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Father's Rights
The following has been prepared for digital transmission by the NATIONAL
CONGRESS FOR MEN, a nationwide coalition of Fathers Rights/ Divorce Reform
organizations and individual members, founded in 1981.
A "Petition for Writ of Certiorari" is a request for the U.S. Supreme Court
to hear a case; of about 3000 such petitions annually, only about 150 are
actually heard by the Court. At the September 12, 1988 date of typing of
this document, the U.S. Supreme Court has not yet decided whether to hear
this important case. For further information on this case, contact Attorney
James Bopp at the address and telephone number given on the title page.
Note: Since this document is encoded for efficient digital transmission,
page numbers and page breaks have been omitted. Also, footnotes have been
collected at the end, instead of placement on the page of reference, as was
done in the printed petition which was filed with the U.S. Supreme Court.
Italicized words, such as case citations, are herein capitalized.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1988
-------------
ERIN ANDREW CONN, Petitioner
-v-
JENNIFER ANN CONN, Respondent
-------------
PETITION FOR A WRIT OF CERTIORARI TO THE
INDIANA SUPREME COURT
-------------
James Bopp, Jr., Counsel of Record
Richard E. Coleson
Brames, McCormick, Bopp & Abel
The Tudor House
191 Harding Avenue
PO Box 410
Terre Haute, Indiana 47808-0410
(812) 238 2421
Counsel for Petitioner
August 17, 1988
===========================================================================
QUESTION PRESENTED
Do ROE V. WADE and PLANNED PARENTHOOD OF CENTRAL MISSOURI V. DANFORTH
preclude a state court, under any and all circumstances, from taking into
account, on a case by case basis, the interests of a father in his unborn
child when his wife wants an abortion?
===========================================================================
TABLE OF CONTENTS
QUESTION PRESENTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES
OPINIONS BELOW
JURISDICTION
STATUTES INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING THE WRIT:
I. The Indiana Supreme Court erred in holding that ROE V. WADE and PLANNED
PARENTHOOD OF CENTRAL MISSOURI V. DANFORTH preclude a state court from
considering the rights and interests of a father, under any set of facts,
when his wife wishes to abort their unborn child.
A. ROE specifically and expressly did not consider a father's rights and
explicitly declared that the right to an abortion is not absolute.
B. DANFORTH considered only a state statutory requirement of spousal
consent to every abortion, which "determined that the husband's interest in
continuing the pregnancy of his wife always outweighs any interest on her
part."
II. The father has fundamental rights and interests in his unborn child
which should be judicially considered, on the facts of this case, along
with the right and interests of his Wife in aborting their child.
A. The Father has a right and interest in procreation, which is
especially significant where it has become particularized in a specific,
unborn child.
B. The Father has a right and interest in his unborn child, which is a
natural right inherent in his biological relationship to the child.
C. The Father also has a fundamental right and interest in his status as
a husband in the family unit.
III. The trial court, as a neutral arbiter of competing rights and
interests, properly issued a preliminary injunction to prevent the Wife
from having an abortion, pursuant to its consideration of the respective
rights and interests on the facts of this case.
A. Under Substantive Due Process analysis, as employed in ROE, the
Father had a compelling interest in his unborn child, on the facts which
the state court found, sufficient to justify the court in limiting the
Wife's liberty to have an abortion.
B. The trial court was also justified in limiting the Wife's right to
have an abortion based on the traditional balancing approved by this Court
where competing rights collide.
IV. Denying the Father the opportunity for case by case judicial
consideration of his profound rights and interests in his unborn child with
those of his Wife would deprive him of his rights under the United States
Constitution.
CONCLUSION
===========================================================================
TABLE OF AUTHORITIES
CASES
ARMSTRONG V. MANZO, 380 U.S. 545 (1965)
BELLOTTI V. BAIRD (I), 428 U.S. 132 (1976)
BELLOTTI V. BAIRD (II), 443 U.S. 622 (1979)
CABAN V. MOHAMMED, 441 U.S. 380 (1979)
CAREY V. POPULATION SERVICES INTERNATIONAL, 431 U.S. 678 (1977)
CARRINGTON V. RASH, 380 U.S. 89 (1965)
DOE V. BOLTON, 410 U.S. 179, 187 (1943)
DOE V. SMITH, No. 84A01-8804-CV-00112 (Ind. Ct. App., filed April 12, 1988)
GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965)
HONIG V. DOE, 108 S.Ct. 592 (1988)
IN RE BABY M, 537 A.2d 1227 (N.J. 1988)
IN THE MATTER OF UNBORN CHILD H., No. 84C01-8804-JP-185 slip.op. at 2
(Vigo, Ind.) Cir Ct., Apr 8,1988) appeal pending sub nom DOE V. SMITH, No.
84A01-8804-CV-00112 (Ind. Ct. App. 1988)
L.F.R. V. R.A.R., 269 Ind. 97, 378 N.E. 2d 855 (1978)
LEHR V. ROBERTSON, 463 U.S. 248 (1983)
LOVING V. VIRGINIA, 388 U.S. 1 (1967)
MARTIN V. STRUTHERS, 319 U.S. 141 (1943)
MEYER V. NEBRASKA, 262 U.S. 390 (1923)
NEBRASKA V. PRESS ASS'N., 427 U.S. 539 (1976)
PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510 (1925)
PLANNED PARENTHOOD V. ASHCROFT, 462 U.S. 476 (1983)
PLANNED PARENTHOOD OF MISSOURI V. DANFORTH, 428 U.S. 52 (1976)
PRINCE V. MASSACHUSETTS, 321 U.S. 158 (1944)
QUILLOIN V. WALCOTT, 434 U.S. 246 (1978)
REED V. REED, 404 U.S. 71 (1971)
RIVERA V. MINNICH, 107 S.Ct. 3001 (1987)
ROE V. WADE, 410 U.S. 113 (1973)
SANTOSKY V. KRAMER, 455 U.S. 745 (1982)
SKINNER V. OKLAHOMA, 316 U.S. 535 (1942)
SNYDER V. MASSACHUSETTS, 291 U.S. 97 (1934)
STANLEY V. ILLINOIS, 405 U.S. 645 (1972)
CONSTITUTIONS
United States Constitution, 9th Amendment
United States Constitution, 14th Amendment
STATUTES
Indiana Code Section 31-1-11.5-4(a)(4)
Indiana Code Section 31-1-11.5-12
Indiana Code Section 31-1-11.5-21
Indiana Code Section 31-1-11.5-24
SECONDARY AUTHORITIES
ABORTION CLEARED BY COURTS IS DONE, Indianapolis News, Aug. 12, 1988
DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (24th ed. 1965)
J.NOONAN, A PRIVATE CHOICE (1979)
===========================================================================
===========================================================================
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1988
-------------
ERIN ANDREW CONN, Petitioner
-v-
JENNIFER ANN CONN, Respondent
-------------
PETITION FOR A WRIT OF CERTIORARI TO THE
INDIANA SUPREME COURT
-------------
Petitioner Erin Andrew Conn respectfully prays that a writ of certiorari
issue to review the judgment and opinion of the Indiana Supreme Court,
entered in the above-entitled proceeding on July 15, 1988.
OPINIONS BELOW
The Order of the Indiana Supreme Court (not reported) affirming the Indiana
Court of Appeals and adopting its opinion is reprinted in the appendix
hereto, p.1.a infra.
The Dissenting Opinion of Pivarnik, J., to the Order of the Indiana Supreme
Court (not reported) is reprinted in the appendix hereto, p.2a, infra.
