognizes the inalienable right to life. Every decision to terminate a pregnancy denies this right to an unborn child.... 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. 68 Thus, for Justice Dickson, [b]y 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. 69 Justice Boehm dissented. 70 He wrote 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, and he would find that the statute imposes a material burden on the exercise of that 66 Id. 67 Id. at 989 (footnotes omitted). 68 Id. at Id. at Id. at

14 right. 71 Justice Boehm expressed his view that Article I, Section 1 is a stronger affirmation of a right to individual liberty than can be found in the Federal Constitution 72 and that [t]he very purpose of a Bill of Rights [i]s 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. 73 For Justice Boehm, 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. 74 According to Justice Boehm, the liberty rights guaranteed by Section 1 were not frozen as of the date of the constitution s drafting; rather, the protections affirmed by the Bill of Rights are evolving protections. 75 These liberty rights include rights to be free to make one s own decisions on fundamentally protected areas, notably family relations and sex and reproduction, 76 and they are entitled to the greatest deference. 77 In other words, the Indiana Constitution insulates some areas of human activity and guarantees that they are free from interference by the Legislature, 78 and one of the[] 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. 79 Justice Boehm disagreed with the majority for assuming (for the purpose of deciding the case) a right in the Indiana Constitution to choose an abortion, but finding that the statute did not impose a material burden. 80 Justice Boehm emphasized that the material burden standard does not involve a weighing or balancing, but only considers the magnitude of the impairment, and [i]f the right, as impaired, would no longer serve the purpose for which it was designed, it has 71 Id. at Id. at Id. at Id. at Id. at 999 (quoting Whittington v. State, 669 N.E.2d 1363, 1369 (Ind. 1996)). 76 Id. at Id. at Id. at Id. at In expressing this concern, Justice Boehm was expounding his view that every individual s answer to those issues [regarding having a child, valuing the life of the unborn child, and terminating a pregnancy] turns pivotally on the philosophical and religious outlook of the individual. Id. at Id. at

15 been materially burdened. 81 Thus, a statute that imposes a material burden on a core constitutional value is unconstitutional irrespective of its legislative purpose. 82 The issue of medical funding was addressed in 2003, in Humphreys v. Clinic for Women, Inc. In this case, a fractured Indiana Supreme Court held that Indiana statutes and regulations that restrict Medicaid funding of abortions for indigent women do not, on their face, violate Article I, Section 23 (the Equal Privileges and Immunities Clause) of the Indiana Constitution, but that this Clause requires Indiana to provide coverage in cases of pregnancies that create for the pregnant women serious risk of substantial and irreversible impairment of major bodily function. 83 The Clause states that [t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens. 84 Justice Sullivan wrote for the Court. In Part I of Justice Sullivan s opinion, in which Chief Justice Shepard and Justice Dickson concurred, the Court held that the Clause does not require Medicaid to pay for all abortions that are medically necessary. 85 The Court found the State s justifications of unavailability of federal financial participation, interest in protecting fetal life, fiscal policy, and administrative efficiency sufficient to sustain the constitutionality of the classification that allowed the state to pay for an abortion to preserve the life of a Medicaid-eligible pregnant woman or where the pregnancy was caused by rape or incest, but prohibited the state from paying for an abortion for a Medicaid-eligible pregnant woman for other medically necessary reasons. 86 The Court also determined that Medicaid funding is equally provided to all women who are in the class of Medicaid-eligible pregnant women seeking an abortion to preserve the life of the woman or where the pregnancy was caused by rape or incest. 87 The majority thus deferred to the General Assembly s classification, observed that the state s justifications are not 81 Id. at 1006 (quoting Price v. State, 622 N.E.2d 954, 961 n.7 (Ind. 1993)). 82 Id. at Humphreys v. Clinic for Women, Inc., 796 N.E.2d 247 (Ind. 2003). 84 IND. CONST. Art. I, Humphreys, 796 N.E.2d at , , Id. at Id. at

