Indiana Law Review State and Federal Constitutional Law Developments Rosalie Berger Levinson' Table of Contents Introduction 557 I. Developments Regarding the Equal Privileges and Due Course ofLaw Clauses ofthe State Constitution 557 A. Martin v. Richey 557 B. Application of'Martin to Other Medical Malpractice Cases . . 560 C. Court Refuses to Extend Martin's Rationale to Products Liability Claims 562 D. Looking to the Future 564 II. The Due Process Clause 566 III. Equal Protection 572 IV. Freedom of Speech and Association 573 A. The Right to Protest 573 B. Restrictions on Sexually Explicit Speech 578 C. Freedom ofAssociation 581 V. The Establishment Clause 585 A. Aid to Parochial Education 585 B. Prayer in Public Schools 589 C. Government Display ofthe Ten Commandments 592 INTRODUCTION This Article explores state and federal constitutional law developments over the past year. Part I examines state civil constitutional law cases, while the remaining parts focus on recent developments in the United States Supreme Court, as well as on significant Indiana state and federal cases addressing federal constitutional issues. i. developments regarding the equal privileges and Due Course of Law Clauses of the State Constitution A. Martin v. Richey Although the Indiana Supreme Court, under the tutelage of Chief Justice Randall T. Shepard, has re-examined the Indiana Constitution as a potential source for the protection of civil liberties, 1 the court has also made it clear that it is not anxious to usurp the legislative role of the General Assembly, and has * Associate Dean and Professor of Law, Valparaiso University School of Law. B.A., 1969, Indiana University; J.D., 1973, Valparaiso University. 1 . See Randall T. Shepard, Second Windfor the Indiana Bill ofRights, 22 IND. L. REV. 575 (1989). 558 INDIANA LAW REVIEW [Vol. 34:557 repeatedly cautioned that state statutes will be presumed constitutional. A constitutional challenger carries a heavy burden of proving a well-grounded historical rationale forjudicial activism. 2 Reflecting its reluctance to invalidate state laws, the Indiana Supreme Court, by a narrow 3-2 vote, upheld Indiana's two-year occurrence-based medical malpractice statute of limitations but determined it was unconstitutional as applied to a plaintiffwho suffered from a medical condition with a long latency period that prevented her from discovering the alleged malpractice within the two-year period. 3 In Martin v. Richey? the court left the statute intact on its face but held that its application to Martin's situation violated article I, section 23 of the state constitution, 5 which provides that "[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." 6 In addition, the Martin court held that application of the statute violated article I, section 12 of the state constitution, 7 which guarantees that a remedy "by due course of law" is available to anyone "for injury done to him in his person, property, or reputation." 8 Because Martin was the first case in recent years in which either ofthese constitutional provisions was successfully invoked, it sent shock waves through the legal community. Under the equal privileges analysis, the Indiana Supreme Court, in a 1994 ruling, set forth a two-prong test requiring that any disparate treatment be reasonably related to inherent characteristics that distinguish the unequally treated classes and that the preferential treatment be uniformly applicable and equally available to all persons similarly situated. 9 Previous attempts to invalidate state legislative enactments under this provision had been 2. For example, in Mahowald v. State, 1 1 9 N.E. 2d 42 1 , 425-426 (Ind. Ct. App. 1 999), the court upheld the Legislators' Retirement System, which grants a legislator who has served for a total often years including service on April 30, 1989, a retirement benefit of at least $400 per month. Mahowald served in the Indiana General Assembly for ten years, but he completed his service in 1 975. Thus, he could not take advantage ofthe new statute and instead was awarded only $36 per month. The court emphasized that thejudiciary must afford the legislature "'wide latitude in determining public policy.'" Id. at 424 (quoting Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996)). The state can rationally distinguish between retired legislators and current and future legislators and is entitled to consider the fiscal implications of an all-inclusive retirement system. "[F]iscal considerations are a legitimate basis for legislative 'line-drawing.'" Id. at 426. The court emphasized that even if the statute was "born of unwise, undesirable or ineffectual policies," the judiciary was not permitted to substitute its beliefas to the wisdom ofthe law for that of the legislature. Id. at 426 (citing State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992)). 3. See Martin v. Richey, 71 1 N.E.2d 1273 (Ind. 1999). 4. Id. 5. See id. at 1285. 6. Ind. Const, art. I, §23. 