The opinion of the Indiana Court of Appeals (not yet reported) is reprinted
in the appendix hereto, p.13a, infra.
The Findings of Fact, Conclusions of Law, and Order of the Shelby [Indiana]
Circuit Court is reprinted in the appendix hereto, p.21a, infra.
JURISDICTION
The jurisdiction of this Court to review the judgment of the Indiana
Supreme Court is invoked under 28 U.S.C. Section 1257(3) based on (1) the
fact that the validity of state statutes, as applied, have been called into
question under the Constitution of the United States and on (2) the
assertion of the Respondent (the Wife herein) of rights under the
Fourteenth and Ninth Amendments of the Constitution.
The Father brought this action in Shelby Circuit Court, invoking the
equitable injunctive powers of the court, granted to it under Indiana
constitutional and statutory authority, to weigh his interests in his
unborn child against those of his wife in aborting their unborn child. The
Wife asserted that her liberty to choose abortion under ROE V. WADE, 410
U.S. 113 (1973) and PLANNED PARENTHOOD OF CENTRAL MISSOURI V. DANFORTH, 428
U.S. 52 (1976), was absolute and prohibited such assertion of paternal
rights and interests. The Shelby Circuit Court concluded that these cases
did not prohibit a case by case judicial inquiry into the relative weight
of the interests of the Father and Wife herein, and, on the facts of this
case, issued a preliminary injunction enjoining the Wife from obtaining an
abortion. See p.27a, infra.
On the Wife's appeal, the Indiana Court of Appeals, on July 12, 1988, held
that ROE and DANFORTH precluded consideration of the Father's rights and
interests under any and all set of facts and ordered the trial court to
dissolve the preliminary injunction and dismiss all proceedings relating to
the abortion.
The Indiana Supreme Court transferred the case to itself and likewise held
that ROE and DANFORTH precluded the application of the court's injunctive
power and that a woman's constitutional; right to abortion was absolute as
against the father of the unborn child. Thus, the Indiana statutes granting
injunctive power to the trial court were effectively held unconstitutional
as applied. Further, the Court refused to recognize the asserted rights of
the Father to a judicial consideration of his interests under the Equal
Protection and Due Process clauses of the Fourteenth Amendment and the
Ninth Amendment. The Indiana Supreme Court issued its judgment and opinion
on July 15, 1988. See p.1a, infra. A Petition for Rehearing was denied on
July 18, 1988. See p.31a, infra.
The Shelby Circuit Court, pursuant to the Order of the Indiana Supreme
Court, dissolved the preliminary injunction and dismissed all proceedings
related to the abortion issue by docket entry of July 22, 1988, effective
at 4:30 P.M. See p.30a, infra.
Thus, there is a final decision in this cause from the highest court of the
state of Indiana in a case raising issues under the Constitution as
required by Section 1257(3).
STATUTES INVOLVED
A number of Indiana constitutional and statutory provisions provide the
trial court with equitable authority to adjudicate rights and interests and
issue injunctions. These were effectively held unconstitutional as applied.
They are set forth in the appendix. See p.40a, infra.
STATEMENT OF THE CASE
In June of 1988, Erin Andrew Conn (the Father herein) learned that his
wife, Jennifer Ann Conn (the Wife herein), was planning to abort the unborn
child which they had conceived within their marital relationship. The Wife
had filed for dissolution, and advised the Father that she would abort the
child if there was any chance of his gaining custody of her. (Footnote 1)
She did agree to carry the child to term if the Father would submit to
putting the child up for adoption by a third party, foreign to the
marriage.
The Father, distraught by this news, immediately sought legal advice. Based
primarily on the precedent of a trial court in Vigo County, Indiana,
(Footnote 2) (in which a court had issued a permanent injunction barring a
woman from aborting a child based on a consideration of the rights and
interests of the father along with her own) and ion a careful reading of
what ROE V. WADE,410 U.S. 113 and PLANNED PARENTHOOD OF CENTRAL MISSOURI V.
DANFORTH, 428 U.S. 52, actually held, the Shelby Circuit Court issued a
temporary restraining order forbidding the Wife from aborting the unborn
child until a hearing could be held. Upon the evidence at the hearing, the
court preliminarily enjoined the Wife from aborting their unborn child
until a hearing on a permanent injunction could be held.
The Father is twenty-three years old. He is seven courses short of
receiving a bachelor's degree in mathematics. He is assistant manger at a
toy store and a second lieutenant in the United States Army Reserves. He
has a history of stable employment, as does his family.
The Wife is nineteen. She is not in school, nor has she indicated any plans
to pursue further education. She is unemployed.
The Conns have been married for fourteen months and have a five month old
daughter, Crystal Rose Conn. They had planned to attempt another conception
in August 1988.. The Wife was approximately six weeks pregnant on June 27,
1988, when the Indiana Court of Appeals issued its opinion and judgment.
The testimony regarding the Wife's reasons for desiring an abortion
mentioned only two reasons: that she did not want the Father to get custody
of the child and her feeling that they could not financially afford another
child. However, the Father currently makes $318 per week, plus a bonus
based on profits to the retail chain store where he works, and $200 per
month as an officer in the Army Reserves. Within the near future he
anticipates receiving management training, by his employer, which will
increase his income to between $350 and $450 per week (in addition to his
military pay). The Father feels he is able to provide for the financial
needs of the child and his family. Further, he has insurance to cover the
expenses of prenatal care and the medical and hospital expenses of
childbirth.
The record clearly indicates that the Father would suffer severe and
irreparable
harm, including the permanent loss of his right to care, custody, control
and companionship of this child. The Father testified that losing a child
would be like losing a part of himself. He desires that she be born "so
that he can raise, nurture the child, and give the child everything he
has." See p.24a, infra.
The constitutional claims giving this Court jurisdiction under Section
1257(3) were raised from the very beginning. The temporary restraining
order was issued on June 17, 1988, by the Shelby County (Indiana) Circuit
Court. In his Brief in support of Motion for Preliminary Injunction, the
Father argued that the Shelby Circuit Court had jurisdiction and power to
issue a preliminary injunction, barring his Wife from obtaining an
abortion, pursuant to the statutes governing dissolutions and to those
giving the Shelby Circuit Court general powers and jurisdiction. Brief in
Support of Motion for Preliminary Injunction at 2. He further argued that
neither ROE V. WADE,410 U.S. 113, nor PLANNED PARENTHOOD OF CENTRAL
MISSOURI V. DANFORTH, 428 U.S. 52, precluded the Shelby Circuit Court from
issuing a preliminary injunction. Brief in Support of Motion for
Preliminary Injunction at 4-7, 12-16.
The Father also asserted positive rights and interests in his unborn child
of a federal constitutional dimension which should properly be weighed with
the rights and interests of his wife to choose an abortion. Id. at 16-22.
On June 23, 1988, the Wife filed with the trial court a Motion to Dissolve
Temporary Restraining Order and Motion for Immediate Ruling or,
alternatively, for Immediate Hearing, citing ROE and DANFORTH for the
proposition that she had an absolute right to obtain an abortion,
unreviewable under any circumstances. On June 24, 1988, the Wife filed a
Motion to Vacate Order to Show Cause and appeared at the hearing set by the
circuit court.
At the hearing, the motion to dissolve the temporary restraining order was
denied and the circuit court granted the Wife's motion to dissolve the
order to show cause. An evidentiary hearing was then conducted on whether a
preliminary injunction should be granted.
