Petition — Doe v. Bloomington Hospital

R3 -483 7 Office-$ ore Court, US.

NO. | SEP 18 1983

> L STEVAS,

IN THE os

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

INFANT DOE, PETITIONER,

V.

BLOOMINGTON HOSPITAL, JOHN AND MARY DOE,

AND MONROE COUNTY WELFARE DEPARTMENT,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF INDIANA

PETITION FOR A WRIT OF CERTIORARI

Lawrence J. Brodeur

Guardian ad Litem for

Infant Doe

205 N. College, Suite 160

Bloomington IN 47401

812-332-5973

of Counsel:

Dennis J. Horan

Victor G. Rosenblum

Paige Comstock Cunningham

*Thomas J. Marzen

Maura Quinlan

Americans United for Life

Legal Defense Fund

230 N. Michigan Ave.

Suite 915

Chicago IL 60601

312/263-5386

*Counsel of Record

QUESTIONS PRESENTED*

| Whether the death of Infant Doe

renders this case moot even though (i)

his death was the product of the lower

court's order denying him surgery, food,

and water and (ii) important constitu-

tional questions that could recur yet

continually evade review were raised

prior to his death.

r Whether Infant Doe was deprived

of his life without due process of law in

violation of the Fourteenth Amendment to

the United States Constitution by the

lower court's order that he be denied

lifesaving surgery, food, and water.

3. Whether Infant Doe was denied

procedural due process of law in viola-

tion of the Fourteenth Amendment to the

United States Constitution when the lower

court refused to appoint any guardian or

*The caption includes all parties to the

proceeding.

counsel to represent his interests in

court before it ordered that he be denied

lifesaving surgery, food, and water.

4. Whether Infant Doe was denied

equal protection of the law because of

his handicap in violation of the

Fourteenth Amendment to the United States

Constitution when the lower court, on the

ground that he might be mentally

retarded, failed to apply for his protec-

tion the Indiana laws that assure the

provision of lifesaving medical treat-

ment, food, and water to otherwise simi-

larly situated children.

aa

TABLE OF CONTENTS

Opinions Below..........06. coccccccced

Jurisdiction. .ccccccscccccces cccccccca

Constitutional and Statutory

Provisions Involved...... Prrrerrery :

Statement of the Case...... covccccscced

Reasons for Granting this Petition..14

I. The Federal Constitutional Ques-

tions Raised By Infant Doe Are

Not Moot Under Federal Law....18

A. This Case Falls Within the

"Capable of Repitition Yet

Evading Review" Exception

To the Mootness Doctrine...20

B. The Underlying Reasons for

the "Case or Controversy"

Requirement of Article III

Are a gC Pe ree

iii

II. The Failure of the Monroe

County Circuit Court to

Appoint a Guardian ad Litem

or Counsel for Infant Doe

Denied Him Procedural Due

Process in Violation of the

Due Process Clause of the

Fourteenth Amendment to

the United States Consti-

CUCLON. ccccccccccccccccsccceseedO

III.The Monroe County Circuit

Court's Order Deprived Infant

Doe of his Substantive Due

Process Right to Life in

Violation of the Fourteenth

Amendment to the United

States Constitution...........37

IV. The Circuit Court's Order

Deprived Infant Doe of Equal

Protection of Law in Violation

iv

of the Fourteenth Amendment

to the United States Consti-

tution.. rere fee ee © ef ee ee © © © © oo42

DRM ZOR. ccccccencece ebecewces eee v,

Appendix

Indiana Supreme Court's Denial

of Appellant's Petition for

TEANSLEL . ccccccccccccccccccccese App.1

Indiana Court of Appeals' Order

Dismissing Appeal...............App.2

Monroe County Circuit Court's

Declaratory Judgment.........e. App.7

Transcript of Hearing Held on

Petition for Emergency Detention

Held on April 13, 1982..........App.14

Constitutional and Statutory

Provisions Involved:

U.S. Const. art. III, §2,

Gla Leccccccccccccccccccccs cAppelL8

U.S. Const. amend. XIV, §1....App.18

Ind. Code Ann. §35-1-58.5-7(b)

(Burns 1979 Repl.).........-App.19

Vv

Ind. Code Ann. §35-42-1-1

(Burns 1979 Repl.)..........App.19

Ind. Code Ann. §35-42-1-4

(Burns 1979 Repl.).........-App.19

Ind. Code Ann. §35-42-1-5

(Burns 1982 Supp.)..........-App.20

Ind. Code Ann. §35-46-1-4

(Burns 1982 Supp.)..........App.20

vi

TABLE OF AUTHORITIES

CONSTITUTION

U.S. Const. art. 3 §2.............passim

U.S. Const. Amend. XIV (1868).....passim

CASES

Cafeteria and Restaurant Workers Union

v. McElroy, 367 U.S. 895 (1967)....36

Flast v. Cohen, 392 U.S. 83 (1968)....20

Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976)....... TEETER EETY |

Goldberg v. Kelly, 397 U.S. 254

(1970). ccccccccccccccccccsccces 0000 0 36

Joint Anti-Fascist Refugee Committee

v.McGrath, 341 U.S. 123 (1951)......35

Murphy v. Hunt, 102 S.Ct. 1181 (1982).23

Parham v. J.R., 442 U.S. 584

(197E) a ccccccccsccccccccescccedcy 34939

Poe v. Ullman, 367 U.S. 497 (1961)....20

Powell v. McCormack, 395 U.S. 486

(1969) wccccccvcccscccccccccveccesccesl

vii

Roe v. Wade, 410 U.S. 113

(1973). cece eee eeeeee21,22,26,38,39,40

San Antonio Independent School District

v. Rodriguez, 411 U.S. 1 (1973)..44,45

Shelley v. Kraemer, 334 U.S. 1 (1947).30

Sosna v. Iowa, 419 U.S. 393 (1974)....26

Southern Pacific Terminal Co. v.

I.C.C., 219 U.S. 489 (1911)...... eoedl

Super Tire Engineering Co. v. McCorkle,

416 U.8. 122 (1974) .cccccccccccccccsde

United States v. Carolene Products,

304 U.S 144 (1938)... eenee oeeee se 44

United States Parole Com'n v. Geraghty

445 U.S. 308 (1980)... cece ween ee 27,28

United Public Workers v. Mitchell, 330

O.8. 75 (19ET) -ccccccccccccccsccccccal

Weinstein v. Bradford, 423 U.S. 147

CRETE bc ove Cedtbtiatnedeswanscieesiceanene

STATUTES AND RULES

Fed. R. Civ. P. SRT ER) 6.6 othe neen~ nee

Ind. Code §35-1-58.5-7(b) (1976) eeeee - 43

viii

OTHER AUTHORITIES

Bannon, The Case of the Bloomington

Baby, Human Life Rev., Fall (1982)...4

Burgdorf & Burgdorf, A History of Un-

equal Treatment: The Qualifications

of Handicapped Persons as a "Suspect

Class" Under the Equal Protection

Clause, 15 Santa Clara L. Rev. 855

ewe se fete et © |

Duff & Campbell, Moral and Ethical

Dilemmas in the Special Care Nursery,

289 New Eng. J. of Med. 89 (1973)...15

Goldstein, Medical Care for the Child

at Risk: Or State Supervision of

Parental Autonomy, 86 Yale L. J.

BES (ESTE) cccsccccccccccede cocccee ee l6

ix

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

INFANT DOE, PETITIONER,

V.

BLOOMINGTON HOSPITAL, JOHN AND MARY DOE,

AND MONROE COUNTY WELFARE DEPARTMENT,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF INDIANA

PETITION FOR A WRIT OF CERTIORARI

The petitioner Infant Doe respect-

fully prays that a writ of certiorari

issue to review the judgment and opinion

of the Indiana Supreme Court entered in

this proceeding on June 15, 1983.

