A Woman's Choice-East Side Women's Clinic v. Newman

• Decision Date: 07 August 1996
• Docket Number: CHOICE-EAST,No. 94S00-9511-CQ-1270,94S00-9511-CQ-1270
• Citation: 671 N.E.2d 104
• Parties: A WOMAN'SSIDE WOMEN'S CLINIC, et al., Respondents (Plaintiffs), v. Scott C. NEWMAN, Prosecuting Attorney for Marion County, John C. Bailey, M.D., Commissioner of the Indiana Department of Health, et al., Petitioners (Defendants).
• Court: Indiana Supreme Court

Page 104

671 N.E.2d 104

A WOMAN'S CHOICE-EAST SIDE WOMEN'S CLINIC, et al Respondents (Plaintiffs), v. Scott C. NEWMAN, Prosecuting Attorney for Marion County John C. Bailey, M.D., Commissioner of the Indiana Department of Health, et al Petitioners (Defendants).

No. 94S00-9511-CQ-1270.

Supreme Court of Indiana.

Aug. 7, 1996.

Rehearing Denied Dec. 30, 1996.

Pamela Carter, Attorney General, John Laramore, Arend Abel, Deputy Attorneys General, for petitioners.

Richard Waples, Cheri Harris, Indiana Civil Liberties Union, Indianapolis, Mary J. Hoeller, Dina Cox, Lewis & Wagner, Indianapolis, Simon Heller, Diane Curtis, The Center for Reproductive Law & Policy, New York City, Colleen Connell, American Civil Liberties Union, Chicago, IL, for respondents.

SHEPARD, Chief Justice.

The United States District Court for the Southern District of Indiana has certified ¹ to us certain questions about the medical emergency exception ² to Indiana's new abortion law ("Public Law 187") so that it may resolve a facial challenge to the abortion law's constitutionality. The certified questions are:

(A) Does the definition except a woman from compliance with Ind.Code § 16-34-2-1.1 when such compliance would in any way pose a significant threat to the life or health of the woman?

(B) Does the definition except a woman from compliance with Ind.Code § 16-34-2-1.1 when such compliance threatens to cause severe but temporary physical health problems for the woman?

(C) Does the definition except a woman from compliance with Ind.Code § 16-34-2-1.1 when such compliance threatens to cause severe psychological harm to the woman?

We answer the first and third questions in the affirmative, but the second in the negative.

The plaintiffs in the District Court are abortion providers. Their argument to us relies largely on rules of statutory construction, urging us to construe the medical emergency exception very narrowly. The Attorney General counters that the General Assembly crafted the exception to conform with the construction given to the medical emergency exception in the Pennsylvania Abortion Control Act. ³ She says that its language supports an interpretation consistent with federal court decisions on abortion.

The rules or maxims of construction are flexible aids to the search for meaning. Highland Sales Corp. v. Vance, 244 Ind. 20, 26, 186 N.E.2d 682, 685 (1962). They also cover certain broader jurisprudential considerations, including the separation of powers doctrine. Accordingly, if the present questions came to us via our regular appellate jurisdiction, we would construe the exception in a constitutional manner insofar as the statutory language would permit. Brady v. State, 575 N.E.2d 981, 984 (Ind.1991).

To define the scope of the medical emergency exception as a matter of state law, we write on a slate not merely clean, but spotless. In such cases, this Court frequently looks to other jurisdictions for guidance in the resolution of similar issues so that our interpretation of the law is not engineered in a vacuum. See, e.g., Witherspoon v. Salm, 251 Ind. 575, 579, 243 N.E.2d 876, 878 (1969). The field of abortion law is so centered on federal court decisions, however, that not a single state supreme court has defined its state's medical emergency exception. Public Law 187 was enacted in the light of well-publicized, highly-scrutinized federal court decisions, particularly the U.S. Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. ⁴

The posture of this case is thus unusual, even among certified questions. The litigation spawning the questions is a facial challenge on federal constitutional grounds to a state statute. The certified questions thus present something of a conundrum, posed as they are on the District Court's interpretation of the constitutional issues in front of it. Our task is to define the meaning of the medical emergency exception as a matter of state law, knowing that the District Court, bound to our interpretation of state law under Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), will need to use that answer in the context of its own constitutional assessment. We proceed to note here the legal context in which the statute was written and the District Court's questions certified.