Based on the evidence, the circuit court issued a preliminary injunction,
ruling that in a balancing of the Father's rights and interests in his
unborn child with those of the Wife in aborting the child, on the facts of
this particular case, the balance weighed in favor of the Father and he
had, therefore, demonstrated likelihood of success on the merits.
Therefore, on June 27, 1988, the Shelby Circuit Court ordered the Wife not
to abort her unborn child. See p.27a, infra.
In his Brief before the Court of Appeals, the Father renewed his claim
that, under I.C. Section 33-4-6-2 (the general jurisdictional power grant
of authority) and I.C. Section 31-1-11.5-1(a)(2) (the dissolution statute
authorizing the provision of "appropriate procedures for the dissolution of
marriage"), the Shelby Circuit Court had power to preliminarily enjoin the
Wife from obtaining an abortion, based on a balancing of their interests
and that DANFORTH did not prohibit such judicial action. Brief of Appellee
at 43, 5. He also asserted a constitutional right to consideration of his
rights and interests in his child. Id. at 30.
On July 12, 1988, the Indiana Court of Appeals reversed the circuit court,
holding that PLANNED PARENTHOOD OF CENTRAL MISSOURI V. DANFORTH, 428 U.S.
52, was dispositive and precluded Indiana courts from exercising their
state statutory and constitutional powers to consider the competing rights
and interests of a mother and father in their unborn child and to issue
injunctions in the abortion context. See p.13a, infra. The Court of Appeals
noted the Father's claim that "DANFORTH d[id] not preclude this court from
resorting to a balancing test of the competing rights of the husband and
wife." See p.18a, infra.
In his Petition for Transfer and Expedited Appeal to the Indiana Supreme
Court, the Father again asserted his statutory rights to an equitable
balancing and injunction and again asserted that DANFORTH did not preclude
such judicial action. See p.35a, infra. He also asserted his Equal
Protection and Due Process rights to a judicial balancing of his rights and
interests with those of his Wife to determine whether or not she should be
able to obtain an abortion. Id.
The Indiana Supreme Court, in a series of orders filed July 15,1988,
transferred the case to itself, adopted the opinion of the Indiana Court of
Appeals as its own, and ordered the Shelby Circuit Court to vacate the
preliminary injunction and dismiss all proceedings relating to the abortion
on Friday, July 22, 1988, at 4:30 p.m. See pp.1a, 11a, 12a, infra.
The Father appealed to Justice Stevens and the Chief Justice for a stay
pending expedited consideration of the case. These applications were denied
on July 20 and 21, 1988, respectively. The Father has received no official
notice that any abortion has yet taken place, but, if t has, this case is
clearly within the exception of the mootness doctrine for matters "capable
of repetition yet evading review," as that doctrine is employed in abortion
cases. (Footnote 3)
REASONS FOR GRANTING THE WRIT
I. The Indiana Supreme Court erred in holding that ROE V. WADE and
PLANNED PARENTHOOD OF CENTRAL MISSOURI V. DANFORTH preclude a
state court from considering the rights and interests of a
father, under any set of facts, when his wife wishes to abort
their unborn child.
This Court will consider granting a Writ of Certiorari when "a state court
... has decided an important question of federal law\ which has not been,
but should be, settled by this Court, or has decided a federal question in
a way in conflict with the applicable decisions of this Court." Supreme
Court Rule 17.1©. The Indiana Supreme Court, in the decision below,
interpreted this Court's decision in ROE V. WADE,410 U.S. 113, to create an
absolute right in a wife to abort the child of her marital union and
interpreted this court's decision in PLANNED PARENTHOOD OF CENTRAL MISSOURI
V. DANFORTH, 428 U.S. 52, as precluding a court, under any and all
circumstances, from taking into account, on a case by case basis, a
father's fundamental rights and interests in his child when his wife wants
an abortion. These interpretations of ROE and DANFORTH are erroneous. In
addition, this Court has not settled the extent to 3which father's rights
and interests may be weighed by a court with the right of the wife to have
an abortion,.
This case presents a matter of great public importance. In every case where
a woman seeks an abortion, there is either a father or a husband who is the
father of the child. Over one and a half million abortions are performed
yearly. In each of these cases, the rights and interests of fathers and
husbands in their children are potentially at stake. Of course, actions
such as the present one would only be undertaken by a father with notice of
the intent of the mother to obtain an abortion and who has concern over the
abortion of his unborn child. The Indiana Supreme Court, however, closed
the door on the consideration of such rights and interests by barring their
judicial consideration under any facts. The Indiana Supreme Court thus gave
a wife an absolute veto power over any interest of her husband regarding
the child they conceived within their marital union. The abortion right was
made absolute and the rights and interests of husbands were forever held
for naught.
In the instant case, the Father sought to enjoin the abortion because of
the grave loss he would suffer if the abortion occurred - the loss of a
potential opportunity to raise, nurture and enjoy the companionship of the
child - comparable to the cutting off of his own arms and legs, he said.
The Wife, however, wants an abortion, in part, to prevent her husband from
having custody of the child at birth. She said that she would abort unless
the Father agrees to an adoption of their child by a third party. She said
that she would abort if there is any chance of the Father getting custody
of the child. Upon these facts, the trial court issued a preliminary
injunction, to preserve the status quo, in order to consider the rights and
interests of both the Father and the Wife. This the Indiana Supreme Court
has forbidden, based upon an erroneous interpretation of ROE and DANFORTH.
This case, therefore, presents only the issue of whether fathers have
sufficient rights and interests\ which, on the facts of an individual case,
(Footnote 4) a trial court may take into account, in determining whether a
wife may abort their child. This case, therefore presents an urgent
question of federal law, which should be settled by this Court, and which
the Indiana Supreme Court decided contrary to the applicable decisions of
this Court.
A. ROE specifically and expressly did not consider a father's
rights and explicitly declared that the right to an abortion
is not absolute.
In ROE V. WADE,410 U.S. 113, this Court held that the "right of privacy ...
founded in the Fourteenth Amendment's concept of personal liberty and
restrictions upon state action ... is broad enough to encompass a woman's
decision whether or not to terminate her pregnancy," id. at 153, and
thereby struck down a Texas criminal statute which only allowed life saving
abortions. The Court viewed the abortion decision "in all its respects" as
"inherently, and primarily, a medical decision," except where "important
state interests provide compelling justification for [state] intervention."
Id. at 165-66.
The Indiana Supreme Court erroneously viewed ROE to have conferred on a
woman "an unconditioned right to have an abortion in the first trimester."
See p.19a, infra. In fact, the Court in ROE considered and rejected such a
claim.
[S]ome ... argue that the woman's right is absolute and that she is
entitled to terminate her pregnancy at whatever time, in whatever
way, and for whatever reason she alone chooses. With this we do not
agree .... In fact, it is not clear to us that the claim asserted by
some ... that one has an unlimited right to do with one's body as one
pleases bears a close relationship to the right of privacy previously
articulated in the Court's decisions. The Court has refused to
recognize an unlimited right of this kind in the past. We, therefore,
conclude that the right of personal privacy includes the\abortion
decision, but that this right is not unqualified and must be
considered against important state interests....
410 U.S. at 153-54.
In addition, the ROE Court explicitly declared that it was not considering
the question of paternal rights asserted against the woman's right to
choose abortion. Id. at 165 n.67 ("Neither in this opinion nor in DOE V.
BOLTON ... do we discuss the father's rights....").
The abortion right in ROE, therefore, is not absolute and is subject to
important state interests in regulation and to being weighed against
competing fundamental rights and interests.