7. See Martin, 71 1 N.E.2d at 1285. 8. Ind. Const, art I, § 12. 9. See Collins v. Day, 644 N.E.2d 72, 78-79 (Ind. 1994). 2001] CONSTITUTIONAL LAW 559 unsuccessful 10 because the Indiana Supreme Court in Collins emphasized that substantial deference must be given to legislative judgment and that only where the legislature drew lines in an arbitrary and manifestly unreasonable manner could the court intervene. 11 Nonetheless, Justice Selby, writing for the majority in Martin, found that medical malpractice victims who cannot through due diligence discover their injury during the statutory limitation period are denied preferential treatment given to other malpractice victims. 12 The statutory goal of lowering medical costs by encouraging prompt filing of claims becomes irrational as to this group of medical malpractice plaintiffs. 13 Although Justice Selby stated that the statute was unconstitutional only as applied, in his dissent, Chief Justice Shepard opined that he could not envision any cases where the statute would be constitutional. He explained that the very purpose ofthe statute was to "adopt an event-based limit rather than a discovery-based limit."14 Thus, although the majority purported to limit its decision to malpractice victims who suffer from a "medical condition with a long latency period which prevents [early discovery]," the crux ofthe holding is the impermissibility ofapplying the statute to any malpractice victim who cannot with due diligence discover the tort at an earlier point in time. 15 In addressing the due course of law claim raised in Martin, Justice Selby acknowledged a long line of cases which allow the legislature to modify or abrogate common law rights. 16 Nonetheless, she ruled that the statute was unconstitutional as applied to a plaintiffwho has "no meaningful opportunity to file an otherwise valid tort claim within the specified statutory time period." 17 The court reasoned that to apply the statute of limitations in this context "would impose an impossible condition on plaintiffs access to courts and ability to pursue an otherwise valid tort claim." 18 Since Martin was unaware she had a malignancy and her doctor had assured her that the mass in her breast was non- life threatening fibrocystic breast disease, applying the statute of limitations to her action would indeed be requiring her "to file a claim before such claim existed." 19 The court further explicated its Martin decision in a companion decision, Van Dusen v. Stotts. 20 In Van Dusen, the court ruled that plaintiffs like Martin 10. See, e.g., Mahowald v. State, 719 N.E.2d 421 (Ind. Ct. App. 1999). 11. See Collins, 644 N.E.2d at 80 (referencing Chaffin v. Nicosia, 3 10 N.E.2d 867, 869 (Ind. 1974)). 12. Martin, 71 1 N.E.2d at 1281-82. 13. See id. 14. Id. at 1286 (Shepard, C.J., dissenting). 15. Id. at 1277. 16. See id. at 1 283 (citing State v. Rendleman, 603 N.E.2d 1 333 (Ind. 1 992); Sidle v. Majors, 341 N.E.2d 763 (Ind. 1976)). 17. Id. at 1284. 18. Id. 19. Id. at 1285. 20. 712N.E.2d491 (Ind. 1999). 560 INDIANA LAW REVIEW [Vol. 34:557 have two years from the time they discover or should have discovered the malpractice and resulting injury or facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice to file their claim. 21 The Van Dusen analysis allowed several litigants to successfully litigate medical malpractice claims previously barred by the restrictive statute of limitations.22 Despite the majority's reluctance to invalidate the medical malpractice statute of limitations on its face, Martin clearly breathed new life into sections 12 and 23 ofarticle I ofthe Indiana Constitution, inviting practitioners to invoke the state constitution in cases where a statute creates irrational distinctions or "imposes an impossible condition" that operates to arbitrarily deny a remedy for denial of common law rights. On the other hand, because only two justices, Dickson and Boehm,joined Justice Selby's opinion in Martin, and Justice Selby soon thereafter stepped down from the court, much uncertainty remains as to the viability of state constitutional arguments brought under these provisions. B. Application o/Martin to Other Medical Malpractice Cases The Indiana Supreme Court re-examined its holding in Martin in Boggs v. Tri-State Radiology, Inc. 23 Boggs presented the court with a woman who discovered the malpractice within the two-year period—eleven months before the time period expired—but whose surviving spouse did not file a claim until several months outside the limitations period. 24 As detailed by the court of appeals, the plaintiff was told following a mammogram that there was no abnormality, but subsequently she learned she had stage IV breast cancer and died a year later at the age of fifty-two. 25 Because, unlike Martin, the plaintiff in Boggs was not denied a meaningful opportunity to bring a claim, the appellate 21. See id. at 499. 