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Thursday, November 24, 2005

Ind. Decisions - Several stories on yesterday's Supreme Court abortion ruling

"Indiana law on abortion upheld: Suit challenged wait, in-person counseling" is the headline to this Lesley Stedman Weidenbenerstory today in the Louisville Courier Journal. Some quotes:

INDIANAPOLIS -- The Indiana Supreme Court yesterday upheld a law that requires in-person counseling 18 hours before an abortion, saying it does not impose a substantial burden on women who seek the procedure. Abortion opponents hailed the 4-1 ruling as "a common-sense victory" for women in Indiana. * * *

Betty Cockrum, president of Planned Parenthood of Indiana, said "it's a disappointing day for women," many of whom will now have to travel twice, miss two days of work or find two days of child care to obtain a legal medical procedure.

"We have only five counties out of 92 in Indiana where there are abortion facilities, and it's a pretty big state," she said.

Twenty-three states require women to wait a specified amount of time after counseling before obtaining an abortion, Cockrum said. Kentucky is one of them.

But only six require that the pre-abortion counseling be done in person, she said. In Kentucky, the counseling can be done by phone.

In Indiana the counseling can be done by a woman's physician rather than by the abortion clinic. But Planned Parenthood has argued that not all doctors provide the service.

Yesterday's ruling is the latest -- and perhaps the last -- in a long battle over the constitutionality of the 1995 law.

Nearly three years ago, the U.S. Supreme Court chose not to hear a similar challenge in federal court to the Indiana law, leaving it intact. It has been enforced since then.

But the Indiana Civil Liberties Union -- representing a Planned Parenthood clinic in Indianapolis -- filed suit in state court. It claimed that the counseling and waiting period violated a woman's right to privacy. * * *

But yesterday the high court largely sidestepped the privacy issue. In the majority opinion, Justice Robert Rucker wrote that "we find it unnecessary to determine whether there is any right to privacy or abortion provided or protected by Indiana's Constitution."

Instead, the court said that the ICLU and Planned Parenthood failed to show that the statute is unconstitutional under all circumstances. That's a test that must be met before the court considers whether a law violates the constitution. * * *

Justice Brent Dickson concurred with the result but wrote a separate opinion in which he said the court should have "explicitly declare(d) that the Indiana Constitution does not protect any alleged right to abortion." * * *

In the only dissenting opinion, Justice Theodore Boehm wrote that the state constitution's Bill of Rights "includes the right of a woman to choose for herself whether to terminate her pregnancy, at least where there is no viable fetus or her health is at issue."

He also said that the ICLU and Planned Parenthood had "alleged facts which, if they can be established, show that the statute in question imposes a material burden on the exercise of that right."

Jennifer Whitson of the Evansville Courier& Press writes:
The 18-hour wait, which the Legislature passed in 1995, includes an exception in the case of a medical emergency. Otherwise a woman who wants an abortion must see a physician or nurse in person to receive information, such as alternatives to abortion and the availability of fetal sketches, ultrasounds or heartbeat monitoring.

Then the woman must wait 18 hours before being eligible to return to get an abortion. * * *

The Marion County Superior Court dismissed the case and the plaintiffs appealed. The Indiana Court of Appeals found that though the Indiana Constitution does not specifically list a right to privacy, it is included under its broader guarantees. And they found that the right of privacy includes the right to decide to terminate a pregnancy.

The state appealed and Wednesday's 4-1 ruling found that the groups opposed to the waiting period didn't prove that the wait was a "material burden."

But the court also declined, in a decision written by Justice Robert D. Rucker, to tackle the larger issue of privacy.

"We find it unnecessary to determine whether there is any right to privacy or abortion provided or protected by Indiana's Constitution ...," Rucker wrote.

See yesterday's ILB entry on the ruling here.

Posted by Marcia Oddi on November 24, 2005 10:26 AM
Posted to Ind. Sup.Ct. Decisions