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ATTORNEYS FOR APPELLANTS Kenneth J. Falk Indiana Civil Liberties Union Indianapolis, Indiana Simon Heller Janet Crepps Pro Hac Vice Center for Reproductive Rights New York, New York

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Thomas M. Fisher Special Counsel Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana Anna Tooman Law Clerk ATTORNEYS FOR AMICI CURIAE INDIANA CATHOLIC CONFERENCE William J. Wood Indianapolis, Indiana ATTORNEYS FOR AMICI CURIAE MEMBERS OF THE INDIANA GENERAL ASSEMBLY Eric Allan Koch Bloomington, Indiana Paul Benjamin Linton Northbrook, Illinois

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In the

Indiana Supreme Court
_________________________________ No. 49S05-0501-CV-31 CLINIC FOR WOMEN, INC., Appellants (Plaintiffs below), v. CARL J. BRIZZI, Appellee (Defendant below). _________________________________ Appeal from the Marion Superior Court, No. 49D07-0303-PL-558 The Honorable Gerald Zore, Judge _________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0305-CV-259 _________________________________ November 23, 2005 Rucker, Justice.

The Indiana Legislature has passed a law that requires a woman seeking an abortion to give her informed consent prior to the procedure and, except in the case of a medical emergency, specifies that a physician (or other medical personnel) must "orally" and in her presence provide her with certain information at least 18 hours before the abortion is performed. The plaintiffs in this case contend that this law on its face violates the right to "liberty" set forth in Article I, Section 1, of the Indiana Constitution. We hold that this law is not unconstitutional because the plaintiffs cannot demonstrate that there are no set of circumstances under which the statute can be constitutionally applied. We further hold that even if the law were challenged as unconstitutional as applied in a particular case, the challenge would fail because the law does not impose a material burden on any right to privacy or abortion that may be provided or protected by Article I, Section 1.

Background

In Roe v. Wade, the United States Supreme Court held that statutes enacted by the legislatures in Texas and Georgia violated an abortion right provided and protected by the United States Constitution. 410 U.S. 113 (1973). In the intervening years, the scope of that right has been interpreted in many court decisions. One of those decisions held that the abortion right was not infringed upon by a statute enacted by the legislature in Pennsylvania that, among other things, (1) required that a woman seeking an abortion give her informed consent prior to the procedure and (2) specified that a physician "orally" provide her with certain information at least 24 hours before the abortion was performed. Planned Parenthood v. Casey, 505 U.S. 833, 88187 (1992).

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A few years after Casey was decided, the Indiana Legislature enacted the statute at issue in this case. (A federal court would later note that the text of the Indiana statute "is materially identical to one held constitutional" in Casey. A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d 684 (7th Cir. 2002).) The Indiana statute (1) provides that a woman seeking an abortion must give her informed consent prior to the procedure, and (2) specifies that a physician (or other medical personnel) must "orally" and in her presence provide her with certain information at least 18 hours before the abortion is performed. Ind. Code

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Indiana Law