22. See, e.g., Ling v. Stillwell, 732N.E.2d 1270, 1274-75 (Ind. Ct. App. 2000) (holding that it is unconstitutional to apply two-year statute of limitations to plaintiff who could not reasonably have been expected to discover that his mother's death could have been the result of misconduct or medical malpractice until after the limitations period had passed; events surrounding investigation into mother's death prior to the expiration of the limitations period did not put plaintiffon notice that malpractice was involved); Weinberg v. Bess, 717 N.E.2d 584, 589-90 (Ind. 1 999) (finding that because plaintiff had no reason to suspect that her doctor gave her silicone rather than the saline breast implants she requested, her filing of a complaint two months after she discovered the truth was not time barred); Halbe v. Weinberg, 7 1 7 N.E.2d 876, 88 1 -82 (Ind. 1 999) (deciding same ruling upon identical fact pattern as Bess). Cf. Burton v. Elskens, 730 N.E.2d 128 1 , 1285 (Ind. Ct. App. 2000) (two-year statute oflimitations for medical malpractice action ofpatient who sustained a stroke following surgery should not be tolled where patient did not suffer from disease with long latency; patient's condition was not one which patient, in the exercise of reasonable diligence, could not have discovered within two-year statutory period). 23. 730 N.E.2d 692 (Ind. 2000). 24. See id. at 695. 25. See Boggs v. Tri-State Radiology, Inc., 716 N.E.2d 45, 46 (Ind. Ct. App. 1999), superseded by 730 N.E.2d 692 (Ind. 2000). 200 1 ] CONSTITUTIONAL LAW 56 1 court found no violation of the due course of law provision. 26 The court reasoned, however, that since Van Dusen allowed malpractice victims two years in which to file if they discover the wrongdoing even one day outside the limitations period, it would be arbitrary and irrational to disallow those who discover the malpractice one day or one hour before the end of the two years to lose their claim unless they act immediately. 27 Thus, Boggs argued he was entitled to the same two year period from the date ofdiscovery that was afforded Van Dusen and Martin. The Indiana Supreme Court rejected Boggs' argument and refused to address the hypothetical plaintiff who discovers the malpractice on the eve of the two- year cutoff. 28 Focusing on the specific facts in Boggs, Justice Boehm, whojoined the majority opinion in Martin, posed the question as "whether the statute of limitations is constitutional as applied to patients who discover the malpractice well before the expiration of the limitations period, but some time after the act of malpractice." 29 The court determined that the fact that medical malpractice plaintiffs will often have varying amounts of time within which to file their claims is not sufficient to create an impermissible classification under article I, section 23. The court recognized the far reaching impact of affirming the appellate court's reasoning: All statutes of limitations are to some degree arbitrary. The logic ofthe Court of Appeals would render every statute of limitations or repose a discovery-based statute as a matter of constitutional law. This would significantly undermine the fundamental objective oflimitations periods, which recognizes value in the certainty generated by a known date after which a claim is either asserted or expires. 30 Because Boggs had an eleven-month window to file the medical malpractice claim and it was not impractical or impossible for him to do so, the law was constitutional as applied. 31 Addressing the appellate court's hypothetical plaintiff, the court recognized that there might be situations when discovering and presenting the claim within the time demanded by the statute might not be reasonably possible, but this was simply not such a case. 32 In dissent, Justice Sullivan, who disagreed with Martin, nonetheless reasoned that Van Dusen mandated that medical malpractice victims be given two years 26. See id. at 48. 27. See id. at 50. 28. See Boggs, 730 N.E.2d at 697-98. 29. Id. at 697. 30. Id. 31. See id at 698; see also Coffer v. Arndt, 732 N.E.2d 815, 819-22 (Ind. Ct. App. 2000) (holding that application of two-year occurrence-based limitations period to patient who learned of malpractice two months after malpractice but did not file until twenty-six months after occurrence was time-barred; because patient had twenty-two-month window in which to file, application of the limitations period was constitutional). 32. See Boggs, 730 N.E.2d at 697-98. 562 INDIANA LAW REVIEW [Vol. 34:557 from the time of discovery in which to file. Thus, the majority opinion created a class ofplaintiffs to whom the statute of limitations is not uniformly applicable. Justice Sullivan reasoned that "we cannot make the two-year medical malpractice statute of limitations available to plaintiffs who do not discover the malpractice until more than two years after occurrence but deny it to those who discover it within two years ofoccurrence." 