Conn v. Conn, 73S01-8807-CV-631

• Decision Date: 15 July 1988
• Docket Number: No. 73S01-8807-CV-631,73S01-8807-CV-631
• Parties: In re the Marriage of Jennifer Ann CONN, Petitioner-Appellant, v. Erin Andrew CONN, Respondent-Appellee.
• Court: Indiana Supreme Court

Page 958

526 N.E.2d 958

In re the Marriage of Jennifer Ann CONN, Petitioner-Appellant, v. Erin Andrew CONN, Respondent-Appellee.

No. 73S01-8807-CV-631.

Supreme Court of Indiana.

July 15, 1988.

Rehearing Denied July 18, 1988.

Richard A. Waples, William E. Marsh, Ind., for petitioner-appellant.

James B. Marsh, Jr., Terre Haute, Roger W. Bennett, Lafayette, John O. Worth, Rushville, for respondent-appellee.

ORDER

GRANTING PETITION FOR TRANSFER

THE COURT now grants Appellee's "Petition for Transfer and Expedited Appeal."

/s/ Roger O. DeBruler

ROGER DeBRULER

Acting Chief Justice for the Court

SHEPARD, C.J., and GIVAN, PIVARNIK, and DICKSON, JJ., concur.

DeBRULER, J., dissents to the granting of transfer.

ORDER

AFFIRMING THE COURT OF APPEALS

THE COURT, having granted Appellee's "Petition for Transfer and Expedited Appeal," now adopts the opinion of Judge Neal written on behalf of the unanimous First District of the Court of Appeals and affirms its judgment. Appellate Rule 11(B)(3), Ind. Rules of Procedure.

/s/ Roger O. DeBruler

ROGER O. DeBRULER

Acting Chief Justice

SHEPARD, C.J., and DeBRULER, GIVAN, and DICKSON, JJ., concur.

PIVARNIK, J., dissents with opinion.

PIVARNIK, Justice, dissenting.

I respectfully dissent from the position taken by the majority in this case. The majority has granted transfer from the court of appeals and summarily affirmed. The legal effect of this pursuant to our rules is to adopt the court of appeals opinion as our own. By doing so, this court has taken a position I perceive to be more social than legal, and sets a standard in our society I cannot endorse. With fullest regard and respect for my colleagues on this court and the court of appeals, I recognize the ultimate decision on issues such as this rests with the United States Supreme Court, and we as judges are bound under the law to recognize the judgments of that honorable court and to find it to be the law even though we might personally disagree with it for whatever reason. Judge Neal, speaking for a unanimous court, very judiciously acknowledged this when he stated:

Although the moral concepts of abortion, as well as the assumption by the Supreme Court of the right to establish social policy, a function ordinarily reserved to legislative bodies, are troublesome to some members of this court, such personal reservations are irrelevant to the opinion here. Our duty consists only of applying the law as announced by the Supreme Court.

Conn v. Conn (1988), Ind.App., 525 N.E.2d 612, 616.

I agree with Judge Neal's conclusion. However, I also believe this court as the highest judicial tribunal of this State is not without responsibility to face the issues presented by our citizens and respond to them in a judicial manner. It is my view the fact situation in this case takes the issue beyond the holdings, relied on by the majority, in Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 and Planned Parenthood of Missouri v. Danforth, (1976), 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788. As I will demonstrate, the facts in this case take this issue to its The trial court here did not enter a permanent injunction ordering Jennifer Conn to carry this child to term. Neither was it suggested the husband has an unfettered veto power over his wife's desire to abort the fetus. The court found both parties have some rights in making this decision and enjoined the wife from aborting the fetus until the parties could be heard and a judicial determination made. This was done when there was plenty of time left in the first trimester. In Danforth, the United States Supreme Court found there is a balancing of rights between the parties and further said that because the wife is the one who bears the child and, between the two, is more directly and immediately affected by the pregnancy, the balance weighs in her favor. The question remains whether a majority of that Court intended to foreclose the issue to the extent it meant to say in every case, under any facts and circumstances, the husband may not even inquire into the wife's decision to take this step, and cannot bring it into court to be decided as all other issues in our society are decided, including those rights and responsibilities in marriage relationships. As the majority opinion points out in Roe, the Supreme Court declared state statutes proscribing abortions in the first trimester unconstitutional. In regard to the first trimester, it found:

ultimate position by holding that Jennifer Conn had an absolute and constitutional right to destroy a life created by her and her husband in marriage, for any reason or, in fact, for no reason, and that no one, including the husband, has a right to even inquire into her motives or into the wisdom or advisability of such action. The opinion this court hands down today holds that Erin Conn has no right under any facts to veto Jennifer's decision and the trial court is ordered to dismiss all proceedings related to the abortion issue. This finality seems to infer it is unthinkable for a court to even consider this issue or leave it of record.

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

Roe, 410 U.S. at 164, 93 S.Ct. at 732.

In Danforth, the Supreme Court faced an issue challenging the constitutionality of a provision in a Missouri statute which required the consent of a husband before a woman could obtain an abortion during the first twelve weeks of the pregnancy. The Court stated the issue:

In Roe and Doe we specifically reserve decision on the question whether a requirement for consent by the father of the fetus, by the spouse, or by the parents, or a parent, of an unmarried minor, may be constitutionally imposed. 410 U.S. at 165, n. 67, 93 S.Ct. at 733 [n. 67]. We now hold that the state may not constitutionally require the consent of the spouse as is specified under Sec. 3(3) of the Missouri Act, as a condition for abortion during the first 12 weeks of pregnancy.

Danforth, 428 U. S. at 69, 96 S. Ct. at 2841.

The thrust of the Danforth majority was that the effect of Sec. 3(3) of the Missouri Act gave the husband a veto power exercisable for any reason or no reason at all. Clearly the Court said a state statute cannot stand that gives the husband the absolute power to foreclose the conflict by withholding his approval. In fact, as argued in the briefs, the wife and her doctor could not finalize the decision without first having the husband's consent even if the husband's whereabouts were unknown and obtaining consent impossible. The Court then stated:

We recognize, of course, that when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of Danforth, 428 U.S. at 71, 96 S.Ct. at 2842.

                the two marriage partners can prevail.  Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.   Cf. Roe v. Wade, 410 U.S. at 153, 93 S.Ct.  [at 726]
                

Is this language so conclusive it contemplates a wife will have an absolute veto power over any objections or considerations raised by the husband? Justices Stewart and Powell wrote a separate concurring opinion covering several issues in the case, and with reference to this issue stated:

As to the provision of the law that requires a husband's consent to an abortion, Sec. 3(3), the primary issue that it raises is whether the State may constitutionally recognize and give effect to a right on his part to participate in the decision to abort a jointly conceived child. This seems to me a rather more difficult problem than the Court acknowledges. Previous decisions have recognized that a man's right to father children and enjoy the association of his offspring is a constitutionally protected freedom. See Stanley v. Illinois, 405 U.S. 645, [92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ]; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 [62 S.Ct. 1110, 86 L.Ed. 1655 (1942) ]. But the Court has recognized as well that the Constitution protects "a woman's decision whether or not to terminate her pregnancy." Roe v. Wade, supra [410 U.S.] at 153 , (emphasis added). In assessing the constitutional validity of Sec. 3(3) we are called upon to choose between these competing rights. I agree with the Court that since "it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy ... the balance weighs in her favor." Ante [428 U.S.] at 71 .

Danforth, 428 U.S. at 90, 96 S.Ct. at 2850.

Justice White wrote a dissenting opinion joined in by Chief Justice Berger and Justice Rehnquist. In his dissent in regard to the issue before us, Justice White provided:

Roe v. Wade, supra, [410 U.S.], at 163 , holds that until a fetus becomes viable, the interest of the State in the life or potential life it represents is outweighed by the interest of the mother in choosing "whether or not to terminate her pregnancy." 410 U.S., at 153 . Section 3(3) of the Act provides that a married woman may not obtain an abortion without her husband's consent. The Court strikes down this statute in one sentence. It says that "since the State cannot ... proscribe abortion ... the State cannot delegate authority to any particular person, even the spouse, to prevent abortion...." Ante ...