Clinic for Women, Inc. v. Brizzi

Decision Date17 September 2004
Docket NumberNo. 49A05-0305-CV-259.,49A05-0305-CV-259.
Citation814 N.E.2d 1042
PartiesCLINIC FOR WOMEN, INC., et al., Appellant-Plaintiff, v. Carl J. BRIZZI, on behalf of a defendant class of all Indiana Prosecuting Attorneys, Appellee-Defendant.
CourtIndiana Appellate Court

814 N.E.2d 1042

CLINIC FOR WOMEN, INC., et al., Appellant-Plaintiff,
Carl J. BRIZZI, on behalf of a defendant class of all Indiana Prosecuting Attorneys, Appellee-Defendant

No. 49A05-0305-CV-259.

Court of Appeals of Indiana.

September 17, 2004.

814 N.E.2d 1044
Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN, Simon Heller, Janet Crepps, New York, NY, Attorneys for Appellant

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

Eric Allan Koch, The Koch Law Firm, P.C., Bloomington, IN, Paul Benjamin Linton, Northbrook, IL, Attorneys for Amicus Curiae, Members of the Indiana General Assembly.

William J. Wood, Wood, Tuohy, Gleason, Mercer & Herrin, P.C., Indianapolis, IN, Attorneys for Amicus Curiae, Indiana Catholic Conference.


VAIDIK, Judge.


Clinic for Women ("the Clinic") appeals the trial court's decision to dismiss its complaint challenging the constitutionality of Indiana Code § 16-34-2-1.1, the statute governing voluntary and informed consent to abortion. We find that article I, § 1 of the Indiana Constitution protects and is animated by privacy as a core constitutional value and that this state constitutional right of privacy extends to all Indiana citizens, including women seeking to obtain an abortion. Thus, we reverse and direct the trial court to reinstate the complaint and to conduct a hearing for the purpose of determining whether the requirements of the informed consent statute impose a material burden on the core constitutional value of privacy. We also find, as a matter of first impression, that article I, § 9 of the Indiana Constitution — the free speech provision — extends to the right to refrain from speaking, i.e. compelled speech, but that the informed consent statute does not unconstitutionally infringe upon this right.1


814 N.E.2d 1045

The Clinic, which provides abortions in Indiana, alleges that Indiana Code § 16-34-2-1.1 violates the state constitutional right of privacy of women seeking to obtain abortions and the abortion providers' right to free speech under the Indiana Constitution.3 Specifically, the Clinic challenges the statutory requirements that women seeking abortions receive in-person counseling at least eighteen hours before obtaining an abortion (the "two trip requirement") and that abortion providers orally convey information specified in the statute to women seeking to obtain an abortion.4 The Clinic maintains that requiring

814 N.E.2d 1046
women to make two trips to the abortion provider at least eighteen hours apart — the first for counseling and the second for the procedure — may effectively prevent women who live in rural areas of Indiana from obtaining abortions because of the distance they must travel to gain access to an abortion provider

The Clinic filed a complaint in February 2003, seeking to enjoin enforcement of the statute on the ground that it violates the Indiana Constitution. In April 2003, the State filed a motion to dismiss the Clinic's complaint for failure to state a claim. Following a hearing, the trial court granted the State's motion, and the Clinic appealed to this Court.


At the outset we note that this case is before us on appeal from the trial court's dismissal of the Clinic's complaint pursuant to Indiana Trial Rule 12(B)(6). In reviewing the grant of a motion to dismiss pursuant to Trial Rule 12(B)(6), our standard of review is well settled. Lawson v. First Union Mortgage Co., 786 N.E.2d 279, 281 (Ind.Ct.App.2003). A 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of a claim, not the facts supporting it. Id. Therefore, we view the complaint in the light most favorable to the non-moving party, drawing every reasonable inference in favor of that party. Id. In reviewing a ruling on a motion to dismiss, we stand in the shoes of the trial court and must determine if the trial court erred in its application of the law. Id. The trial court's grant of the motion to dismiss is proper if it is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Id. Furthermore, in determining whether any facts will support the claim, we look only to the complaint and may not resort to any other evidence in the record. Id.

I. Right of Privacy

The Clinic challenges the constitutionality of Indiana Code § 16-34-2-1.1, asserting that the statute's "two trip requirement" — resulting from the combination of an in-person counseling requirement and a mandatory 18-hour waiting period — imposes a material burden on the state constitutional right of privacy of women seeking to obtain abortions. The State denies that the Indiana Constitution protects a right of privacy; the State argues alternatively that even if such a state constitutional right does exist, the challenged statute does not unconstitutionally violate that right. We begin our analysis with an overview of privacy in Indiana and then discuss privacy as a core constitutional value animating article I, § 1 of the Indiana Constitution, which provides:

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,
814 N.E.2d 1047
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.

We find that privacy not only animates article I, § 1, but permeates the atmosphere created by our constitution and extends to all our citizens, including women seeking to exercise their right to obtain an abortion.

