suggesting that, “if [the Indiana notification statute] barred out-of-state minors from employing the judicial bypass procedure, it would be unconstitutional because the effect would be to prohibit mature out-of-state minors from having abortions in Indiana”
How later courts described this case
- suggesting that, “if [the Indiana notification statute] barred out-of-state minors from employing the judicial bypass procedure, it would be unconstitutional because the effect would be to prohibit mature out-of-state minors from having abortions in Indiana”
- “If the statute had specified the procedure for appeals or at least directed the Indiana Supreme Court to promulgate rules ... we would be satisfied”
- “It is hardly speculative to imagine that even some mature minors will be deterred from going to court if they know that their parents will be notified if their petitions are denied, because no minor can be certain that the court will rule in her favor.”
- “Because parental involvement brought about by either consent or notification statutes may result in similar efforts by parents to block the abortion, we will apply the Supreme Court’s analysis with respect to consent bypass procedures in our consideration of the constitutional sufficiency of Indiana’s notification bypass procedures.”
Written by the judges who cited it.
The opinion
FAIRCHILD, Senior Circuit Judge,
con-
curring.
The majority opinion asserts “the state cannot require that an abortion be delayed once notification has been effected upon a minor’s parents.” We do not have before us a statute narrowly drawn to require a 24 hour delay only after notification of parents who have not yet approved the abortion nor had an opportunity to attempt dissuasion and drawn to terminate even that requirement where parents approve or abandon efforts to dissuade within the 24 hour period. I prefer to avoid any implication as to the validity of such a statute.
APPENDIX
102nd GENERAL ASSEMBLY ABORTION — NOTICE REQUIREMENTS
HOUSE ENROLLED ACT NO. 1144
An Act to amend IC 35-1-58.5 concerning notice requirements for abortion.
Be it enacted by the General Assembly of the State of Indiana:
SECTION 1. IC 35-1-58.5 is amended by adding a NEW section 2.5 to read as follows: Sec. 2.5(a) No physician shall perform an abortion upon an unemancipated pregnant woman under the age of eighteen (18) years without first having given at least twenty-four (24) hours actual notice to one (1) of the parents or the legal guardian of the minor pregnant woman as to the intention to perform such abortion, or if such parent or guardian cannot be reached after a reasonable effort to find him or her, without first having given at least forty-eight (48) hours constructive notice to one (1) of the parents or the legal guardian of the minor pregnant woman by certified mail to the last known address of one (1) of the parents or guardian computed from the time of mailing.
(b) A minor who objects to notice being given her parent or guardian under this section may petition, on her own behalf or by next friend, the juvenile court in the county in which the minor resides for a waiver of the notice requirement under subsection (a).
(c) A physician who feels that compliance with the notice requirement in subsection (a) would have an adverse effect on the welfare of the pregnant minor or on her pregnancy may petition the juvenile court in the county in which the minor resides, within twenty-four (24) hours of the abortion request, for a waiver of the notice requirement under subsection (a).
(d) The juvenile court must rule on a petition filed by a pregnant minor under subsection (b) or by her physician under subsection (c) within forty-eight (48) hours of the filing of the petition. Before ruling on such petition, the court shall consider the concerns expressed by the pregnant minor and her physician. Notice under this section shall be waived by the juvenile court if the court finds that the minor is mature enough to make the abortion decision independently or that notification would not be in the minor’s best interests.
(e) If the juvenile court, in ruling on a petition filed under subsection (b) or subsection (c), refuses to waive the notice requirement in subsection (a), the court shall assume the responsibility of taking whatever protective action is thought necessary by the court for the minor in connection with the implementation of subsection (a).
(f) IC 31-6-8 applies to all records of the juvenile court that are made as a result of proceedings conducted under this section.
(g) This section shall not apply where there is an emergency need for a medical procedure to be performed such that continuation of the pregnancy provides an immediate threat and grave risk to the life or health of the pregnant woman and the attending physician so certifies in writing.
Approved February 25, 1982.