In Casey, a majority of the Supreme Court reaffirmed the essential holding of Roe v. Wade: ⁵ that a woman has a right to terminate her pregnancy without undue interference from the State before the fetus reaches viability, that the State may restrict abortions after the fetus reaches viability so long as the State provides an exception for women whose pregnancies endanger the woman's life or health, and that State has legitimate interests in protecting both the health of the woman and the life of the fetus from the outset of the pregnancy. 505 U.S. at 846, 112 S.Ct. at 2804.

The first substantive issue resolved in Casey is similar to the issue before us. Like the plaintiffs here, the petitioners argued that the statute defined "medical emergency" too narrowly and foreclosed the possibility of a woman obtaining an immediate abortion despite some significant health risks. 505 U.S. at 880, 112 S.Ct. at 2822. Framing the issue, a majority of the Court noted that "[i]f that contention were correct, we would be required to invalidate the restrictive operation of the provision, for the essential holding of Roe forbids a State from interfering with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health." Id. (citing Roe, 410 U.S. at 164, 93 S.Ct. at 732). The Court's statement of the issue foreshadowed its holding: the restrictive language of the Abortion Control Act's medical emergency exception does not foreclose the possibility of immediate abortion when a woman faces significant health risks due to continuation of her pregnancy.

In its consideration of whether Pennsylvania's statute complied with this constitutional imperative, the Court declared that although "the definition could be interpreted in an unconstitutional manner, ... 'it would adhere to the interpretation given the language by the Court of Appeals.' " ⁶ Id. It quoted the Third Circuit's understanding of the statutory language " 'to assure that compliance with (Pennsylvania's) abortion regulations would not in any way pose a significant threat to the life or health of a woman.' " Id. (quoting Casey, 947 F.2d at 701). The Supreme Court reached this conclusion from the following passage in the Third Circuit's opinion:

The word "risk" necessarily implies an event that may or may not happen in the future. Neither "risk" nor the addition of the adjective "serious" implies that the probability assessed is the probability of the hypothesized event occurring immediately following the time of assessment. Accordingly, we do not believe the risk that prematurely ruptured membrane, if untreated, will lead to substantial and irreversible injury only after progressing through shock or infection necessarily means that there is no "serious risk" at the onset of the condition. We assume that the risk of substantial and irreparable impairment of a major bodily function will be quantitatively less at the onset of a prematurely ruptured membrane than after shock has occurred, but this does not mean the risk at onset is not "serious."

The Pennsylvania legislature did not choose the wording of its medical emergency exception in a vacuum, and we do not believe the words chosen should be interpreted in one. In the case of all three conditions pointed to by the clinics, the treatment uniformly prescribed by the medical profession at the time of the legislature's choice was an immediate abortion. This was the recommended treatment in all pregnancies in which these conditions arose, including planned and desired pregnancies. This medical consensus that the risk occasioned is sufficiently serious to call for an immediate abortion was a part of the context in which the medical emergency provision was fashioned.

* * * * * *

While the wording seems to us carefully chosen to prevent negligible risks to life or health or significant risks of only transient health problems from serving as an excuse for noncompliance, we decline to construe "serious" as intended to deny a woman the uniformly recommended treatment for a condition that can lead to death or permanent injury.

Casey, 947 F.2d at 701.

(A) Threats to Health

The first certified question asks whether Public Law 187 excuses compliance with Ind.Code § 16-34-2-1.1 when such compliance would in any way pose a significant threat to the life or health of the woman.

Plaintiffs put forth three arguments for the position that Public Law 187's medical emergency exception does not support an affirmative answer to the first question. First, they claim that the plain language does not support the construction. Second, they contend that even if the language is capable of such a construction, such is not what the legislature intended. Finally, they argue that Public Law 187 is not identical to the Pennsylvania Abortion Control Act and it should not be given the same "flawed construction accorded similar statutes by federal courts." Resolution of the first two arguments renders discussion of the third unnecessary.

We conclude that Public Law 187's language contemplates that all relevant factors pertaining to a woman's health can, indeed must, be considered when deciding whether to dispense with the statute's informed consent provisions. Plaintiffs rely on the absence of the word "health" in the statute and they note the statute does not contain an immunity provision for the medical professional who dispenses with the informed consent requirements.

We conclude instead that a doctor's regard for all relevant factors pertaining to a woman's health is implicit in the term "clinical judgment." The inclusion of...