The opinion
BAKER, Judge,
concurring in part and dissenting in part. ~-
The law is dialectic in a deeper sense than its adversary process. It mediates most significantly between right and right." 1 Today we are charged with precisely this type of mediation-the woman's right to an abortion and the government's right to regulate the same. I fully concur with Part III of the majority's opinion. However, I must dissent from the majority's determination that a right to privacy may be found in Article I, section 1 of the Indiana Constitution. I further disagree that the question of whether the eighteen-hour and in-person requirements are a material burden is a question of fact that should be remanded to the trial court. Because I believe that these requirements are facially discriminatory and not rationally related to a legitimate state goal, I *1058 would reverse the trial court without remanding.
My colleagues have done a superb job in explaining why Indiana has a right to privacy. However, I question the conclusion that the source of that right may be found in Article I, section 1 of the Indiana Constitution. Our supreme court suggested that the right to privacy may instead be found in Article I, section 21. In State ex rel. Mavity v. Tyndall, our supreme court was faced with the issue of whether it was a violation of the Fourteenth Amendment to the United States Constitution and Article I, sections 1 and 21 of the Indiana Constitution for the police to hold the defendant's photographs and fingerprints pursuant to section 47-857, et seq. (Burns 1940). 225 Ind. 860 , 74 N.E.2d 914 (1947) (superseded by statute on grounds other than the right to privacy). Our supreme court made short work of the Fourteenth Amendment and Article I, section 1 arguments, finding no support for the defendant's contentions therein. Id. at 868, 74 N.E.2d at 916 . Although the statute was ultimately found not to violate Article I, section 21, our supreme court stated that a citizen "has a right to privacy and protection as guaranteed him by the constitutional provision quoted[, Article I, section 21.]" Id. at 365, 74 N.E.2d at 916 . (Emphasis added). Although the parameters of the right to privacy were not well articulated in Mavity, the majority today has provided a thorough analysis of the roots of this right in the State of Indiana. Although Mavity was decided in the context of property rights, our supreme court did not in its opinion limit the right to privacy found in Article I, section 21 to property. Therefore, as articulated by our supreme court, the right to privacy lies in Article I, section 21 of the Indiana Constitution.
Rights under the Indiana Constitution cannot hide within penumbras, but rather, "questions arising under the Indiana Constitution are to be resolved by examining the intent of the framers, the language of the text in the context of the history surrounding its drafting and ratification, and case law interpreting the specific provisions." Jordan ex rel. Jordan v. Deery, 778 N.E.2d 1264, 1268 (Ind.2002). Our supreme court indicated in Matter of Lawrance, 579 N.E.2d 32, 39 (Ind.1991), that the principle of liberty "include[s] the opportunity to manage one's own life except in those areas yielded up to the body politic." It appears then that the right to privacy is a core value in Indiana that does not necessarily spring from a particular provision of our constitution but is an amalgamation of provisions and case law and timing of the same.
The Indiana constitution provides equal or greater protection to its citizens than the federal constitution inasmuch as "the Indiana Constitution provides a great variety of protections for citizens which are not contained in the Federal Bill of Rights or elsewhere." Ratliff v. Cohn, 679 N.E.2d 985, 986 (Ind.Ct.App.1997). In 1973, the United States Supreme Court said that the right of privacy found in the federal constitution includes the right to obtain an abortion. Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973). Abortion became a statutory right under Indiana Code section 16-34-2-1 that same year. 2 On January 18, 1977, Indiana be *1059 came the thirty-fifth state to ratify the Equal Rights Amendment (ERA). Indiana Historical Society, "Indiana Women's Political Caucus Records, 1967-1983" at http://www.indianahistory:org/li-brary/manuseripts/ collection-guides/m0709.html# HISTORICAL (last visited September 3, 2004). Although our General Assembly ratified the ERA, we were the last state to do so. Thus, the ERA fell three states short and was not ratified for the federal constitution. However, Indiana thereafter "degendered" its constitution, in effect ratifying the ERA for the Indiana Constitution. For example, the text of Article I, section 2 from the original 1851 constitution states that "All men shall be secured in the natural right to worship Almighty God, according to the dictates of their own consciences." Indiana Historical Bureau, "Indiana's Constitution of 1851 from original enrolled copy effective November 1, 1851" at http://www.statelib.lib.in.us/www/ihb/re-sources/constarticlel .html (last visited September 3, 2004) (emphasis added). In 1984, the current text of Article I, section 2 was adopted at the general election, and it states that "(alll people shall be secured in the natural right to worship Almighty God, according to the dictates of their own consciences." (Emphasis added). This ensured that our legal landscape included a right to privacy, which includes a woman's right to terminate her pregnancy. I therefore concur with the result as to Part I of the majority opinion. However, I do not believe it is necessary to remand this cause to the trial court.
