Cheaney v. State

• Decision Date: 24 July 1972
• Docket Number: No. 1171S321,1171S321
• Parties: Ollie CHEANEY (Mae Owens), Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 265

285 N.E.2d 265

259 Ind. 138

Ollie CHEANEY (Mae Owens), Appellant, v. STATE of Indiana, Appellee.

No. 1171S321.

Supreme Court of Indiana.

July 24, 1972.

Rice & VanStone, Evansville, for appellant.

Theo. L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Ollie Cheaney (Mae Owens), appellant (defendant below) from a conviction of abortion pursuant to IC 1971, 35--1--58--1 (Ind.Ann.Stat. § 10--105 (1956 Repl.)) hereinafter referred to as the Indiana Abortion Law. It reads as follows:

'Whoever prescribes or administers to any pregnant woman, or to any woman whom he supposes to be pregnant, any drug, medicine or substance whatever, with intent thereby to procure the miscarriage of such woman, or, with like intent, uses or suggests, directs or advises the use of any instrument or means whatever, unless such miscarriage is necessary to preserve her life, shall, on conviction, if the woman miscarries, or dies in consequence thereof, be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), and be imprisoned in the state prison not less than three (3) years nor more than fourteen (14) years.'

Appellant entered a plea of not guilty and filed a Motion to Quash the affidavit which was overruled. The cause was tried to a jury and appellant was found guilty as charged. Appellant was sentenced to the Indiana Women's Prison for not less than three (3) years nor more than fourteen (14) years. A Motion to Correct Errors was overruled and this appeal followed. Appellant bases her entire appeal on the denial of the Motion to Quash having specifically waived any other alleged errors. Appellant claims the Motion to Quash should have been sustained because the Indiana Abortion Law is unconstitutional on three different grounds. First, it is claimed the law violates the Ninth Amendment to the United States Constitution in that it deprives a woman of her private decision whether to bear an unquickened fetus. Secondly, it is claimed that its enforcement denies equal protection to the poor. Third, it is claimed that the statute is unconstitutionally vague because of that part of the statute which reads 'is necessary to preserve life.'

I

Our initial concern is the State's challenge to appellant's standing to assert the claim that the law is an unconstitutional denial of a woman's right to decide whether to bear an unquickened fetus. Admittedly it is the general rule that one may not attack a statute on constitutional grounds unless he is a member of class of people whose constitutional rights have been infringed upon. See United States v. Raines (1960), 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. However, in Griswold v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, the executive and medical directors of a planned parenthood league who were convicted as accessories to the crime of using contraceptives were held to have standing to raise the constitutional rights of the married people with whom they had a professional relationship. The Court there stated:

'Certainly the accessory should have standing to assert that the offense which he is charged with assisting is not, or cannot constitutionally be, a crime.' 381 U.S. at 481, 85 S.Ct. at 1680.

Although we have separate statutes for the person performing the abortion and the person receiving the abortion, the relationship is substantially the same as that of principal and accessory. See also, Eisenstadt v. Baird (1972), 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349; Roe v. Wade (N.D.Texas 1970), 314 F.Supp. 1217; Doe v. Bolton (N.D.Ga.1970), 319 F.Supp. 1048; Steinberg v. Brown (N.D. Ohio 1970), 321 F.Supp. 741. There can really be no doubt about the existence of a case and controversy in this instance. We therefore hold that the appellant has standing to assert this claim and we reach the merits.

Appellant asserts that the Ninth Amendment provides a fundamental right to privacy which includes the woman's right to decide whether to bear an unquickened fetus citing Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra. She also cites Union Pacific Railway Co. v. Botsford (1891), 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 wherein it is stated:

'No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.'

Admitting that a certain right to privacy does exist, be it under the Ninth Amendment or emanating from a penumbra of the rights contained in the first nine amendments, the question becomes whether there is a compelling state interest in the regulation of this activity. A complete prohibition of abortions except to save the mother's life is no longer necessary to protect a woman's health as it has been demonstrated that an abortion, under proper medical care, during the early months of pregnancy is now safer than childbirth. See, Association for the Study of Abortions Newsletter Vol. VI Nos. 2--3 at 6 (Spring-Summer 1971); 23 Hastings L.J. 147 (1971). However, this is not the only interest of the State; the appellee contends protecting the life of the unborn child constitutes the basis for a compelling state interest. To make this determination we must decide whether the unborn child has an independent existence, and also whether this independent existence begins at conception or only at quickening. In doing so, we look to the legal recognition and the medical recognition of the fetus, both quickened and unquickened.