B. DANFORTH considered only a state statutory requirement of
spousal consent to every abortion, which "determined that
the husband's interest in continuing the pregnancy of his
wife always outweighs any interest on her part." (Footnote 5)
The Indiana Supreme Court claims that, because the abortion decision
"concerns only her," see p.20a, infra, therefore DANFORTH, 428 U.S. 52, is
dispositive of this case, and bars a court from even considering a father's
rights and interests in his child when his wife wants an abortion. The
Indiana Supreme Court viewed the trial court's issuance of a preliminary
injunction, in order to preserve the status quo, as "granting the husband
the right [to veto his wife's abortion]." See p.20a, infra. Because the
Father "has no right UNDER ANY FACTS OF THIS CASE to VETO [his wife's]
decision to obtain an abortion," the Indiana Supreme Court dismissed all
proceedings related to the abortion issue. Id. (emphasis added).
The Indiana Supreme Court misunderstood the relief sought by the Father and
the trial court's decision. The Father did not seek, nor was he granted by
the trial court, a right to "veto" his wife's abortion decision. The trial
court restrained the abortion to preserve the status quo so that the trial
court could balance the Father's "rights in the fetus grounded ... in the
Fourteenth and Ninth Amendments to the United States Constitution ...
against the Wife's constitutional right to an abortion," Id. at 26a. Thus,
the Father was seeking judicial consideration of his constitutional rights
and interests, which the trial court below would consider at a final
hearing, in the facts of this case, with the constitutional right of the
Wife to obtain an abortion.
DANFORTH, 428 U.S. 52, did not involve judicial consideration of competing
constitutional rights and interests on a case by case basis. Rather
DANFORTH dealt with a state statute that gave all husbands an absolute
veto, for any or no reason, to the blanket exclusion of all wives. The
husband (who might not even be the father, id. at 69) had a unilateral
power to forbid an abortion by his wife, for any reason or no reason,,
which could not be controverted or reviewed by any higher authority. Id. at
71. Because the statute required the husband's consent in all cases, the
wife could not get an abortion even if her husband could not be located.
Id. at 69. The state assumed lack of consent by all husbands unless they
stated otherwise. CF. MARTIN V. STRUTHERS, 319 U.S. 141, 144 (1943) (A
statute barring religious solicitors from calling residents to their doors
was unconstitutional because INTER ALIA "it substitute[d] the judgment of
the community for the judgment of the individual householder.")
Faced with a statute which permanently and absolutely struck the balance of
rights of parents in favor of the husband in every case, this court held
that a "State may not constitutionally require the consent of the spouse,
as is specified under [the Missouri statute therein], as a condition for
abortion during the first 12 weeks of pregnancy." DANFORTH, 428 U.S. at 69.
Thus, the Court struck down a PER SE rule, not case by case judicial
consideration of rights and interests. (Footnote 6)
The majority opinion in DANFORTH was careful to clarify, in responding to
the dissent by Justice White, that it was not considering the
constitutionality of a more nuanced approach allowing for case by case
consideration of a\father's rights and interests in his child. Justice
White criticized the Court's decision, claiming that:
"the majority finds in the United States Constitution" a rule that
the State MUST assign a greater value to a mother's decision to cut
off a potential human life by abortion than to a father's decision to
let it mature into a live child."
DANFORTH, 428 U.S. at 93 (White, J., dissenting)(emphasis added)
The Court responded:
This section does much more than insure that the husband participate
in the decision whether his wife should have an abortion. The State,
instead, has determined that the husband's interest in continuing the
pregnancy of his wife ALWAYS OUTWEIGHS any interest on her part in
terminating it irrespective of the condition of their marriage. The
State, accordingly, has granted him the right to PREVENT
UNILATERALLY, AND FOR WHATEVER REASON, the effectuation of his wife's
and her physician's decision to terminate her pregnancy. This state
determination ... has interposed an absolute obstacle to a woman's
decision that ROE held to be constitutionally protected from such
interference.
Id. at 70-71 n.11 (emphasis added)
A comparison of the absolute spousal veto right was rejected in DANFORTH
and the judicial inquiry contemplated by the trial court below clearly
demonstrates that DANFORTH does not apply to this case. DANFORTH described
the Missouri statute as having "delegate[d] to a spouse veto power," which
was "delegated authority to a particular person ... to prevent [an]
abortion." Id. at 69. In the instant case, the trial court did not propose
to delegate to anyone a "veto power" or to "delegate \authority" to the
spouse to prevent the abortion. On the contrary, it was the trial court
itself which was to weigh the interests of both parties to determine
whether or not an abortion should occur. (Footnote 7) In addition, it
cannot be said that a judicial inquiry is "unilateral," as the DANFORTH
Court described the Missouri spousal veto. Id. at 70. The judicial inquiry
herein is conducted as an adversary proceeding in which both the rights and
interests of the Wife AND the rights and interests of the Father would be
considered.
Nor does the trial court below suggest that "the husband's interest in
continuing the pregnancy of his wife always outweighs any interest on her
part in terminating it," as the missouri spousal veto statute would have
done. Id. at 70 n.11. On the contrary, the trial court proposed to weigh
the interests of both parties against "a presumption that the [Wife] is
entitled to an abortion," which the Father could overcome only by "clear
and convincing evidence." See p.27a, infra.
Finally, the trial court did not propose to enjoin the abortion "for
whatever reason." DANFORTH, 428 U.S. at 70, n.11. Indeed, the trial court
was careful to detail the factors which would be relevant to its decision.
See pp. 26a-27a, infra. Thus, a judicial inquiry, weighing the interests of
both parties, is fundamentally different from a Missouri spousal veto
rejected in DANFORTH.
In sum, DANFORTH does not control the present case, as it did not consider
whether, on a case by case basis, the constitutional rights and interests
of a father could be considered along with the rights and interests of his
wife, as sought in the case at bar.
II. The Father has fundamental rights and interests in his unborn
child which should be judicially considered, on the facts of this
case, along with the right and interests of his Wife in aborting
their child.
The trial court below held that the Father had "rights in the fetus
grounded ... in the 14th and 9th Amendments to the United States
Constitution." See p.25a, infra. In ordering the trial court to "dismiss
all proceedings relating to the abortion issue," the Indiana Supreme Court
dismissed the Father's rights as "some nebulous common law concept." Id. at
19a. In doing so, the Indiana Supreme Court ignored well established
constitutionally protected rights and interests, on the erroneous
assumption that consideration of them was barred by DANFORTH.
Three principal lines of cases have discussed the importance of the
Father's rights and interests: (1) those relating to procreation, (2) those
relating to termination of parental rights and (3) those relating to family
relations. "Marriage and procreation are fundamental to the very existence
and survival of the race." SKINNER V. OKLAHOMA, 316 U.S. 535, 541 (1942).
This Court has long emphasized that "without doubt [the liberty guaranteed
under the Fourteenth Amendment] denotes the right of the individual to ...
establish a home and bring up children...." MEYER V. NEBRASKA, 262 U.S.
390, 399 (1923).
A. The Father has a right and interest in procreation, which is
especially significant where it has become particularized in this
specific, unborn child.
The term "procreation" is defined as "the entire process of bringing a new
individual into the world." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (24th
Ed. 1965). Similarly, in the recent case of IN RE BABY M, 537 A.2d 1227
(N.J. 1988), the right to procreate was defined by the New Jersey Supreme
Court: "The right to procreate very simply is the right to have natural
children..." Id. at 1253. The New Jersey Supreme Court observed that Mr.