16 arbitrary or manifestly unreasonable, and recognized that the government s interest in protecting fetal life is a valid justification. 88 In Part II, in which Justice Boehm and Justice Rucker concurred, the Court held that so long as the Indiana Medicaid program pays for abortions to preserve the lives of pregnant women and where rape or incest cause pregnancy, it must also pay for abortions in cases of pregnancies that create for pregnant women serious risk of substantial and irreversible impairment of a major bodily function. 89 In considering the statute and regulations as applied, the Part II majority observed that the characteristics that distinguish Medicaid-eligible pregnant women whose pregnancies create serious risk of substantial and irreversible impairment of a major bodily function [are] virtually indistinguishable from the characteristics of women for whose abortions the State does pay. 90 In other words, [t]o the extent there is a distinction, it is too insubstantial to be sustained by the State s justifications. 91 In a separate opinion, Justice Boehm dissented as to Part I of the majority opinion, and Justice Rucker concurred with Justice Boehm. 92 Justice Boehm urged that Article I, Section 23 is violated by Indiana s denial of benefits to indigent women for medically necessary abortions when Indiana provides funding for medically necessary treatment for indigents generally. 93 Thus, for Justice Boehm and Justice Rucker, the statute is unconstitutional and imposes an unreasonable classification by set[ting] up a scheme for funding abortions that is different from that for funding for all other medical treatment. 94 Chief Justice Shepard and Justice Dickson dissented from Part II, and each wrote a separate opinion. 95 Chief Justice Shepard urged deference to the line-drawing by the General Assembly and Indiana governors and expressed his view that he could not say that the decisions made on the very difficult topic of public payments for abortion, made by Indiana s elected 88 Id. 89 Id. at 249, Id. at Id. 92 Id. at Id. at Id. at Id. at

17 representatives (and for that matter by the Congress and President Carter) are so arbitrary and unreasonable that they are unconstitutional. 96 Justice Dickson noted the careful line drawing by the General Assembly and expressed his disagreement with the ultimate resolution of the case, which appears to condition the holding in Part I by judicially expanding Indiana s Medicaid abortion coverage to require the state to provide abortion benefits clearly not intended by the Indiana General Assembly. 97 Protection of the Unborn from Criminal Violence While the Indiana General Assembly has included protection for unborn children in the criminal statutes addressing the crimes of homicide, voluntary manslaughter, involuntary manslaughter, and feticide, these crimes do not apply to an abortion performed in compliance with Indiana Code Under Indiana law, a person commits murder, a felony, when a person knowingly or intentionally kills a fetus that has attained viability. 99 A person commits voluntary manslaughter, a Class B felony, when a person knowingly or intentionally... kills a fetus that has attained viability... while acting under sudden heat. 100 However, the offense is a Class A felony if it is committed by means of a deadly weapon. 101 A person commits involuntary manslaughter, a Class C felony, if a person kills a fetus [(that has attained viability)] while committing or attempting to commit: (1) a Class C or Class D felony that inherently poses a risk of serious bodily injury; (2) a Class A misdemeanor that inherently poses a risk of serious bodily injury; or (3) battery. 102 The killing of such a fetus is a Class D felony if the killing results from the operation of a vehicle. 103 A person commits feticide, a Class C felony, when a person knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a 96 Id. at Id. at IND. CODE , (4) (a)(2). 101 Id (d). 103 Id. 17

18 dead fetus. 104 In Baird v. State, the Indiana Supreme Court affirmed a defendant s convictions and sentences for murder and feticide based upon the defendant s strangulation of his wife who was approximately six months pregnant. 105 The Court observed that the feticide statute is part of the homicide chapter and that the proper construction of the feticide statute requires that it be viewed not as an illegal abortion statute, but as an extension of the laws of homicide to cover the situation in which the victim is not a human being as defined by [Ind. Code ] (an individual who has been born and is alive), but a fetus. 106 In Shane v. State, the Indiana Supreme Court affirmed a defendant s convictions and sentences for murder, conspiracy to commit murder, and feticide based upon his accomplice s murder of the accomplice s girlfriend, who was twenty-nine weeks pregnant. 107 The Court observed: To sustain a feticide conviction, the state must show that [the defendant] either knowingly or intentionally terminated a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus, or knowingly or intentionally aided, induced, or caused another to commit that offense. 108 The Court determined that sufficient evidence existed to show that the defendant and his accomplice knew that the murder victim was pregnant when she was murdered and that the unborn child died as a result of the mother s death. 109 A person commits neglect of a dependent, a Class D felony, when a person having the care of a dependent, whether assumed voluntarily or because of a legal obligation... knowingly or intentionally... places the dependent in a situation that endangers the dependent s life or health. 110 The offense is a Class C felony if it results in bodily injury, a Class B felony if it results in serious bodily injury, and a Class A felony if it results in the death of a dependent who is less than fourteen years of age. 111 The statute defines dependent as an unemancipated Baird v. State, 604 N.E.2d 1170 (Ind. 1992). 106 Id. at Shane v. State, 716 N.E.2d 391 (Ind. 1999). The Indiana Supreme Court also affirmed the murder and feticide convictions of the accomplice, but remanded the case for resentencing. Hicks v. State, 690 N.E.2d 215 (Ind. 1997). 108 Shane, 716 N.E.2d at 396 (citing IND. CODE & ). 109 Id. For another case affirming the murder and feticide convictions of a defendant who killed a pregnant woman, see Perigo v. State, 541 N.E.2d 936 (Ind. 1989). 110 IND. CODE (a)(1) (b)(1), (2), (3). 18