A

Early in the common law of property, the courts recognized the property rights of an unborn child without regard to the state of gestation. See Wallis v. Hodson (Ch.1740), 26 Eng.Rep. 472; Marsh v. Kirby (Ch.1634), 21 Eng.Rep. 512, Hale v. Hale (Ch.1692), 24 Eng.Rep. 25; Burdet v. Hopegood (Ch.1718), 24 Eng.Rep. 484; Doe v. Clark (C.P.1795), 126 Eng.Rep. 617. Blackstone stated:

'An infant in (sic) ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born.' W. Blackstone, Commentaries.

Page 130

This led a New York court to conclude:

'It has been the uniform and unvarying decision of all common law courts in respect of estate matters for at least the past two hundred years that a child en ventre sa mere is 'born' and 'alive' for all purposes for his benefit.' In Re Holthausen's Will (1941), 175 Misc. 1022, 1024, 26 N.Y.S.2d 140, 143.

Indiana has followed this precedent. In King v. Rea (1877), 56 Ind. 1 it was held that a deed to the grantee 'and her children, and their heirs and assigns forever' included children en ventre sa mere but excluded any other afterborn children. In Biggs v. McCarty (1882), 86 Ind. 352 there was a devise to devisee and her children; and, at the time of testator's death, the devisee was pregnant. It was held that the estate vested immediately such as to create a tenancy in common between the devisee and her unborn child to the exclusion of any afterborn children. An unborn child also receives rights without consideration of the time of quickening under our present Probate Code. IC 1971, 29--1--2--6 (Ind.Ann.Stat. § 6--206 (1953 Repl.) reads:

'Descendants of the intestate, begotten before his death but born thereafter, shall inherit as if they had been born in the lifetime of the intestate and had survived him. With this exception, the descent and distribution of intestate estates shall be determined by the relationships existing at the time of the death of the intestate.'

B

In the field of torts, it was held for many years that the unborn child was part of the mother and no recovery was allowed for the injury to the unborn child. The leading case was Dietrich v. Inhabitants of Northampton (1884), 138 Mass. 14. However as we gained more knowledge medically, legal attitudes started changing. The first case recognizing a right of recovery in such a case was Bonbrest v. Kotz (DD.C.1946), 65 F.Supp. 138. A right of recovery for injuries to the unborn child is now allowed in a majority of the states. See Note, 46 Notre Dame Lawyer 349, 356 n. 59 (1971). Recently the Court of Appeals of Indiana held that a father could maintain an action for the wrongful death of a stillborn child. See Britt v. Sears (1971), Ind.App., 277 N.E.2d 20. It was stated by Professor Prosser:

'All writers who have discussed the problem have joined in condemning the old rule, in maintaining that the unborn child in the path of an automobile is as much a person in the street as the mother, and in urging tht recovery should be allowed upon proper proof.' Prosser, Law of Torts, § 55 at 336 (4th ed. 1971).

However, many of the cases cling to a viability distinction whereby recovery is allowed only if the unborn child is viable. This appears to be a carryover from the old common law. For instance, under common law, abortion could be a crime only after the unborn child had quickened. See Smith v. Gaffard (1857), 31 Ala. 45; Abrams v. Foshee (1856), 3 Iowa 274; Smith v. State (1851), 33 Me. 48. It would seem the reason for using this distinction was that it provided a short-hand method for the common law to establish the point in time when the unborn child first became a living being. Since quickening was the first time the mother felt movement, it was used to represent the first manifestations of life separate and distinct from the mother. See Evans v. People (1872), 49 N.Y. 86. It appears therefore that the distinction was based on the extent of the medical knowledge at the time. This idea is bolstered by the common law and statutory...