OPINIONS BELOW

The opinions below are not reported,

but are reproduced in the Appendix to

this Petition.

JURISDICTION

The judgment of the Supreme Court of

Indiana was entered on June 15, 1983.

This Court's jurisdiction is invoked

under 28 U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. art. anny “Gey COR. l.

U.S. Const. amend. XIV, §1.

Ind. Code Ann. §35-1-58.5-7(b) (Burns

1979 Repl.)

Ind. Code Ann. §35-42-l-1 (Burns 1971

Repl.)

Ind. Code Ann. §35-42-1-4 (Burns 1979

Repl.)

Ind. Code Ann. §35-42-1-5 (Burns 1982

Supp.)

Ind. Code Ann. §35-46-1-4 (Burns 1982

Supp.)

The text of these provisions is set

forth in the appendix to this petition.

STATEMENT OF THE CASE

On April 9, 1982, the petitioner,

Infant Doe, was born at Bloomington

Hospital at Bloomington, Indiana. He was

born with a surgically correctable con-

dition known as tracheoesoohageal fistula

that prevented him from orally ingesting

food and water. App. 8. However, he

could have received fluids and nourish-

ment through intravenous feeding. R. 17.

Although Bloomington Hospital was not

adequately equipoped to perform the

urgery necessary to enable infant Doe to

eat normally, nearby Riley Children's

Hospital was equipped to handle this kind

of surgery and employed an excellent

pediatric surgeon. R. 36. This life-

Saving surgery, while difficult, has been

performed since 1941 and has a probable

success rate of better than 90% if per-

formed within the first 24 hours of

birth. A. Bannon, M.D.,. The

Bloomington Baby, Hum. Life Rev., Fall

1982 at 63, 67. If the surgery and nour-

ishment were withheld, Infant Doe would

certainly die. R. 4l.

Despite the favorable success rate

for surgery and the certainty of death

without it, Dr. Walter L. Owens, the

obstetrician who delivered Infant Doe,

offered Mr. and Mrs. Doe the alternative

of doing nothing to save the life of

their child. Dr. Owens offered this as

an alternative course of "“txveatment"

because Infant Doe, in addition to having

a tracheoesophageal fistula, also had

Down's syndrome.

Feeling that a "minimally acceptable”

quality of life could not be obtained by

an infant with Down's syndrome and that

it would be in the best interests of the

infant, their two other children at home,

and their family entity as a whole if

Infant Doe died, Mr. & Mrs. Doe decided

that no corrective surgery should be per-

formed and that no food or water should

be administered. App. 10-1ll.

On April 10, 1982, a hearing con-

cerning Infant Doe was held at Blooming-

ton Hospital before Judge John Baker of

the Monroe Circuit Court. The hearing

was held at the request of Bloomington

Hospital, which sought guidance from the

court. App. ll.

Although no record of the April 10

hearing was made, Judge Baker's declara-

tory judgment of April 12 indicates that

Dr. Owens testified at the hearing and

recommended that Infant Doe be kept at

Bloomington Hospital and that he not be

given life-saving surgery, food, or

water.

In making his recommendation, Dr.

Owens relied on the fact that although

surgery could correct the tracheoesopha-

geal fisutla and therefore allow the

child to survive, it could not cure any

mental retardation associated with Down's

syndrome. Accordingly, Dr. Owens

testified that even if corrective surgery

were successful, Infant Doe could not

attain a “minimally acceptable quality of

life." App. 9.

Doctors James J. Laughlin, James J.

Schaffer and Paul J. Wenzler also

testified. They all recommended that

Infant Doe be transfered immediately to

Riley Children's Hospital for corrective

surgery.

In a hearing held April 13 in a com-

panion case (see App. 14-17), brought by

the Monroe County Prosecutor to secure

treatment for Infant Doe but not directly

involved in this appeal, the testimony

was "substantially the same" as in the

April 10 hearing of which no record

exists. R. 64. In the April 13 hearing,

in contrast to Dr. Owen's testimony, Dr.

Laughlin, a pediatrician, testified that

it was impossible to determine’ the

severity of mental retardation in a

newborn infant with Down's syndrome. He

also testified that there is a broad

range of 1.Q.s for Down's syndrome

children; they may range from severely

retarded children with I.Q.s of 20 to 30

all the way into the normal intelligence

range. R. 37-38. Dr. Owens did not

dispute Dr. Laughlin's testimony.

Indeed, he agreed with it, stating, "AS

Dr. Laughlin indicated no one can be

absolutely sure of the degree of retar-

dation at the time of birth." R.- 65.

Despite this, Dr. Owens insisted that

Infant Doe could not attain a "minimally

acceptable” quality of life. R. 57.

Both Dr. Schaeffer and Or. Wenzler

were prepared to tell the parents to

give them only one option. To send

the child to Riley Hospital for

surgery. ... I insisted upon giving

the parents 4 choice. I felt that

this was not an adequate description

of the situation. I insisted upon

telling the parents, pointing out to

the parents that if this surgery were

performed and if it were successful

and the child survived, that this

still would not be a normal child.

That it would still be a4 mongoloid, a

Down's syndrome child with all the

problems that even the best of them

have. That they did have another

alternative which was to do nothing.

In which case the child probably live

only a matter of several days and

would die of pnuemonia probably- --:>

Some of these children, as 1! indi-

cated in my testimony to Judge Baker

are mere blobs. Some of them are,

most of them eventually learn to walk

and most of them eventually learn to

talk. .--(T]his talk consists of a

single word or something of this sort

at best. I have never personally

known how the true Down's Syndrome

child that was able to be gainfully

employed in anything other than a

sheltered workshop, with constant

Supervision, in other words, a child

that could be self-supporting. I've

never heard of such a Down's Syndrome

child. I've never heard of a Down's

Syndrome child that could Live alone.

They require at best constant

attention. -..-These children are

quite incapable of telling us what

they feel, and what they sense, and

SO On.

Judge Baker apparently agreed with

Dr. Owens. On April 12, 1982, he issued

a Declaratory Judgment ordering Blooming-

ton Hospital to allow Mr. and Mrs. Doe to

choose a course of "treatment" for Infant

Doe that was certain to result in his

death. App. 12-13. No guardian ad litem

or counsel was appointed to represent

Infant Doe at the April 10th hearing and

his due process and equal protection

rights guaranteed by the Fourteenth

Amendment to the U. S. Constitution were

not raised at that juncture. However, in

his April 12th order, Judge Baker

appointed the Monroe County Department of

Public Welfare as guardian ad litem for

Infant Doe. When that Department, by its

attorney, Betty K. Mintz, reported on

April 13, 1982 that it did not wish to

appeal the judgment of Judge Baker (R.

11), the trial court appointed Philip Cc.

Hill as guardian ad litem for purposes of

appeal. R. 14.

On April 13, 1982, Philip Hill filed

a Petition for Temporary Restraining

Order. R. 14. In that petition, he

requested that Infant Doe be fed intrave-

nously and that immediate steps be taken

to transport him to Riley Hospital for

emergency corrective surgery. In addi-

10

tion, Mr. Hill claimed that the Temporary

Restraining Order was necessary to pro-

tect Infant Doe's federal constitutional

rights guaranteed by the Fourteenth

Amendment. R. 15-16. Thus, Infant Doe,

by his guardian ad litem, Philip Hill,

raised the federal questions sought to be

reviewed by this Court at his first

available opportunity. On April 15,

1983, Mr. Hill was succeeded as guardian

ad litem by Lawrence Brodeur. mR 232

An appeal of Judge Baker's April 12,

1982, declaratory judgment was timely

filed in the Indiana Court of Appeals.