Stern, the natural father, had not been deprived of that right, as Baby M
was his child. Id. The court indicated, however, that the right of
procreation did not, in and of itself, give Stern the right to the custody
of the child at birth. Id. The right to the "custody, care, companionship,
and nurturing" of a child was not a part of the right to procreation, but
was a separate right. Id.
Employing this analysis, it becomes clear that the Father's fundamental
right to procreate is a right to have a\ natural child. Likewise, the Wife
has a right to procreate. It is logically distinguishable from the right to
destroy that which has been procreated - the right to abortion - which was
granted to women in ROE.
In this case, Father and Wife have conceived, by consensual sexual
intercourse, a child within their marital relationship. As a result, the
Father's general procreational right has become particularized in that
unborn child. He has, therefore, a distinct constitutional interest, in
continuing the procreation, already begun, to birth, which the trial court
sought to consider along with her right, as declared in Roe, to destroy the
unborn child.
B. The Father has a right and interest in his unborn child, which is
a natural right inherent in his biological relationship to the child.
Natural parents also have constitutional rights in the care, custody,
companionship, and control of their children that a state cannot sever
absent clear and convincing evidence of parental unfitness. SANTOSKY V.
KRAMER, 455 U.S. 745 (1982). In SANTOSKY, this Court held that a
"preponderance of the evidence" standard of proof for termination of
parental rights did not sufficiently recognize "the fundamental liberty
interest of natural parents in the care, custody and management of their
child." 455 U.S. at 753. This Court observed that : "Even when blood
relationships are strained, parents retain a vital interest in preventing
the irretrievable destruction of their family life." 455 U.S. at 753.
Similarly, a state cannot discriminate on the basis of sex by making it
easier to sever a father's rights in his children than it is to sever the
mother's rights. See CABAN V. MOHAMMED, 441 U.S. 380 (1979); STANLEY V.
ILLINOIS, 405 U.S. 645 (1972).
This Court, in STANLEY, summed up the rights of fathers as follows:
The private interest here, that of a man in the children he has sired
and raised, undeniably warrants deference and, absent a powerful
countervailing interest, protection. It is plain that the interest of
a parent in the companionship, care, custody and management of his or
her children "come[s] to this Court with a momentum for respect
lacking when appeal is made to liberties which derive merely from
shifting economic arrangements." The Court has frequently emphasized
the importance of the family. The rights to conceive and to raise
one's own children have been deemed "essential," "basic civil rights
of man," and "[r]ights far more precious ... than property rights[.]"
"It is cardinal with us that the custody, care and nurture of the
child reside first in the parents, whose primary function and freedom
include preparation for the obligations the state can neither supply
nor hinder." The integrity of the family unit has found protection in
the Due Process Clause of the Fourteenth Amendment, and the Ninth
Amendment.
405 U.S. at 651 (citations omitted)
Thus, the right of a father to the care, custody and management of his
child is a fundamental right. In SANTOSKY, this Court indicated that the
father's rights in his child originate in the liberty clause of the
Fourteenth Amendment which gives families freedom of personal choice in
matters of family life. 455 U.S. at 745. The father's right in his child
has been declared "cognizable and substantial" under the United States
Constitution. QUILLOIN V. WALCOTT, 434 U.S. 246, 248 (1978).
It is perhaps too obvious to require statement that a father cannot have
companionship with, provide care for, or exercise management over a dead,
aborted child. For him to exercise his fundamental rights, the unborn child
must be protected until birth. Indeed, one of the interests at the heart of
the constitutionally protected parent-child relationship is that of
providing "loving protection" for the child. RIVERA V. MINNICH, 107 S.Ct.
3001, 3004 (1987). Hence, the Father herein has sought consideration of his
fundamental rights and interests along with those of the Wife to determine,
given the existence of competing fundamental rights, whose interests, on
the facts of this case, are the weightier.
On the other hand, biology alone does not create constitutional rights in
one's children. As this Court has stressed in all of its recent cases
dealing with unwed father's rights, biology creates only an opportunity
that the father must exercise by assuming genuine responsibility for his
children. Then, their relationship is protected. Thus, the rights of even
an unwed father who has had custody of his children are protected, see
CABAN V. MOHAMMED, supra, and STANLEY V. ILLINOIS, supra, but absentee
fathers have no such strong rights. CF. LEHR V. ROBERTSON, 463 U.S. 248
(1983) and QUILLOIN V. WALCOTT, 434 U.S. 246. This Court summarized its
holdings in its most recent case on this issue, LEHR V. ROBERTSON, 463 U.S.
248, in which it held that a father, who had no custodial, personal, or
financial relationship with his daughter in the two years since her birth,
had no absolute due process right to be heard in her adoption proceedings.
The Court said:
The significance of the biological connection is that it offers the
natural father an opportunity that no other male possesses to develop
a relationship with his offspring. If he grasps that opportunity and
accepts some measure of responsibility for the child's future, he may
enjoy the blessings of the parent-child relationship and make
uniquely valuable contributions to the child's development. If he
fails to do so, the Federal Constitution will not automatically
compel a State to listen to his opinion of where the child's best
interests lie.
463 U.S. at 262. In this case, by contrast, the Father has "grasp[ed] that
opportunity and accept[ed] some measure of responsibility for the child's
future," and thus his interest is constitutionally protected. He has
accepted this responsibility especially by entering into the sacred
relationship, regulated by society largely for the protection of children,
known as marriage.
C. The father also has a fundamental right and interest in his status
as a husband in the family unit.
By the fact of his marriage to the Wife herein, the Father has acquired
additional constitutional; protection. even before privacy rights (on which
the Father's rights in his unborn child are founded) were recognized as
attaching to individuals, they were found to be inherent in family
relationships and in the marital relationship. Thus, in PRINCE V.
MASSACHUSETTS, 321 U.S. 158, 166 (1943), this Court recognized as
constitutionally protected "the private realm of family life." In addition,
in GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1964), this Court observed:
We deal with a right of privacy older than the Bill of Rights - older
than our political parties, older than our school systems. Marriage
is a coming together for better or worse, hopefully enduring, and
intimate to the degree of being sacred.
Id. at 486. The concurrence in GRISWOLD also explained the roots of the
marital privacy right in the Ninth Amendment, finding it "fundamental"
because it was rooted in the "traditions and [collective] conscious of our
people." Id. at 493 (Goldberg, J., concurring) (quoting SNYDER V.
MASSACHUSETTS, 291 U.S. 97, 105 (1934).
It is clear that the right of a husband to the care, custody, companionship
and management of his children, born or unborn, is a fundamental right
rooted historically in the traditions of our nation and western
civilization. It is a fundamental right independent of any state delegation
of power and entitled to great respect and protection. (Footnote 8).
Thus, husbands have three rights of constitutional dimension in their
unborn children. First, they have a right to procreate, which begins with
the development and preservation of the ability to procreate and extends to
the birth of the child. This general right becomes particularized with the
conception of an unborn child resulting from an act of consensual
intercourse. This particularized right to procreate continues to the birth
of the particular child. Second, husbands have rights to the care, custody,
control, and companionship of their children. This right includes the
"loving protection" of a child, begins at conception, and continues until
the child reaches the age of majority. Finally, a husband has a
constitutional right in his family relations, which include the unborn
child herein.