When one considers the amalgamation of provisions and case law and their timing in relation to each other, it is apparent that a consensus among Hoosiers exists that both men and women should be treated equally by their government. The current statutory scheme, however, inherently treats men and women differently. Since the right to privacy exists, and that right includes the right to terminate a pregnancy under certain circumstances, the General Assembly cannot limit it arbitrarily and *1060 capriciously by placing a material burden upon it.
Under Article I, section 12, legislation interfering with a right must bear a rational relationship to a legitimate legislative goal. McIntosh v. Melroe Co., a Div. of Clark Equip. Co., Inc., 729 N.E.2d 972, 975-76 (Ind.2000). Indiana Code section 16-34-2-1.1 is, by its own terms, an informed consent statute. As our supreme court has observed, "Under the doctrine of informed consent, a physician must disclose the facts and risks of a treatment which a reasonably prudent physician would be expected to disclose under like cireumstances, and which a reasonable person would want to know." Weinberg v. Bess, 717 N.E.2d 584 , 590 n. 5 (Ind.1999). Thus, the only plausible purpose of the eighteen-hour and in-person requirements is to provide information to the patient. My research has uncovered no medical procedure in Indiana other than abortion, which by definition can only be performed upon a woman, in which the attending physician is required to provide information in the patient's presence eighteen hours before the procedure. A woman's ability to make an informed decision about her own health is not affected by the fact that she is pregnant, and, therefore, there is no rational relationship to the legitimate government interest of providing medical information in requiring women to receive that information differently than men. Nothing indicates that women must receive medical information differently from men, and to suggest so is facially discriminatory.
In sum, I am convinced that it is unnecessary to remand to the trial court inasmuch as the eighteen-hour and in-person requirements are facially discriminatory and bear no rational relationship to the goal of providing information to the patient. These requirements do no more than unnecessarily hamper a woman's ability to exercise her rights, inasmuch as "Ielvery human being of adult years and sound mind has a right to determine what shall be done with his [or her] own body." Matter of Lawrance, 579 N.E.2d at 38 -39 (quoting Schloendorff v. Soc'y of New York Hosp., 211 N.Y. 125, 129 , 105 N.E. 92, 93 (1914), overruled on other grounds). I would therefore reverse and remand this cause to the trial court with instructions to enter judgment for the plaintiffs, enjoining implementation of the in-person and cighteen-hour requirements.
. Paul Freund, "Legal Frameworks for Human Experimentation," in Experimentation with Human Subjects 105 (Paul Freund, ed.1969), quoted in Roger B. Dworkin, Limits 6 (1996). i
. Indiana Code section 16-34-2-1 reads as follows:
(a) Abortion shall in all instances be a criminal act, except when performed under the following circumstances:
(1) During the first trimester of pregnancy for reasons based upon the professional, medical judgment of the pregnant woman's physician if:
(A) the abortion is performed by the physician;
*1059 (B) the woman submitting to the abortion has filed her consent with her physician. However, if in the judgment of the physician the abortion is necessary to preserve the life of the woman, her consent is not required; and
(C) the woman submitting to the abortion has filed with her physician the written consent of her parent or legal guardian if required under section 4 of this chapter.
(2) After the first trimester of pregnancy and before viability, for reasons based upon the professional, medical judgment of the pregnant woman's physician if:
(A) all the circumstances and provisions required for legal abottion during the first trimester are present and adhered to; and
(B) the abortion is performed in a hospital or ambulatory outpatient surgical center (as defined in IC 16-18-2-14).
(3) Except as provided in subsection (b), after viability of the fetus for reasons based upon the professional, medical judgment of the pregnant woman's physician if:
(A) all the circumstances and provisions required for legal abortion before viability are present and adhered to;
(B) the abortion is performed in compliance with section 3 of this chapter; and
(C) before the abortion the attending physician shall certify in writing to the hospital in which the abortion is to be performed, that in the attending physician's professional, medical judgment, after proper examination and review of the woman's history, the abortion is necessary to prevent a substantial permanent impairment of the life or physical health of the pregnant woman. All facts and reasons supporting the certification shall be set forth by the physician in writing and attached to the certificate. -
(b) A person may not knowingly or intentionally perform a partial birth abortion unless a physician reasonably believes that:
(1) performing the partial birth abortion is necessary to save the mother's life; and
(2) no other medical procedure is sufficient to save the mother's life.