Clinic for Women, Inc. v. Brizzi

• Citation: 837 N.E.2d 973
• Decision Date: 23 November 2005
• Docket Number: No. 49S05-0501-CV-31.,49S05-0501-CV-31.
• Parties: CLINIC FOR WOMEN, INC., Appellants (Plaintiffs below), v. Carl J. BRIZZI, Appellee (Defendant below).
• Court: Supreme Court of Indiana

837 N.E.2d 973

CLINIC FOR WOMEN, INC., Appellants (Plaintiffs below), v. Carl J. BRIZZI, Appellee (Defendant below).

No. 49S05-0501-CV-31.

Supreme Court of Indiana.

November 23, 2005.

COPYRIGHT MATERIAL OMITTED

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.

Steve Carter, Attorney General of Indiana, Thomas M. Fisher, Special Counsel, Ellen H. Meilaender, Deputy Attorney General, Anna Tooman, Law Clerk, Indianapolis, Attorneys for Appellee.

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 (1973). In the intervening years, the scope of that right has been interpreted in many court decisions. One of those decisions held that the abortion right was not infringed upon by a statute enacted by the legislature in Pennsylvania that, among other things, (1) required that a woman seeking an abortion give her informed consent prior to the procedure and (2) specified that a physician "orally" provide her with certain information at least 24 hours before the abortion was performed. Planned Parenthood v. Casey, 505 U.S. 833, 881-87, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).

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. Ind.Code § 16-34-2-1.1.¹ It is often argued that one of the practical consequences of the requirement that the oral advisements be given to the woman in person 18 hours (or 24 as in Pennsylvania) before an abortion is performed is that the woman must make two trips to the facility. This has been referred to in subsequent litigation as the "in her presence" or "two trip" requirement. The "in her presence" or "two trip" requirement does not apply in the "case of medical necessity." Id.

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 Article I, Section 1,² of the Indiana Constitution because it "infringes upon women's liberty interests to determine the course of their medical treatment." Second, they maintain that the statute violates both Article I, Section 1, and Article I, Section 12,³ because it "infringes upon women's right to choose abortion." Third, they maintain that the statute violates Article I, Section 9,⁴ because it "infringes the rights of plaintiffs and their patients to the free interchange of thought and opinion and to freedom of speech."⁵

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 Article I, Section 9, and Article I, Section 12 of the Indiana Constitution. We summarily affirm those determinations. Ind. Appellate Rule 58(A)(2). And while not going so far as to hold that the statute violates Article I, Section 1, the Court of Appeals did hold 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." Clinic for Women, 814 N.E.2d at 1048-49. The Court of Appeals then remanded this case to the trial court for an evidentiary hearing on whether the statute imposes "a material burden" on this right. Id. at 1050-52. Having previously granted the State's petition to transfer, we now affirm the judgment of the trial court.

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 Article I, Section 1, protects no judicially enforceable rights in general and does not protect a right to abortion in particular. Id. at 3-4. We find it unnecessary to determine whether there is any right to privacy or abortion provided or protected by Indiana's Constitution because we are of the view that (a) plaintiffs in this case have not overcome the heavy burden imposed on those challenging the facial validity of a statute, and (b) in any event, the provisions of the statute are such that they would not impermissibly impinge upon any right to privacy or right to abortion that might exist.

I.

Both the State and the plaintiffs focus on whether Indiana Code § 16-34-2-1.1 places a "material burden" on a woman's right to make the ultimate decision to terminate her pregnancy. This standard was first articulated in Price v. State, 622 N.E.2d 954 (Ind.1993), where the defendant was convicted of disorderly conduct based on her statements to an arresting officer. Although defendant Price challenged the disorderly conduct statute on grounds that it was overbroad and therefore void "on its face," id. at 958, this Court rejected that claim declaring among other things, "[u]nless the court concludes that the statute before it is incapable of constitutional application, it should limit itself to vindicating the rights of the party before it." Id. We therefore declined to address the defendant's claim that the challenged statute was unconstitutional on its face and "turn[ed] instead to whether its application in this case was constitutional." Id. (emphasis added). On this "unconstitutional as applied" claim, we announced the "material burden" standard. It provides in relevant part: "[T]he State may not punish expression when doing so would impose a material burden upon a core constitutional value." Id. at 960. We elaborated:

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 involved claims that a disorderly conduct conviction or juvenile adjudication materially burdened a right of free speech. See Whittington v. State, 669 N.E.2d 1363 (Ind.1996); Matter of U.M. v. State, 827 N.E.2d 1190 (Ind.Ct.App.2005); Mitchell v. State, 813 N.E.2d 422 (Ind.Ct.App.2004), trans. denied; Madden v. State, 786 N.E.2d 1152 (Ind.Ct.App.2003), trans. denied, 792 N.E.2d 48; Johnson v. State, 747 N.E.2d 623 (Ind.Ct.App.2001); Shoultz v. State, 735 N.E.2d 818 (Ind.Ct.App.2000), trans. denied, 753 N.E.2d 2; Johnson v. State, 719 N.E.2d 445 (Ind.Ct.App.1999); Radford v. State, 640 N.E.2d 90 (Ind.Ct.App.1994), trans....