Therefore, at the time when the child is in utero, the Father in the case
at bar has three distinct constitutional rights in his unborn child. These
fundamental rights and interests the trial court sought to consider with
the rights of the Wife, on the facts of this case. This judicial
consideration of the Father's rights and interests was prohibited by the
Indiana Supreme Court upon a misreading of DANFORTH. (Footnote 9)
III. The trial court, as a neutral arbiter of competing rights and
interests, properly issued a preliminary injunction to prevent the
Wife from having an abortion, pursuant to its consideration of the
respective rights and interests on the facts of this case.
Unlike state action in enacting the statute at issue in DANFORTH, the
action of the trial court in the instant case does not involve the state
taking sides in the abortion decision.. Rather, the court is acting as a
neutral arbiter, evenhandedly considering competing rights and interests.
The Indiana Supreme Court indicated no state law flaw in the jurisdiction
of the trial court or in its issuance of a preliminary injunction. It held
only that ROE and DANFORTH precluded judicial consideration of Father's
rights and interests. (Footnote 10)
However, the preliminary injunction was proper under present
interpretations of the United States Constitution. Either of two analyses
provides adequate justification for the trial court's actions.
A. Under Substantive Due Process analysis, as employed in ROE, the
Father had a compelling interest in his unborn child, on the facts
which the state court found, sufficient to justify the court in
limiting the Wife's liberty to have an abortion.
In ROE, this Court built the abortion privacy right on a Substantive Due
Process analysis of the Fourteenth Amendment. Having declared that the
right to abortion was fundamental, the Court proceeded to find two
compelling state interests, in maternal health and in protection of
"potential" human life, which were held to vary in significance with the
stage of the pregnancy. For the state court to burden the Wife's liberty to
choose abortion free from state interference it must have a compelling
interest in doing so and the action must be "narrowly drawn to express only
the legitimate state interests at stake." 410 U.S. at 155.
Clearly, the state has a legitimate interest in protecting the rights of
fathers in their children. Given the fact that these rights are themselves
fundamental rights as against the state, there can be little doubt that the
state's interest in protecting these rights constitutes a significant state
interest. And where, as in this case, the interests of the Father in his
child outweigh the interest of the Wife in aborting the child (as the trial
court found, even using a presumption in favor of the Wife and imposing on
the Father a clear and convincing evidence burden of proof) the interest of
the state in protecting paternal rights and interests becomes compelling.
Moreover, such judicial consideration of the rights and interests of both
parties is "narrowly tailored" to meet the task of protecting compelling
interests and eliminating those that do not reach the level of being
compelling. Trial courts are skilled at resolving the common assertions of
competing rights as occurs commonly in dissolution and custody actions.
Furthermore, only a Father who receives notice and is sufficiently
concerned about his unborn child will engage in such actions. Unlike the
statute in DANFORTH, there is no blanket presumption that all husbands will
deny consent.
In addition, in the abortion context, this Court has demonstrated that a
compelling interest is not always necessary when rights and interests of
other parties are at stake. Parental rights in the abortion context have
been determined to be "significant" but not "compelling". DANFORTH, 428
U.S. at 75. Even so, the parents rights and interests were considered great
enough to uphold the requirement that minors get parental or judicial
consent to an abortion. PLANNED PARENTHOOD V. ASHCROFT, 462 U.S. 476
(1983).
From its inception, the abortion right has been regarded, not as absolute,
but as a right to be weighed and balanced against other important
interests. In ROE V. WADE, 410 U.S. 113, after describing the factors on
which it based its conclusion that the "right of privacy ... is broad
enough to encompass a woman's decision whether or not to terminate her
pregnancy," id. at 153, this Court noted that this right "must be
considered against competing state interests." Id. at 154.
The parents' "significant" interest in their children has been found by
this Court to be sufficient to support an individual case by case judicial
consideration of a minor's abortion decision. On the same date that this
Court issued its opinion in DANFORTH, it also decided a companion case,
BELLOTTI V. BAIRD (I), 428 U.S. 132 (1976). In DANFORTH this Court struck
down a statute granting a minor's parent an absolute right to veto the
minor's abortion, just as it struck down an absolute spousal veto statute.
In BELLOTTI (I), however, the Court refused to strike down on its face a
statute that provided for a judicial inquiry into the facts and
circumstances in which a minor desires to obtain an abortion without her
parents' consent. Rather, it directed the lower federal court to obtain
sufficient information about the procedures involved to be able to
determine whether they adequately protected the minor's rights.
[A] ... statute that prefers parental consultation and consent, but
that permits a mature minor capable of giving informed consent to
obtain, without undue burden, an order permitting the abortion
without parental consultation, and, further, permits even a minor
incapable of giving informed consent to obtain an order without
parental consultation where there is a showing that the abortion
would be in her best interest. The statute, as thus read, would be
fundamentally different from a statute that creates a "parental
veto."
428 U.S. at 145.
In BELLOTTI V. BAIRD (II), 443 U.S. 622 (1979), a plurality of this Court,
noting that "the guiding role of parents in the upbringing of their
children justifies limitations on the freedom of minors," id. at 637, set
forth a scheme under which there might constitutionally be provisions "for
parental notice and consent in a manner that does not unduly burden the
right to seek an abortion," id. at 640, a scheme grounded in individual
judicial determination on a case by case basis of whether a minors abortion
should be authorized or precluded. In ASHCROFT, 462 U.S. 476, a Missouri
statute adopting such a scheme was approved.
As discussed above, the Father's fundamental rights and interests are at
least as strong as parent's, if not stronger. When a minor seeks an
abortion without parental consent, the parents right to the "management" of
his child has been infringed. An abortion of the Father's child, however,
is more like a parental termination proceeding which "seeks not merely to
infringe that fundamental liberty interest, but to end it." SANTOSKY, 455
U.S. at 759. The Father, therefore, has a sufficient cognizable interest
upon which to base a judicial inquiry into whether his wife will abort
their child.
The fact that the trial court had an interest sufficient to burden the
Wife's liberty to abort, whether characterized as "compelling" or
"significant," is apparent from the facts of this case. (Footnote 11)
Obviously, if the preliminary injunction had not issued, the Wife would
have aborted their child, permanently and irrevocably terminating his
constitutional rights and interests vis-a-vis his child. Thus, the Father
would have suffered a grave loss and irreparable harm. The unborn child
herein could never be replaced. A life would be lost. There is no legal
remedy which would replace that life. Moreover, her reasons for wanting an
abortion were found by the trial court to be of less weight than his
interests in the unborn child. Thus, the trial court was correct in
concluding that the Father's legal remedies were inadequate and he would
suffer irreparable harm if the preliminary injunction were not issued, see
p.26a, infra, and in issuing the preliminary injunction.
B. The trial court was also justified in limiting the Wife's right to
have an abortion based on the traditional balancing approved by this
Court where competing rights collide.
The weighing and balancing of constitutional rights and interests, on a
case by case basis, is an everyday occurrence in courts throughout the
nation. Parents have equal constitutional rights which are routinely
weighed in making custody and visitation rights determinations in divorce
and paternity actions. Similarly, criminal courts are not infrequently
faced with the task of balancing the rights of a defendant to a fair trial
- a right that can be undermined by pretrial publicity that taints a jury
trial - against the freedom of the press. See NEBRASKA V. PRESS ASSN., 427
U.S. 539 (1976).
These standard adjudications cannot be said to overburden either the courts
or the litigants subjected to them. (Footnote 12) They are a crucial part
of the unique and essential role of the judiciary, which is precisely to
serve as an arbiter applying neutral principles of law and considerations
of equity to resolve disputes among those with competing claims of rights.