In that appeal, Infant Doe again claimed

that his due process and equal protection

rights secured by the Fourteenth Amend-

ment to the United States Constitution

had been violated. Brief of Appellant at

7-8, 15-23, 37-45.

ll

On February 3, 1983, the Indiana

Court of Appeals issued a written order

dismissing Infant Doe's appeal as moot.

App. 2-6. Infant Doe's Petition for

Rehearing that was filed on February 23,

1983, was denied on March 14, 1983

without opinion.

On March 30, 1983, Infant Doe filed a

timely Petition to Transfer this case to

the Indiana Supreme Court. Again he

raised the federal questions which were

raised in the trial court and court of

appeals--denial of his rights to due pro-

cess and equal protection under the

Fourteenth Amendment. Brief in Support

of Petition for Transfer at 24. His

Petition to Transfer was denied on June

15, 1983, without opinion. App. 1.

Infant Doe has exhausted his state

remedies and has filed this Petition for

12

Writ of Certiorari so that the important

federal questions raised by the Monroe

County Circuit Court's Declaratory

Judgment and Order of April 12, 1982

(App. 7) may finally be decided.

13

REASONS FOR GRANTING THIS PETITION

Infant Doe, through his guardian ad

litem, has claimed that his federal due

process and equal protection rights

secured by the Fourteenth Amendment to

the Constitution were violated by Judge

Baker's Declaratory Judgment and Order of

April 12, 1982. Does a newborn handi-

capped infant have rights of his own or

do his parents have a right of privacy

that transcends his rights and allows

them to determine whether he will live or

die? Judge Baker's declaratory judgment

clearly favored the parents, allowing

them to choose a course of "treatment”

for Infant Doe that was certain to result

in his death. Both the Indiana Court of

Appeals and the Indiana Supreme Court

refused to review Judge Baker's order,

14

claiming that the case became moot upon

Infant Doe's death. But Infant Doe's

death did not moot the federal questions

that were raised, and the Indiana courts

have abdicated their responsibility to

decide them.

Important federal questions raised by

Infant Doe in the Indiana courts have

not yet been addressed by this Court. It

is urgent that this Court review them:

denial of lifesaving medical treatment,

food, and water to children because they

are handicapped is an increasingly fre-

quent practice. See, Gustafsen,

Mongolism, Parental Desires and the

Right to Life, in Death, Dying and

1

Euthanasia, 250-278 (Horan and Mali,

eds. 1980); Duff and Campbell, Moral and

Ethical Dilemmas in the Special Care

Nursery, 289 New England Journal of

15

Medicine 89 (1973)(documenting 43 cases

of nontreatment at Yale-New Haven

Hospital). The issues continue to be

hotly debated in medical and legal

circles. See e.g., Thomas, Potential

for Personhood: A Measure of Life: The

Severely Defective Newborn, Legal

Implications of a Social-Medical Dilemma,

2 Bioethics Quarterly 3 (1980); McMillan,

Birth-Defective Infants: A Standard for

Non-Treatment Decisions, 30 Stan. L. Rev.

599 (1978); Goldstein, Medical Care for

the Child at Risk: Or State Supervision

of Parental Autonomy, 86 Yale L. J. 645

(1975); Horan, Euthanasia, Medical

Treatment, and the Mongoloid Child:

Death as a Treatment Choice?, 27 Baylor

L. Rev. 76 (1975); Robertson, Involuntary

Euthanasia of Defective Newborns: A

Legal Analysis, 27 Stan. L. Rev. 213

16

(1975). These commentators have recog-

nized that when, as in this case, state

action is involved in treatment denial,

important constitutional issues are im-

plicated.

The Indiana appellate courts have

either shirked their responsibility to

decide the important federal constitu-

tional questions raised by Infant Doe, or

they have tacitly approved of Judge

Baker's Order. Neither resolution should

be allowed to stand without review by

this Court. The compelling nature of

this controversy and its capacity to

recur, yet evade review, argue for con-

Sideration of the Infant Doe case by this

Court.

17

I. THE FEDERAL CONSTITUTIONAL QUESTIONS

RAISED BY INFANT DOE ARE NOT MOOT

UNDER FEDERAL LAW

Infant Doe, through his guardian ad

litem, has claimed that his federal due

process and equal protection rights

secured by the Fourteenth Amendment to

the Constitution were violated by Judge

Baker's Declaratory Judgment and Order of

April 12, 1982. Both the Indiana Court

of Appeals and the Indiana Supreme Court

refused to review Judge Baker's order,

Claiming that the case became moot upon

Infant Doe's death. In dismissing his

appeal and petition for transfer, these

courts also dismissed the federal ques-

tions raised by Infant Doe.

The Indiana courts should have

reached the federal questions raised by

18

Infant Doe unless those questions were

moot under federal law. If, in declining

to review the federal questions, the

Indiana courts decided that they were

moot under federal law, then the Indiana

courts erroneously interpreted federal

mootness dcctrine. If, on the other

hand, the Indiana courts failed to reach

the federal questions simply because they

felt that Indiana mootness doctrine pre-

cluded them from asserting jurisdiction,

this Court is not thereby prevented from

exercising its jurisdiction.

19

A. This Case Falls Within the "Capable

of Repetition Yet Evading Review"

Exception to the Mootness Doctrine

Federal mootness doctrine arises out

of the "case" or “controversy” require-

ment of Article Ez. of the JU.S.

Constitution. It is true that, in

general, a case becomes moot "when the

issues presented are no longer ‘'live' or

the parties lack a legally cognizable

interest in the outcome" of the litiga-

tion. Powell v. McCormack, 395 U.S. 486,

496 (1969). But Article III justiciabi-

lity is "not a legal concept with a fixed

content or susceptible of scientific

verification." Poe _v. Ullman, 367 U.S.

497, 508 (1961). "(T)he justiciability

doctrine {is]) one of uncertain and

shifting contours." Flast _v. Cohen, 392

20

U.S. 83, 97 (1968).

Because of the flexibility inherent

in Article III justiciability, exceptions

to the mootness doctrine have arisen--

one notable exception allows an otherwise

moot case to be heard because the issues

it raises are "capable of repetition yet

evading review." Southern Pacific Termi-

nal Co. vy. 12.C.C., 219 U.S. 489, 515

(1911). Without such an exception, a

party might be adversely affected by

governmental action, yet be left "without

a chance of redress." Id. See also,

Super Tire Engineering Co. y. McCorkle,

416 U.S. 122 (1974).

The mootness issue in this case is

analogous to that presented in Roe vy.

Wade, 410 U.S. 113 (1973). Although Jane

Roe's pregnancy had already been ter-

minated, this Court observed:

21

(Wjhen, as here, pregnancy is a

Significant fact in the litigation,

the normal 266-day human gestation

period is so short that the pregnancy

will come to term before the usual

appellate process is complete. If

that termination makes a case moot,

pregnancy litigation seldom will sur-

vive much beyond the trial stage, and

appellate review will be effectively

denied. Our law should not be that

rigid.

Roe, 410 U.S. at 125.

Just as pregnancy was a "significant

fact" of the litigation in Roe, Infant

Doe's death by starvation and dehydration

is a "significant fact" of this litiga-

tion. A newborn child denied food and

water will shortly die--Infant Doe sur-

vived only six days. Thus, if the

infant's death makes a case such as this

moot, litigation of this kind never will

"survive beyond the trial stage and

appellate review will be effectively

denied.” Important federal questions

22

raised on behalf of such infants will

never be reviewed; each infant asserting

violations of his constitutional rights

by the trial court would die before his

case could be heard on appeal.