A. Privacy in Indiana

"[Indiana] was born in conflict, in individualism. It would seem to follow that the constitution's key values are not civility, equality, tranquility, or order, but liberty, opportunity, vigor, and privacy." Patrick Baude, Has the Indiana Constitution Found its Epic? 69 Ind. L.J. 849, 854 (1994). Privacy is not only a core value within the Indiana Constitution but permeates the atmosphere created by our constitution. In addition to article I, § 1, privacy underlies a number of other rights guaranteed by provisions in our Bill of Rights. These include the protections provided for the natural right to worship, Ind. Const. art. I, § 2; freedom of religious opinions and rights of conscience in Ind. Const. art. I, § 3; freedom of religion, Ind. Const. art. I, § 4; the rights to free thought and speech, Ind. Const. art. I, § 9; freedom from unreasonable search or seizure, Ind. Const. art. I, § 11; freedom of emigration, Ind. Const. art. I, § 36; and numerous other rights enumerated in the Indiana Constitution.

Our courts have at least implicitly assumed in previous cases that the right to privacy is embodied in the Indiana Constitution. In Matter of Lawrance, 579 N.E.2d 32, 38-39 (Ind.1991), our supreme court was asked to decide whether a person in a persistent vegetative state could be removed from artificial nutrition and hydration. In discussing the parameters of the right to make health care decisions, the court stated: "`Every human being of adult years and sound mind has a right to determine what shall be done with his own body.'" Id. (quoting Schloendorff v. Soc'y of New York Hosp., 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914), overruled on other grounds). The court then cited § 1 and noted:

This common law has evolved in a legal culture governed by the Indiana Constitution, which begins by declaring that the liberty of our citizens is inalienable. The debates of our constitutional convention suggest that those who wrote the constitution believed that liberty included the opportunity to manage one's own life except in those areas yielded up to the body politic.

Id. at 39 (citing Ind. Const. art. I, § 1) (footnote omitted).

In State ex rel. Mavity v. Tyndall, our supreme court held that citizens of Indiana have a right to privacy and protection guaranteed by article I, § 21 of the Indiana Constitution, which provides that no services or property may be taken without just compensation. Mavity, 225 Ind. 360, 365, 74 N.E.2d 914, 916 (1947); see also Voelker v. Tyndall, 226 Ind. 43, 44-45, 75 N.E.2d 548, 549 (1947) (stating, in a case involving a police department's retention of fingerprints, that the right of privacy is a "well-established doctrine, derived from natural law and guaranteed by both the Federal and State Constitutions"). Our supreme court has also held that the individual's right to engage in a lawful business, to determine the price of his or her labor, and to fix his or her business hours, except as they conflict with the police power, are personal privileges and liberties within the protection of the Indiana Bill of Rights. State Bd. of Barber Exam'rs v. Cloud, 220 Ind. 552, 572-73,

814 N.E.2d 1048
44 N.E.2d 972, 980 (1942); see also Kirtley v. State, 227 Ind. 175, 179, 84 N.E.2d 712, 714 (1949) (interpreting right created by art. I, § 1); City of Indianapolis v. Clint's Wrecker Serv., Inc., 440 N.E.2d 737, 741-42 (Ind.Ct.App.1982) (considering whether statute violated art. I, § 1). And in Meury v. Eagle-Union Cmty. Sch. Corp., this Court held that the plaintiffs had failed to show "the necessary predicate to a violation" of their state constitutional privacy rights, not that such rights did not exist. Meury, 714 N.E.2d 233, 242 (Ind.Ct.App.1999), trans. denied. We referred in that case to a "state constitutional tort for invasion of privacy." Id.

In countless other arenas, we have recognized that Indiana citizens are...

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4 cases
  • Clinic for Women, Inc. v. Brizzi
    • United States
    • Indiana Supreme Court
    • November 23, 2005
    ...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 1......
  • Rhoades v. Penn-Harris-Madison School Corp.
    • United States
    • U.S. District Court — Northern District of Indiana
    • August 5, 2008
    ...1042 (Ind.Ct.App.2004), the Court of Appeals held that this section "protects and is animated by privacy as a core constitutional value," Id. at 1044, and that governmental action is invalid if it "materially burdens" that core value. Id. at 1051. Relying on Clinic for Women, PHMSC argues t......
  • Morrison v. Sadler
    • United States
    • Indiana Appellate Court
    • January 20, 2005
    ...enforceable "core value" right to privacy, including a right to decide whether to terminate a pregnancy. Clinic For Women, Inc. v. Brizzi, 814 N.E.2d 1042, 1048-49 (Ind.Ct.App.2004). The decision stopped short of invalidating an abortion regulation statute, however, and instead remanded for......
  • Clinic for Women v. Brizzi
    • United States
    • Indiana Supreme Court
    • January 27, 2005

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