The Wife erroneously claimed below that the Father must show a compelling
state interest in order for a court to balance his rights and interests
against his wife's. Brief of Appellant (in the Indiana Court of Appeals) at
21-24. Although, as shown above, the state court does have a compelling
interest, this argument is predicated on the claim that, in the Wife's
view, the Father has no competing constitutional rights. Id. at 29 ("[T]he
man has no enforceable rights in the fetus vis a vis the woman prior to
birth.") In fact, as demonstrated above, the Father has equally fundamental
constitutional rights here. The courts traditionally balance such rights,
on a case by case basis, in order to determine which outweighs the other.
Thus, under the sort of analysis employed where competing rights of roughly
equivalent significance collide, the court need only compare the relative
weight of the competing interests to determine whose rights prevail. On the
facts of this case, the Father's rights and interests prevail, as found by
the trial court, and the trial court was justified in enforcing his rights
in preference to those of the Wife.
IV. Denying the Father the opportunity for case by case judicial
consideration of his profound rights and interests in his unborn
child with those of his Wife would deprive him of his rights under
the United States Constitution.
Along with his assertion that ROE and DANFORTH do not preclude judicial
consideration of his rights and interests with those of his wife in the
context of an abortion decision, the Father also asserts positive
constitutional rights to such consideration. He asserts these under the
Equal Protection and Due Process Clauses of the Fourteenth Amendment and
under the reserved rights of the Ninth Amendment.
First, under Indiana's Dissolution of Marriage statute, the Wife is granted
significant rights against the father and the Father's responsibility
toward any children of a marriage can be enforced. Thus, the Father may be
forced b y the state court, in an action initiated by the Wife, to provide
the basic support needed for the survival of the child. On the other hand,
if the Indiana Supreme Court's decision stands, the Father's interests in
his child will be subject to absolute and irreversible termination at the
unilateral and completely unreviewable discretion of the Wife. This denies
the Father the Equal Protection of the law.
Second, By refusing to enforce the Father's rights and interests against
the Wife, the state is depriving him of his Procedural Due Process rights
as set forth above. See II(B) supra. At a minimum, where there are
conflicting rights with regard to the child, the Father should be provided
a hearing and an opportunity to have his rights and interests considered on
a roughly equivalent basis with those of the Wife. Moreover under
Substantive Due Process analysis, as employed in ROE, where there is a
fundamental right, the state must have a compelling interest in order to
burden that right and the state action must be narrowly drawn to effectuate
that interest. These conditions are not met in this case.
Finally, the Father asserts his rights in his unborn child and to a normal
judicial forum for the assertion of his rights under the Ninth Amendment of
the United States Constitution, because the rights of fathers to the care,
custody and companionship of their children are ones "retained by the
people." Such rights may not be disparaged by other rights enumerated in
the Constitution.
CONCLUSION
WHEREFORE, Petitioner, Erin Andrew Conn, respectfully requests this Court
to issue a writ of certiorari to review the decision of the Indiana Supreme
Court.
Respectfully submitted,
James Bopp, Jr.
Counsel of Record
Richard E. Coleson
Counsel for Petitioner
Brames, McCormick, Bopp & Abel
The Tudor House
191 Harding Avenue
PO Box 410
Terre Haute, Indiana 47808-0410
(812) 238 2421
==========================================================================
FOOTNOTES
1 (to Petition). Pursuant to Rules of the Supreme Court of the United
States, Rule 28.4©, Petitioner hereby states that 28 U.S.C. 2403(b) may
be applicable, due to the fact that constitutional and statutory provisions
of the State of Indiana have been drawn into question regarding their
Federal Constitutionality as applied. No court has yet certified to the
Attorney General of Indiana that such provisions have been drawn into
question.
(FOOTNOTE 1.) As the sex of the unborn child is unknown, he or she will be
referred to herein as female to avoid the awkward use of pronouns of
alternative gender throughout this document.
(FOOTNOTE 2.) DOE V. SMITH, No. 84A01-8804-CV-00112 (Ind. Ct. App., filed
April 12, 1988).
(FOOTNOTE 3.) ROE V. WADE, 410 U.S. at 125. In both ROE and DOE V. BOLTON,
410 U.S. 179, 187 (1973), this Court granted review of cases to women who
had already completed their pregnancies. As explained by Justices Scalia
and O'Connor, concurring in the recent case of HONIG V. DOE, 108 S.Ct. 592
(1988), abortion jurisprudence "differ[s] from the body of our mootness
jurisprudence ... in dispensing with the same-party requirement entirely,
focusing instead upon the great likelihood that the issue will recur
BETWEEN THE DEFENDANT AND THE OTHER MEMBERS OF THE PUBLIC AT LARGE without
ever reaching us." Id. at 609 (emphasis in original.). In the instant case,
the same principle is applicable. Although the Father and the Wife may
never again have occasion to litigate between them her right to an
abortion, there is at least as great a possibility that she will again be
subject to such an action or that he will again seek to initiate such an
action in relation to another partner as there was that Jane Roe would
again be subject to the strictures of Texas abortion laws in ROE. In the
public at large the number of such cases is on the rise. Counsel for
Father have been involved in three such actions in Indiana alone. This is a
matter of great public importance concerning an unsettled area of the law
which requires resolution by this Court. If it is not so resolved, such
cases will continue occurring and evading review until such time as the
Court agrees to either accept one on expedited appeal or to find a case,
such as this one,within the exception to the mootness doctrine. In the
present case, Father timely presented an application and a reapplication
for a stay pending expedited consideration of this cause before this Court.
But for the denial of the stay applications by this Court, there would not
have been the possibility of mootness, as the Mother would have been
subject to contempt penal;ties had she defied the injunction sustained by
the stay, which contempt potential would have prevented the case from
becoming moot. Although counsel for the Father have received no official
notice that the Wife has obtained an abortion, a newspaper article
indicates that an abortion has apparently been performed. ABORTION CLEARED
BY COURTS IS DONE, Indianapolis News, Aug. 12, 1988, at B-6, col. 1.
(FOOTNOTE 4.) In a similar case, for instance, a trial court enjoined an
abortion, upon the request of an unwed father, after finding that the
mother wanted the abortion in order "to avoid childbirth ... to look nice
in a bathing suit this summer, ... not to be pregnant in the SUMMERTIME,
... and not to share [the father] with the baby." IN THE MATTER OF UNBORN
CHILD H., No. 84C01-8804-JP-185, slip. op. at 2 (Vigo (Ind.) Cir. Ct., Apr
8, 1988), APPEAL PENDING SUB NOM DOE V. SMITH, No. 84A01-8804-CV-00112
(Ind. Ct. App. 1988).
(FOOTNOTE 5.) 428 U.S. at 70 n. 11
(FOOTNOTE 6.) At one point, this Court could be misinterpreted to have
engaged in balancing. In considering the Missouri spousal consent statute,
this Court said: "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." DANFORTH,
428 U.S. at 71. This Court, however, was comparing the effect of leaving
the statutory PER SE absolute veto intact in every case with the effect of
striking it and leaving the woman free to "act unilaterally." Given the
choice between these absolutes, the Court held the rights of the wife must
prevail.
(FOOTNOTE 7.) That this Court does not consider a judicial rejection of an
abortion decision, under proper circumstances, to be an unconstitutional
"veto" is made clear by its opinions relating to parental rights when a
minor is seeking an abortion. In DANFORTH, this Court also struck down an
"absolute veto" right in parents. Id at 72-79. If this also rejected
judicial involvement as well, the question of parental involvement would
have been settled in DANFORTH. This, however, is not the case. In
subsequent cases, this Court has upheld, both in principle and in fact,
state statutes which require a minor to seek parental or judicial consent
to an abortion. PLANNED PARENTHOOD V. ASHCROFT, 462 U.S. 476, 409-93
(1983). In doing so this Court rejected the view of the dissenters that "a
parental or JUDICIAL VETO of a minor's decision to obtain an abortion ...