This Court has recently narrowed the

breadth of the "capable of repetition,

yet evading review" exception to moot-

ness, stating that it is "limited to the

Situation where two elements combined:

(1) the challenged action was in its

duration too short to be fully litigated

prior to its cessation or expiration, and

(2) there was a reasonable expectation

that the same complaining party would be

subjected to the same action again."

Weinstein v. Bradford, 423 U.S. 147, 149

(1975); see also, Murphy v. Hunt, 102

S.Ct. 1181, 1183 (1982).

Cases involving nontreatment of hand-

23

icapped newborns certainly meet the first

requirement, but cannot possibly meet the

second. Since the complaining party is

dead, the same controversy will never

occur to the same complaining party

again.

In other types of actions class cer-

tification may be easily obtained to pre-

vent mootness. But here, although

instances of nontreatment occur with some

frequency, as the legal and medical

literature earlier cited attests, they

are not known to occur in great numbers

Simultaneously. Thus, it is unlikely

that the numerosity requirement for class

certification of Fed. R. Civ. P. 23(a)(1)

can be met in these cases.

Presumably, this limitation on the

"capable of repetition, yet evading

review" doctrine was not intended to be

24

rigidly applied to cases such as Infant

Doe's. Suppose, for example, that the

courts of some state had a practice of

executing convicted murderers before they

could appeal claims of federal due pro-

cess violations that occurred during

trial. Should counsel for one of those

executed seek review of that practice,

surely this Court would not declare that

case to be moot even though the "same

party" could never again be deprived of

his due process rights because he was

dead.

Yet this hypothetical is analogous to

the situation of Infant Doe. Because of

Judge Baker's order, Infant Doe died

before he could exhaust state remedies

and reach this Court. Indeed, counsel

for Infant Doe were en route to Washing-

ton for a hearing before Justice Stevens

25

when they were informed that the child

had died.

If a state court's denial of life-

saving medical treatment, food, and water

to a handicapped newborn is ever to be

tested against the constitutional guaran-

tees of due process and equal protection

of law, then this Court must not blindly

apply the limitations of Weinstein to

these cases. This Court should refuse to

dismiss this case as moot, just as it did

in Roe when presented with federal

questions of equal magnitude. Otherwise,

State courts could violate the federal

constitutional rights’ of handicapped

newborns with impunity. "Our law should

not be so rigid." Roe, 410 U.S. at 125.

400-401 (1974).

26

B. The Underlying Reasons for the "Case

or Controversy" Reguirement of

rticle III Are Satisfied

The Article III requirement of a

"case or controversy" is designed to

ensure that the federal courts decide

cases where a true adversary relationship

exists, rather than render advisory opin-

ions in controversies where the appli-

cable constitutional questions are

ill-defined and speculative. United

States Parole Com'n vy. Geraghty, 445 U.S.

388 (1980); United Public Workers vy.

Mitchell, 330 U.S. 75, 89 (1947). Where

an adversary relationship is present and

the federal courts can fashion a judicial

remedy, the Article III requirements are

satisfied.

"The imperatives of a dispute capable

27

of resolution are sharply presented

issues in a concrete factual setting and

self-interested parties vigorously advo-

cating opposing positions." Geraghty,

445 U.S. at 403, citing Franks v. Bowman

Transportation Co., 424 U.S. 747, 753-756

(1976).

This case presents a concrete factual

setting with sharply defined issues and a

true adversary relation between the par-

ties continues to exist. Mr. and Mrs.

Doe staunchly continue to claim that

Judge Baker's order granting them the

right to choose death for Infant Doe was

correct. (This is in spite of the fact

that at least one couple who already had

a Down's syndrome child sought to adopt

Infant Doe so that he might be given the

necessary surgery and allowed to live.

R. 178.) Infant Doe, through his guar-

28

dian, still vigorously claims that that

Order should be reversed and that his

right to life and equal protection of law

have been violated solely because he was

handicapped.

Moreover, should this Court fail to

decide these questions, other handicapped

infants like Infant Doe, whose rights

have been violated, will meet the same

fate as Infant Doe and their constitu-

tional rights also will be denied review.

There would never be an opportunity for

these handicapped infants to have their

rights vindicated--an important policy

consideration that favors review by this

Court.

29

Il. THE PAILURE OF THE MONROE COUNTY

CIRCUIT COURT fO APPOINT A GUARDIAN

AD LITEM OR COUNSEL FOR INFANT DOE

DENIED HIM PROCEDURAL DUE PROCESS IN

VIOLATION OF THE DUE PROCESS CLAUSE

OF THE POURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

In Shelley _v. Kraemer, 334 U.S. 1,

16-17 (1947), this Court noted, "“[(TIJhe

action of state courts in imposing

penalties or depriving parties of other

substantive rights without providing ade-

quate notice and opportunity to defend,

has, of course, long been regarded as a

denial of the due process of law guaran-

teed by the Fourteenth Amendment." The

Monroe County Circuit Court's Order

effectively denying Infant Doe lifesaving

Surgery, food, and water without appoint-

30

ing counsel or a guardian ad litem for

him thus constituted state action for the

purposes of procedural due process analy-

sis.

At the April 10, 1982, hearing on the

matter of the treatment and care of

Infant Doe--the hearing that resulted in

the Declaratory Judgment and Order that

effectively denied Infant Doe treatment--

no guardian ad litem or counsel for the

child was present. After having heard

the evidence that was presented at the

hearing, Judge Baker declared, "All

qualified persons available to present

evidence in this matter were present and

thus appointment of a guardian ad litem

for Infant Doe was not required to pro-

ceed further in this hearing." App. 12.

Only after he issued his Declaratory

Judgment did Judge Baker appoint the

31

Monroe County Department of Public

Welfare "as guardian ad litem for the

Infant Doe to determine whether the

judgment of this Court should be

appealed." App. 13.

Implicit in Judge Baker's assertion

that appointment of a guardian ad litem

to represent Infant Doe at the hearing on

the matter of his treatment and care was

"not required" is the patently erroneous

assumption that the child's interests

were adequately represented by someone at

that hearing.

Doctors Schaffer, Wenzler, and

Laughlin appeared at the hearing to advo-

cate the opinion that the proper course

of medical treatment for Infant Doe was

to transfer him to another hospital where

Infant Doe's tracheoesophageal fisutla

could be corrected. App. 9-10. But none

32

of these physicians was a guardian ad

litem for Infant Doe; none was his attor-

ney.

Infant Doe's father and his father's

attorney were also present, but Mr. Doe

testified at the hearing that he and his

wife had “determined that it is in the

best interest of the Infant Doe and the

two children who are at _ home and their

family entity as a whole" that the child

Should be left to die. App. 10 (emphasis

added). Thus, it is clear that Mr. Doe.

did not represent Infant Doe's interests

alone. He also represented the interests

of his wife, his two other children, and

"the family entity as a whole"--interests

adverse to Infant Doe's.

In Parham v. J.R., 442 U.S. 584, 600

(1979), this Court observed that,

"(njormally ... since... (a child's)

33

interest is inextricably linked with the

parents' interest in an obligation for

the welfare and health of the child, the

private interest at stake is a com-

bination of the child's and parents'

concerns." But, "({a]s with many other

legal presumptions," this Court noted,

"experience and reality may rebut what

the law accepts as a starting point; the

incidence of child neglect and abuse

cases attests to this." Id. "That some

parents may at times be acting against

the interests of their children .. .

creates a basis for caution. .." Id.

In this case, it is plain that the

rearing of a child with Down's syndrome

may mean a number of economic and social

hardships for a family unit. Such con-

Siderations were admittedly part of Mr.

Doe's decision-making process. Since

34

there was conflict between the best

interests of Infant Doe and those of his

parents and family, it follows that his

father could not adequately represent the

"best interests" of Infant Doe at the

hearing.

