Wednesday, November 23, 2005

Indiana Supremes Dodge Abortion And Same Sex Parent Showdown

The Indiana Supreme Court handed down decisions involving two-hot button social issues, abortion and same sex parents, and in both case the court chose the path of least resistance to avoid any public fallout from their decisions.

In Clinic for Women, Inc. v. Carl J. Brizzi, the Supreme Court ruled that Indiana’s 18-hour waiting period for women seeking an abortion does not unconstitutionally infringe on any right to an abortion or privacy that may exist under the right to “liberty” set forth in Article I, Section 1 of the Indiana Constitution. The Court had been asked to rule that a women’s right to “liberty” under the Indiana Constitution included the right to an abortion as the Indiana Court of Appeals did in the case below. The Court held in vacating the Court of Appeals’ decision: “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.”

Justice Brent Dickson, the Court’s most conservative jurist, in a separate concurring opinion argued that the Indiana Constitution’s “liberty” interest embodies no fundamental right of a woman to have an abortion. Applying a strict, original intent analysis, he pointed out that the Indiana General Assembly had always outlawed abortions, including at the time the constitution was adopted in 1851.

Justice Ted Boehm sharply differed with the Court’s 4-1 majority opinion in a dissenting opinion. He flatly declared that the “liberty” interest in Indiana’s Constitution encompasses a woman’s fundamental right to an abortion, noting that the Indiana Bill of Rights is textually broader than the rights afforded under the U.S. Constitution’s Bill of Rights. He also believed that the state’s 18-hour waiting period unnecessarily interfered with a woman’s right to an abortion.

Pointedly criticizing Justice Dickson’s concurring opinion, Boehm said: “I think the contention that the liberty rights guaranteed by Section 1 were frozen as of that date is not tenable. In 1851 we had slavery in many states and Article II, Section 5 of the 1851 Constitution denied the right to vote on the basis of race. Married women had no property rights until they were conferred by statute in 1923. Both of these subjects were debated at length in the 1851 Constitution, but both were left in a state that, by today’s lights, is wholly incompatible with fundamental principles of ordered liberty. Both today, I submit, are governed by the “evolving” protections affirmed by the Bill of Rights as well as by specific constitutional and statutory provisions."

In another decision, King v. S.B., a case involving same sex parents, the Court vacated a Court of Appeals decision ruling that a same sex parent other than the biological mother was a “legal parent.” Instead, the Court sent the case back to the trial court level, which the Court said improperly granted the biological mother’s motion to dismiss the claim of parenting rights asserted by her former same sex partner. The case involved two cohabitating women, one of whom conceived a child by artificial insemination with sperm donated by the other woman’s brother. The biological mother had originally agreed to allow her same sex partner to become a legal parent to the child in a second parent adoption, but reneged on the agreement after the pair’s relationship ended.

In finding the trial court’s dismissal of the non-biological parent’s claim to parenting rights, the court held: "First, Indiana courts have authority to determine ‘whether to place a child with a person other than the natural parent,’ which we hold necessarily includes the authority to determine whether such a person has the rights and obligations of a parent. Second, Indiana law ‘provide[s] a measure of protection for the rights of the natural parent, but, more importantly, it embodies innumerable social, psychological, cultural, and biological considerations that significantly benefit the child and serve the child’s best interests.’ As such, Indiana trial courts are accorded deference in their determinations as to children’s best interests in these circumstances."

The effect of the Court’s ruling was to avoid any specific ruling on the legality of same sex parenting arrangements. Chief Justice Randall Shepard made this abundantly clear in his concurring opinion: “I write separately only to highlight what the majority has already said about the limited nature of today’s ruling, which I see as far more modest than my friend Justice Dickson suggests. Whether any element of King’s claims will be legally sustainable re-mains an open question for resolution after a hearing on the merits.”

In a dissenting opinion, Justice Dickson sharply differed with the 4-1 majority. He makes clear his opposition to same sex parenting arrangements. He would have upheld the dismissal of the non-biological parent’s claim of parenting rights with respect to the child. He said: “(1) permitting this proceeding to continue disregards Indiana’s adoption laws, particularly the statutory requirement for the mother’s consent to an adoption; (2) reinstating this declaratory judgment action raises grave questions regarding whether such device may be used by various other people, who are not natural parents of a child, to bypass our adoption laws and to intrude upon the lawful parental rights of others; and (3) advancing special policy interests that have not become well-established changes in society exceeds an appropriate exercise of common law jurisprudence.”

Advance Indiana suspects the Court is playing it safe on contentious social issues out of fear of retaliation by the Christian right. Such a move arguably began last year when Senator Michael Young (R-Indianapolis) sponsored SJR-1, a constitutional amendment which would have subjected Indiana Supreme Court justices and Court of Appeals judges to retention in office by the Indiana Senate, an unprecedented reach of power by the legislature into the judicial branch. Frighteningly, that proposal sailed through the Senate, but was held up in the House. Some State House observers believe that SJR-1 was prompted by the Christian right’s, in particular Eric Miller’s and Advance America’s, displeasure with Court of Appeals’ decisions affirming same sex parenting arrangements, including second parent adoptions, which opponents of same sex adoptions claim is not permitted under Indiana’s adoption law.

At any rate, the Supreme Court has left these two contentious issues to be decided another day for now. As the old saying goes, “you can run, but you can’t hide.” At some point, the Court will have to rule on these issues whether it wants to or not.

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