33 Because Justice Selby rejected a facial attack and determined the limitations period was unconstitutional only as applied, the majority approach of making case by case assessments regarding arbitrariness and irrationality is arguably consistent with Martin. It does, however, create uncertainty regarding victims who do not discover the malpractice until weeks or days before the two-year period expires. C. Court Refuses to Extend Martin's Rationale to Products Liability Claims Attempts to expand the rationale of Martin outside Indiana's Medical Malpractice Act have not been successful. On May 26, 2000, the Indiana Supreme Court rejected the Martin rationale as applied to the ten-year statute of repose in Indiana's Product Liability Act. 34 The Indiana Supreme Court ruled in Dague v. Piper Aircraft Corp.,15 that the statute did not violate section 12's requirement that "[all] courts shall be open." 36 In Mcintosh, the plaintiff was injured in an accident involving a skid steer loader that had been purchased some thirteen years earlier. Indiana law requires product liability actions be commenced "within ten ( 1 0) years after delivery ofthe product to the initial user or consumer." 37 Emboldened by Martin, the plaintiff contended the statute violated the right-to-remedy clause of section 12 as well as the equal privileges requirement of section 23. The court, in a 3-2 opinion, rejected both claims. 38 The court held that the open courts requirement of section 12 was not violated because the General Assembly retains the power "to identify legally cognizable claims for relief." 39 It reasoned that in Martin the cause of action accrued before the plaintiff was aware of the cause whereas here, "the statute extinguished any cause ofaction before the plaintiffs' claims accrued." 40 Also, "[t]he legislature has provided that after the product is in use for 10 years, no further claims accrue." 41 The majority emphasized that there is no right to redress every injury nor is there a constitutional right to any particular remedy. In essence, the court drew a distinction between a statute oflimitations that limits a claim within a certain period oftime and a repose statute that says a person has 33. Id. at 700 (Sullivan, J., dissenting). 34. See Mcintosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000) (Boehm, J.). 35. 418 N.E.2d 207, 213 (Ind. 1981). 36. Ind. Const, art. I, § 12. 37. IND. CODE § 34-20-3- 1(b)(2) (2000). 38. See Mcintosh, 729 N.E.2d at 973. 39. Id. at 976. 40. Id. at 978. 41. Id. 200 1 ] CONSTITUTIONAL LAW 563 no remedy even before the action occurs. In Martin, the court ruled that a claim that exists cannot be barred before it is knowable, whereas in Mcintosh the law simply provides "that products that produce no injury for ten years are no longer subject to claims under the Product Liability Act." 42 Finally, although the court recognized that section 1 2 is analogous to federal substantive due process in requiring that legislation be rationally related to a legitimate government goal, it found no difficulty concluding that the law was justifiable. The law simply reflects the notion that "in the vast majority ofcases, failure of products over ten years old is due to wear and tear or other causes not the fault of the manufacturer." 43 Further, the statute "serves the public policy concerns ofreliability and availability ofevidence after long periods oftime, and the ability of manufacturers to plan their affairs without the potential for unknown liability."44 Addressing the section 23 claim, the court relied on the same findings—the distinction drawn between persons injured by products less than ten years old and those injured by products more than ten years old—to find that the law is rationally related to the legislative goals. The court cautioned that a broader interpretation of section 23 to invalidate statutes that permit remedies for some losses but not other similar losses "is a truly startling proposition" that "would invalidate a host of regulatory statutes." 45 The court also found that the statute did not violate the Collins requirement that preferential treatment be provided to all similarly situated persons. Unlike the situation in Martin, the Mclntoshes did not belong to a subset class that was treated differently in that all persons injured more than ten years after a product is initially sold receive similar treatment. Most significantly, the majority rejected the dissent's assertion that less deference needs to be given the legislative judgment as to this second prong in Collins." In a stinging dissent, Justice Dickson, joined by Justice Rucker, found that the statute violated both the due course of law provision of section 12 as well as the equal privileges and immunities clause of section 23 . 47 Specifically, Justice Dickson argued that the majority opinion "strips Martin of its rationale and restricts it to the narrowest possible holding." 48 Tracing the historical roots of section 12, Justice Dickson advocated finding that section 12 provides "a substantive right to remedy for injuries suffered." 