In Parham, this Court stated that

"[wlhat process is due constitutionally

cannot be divorced from the nature of the

ultimate decision that is being made."

442 U.S. at 608. The extent to which

procedural due process must be afforded

to an individual is governed by the extent

to which he may -e "condemned to suffer

grievous loss," Joint __Anti-Fascist

Refugee Committee _v. McGrath, 341 U.S.

123, 168 (1951) (Frankfurter, J.»

concurring), and depends upon whether the

individual's interest in avoiding that

loss outweighs the government's interest

35

in summary adjudication. Goldoerg vy.

Kelly, 397 U.S. 254, 262-263 (1970).

Further, “consideration of what proce-

dures due process may require under any

given set of circumstances must begin

with a determination of the precise

nature of the government function

involved, as well as of the private

interest that has been affected by

governmental action.” Cafeteria and

Restaurant Workers Union v. McElroy, 367

U.S. 886, 895 (1961).

These standards raise the serious and

important question of whether due process

is denied by failure to provide a han-

dicapped child, such as Infant Doe, with

adequate representation through counsel

or a guardian when decisions that affect

whether he will live or die are under

consideration.

36

II. THE MONROE COUNTY CIRCUIT COURT'S

ORDER DEPRIVED INFANT DOE OF dHIs

SUBSTANTIVE DUE PROCESS RIGHT TO

LIFE IN VIOLATION OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION

The Order of the circuit court

stated, "(I)he Court now directs the

Bloomington Hospital to allow treatment

prescribed by Dr. Walter L. Owens, as

directed by the natural parents, Mr. and

Mrs. Doe, for the Infant Doe.” App.

12-13. This “treatment” required "that

the child remain at Bloomington Hospital

with full knowledge that surgery to

correct tracheoesophageal fistula was not

possible at Bloomington Hospital and that

within a short period of time the child

would succumb due to inability to receive

37

nutriment and/or pneumonia." App. 9.

Since the Order forbade Bloomington

Hospital to transfer Infant Doe for the

Surgery necessary to save his life, it

effectively mandated Infant Doe's death.

This Order constituted "state action"

for the purpose of the due process and

equal protection clauses of the Four-

teenth Amendment. Indeed, the circuit

court specifically stated that it was

appearing in this case "solely as a

representative of the State of Indiana."

App. 12.

[The Fourteenth Amendment to the

Constitution of the United States pro-

vides, in relevant part, "(NJor shall any

State deprive any person of life .. .

without due process of law. .. ." In

Roe _v. Wade, 410 U.S. at 156-57, this

Court, while holding that a fetus is not

38

a "person" for the purposes of the

Fourteenth Amendment, noted that if it

were established that a fetus was a per-

son, "the fetus' right to life would then

be guaranteed specifically by the Amend-

ment.” While the term "person" does not

include a fetus, "the use of the word is

such that it has application... post-

matally." Id. at 157. Since Infant Doe

was, of course, born, he was a person

under the Fourteenth Amendment and

entitled to the right to life. “Like any

infant, the deformed child is a person

with a right to life--a right that is the

basis of our social order and legal

System." Robertson, Involuntary Euthan-

asia of Defective Newborns: A__Legal

Analysis, 27 Stan. Lb. Rev. at 216.

"Where certain ‘fundamental rights’

are involved, the Court has held that

39

regulation limiting these rights may be

justified only by a ‘compelling state

interest,' and that legislative enact-

ments must be narrowly drawn to express

only the legitimate state interests at

stake." Roe, 410 U.S. at 155 (citations

omitted). The two interests apparently

Suggested to justify state deprival of

Infant Doe's life--protection of parental

autonomy and prevention of a “minimal

quality of life"--are plainly not suf-

ficient to meet the compelling state

interest standard. But even assuming

that the State had a legitimate and com-

pelling social and financial interest at

stake in “eradicating” handicaps because

of the possible burdens individuals with

handicaps impose on family members and

society as a whole, the "means" chosen to

accomplish this goal are obviously not

40

"narrowly drawn." The State's interest

in reducing the incidence of handicaps

and in protecting parental autonomy may

be strong, but it may not constitu-

tionally be fostered by eliminating those

with handicaps. No one would argue that,

to advance an interest in reducing the

incidence of sickle-cell anemia, the

State might constitutionally execute

blacks who suffer from the disease, or

that to advance an interest in reducing

poverty, the State might constitutionally

execute poor people. Nor could one argue

that, to advance an interest in parental

autonomy, the State could constitu-

tionally relieve parents who cause the

death of their children from the stric-

tures of the homicide code.

Thus, a very substantial and impor-

tant federal question is raised: whether

41

the order of a court that deprives a hand-

icapped child of lifesaving medical

treatment, food, and water violates that

child's substantive right to life under

the Fourteenth Amendment to the

Constitution. That question ought to be

settled by this Court.

IV. THE CIRCUIT COURT'S ORDER DEPRIVED

INFANT DOE OF EQUAL PROTECTION OF

LAW IN VIOLATION OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION

Although Indiana law clearly requires

that life and health preserving medical

care be afforded to infants situated as

was Infant Doe, the Circuit court neces-

sarily construed that law as inapplicable

to those who, like Infant Doe, are re-

garded as lacking “a minimally acceptable

42

quality of life” because of their han-

dicap. App. 10.

Ind. Code §35-1-58.5-7(b) (1976) pro-

vides:

Any fetus born alive shall be treated

thereafter as a person under the law.

: ° ; failure to take all reason-

able steps, in keeping with good

medical practice, to preserve the

life and health of said live born

person shall subject the responsible

persons to the Indiana laws governing

homicide, manslaughter and civil

liability for wrongful death and

medical malpractice.

The relevant Indiana homicide laws,

set forth in the Appendix (App. 19-20),

thus protect all those who, like Infant

Doe, require life-sustaining medical

treatment after birth. They were,

however, impliedly construed as inappli-

cable to those with handicaps like

Infant Doe.

A strong argument can be made that,

insofar as these statutes as applied

43

discriminate against the handicapped,

they invoke "strict scrutiny" by disad-

vantaging a "Suspect class.”

The criteria necessary to create the

existence of a "Suspect class" were first

indicated by Chief Justice Stone in

United States vy. Carolene Products, 304

U.S. 144, 152-153 n.4 (1938):

(Plrejudice against discrete and

insular minorities may be a special

condition, which tends seriously to

curtail the operation of those poli-

tical processes ordinarily to be

relied upon to protect minorities,

and which may call for a correspon-

dingly more searching judicial

inguiry.

More recently, in San Antonio

Independent School District vy. Rodriguez,

411 U.S. 1 (1973), this Court summarized

the “traditional indicia of suspectness,”"

holding that a legislative classification

based on a group characteristic would

44

trigger strict judicial scrutiny when

that group has been

saddled with such disabilities, or

subjected to such a history of pur-

poseful unequal treatment, or rele-

gated to such a position of political

powerlessness as to command extraor-

dinary protection from the majori-

tarian political process.

Id. at 4.

As a “discreet and insular" minority,

it is certain that handicapped individ-

uals possess all or most of these

"indicia." See generally, Burgdorf &

Burgdorf, A History of Unegual Treatment:

The Qualifications of Handicapped

Persons as a "Suspect Class" Under the

Equal Protection Clause, 15 Santa Clara

Law 855 (1975). See, esp., id. at

905-908. Whether they qualify as a

Suspect class for equal protection pur-

poses is an important question of federal

45

law that has not been, but should be,

settled by this Court.