[is] unconstitutional." Id. at 504 (Blackmun, J. dissenting) (emphasis
added). The requirement of parental or judicial consent was supported, in
part, by the right of parents to "the custody, care and nurture" of their
children. BELLOTTI V. BAIRD (II), 443 U.S. 662, 638 (1979). By providing a
judicial forum for the minor to seek authorization for abortions without
parental consent, the statute did not "give a third party an absolute, and
possibly arbitrary, veto ... regardless of the reason for withholding the
consent." Id. at 643. This is so even though the court could refuse consent
to the abortion for the minor, if the court found that the desired abortion
was not "in her best interests." Id. at 644.
(FOOTNOTE 8.) John Noonan, now Judge of the Ninth Circuit, has argued that
fathers and husbands have rights in their unborn children based on: (1) the
right to procreate in SKINNER, 316 U.S. 535 ("If it did not include [the
protection of the child procreated throughout the pregnancy], all that a
man had was a liberty to fertilize an ovum - a liberty that, if not
actually meaningless, was a good deal less than full freedom to
procreate."); (2) the right to marry in LOVING V. VIRGINIA, 388 U.S. 1
(1967) ("If liberty to marry did not include the liberty to have children,
freedom to marry meant a great deal less than full freedom to marry.") (3)
the right to consent to adoption in ARMSTRONG V. MANZO, 380 U.S. 545 (1965)
("[I]f a father could not lose his rights to one of his children without a
hearing, even if the child was in the mother's control, he could not lose
his child within the mother's womb without at least an opportunity to
object."); and (4) the rights of a father set forth in STANLEY, 405 U.S.
645 ("It could reasonably be argued that, if biology conferred rights, a
father had as much interest in an unborn child of eight weeks as in an
infant of eight months.") J. NOONAN, A PRIVATE CHOICE 90-91 (1979).
(FOOTNOTE 9.) It is inconceivable that this Court, having built ROE on the
foundation of privacy cases which protect the Father herein, ROE, 410 U.S.
at 152-53 (citing GRISWOLD V. CONNECTICUT; MEYER V. NEBRASKA; LOVING V.
VIRGINIA; SKINNER V. OKLAHOMA; PRINCE V. MASSACHUSETTS; PIERCE V. SOCIETY
OF SISTERS) would turn ROE against these privacy rights and destroy its own
foundation.
(FOOTNOTE 10.) Indeed, the trial court was an appropriate forum for the
resolution of such competing assertions of right. The Wife filed a
dissolution action against the Father in which the Father sought the
preliminary injunction herein to enjoin her from aborting their child.
Under Indiana law, a trial judge in a dissolution action has full
jurisdiction over all issues involved in the marriage relationship of the
couple. The trial court is to hear all the facts and apply the law to make
a division of the party's property and to provide for the care, custody and
support of minor children. In doing so, the court may place custody of the
children in either party I.C. Section 31-1-11.5-21 and provide for support
from and visitation with the other. I.C. Section 31-1-11.5-12; I.C. Section
31-1-11.5-24. The court's jurisdiction extends to unborn children of the
marriage, see L.F.R. V. R.A.R., 378 N.E.2d 855 (ind. 1978), and the
approved practice is to refrain from granting a dissolution while the wife
is pregnant. Id. Indeed, the Indiana legislature manifestly wanted the
divorce court to consider unborn children, since it went so far as to
require verified confirmation or negation of their existence in every
divorce petition. I.C. Section 31-1-11.5-4(a)(4). For all children
conceived by the marriage, Indiana law presumes the husband to be the
father, a presumption that can only be overcome by irrefutable proof of the
husband's impotence, lack of access to the mother, of total absence or by
clear and satisfactory proof of no sexual intercourse. L.F.R., 378 N.E. 2d
at 856. Upon a finding that the wife has conceived, Indiana law "fixes a
responsibility on the husband to care for that child in the same manner he
cares for those already born and in existence at the time of the
dissolution of the marriage." See p.9a, infra (Pivarnik, J., dissenting).
Thus, with all of the rights and responsibilities of the Father and Wife,
with respect to their child, subject to determination by the trial court in
the dissolution proceeding, "[i]t is incomprehensible ... [that] this same
trial court is foreclosed [by DANFORTH] from even considering the question
of whether the wife should be permitted to destroy the creation of both
parties in the marital relationship merely because she wants to." Id.
(FOOTNOTE 11.) The trial court found that the Wife was approximately six
weeks pregnant at the time of the hearing, see p.23 a, infra, and the
Father is presumed to be the father of the child. Id. at 25a. The Wife said
she wanted an abortion for three reasons: (1) she didn't think they could
afford another child, (2) because the father refused to agree to the
adoption of the child once born, and (3) if there was any chance of the
Father getting custody of the child, once born. Id. at 24a. There was no
evidence that the Wife needed an abortion for medical, emotional,
psychological or family reasons, or because of any unusual risks facing her
if she carried the pregnancy to term. Id. In addition, the Wife was not in
school and did not have any plans for further education. Id. at 22a.
Thus, on the side of the Wife, there was not evidence of any particular or
unusual harm that would be occasioned by the Wife bringing the child to
term. In addition, two of her reasons for abortion, that the Father refused
to consent to adoption of their child and that he might get custody of
their child, were spiteful, manipulative and retaliatory. In addition,
these two reasons also indicate that the Wife does not actually object to
carrying the child to term but really wants to deny to the Father the
child. Finally, while this pregnancy was unplanned, the parties did plan to
have a child in the near future. Id. at 23a.
On behalf of the Father, the trial court found that he was a high school
graduate, with college training, and a second lieutenant in the Army
Reserves. Id. at 22a. He was in management training with his employer and,
upon completion, would be eligible to be a store manager at a salary of
$350 to $450 per week. Id. at 23a. The Father, therefore, felt financially
secure and was capable of raising the child without financial support from
the Wife for the child. Id. The Father wants the child to be born so he can
raise and nurture her and give her everything he has. Id. If the Wife had
an abortion, the Father would feel a great loss, comparable to the loss of
cutting off his own arms and legs. Id.
Thus, on the side of the Father, there was evidence that he could
financially raise the child, despite the fears of his wife. In addition,
from the facts it appears that he is a responsible person with a bright
future and with a sincere interest in and concern for his child. He would
suffer grave emotional harm from the loss of his child. His interests
outweighed hers and his threatened injury outweighed any threatened harm to
the Wife. Id. This is particularly true in this case since there was no
evidence that the Wife even consulted with a physician regarding the
abortion, despite the fact that this Court has held that "the abortion
decision necessarily involves a medical judgment." CAREY V. POPULATION
SERVICES INTERNATIONAL, 431 U.S. 678, 699 n. 25 (1977) (citing ROE, 410
U.S. at 164). On these facts, therefore, the trial court had a compelling
interest in the Father which it sought to protect by issuing the
injunction.
(FOOTNOTE 12.) For cases rejecting the "burden on the court" argument, when
constitutional rights are asserted, see STANLEY, 405 U.S. at 656 n.8; REED
V. REED, 404 U.S. 71,76 (1971); CARRINGTON V. RASH, 380 U.S. 89, 96 (1965).
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