19 person who is under eighteen years of age or a person of any age who has a mental or physical disability. 112 The Court of Appeals has determined that the statutory definition of dependent does not include an unborn child, and thus a pregnant mother who ingests cocaine does not commit neglect of a dependent. 113 The Child Wrongful Death Act allows a parent or a guardian to file an action against a person whose wrongful act or omission caused the injury or death of a child. 114 The statute defines a child as an unmarried individual without dependents who is... less than twenty (20) years of age; or less than twenty-three (23) years of age and is enrolled in an institution of higher education or in a vocational school or program. 115 In 2002, in Bolin v. Wingert, the Indiana Supreme Court considered whether the statute s definition of child includes a nonviable unborn child. 116 In Bolin, a mother and her husband sought recovery after her unborn child was miscarried as a result of injuries sustained by the mother and the child in a motor vehicle accident. In an opinion written by Chief Justice Shepard, the Court unanimously held that the unborn child was not within the statute s definition. 117 The Court observed that the wrongful death action is a creature of statute, that the General Assembly did not expressly include unborn children in the definition, and that the General Assembly could expand the scope of protection if it so chooses. 118 According to the Court, for a child to be within the statutory definition, the child would have to be born alive and thus be an independently living human being. 119 Nevertheless, in the Court s view, the mother could seek damages to compensate her for her miscarriage. 120 In 2005, in Horn v. Hendrickson, the Indiana Court of Appeals applied the Indiana Supreme Court s construction of the term child and affirmed the dismissal of a mother s Herron v. State, 729 N.E.2d 1008, (Ind. Ct. App. 2000) (b) (a). 116 Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002) (construing IND. CODE , recodified unchanged at IND. CODE ). 117 Id. at Id. 119 Id. at Id. at

20 Bolin. 125 Several cases in Indiana have also explored the issue of access to minor patients medical wrongful death action after her viable unborn child died as a result of an automobile accident. 121 The court noted that the Bolin decision involved only a nonviable unborn child, but nevertheless concluded that it controlled the resolution of the case. 122 The court, however, stated several reasons why the Indiana Supreme Court should reconsider its Bolin opinion, including its view that the Indiana Supreme Court injected the born alive test into the statute, that the Bolin opinion resurrected a nineteenth century standard that the Legislature did not intend to apply, and that a viable fetus is an individual (i.e., a separate and distinct entity). 123 The court added that the issue is not whether the fetus is a person, but whether it is an individual under the statute, and in the court s view, the statutory term individual would include a fetus. 124 Thus, the court of appeals encouraged the Indiana Supreme Court to revisit its construction of the statute in records. In 2006, in Planned Parenthood of Indiana v. Carter, the Indiana Court of Appeals decided a case involving government access to the medical records of minor patients who received medical services at several Planned Parenthood of Indiana clinics. The court determined that Planned Parenthood of Indiana was entitled to a preliminary injunction against a state agency s demand for unlimited access to its patients medical records. 126 Based upon a complaint, the Indiana Medicaid Fraud Control Unit undertook an investigation to determine whether, between 2002 and 2004, Planned Parenthood had neglected 73 of its minor patients by allegedly failing to report child sexual abuse as required by Indiana 121 Horn v. Hendrickson, 824 N.E.2d 690 (Ind. Ct. App. 2005). 122 Id. at Id. at Id. at Id. at 701. It appears that the mother did not seek discretionary review by the Indiana Supreme Court. 126 Planned Parenthood of Ind. v. Carter, 854 N.E.2d 853 (Ind. Ct. App. 2006). Judge Crone wrote the opinion for the court, and Judge Najam concurred. Judge Barnes concurred with separate opinion. Judge Barnes agreed that the minor patients of Planned Parenthood have a Fourteenth Amendment right to privacy in their medical records and that Planned Parenthood had standing to assert this claim on their behalf, but he wrote separately to emphasize the need for any subpoena of such records to (at a minimum) meet the standards set forth by the Indiana Supreme Court in Oman v. State, 737 N.E.2d 1131, 1137 (Ind. 2000). These standards require an investigative subpoena to be relevant in purpose, sufficiently limited in scope, and specific in directive so that compliance will not be unreasonably burdensome. Carter, 854 N.E.2d at 886 (quoting Oman, 737 N.E.2d at 1141). 20