But may exclusion from the protec-

tion of these statutes be justified by a

“compelling state interest" that supports

discrimination against the handicapped so

extreme that it deprives them of their

lives? Even under the "relaxed" judicial

scrutiny appropriate were the handicapped

not a "suspect class," would such discri-

mination be justified by any “legitimate”

state interest? See this Petition at

40-41. These are questions so frequently

raised, both in the literature (see,

e.g-, Thomas, supra p. 16) and in con-

crete cases like that of Infant Doe, that

they deserve to be resolved decisively by

this Court.

46

CONCLUSION

For these reasons, a writ of cer-

tiorari should issue to review the

judgment of the Supreme Court of Indiana.

Respectfully submitted,

LAWRENCE J. BRODEUR

Guardian ad Litem for

Infant Doe

205 N. College, Suite 160

Bloomington IN 47401

812-332-5973

Of Counsel:

DENNIS J. HORAN

VICTOR G. ROSENBLUM

PAIGE COMSTOCK CUNNINGHAM

*THOMAS JOSEPH MARZEN

MAURA QUINLAN

Americans United for Life

Legal Defense Fund

230 N. Michigan Ave.

Suite 915

Chicago IL 60601

312/263-5386

*Counsel of Record.

47

STALE OF INDIANA (seal)

Indianapolis 46204

Telephone 232-1930

Clerk of the Supreme Court

and Court of Appeals

Marjorie H. O'Laughlin, Clerk

217 State House

In re: The Guardianship of Infant

Doe v. John and Mary Doe, et al.

You are hereby notified that the Supreme

Court has on this day denied "Verified

Motion for Release of Appellate Records

for In Camera Use in Federal District

Court." Givan, C.J. All justices concur

in denial, except DeBruler, J., would

grant the motion except for pleadings and

orders revealing the identity of Baby Doe

and parents. "Motion for Release of

Appellate Records” is hereby denied.

Givan, C.J. All justices concur in

denial, except DeBruler, J., would grant

the motion except for pleadings and orders

revealing the identity of Baby Doe and

parents. Appellant's "Petition for

Transfer" is hereby denied. Givan, C.J.

All justices concur.

Please acknowledge receipt of this notice

in order that our records may show that

you have been notified of this action.

WITNESS my name and the seal of said

Court, this 15th day of June, 1983.

Marjorie O'Laughlin

Clerk Supreme Court and Court of Appeals

App.1

IN THE

COURT OF APPEALS OF INDIANA

No. 1-782 A 157

IN RE: THE GUARDIANSHIP) APPEAL FROM

OF INFANT DOE

THE MONROE

INFANT DOE,

Appellant (Respondent CIRCUIT COURT

Below),

)

)

)

)

)

) THE HONORABLE

JOHN and MARY DOE, PAR- )

ENTS OF INFANT DOE ) JOHN G. BAKER,

Appellee (Petitioners)

Below), ) JUDGE PRO-

)

BLOOMINGTON HOSPITAL )

Apvellee (Petitioner )

Below), )

)

)

)

)

)

TEMPORE

THE HONORABLE

MONROE COUNTY WELFARE C. THOMAS SPENCER

DEPARTMENT

Appellee (Petitioner JUDGE PRO-

Below).

TEMPORE

ORDER DISMISSING APPEAL

This cause having been submitted to

the Court of Appeals of Indiana, First

District, on the Motion to Dismiss Appeal

and Amended Motion to Dismiss Appeal

filed by Appellees John Doe and Mary Doe,

parents of Infant Doe, and the court

having considered said motions’ and

Appellant's Memorandum in Opposition

to said motions, and heard oral arguments

thereon, now finds as follows:

1. On April 14, 1982, a petition for

writ of mandamus was filed in the Supreme

App.2

Court of Indiana, under cause number 482

S 139, entitled State of Indiana on the

Relation of Barry S. Brown, Prosecuting

ttorney, 10th Judicial Circuit, Monroe

County, Relator, vs. The Monroe Circuit

Court and The Honorable C. Thomas

Spencer, Judge pro tempore, as Judge

Thereof, Respondent. In said petition it

was alleged that Infant Doe's parents

were refusing to provide either nourish-

ment or medical care necessary to

sustain the life of Infant Doe, and that

the Monroe Circuit Court had refused to

order Infant Doe taken into custody or to

issue an injunction ordering that medical

care be provided to said Infant Doe. The

petition requested the Indiana Supreme

Court to issue a writ of mandamus

ordering the Monroe Circuit Court to act

to take said child into custody and to

issue an injunction to provide medical

care necessary to sustain said child's

life.

2. That on April 14, 1982, a peti-

tion for writ of mandamus and writ of

prohibition was filed in the Supreme

Court of Indiana under cause number 482 S

140 entitled State of Indiana on the

Relation of Infant Doe, by Guardian ad

litem Philip C. Hill, Realtor, vs. The

Monroe Circuit Court and The Honorable

John G. Baker, as Judge Thereof,

Respondents. In that petition it was

alleged that an emergency hearing was

held on Saturday, April 10, 1982, at the

Bloomington Hospital wherein Judge John

G. Baker ordered that said hospital allow

treatment prescribed by a Dr. Owens and

as directed by the natural parents of

Infant Doe and that said infant was not

App.3

represented by counsel but was. only

represented indirectly by the parents

whose interests either were adverse or

not identical to Infant Doe's. The peti-

tion further alleged that the trial court

had exceeded its jurisdiction and that it

failed to act when it had a duty to act

to preserve the life of Infant Doe. The

petition further alleged that unless

immediate action was taken by the court,

the child whould die. This petition

requested that the Indiana Supreme Court

issue a writ of mandamus ordering the

Monroe Circuit Court to provide certain

medical treatment in order that Infant

Doe be kept alive.

3. On April 14, 1982, the Supreme

Court of Indiana heard both petitions and

declined to issue a writ of mandamus in

either cause number 482 S 139 or cause

482 S 140.

4. On May 27, 1982, the Supreme

Court of Indiana issued its order

dismissing both cases, the same being

causes number 482 S 139 and 482 S 140.

Omitting caption and signature, the

dismissal order so entered by the Supreme

Court of Indiana reads as follows:

"On April 14, 1982, the

above-mentioned causes were pre-

sented, and arguments were

heard, on Relators' Emergency

Petitions for Writs of Mandamus.

At that time this Court declined

to issue a writ of mandamus in

either case.

Respondents, by counsel,

Andrew C. Mallor and Nancy C.

App.4

Broyles, have filed a ‘Verified

Motion to Dismiss Petition for

Writ of Mandamus' in each of the

above-captioned causes for the

reason that the child denomi-

nated ‘Infant Doe' has died.

Having examined the two

‘Verified Motions to Dismiss

Petitions for Writs of Mandamus'

and the certified death cer-

tificate, this Court finds the

cases under Cause No. 482 S 139,

and Cause No. 482 S 140 are

moot. Accordingly, each case

is hereby DISMISSED.

The Clerk is directed to

refund the filing fee in Cause

No. 482 S 140, and is further

directed to transmit a copy of

this Order to counsel of Record.

DONE AT INDIANAPOLIS, INDIANA

this 27 day of May, 1982."

5. That all of the issues attempted

to be asserted in this appeal either were

presented to, or could have been pre-

sented to the Supreme Court of Indiana in

causes number 482 S 139 and 482 S 140.

6. The Indiana Supreme Court found

all of said questions to be moot by

reason of the death of Infant Doe and

dismissed both of said cases, causes

number 482 S 139 and 482 S 140, by its

order of May 27, 1982, hereinbefore set

out.

7. That the determination and deci-

sion of the Supreme Court of Indiana in

App.5

said causes number 482 S 139 and 482 §S

140 that said causes were moot and

ordering them dismissed is binding upon

this court and determinative of the

issues raised in the Appellee's Motions

to dismiss this appeal. For those

reasons, Appellee's motions to dismiss

should be granted and this appeal should

be dismissed.

Therefore, it is ordered by this

court that Appellee's motion to dismiss

this appeal is hereby granted and this

appeal is now dismissed at Appellant's

costs.

Done at Indianapolis, Indiana, this

3rd day of February, 1983.

COURT OF APPEALS OF INDIANA

BY: (s)

Paul H. Buchanan, Jr.,

Chief Judge

(s)

Jonathan J. Robertson, Presiding Judge

(s)

Robert W. Neal, Judge

(s)

Wesley W. Ratliff, Jr., Judge

App.6

IN THE CIRCUIT COURT FOR

THE COUNTY OF MONROE

STATE OF INDIANA

IN THE MAITER OF THE

‘ TREATMENT AND CARE

OF INFANT DOE CAUSE NO. GU 8204-004A

DECLARATORY JUDGMENT

This matter came to be heard by the

Court under certain extraordinary con-

ditions concerning the emergency care and

treatment of a minor child born at the

Bloomington Hospital.

The Court was contacted at his resi-

dence by representatives of the

Bloomington Hospital. On the basis of

representations made by those represen-

tatives, the Court quickly determined

that an extreme emergency existed.

The Court further determined that the

Judge of the Monroe Circuit Court had

been contacted concerning this matter and

was unable to attend the emergency

hearing, and the Court personally con-

tacted the Judge of the Monroe Circuit

Court who directed this Court to proceed

with hearing. Thereafer, hearing was

held on the Sixth Floor of the

Bloomington Hospital at approximately

10:30 p.m., Saturday, the 10th day of

April, 1982.

The following persons were present:

John Doe, natural father of Infant Doe,

with counsel, Andrew C. Mallor, Esquire;

Maggie Keller, Gene Perry, Admisistrative

App.7

Vice-Presidents of Bloomington Hopistal;

Len E. Bunger, counsel for Bloomington

Hospital; Dr. Walter L. Owens, Or.

William R. Anderson, Dr. Brandt UL.

Ludlow, obstetricians admitted to prac-

tice in the State of Indiana with privi-

leges at Bloomington Hospital; Doctor

Owens being the obstetrician in atten-

dance at delivery at Infant Doe; Dr. Paul

J. Wenzler, family practitioner with

pediatric privilege at Bloomington

Hospital and who has attended to Mr. and

Mrs. Doe's other two children after their

birth; Dr. James J. Schaffer and Dr.

James J. Laughlin, pediatricians holding

pediatric privileges at Bloomington

Hospital. (Mrs. Doe was physically

unable to attend.)

The Court thereafter heard evidence.

Doctor Owens spoke for and on behalf of

the obstetric group that delivered the

Infant Doe, advising the Court that at

approximately 8:19 p.m. on the evening of

April 9, Infant Doe was born to Mary Doe

in an uneventful delivery, but that

shortly thereafter it was very apparent

that the child suffered from Down's

Syndrome, with the futher complication of

trachioesophageal fistula, meaning the

passage from the mouth to the stomach had

not appropriately developed and, in fact,

were the child to be fed orally, sub-

stances would be taken into the lungs and

the child most likely would suffocate.

Doctor Owens further stated that he

had been previously advised that Doctor

Wenzler would serve as practitioner for

Infant Doe and that he was further ad-

vised that Doctor Wenzler, when faced

App.8

with extraordinary cases, routinely con-

Sulted with Docter Schaffer. Doctor

Schaffer was at the Bloomington Hospital

at that time and was called by Doctor

Owens and was requested to examine the

baby. Doctor Wenzler was notified.

Doctors Owens, Schaffer and Wenzler

consulted; Doctors Wenzler and Schaffer

indicated that the proper treatment for

Infant Doe was his immediate transfer to

Riley Hospital for corrective surgery.

Doctor Owens, representing the concurring

opinions of himself, Drs. Anderson and

Ludlow, recommended that the child remain

at Bloomington Hospital with full

knowledge that surgery to correct

trachioesophageal fistula was not

possible at Bloomington Hospital and that

within a short period of time the child

would succomb due to inability to receive

nutriment and/or pneumonia.

His recommended course of treatment

consisted of basic techniques admin-

istered to aid in keeping the child com-

fortable and free of pain. Doctor Owens

testified that, even if surgery were suc-

cessful, the possibility of a minimally

adequate quality of life was non-existent

due to the child's severe and irrever-

sible mental retardation.

Doctor Schaffer testified that Doctor

Owens' prognosis regarding the child's

mental retardation was correct, but that

he believed the only acceptable course of

medical treatment was transfer to Riley

Hospital in Indianapolis for repair of

trachioesophageal fistula.

Doctor Wenzler concurred in Doctor

Schaffer's proposed treatment. Doctor

App.9

Laughlin testified that he concurred in

the opinions of Doctors Schaffer and

Wenzler, and he differed with Doctor

Owens' opinion in that he knew of at

least three instances in his practice

where a child suffering from Down's

Syndrome had a reasonable quality of

life. However, he related no knowledge

of treatment of children with co-existent

maladies of Down's Syndrome and

trachioesophageal fistula.

Doctor Owens testified that he pre-

sented Mr. and Mrs. Doe with the two

recommended courses of treatment and

requested that they come to a decision.

Doctor Owens understood that Doctors

Schaffer and Wenzler also discussed their

recommendations with Mr. and Mrs. Doe.

Mr. Doe testified that he had been a

licensed public school teacher for over

seven years and had on occasion worked

closely with handicapped children and

children with Down's Syndrome and that he

and his wife felt that a minimally accep-

table quality of life was never present

for a child suffering from such a con-

dition. Mr. Doe was lucid and was able

to make an intelligent, informed

decision.

Mr. Doe further testified that, after

consulting with Doctor Owens, Schaffer,

Wenzler and Laughlin, he and his wife

have determined that it is in the best

interest of the Infant Doe and the two

children who are at home and their family

entity as a whole, that the course of

treatment prescribed by Doctor Owens

should be followed, and at approximately

App.10

2:45 p.m., he and his wife, in the pres-

ence of each other and witnesses, signed

a statement directing Doctor Owens to

proceed with treatment of the infant, the

content of said statement, omitting names

and dates, is as follows:

"The undersigned being the

parents of Infant , born

pees _.- at Bloomington

Hospital, have had explained to

them and they acknowledge that

they understand, the course of

this treatment for Infant

as indicated appropriate for

Infant _ by Doctors Walter

L. Owens, James J. Laughlin,

James J. Schaffer and Paul J.

Wenzler.

Acknowledging their understand-

ing and the consequences of all

of the above proposals made by

all of the above four physi-

cians, that they direct that the

course of treatment shall pro-

ceed as directed by Dr. Walter

Owens, M.D., who does not have

' privilege to practice pediatrics

at Bloomington Hospital."

Mr. Len E. Bunger, on behalf of

Bloomington Hospital made a statement

that it was the hospital's primary func-

tion to reduce morbidity and mortality

and that the hospital did not have the

knowledge or the authority to make

diagnoses or to prescribe treatment and,

for that reason, had requested the Court

to make a ruling in this matter.

App.11l

The Court, having heard evidence,

recesses and thereafer determines as

follows:

1. All qualified persons available to

present evidence in this matter were pre-

sent and thus appointment of a guardian

ad litem for Infant Doe was not required

to proceed further in this hearing.

2. The Court appeared solely as a

representative of the State of Indiana

and the laws of the State of Indiana

require that the parents be sufficiently

informed, as they are in this instance,

and any personal feelings of the Court

should not intervene.

ISSUE

Do Mr. and Mrs. Doe, as the natural

parents of Infant Doe have the right,

after being fully informed of the con-

sequences, to determine the appropriate

course of treatment for their minor

child?

CONCLUSION

It is the opinion of this Court that

Mr. and Mrs. Doe, after having been fully

informed of the opinions of two sets of

physicians, have the right to choose a

medically recommended course of treatment

for their child in the present circum-

stances.

ORDER

The Court, being sufficiently

advised, now directs the Bloomington

App.12

Hospital to allow treatment prescribed by

Dr. Walter L. Owens, as directed by the

matural parents, Mr. and Mrs. Doe, for

the Infant Doe.

The Court futher directs that the

Clerk of this Court assign a cause number

and enter this cause upon the guardian-

ship docket and fee book of this Court.

The Court futher appoints the Monroe

County Department of Public Welfare as

guardian ad litem for the Infant Doe to

determine whether the judgment of this

Court should be appealed.

DATED this 12th day of April, 1982.

(s)

JOHN G. BAKER

Judge, Monroe Superior Court

Division III, and as

Special Judge, Moroe Circuit Court

cc: Len E. Bunger

Andrew C. Mallor

Betty K. Mintz, Counsel

Monroe County department

of Public Welfare

App.13

STATE OF INDIANA ) IN THE MONROE

) SS: CIRCUIT COURT

COUNTY OF MONROE ) JUVENILE DIVISION

IN RE: THE MATTER OF )

BABY DOE, A CHILD IN ) CAUSE NUMBER:

NEED OF SERVICES UNDER ) JV8204-038A

THE AGE OF EIGHTEEN )

TRANSCRIPT OF HEARING HELD ON

PETITION FOR EMERGENCY DETENTION

HELD ON APRIL 13, 1982

THE HONORABLE

C. THOMAS SPENCER, JUDGE PRO-TEMPORE

APPEARANCES:

Barry S. Brown, Prosecuting Attorney

Lawrence J. Brodeur, Deputy Prosecuting

Attorney

Court House

Bloomington, Indiana

ATTORNEYS FOR PETITIONER AND STATE OF

INDIANA

Andrew C. Mallor

314 East Third Street

Bloomington, Indiana 47401

ATTORNEY FOR NATURAL PARENTS MR. & MRS. DOE

Betty K. Mintz

Monroe County Department of Public Welfare

119 West Seventh Street

Bloomington, Indiana

ATTORNEY FOR MONROE COUNTY DEPARTMENT OF

PUBLIC WELFARE

Philip Cc. Hill

BUNDER, HARRELL & ROBERTSON

226 South College Square

App.14

Bloomington, Indiana 47401

ATTORNEY FOR DR. JAMES LAUGHLIN,

INTERESTED PARTY AND WITNESS

BE IT FURTHER REMEMBERED, that on the

14th day of April, 1982, The Court having

taken this matter under advisement and

being duly advised now makes the

following findings;

1. That Baby Doe is a four-day old child

with Down's Syndrome and a further

complication of trachioesophageal

fistula, meaning the esophagus is not

properly connected to the stomach.

2. That without corrective surgery the

child will die due to its inability to

receive nourishment.

3. That this Court has previously deter-

mined that the parents have the right to

choose a medically recommended course of

treatment for their child at this time.

4. That two alternative treatment plans

have been presented to the parents. The

first is corrective surgery at Riley

Hospital. The second would be to take no

action knowing that the child will die as

a result thereof.

5. That this Court previously determined

that these are medically recommended

treatment modes and no evidence was pre-

sented concerning this issue.

6. That the parents, after consultation

with all physicians concerned, chose the

second treatment mode of allowing the

child to succumb.

App.15

76 That this decision was made

knowingly, voluntarily, and with the

advice of medical experts.

8. That the parents in accordance with

their religious beliefs have had the

child baptized and seen that it has

received the last rites.

9. That the child has, at the expense of

the parents, been placed in a private

room at the Bloomington Hospital under

the supervision of private duty nurses

hired by the parents where it is

receiving no nourishment and under doc-

tors orders will receive pain medication

if they appear necessary.

10. That this Court has previously con-

ducted a hearing concerning this matter

and entered a declaratory judgment, a

copy of which is attached to this order.

ll. That the Monroe County Child

Protection Team of the Monroe County

Department of Public Welfare, which was

previously appointed Guardian ad Litem

for the Baby Doe, conducted a hearing

concerning this matter and decided not to

appeal this Court's previous decision.

12. That the State of Indiana has filed

a Petition for Emergency Detention pur-

suant to I.C. 31-6-4-4 requesting that

the Monroe County Department of Public

Welfare take immediate custody of the

Baby Doe and provide emergency treatment

to said child.

13. That in order for the Court to issue

such an order it must be shown that the

App.16

child is a child in need of services as

defined in I.C. 31-6-4-3.

14. That after considering the evidence

the Court finds that the State has failed

to show that this child's physical or

mental condition is seriously impaired or

seriously endangered as a result of the

inability, refusal, or neglect of his

parents to supply the child with

necessary food, and medical care.

WHEREFORE, The Court now DENIES’ the

State's Petition for Emergency Detention.

So ordered this 14th day of April,

1982.

C. Thomas Spencer, Judge Pro-Tempore

App.17

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S.

INVOLVED

Geoaet. art. III, $2. el. is

Section 2. The judicial Power

shall extend to all Cases, in Law and

Equity, arising under this Constitu-

tion, the Laws of the United States,

and Treaties made, or which shall be

made, under their Authority;--to all

Cases affecting Ambassadors, other

public ministers and Consuls;--to all

Cases of admiralty and maritime

Jurisdiction;--to Controversies to

which the United States shall be a

Party;--to Controversies between two

Or more States;--between a State and

Citizens of another State;--between

Citizens of different States;--between

Citizens of the same State claiming

Lands under Grants of different

States, and between a State, or the

Citizens thereof, and foreign States,

Citizens or Subjects.

Const. amend. XIV, §1l:

Section l. All persons born or

naturalized in the United States and

subject to the jurisdiction thereof,

are citizens of the United States and

of the State wherein they reside. No

State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or pro-

perty, without due process of law;

App.18

nor deny to any person witnin its

jurisdiction the equal protection of

the laws.

Ind. Code Ann. §35-1-58.5-7(b) (Burns

1979 Repl.):

(b) Any fetus born alive shall be

treated thereafter as a person under

the law and a birth certificate shall

be issued certifying the birth of

said person even though said person

may thereafter die, in which event a

death certificate shall issue pur-

Suant to law; failure to take all

reasonable steps, in keeping with

good medical practice, to preserve

the life and health of said live born

person shall subject the responsible

person to Indiana laws governing

homicide, manslaughter and civil

liability fo wrongful death and

medical malpractice.

Ind. Code Ann. §35-42-1-1 (Burns 1979

Repl.):

A person who:

(1) knowingly or intentionally kills

another human being .. . com-

mits murder, a felony.

Ind. Code Ann. §35-42-1-4 (Burns 1979

Repl.):

A person who kills another human

being while committing or attempting

App.19

to commit:

(1) A class C or class D felony that

inherently poses a risk of serious

bodily injury. . . commits involun-

tary manslaughter, a Class C felony.

Ind. Code Ann. §35-42-1-5 (Burns 1982

Supp.):

A person who recklessly kills another

human being commits reckless homi-

cide, a class C felony.

Ind. Code Ann. §35-46-1-4 (Burns 1982

Supp.):

(a) A person having the care of a

dependent, whether assumed volun-

tarily or because of a legal obliga-

tion, who knowingly or intentionally:

(1) Places the dependent in a situa-

tion that may endanger his life

or health; .. . commits neglect

of dependent, a Class D felony.

App.20