49 Under his reasoning, although such a right could be qualified, it may not be totally abrogated. Because the repose provision bars claims even when products are designed and expected to last for decades, it should be held unconstitutional. As Justice Dickson 42. /d. at 979. 43. /rf.at980. 44. Id. 45. Mat 982. 46. See id. at 983. 47. See id. at 985 (Dickson, J., dissenting). 48. Id. at 989 n. 17. 49. Id. at 988. 564 INDIANA LAW REVIEW [Vol. 34:557 reasoned, the statute "is especially pernicious to those economically disadvantaged citizens who must rely on older or used products rather than new ones." 50 Comparing the case to Martin, Justice Dickson found that the statute in Mcintosh similarly required plaintiffs to file a claim before they were able to discover the allegedly negligent conduct and resulting injury, thus imposing an impossible condition on access to the courts. 51 In addition, he found that by "artificially distinguishing as a separate class those citizens injured by defective products more than ten years old," the statute violates the Equal Privileges and Immunities Clause. 52 Unlike the majority, Justice Dickson focused on the unequal treatment ofdifferent classes ofpeople, rather than classes ofproducts. 53 Obviously, the stark differences in interpretation ofthe Indiana Constitution reflect a split on the court, which leaves some uncertainty as to how the constitutional provisions will be interpreted in the future. Justices Dickson and Rucker clearly favor a broad reading of both section 12 and section 23, whereas Justice Boehm, whose vote was critical in Martin, has clearly decided to proceed more cautiously in evaluating constitutional restrictions on the General Assembly's authority to legislate. His opinion in Mcintosh, as well as the subsequent ruling in Boggs, suggest that plaintiffs attorneys have an uphill battle to fight in building on the Martin rationale. D. Looking to the Future One of the most critical questions raised in the wake of Mcintosh is the amount of deference the court will give to legislative restrictions on remedies. In Sims v. U.S. Fidelity & Guaranty Co.,54 the court of appeals addressed the constitutionality of a provision in the Worker's Compensation Act which gives exclusivejurisdiction to the Worker's CompensationBoard to adjudicate whether an employer or worker's compensation insurance carrier "has acted with a lack of diligence, in bad faith, or has committed an independent tort in adjusting or settling [a worker's compensation claim]." 55 John Sims, who was injured while working at a construction site, contacted the defendant carrier to schedule medical care and to secure payment oftemporary total disability benefits. After receiving no response for some four weeks, Sims filed a complaint accusing the defendant of gross negligence, intentional infliction of emotional distress, and intentional deprivation ofstatutory rights underthe Worker's Compensation Act for denying him benefits and also constructively denying him access to timely medical care and physical therapy. 56 The trial court dismissed Sim's complaint 50. Id. at 990. 51. Seeid. at989n.17. 52. Id. at 991. 53. Seeid. at 991-92. 54. 730 N.E.2d 232 (Ind. Ct. App. 2000). 55. Ind. Code § 22-3-4-12.1(1) (2000). 56. &?/«, 730 N.E.2d at 234. 200 1 ] CONSTITUTIONAL LAW 565 based on the statutory exclusion. In 1 992 the Indiana Supreme Court ruled that the exclusive remedy provision in the Worker's Compensation Act did not apply to the right of an employee to assert actions against third parties such as the insurance carrier. 57 However, after Sims, the statute was amended to exclude such claims.58 In fact, as the court of appeals conceded, the statute may have been passed in reaction to this prior case law. 59 Nonetheless, the court concluded that the statute violated article I, section 12 in that the legislature unreasonably and impermissibly denied the right of access to the courts. The statute's impact is "to deprive injured workers who have been subsequently harmed by the malfeasance of the insurer the right to a complete tort remedy." 60 The court reasoned that the purpose of the act was to compensate workers for injuries sustained on the job whereas here the injury arose from subsequent, additional injuries. Therefore, it would be illogical to utilize the act to shield insurers from liability for their own independent torts.61 In addition, the court found that the statute violated the right to trial by jury protected by article I, section 20 ofthe Indiana Constitution. Although the right to ajury trial applies only to actions "triable by ajury at common law . . ., actions for injuries to the person caused by another's negligence were actionable under the common law of England and triable by jury."62 In dissent, Judge Baker raised several arguments. First, he noted that plaintiffs tort action would not even exist but for the Worker's Compensation Act. 63 Second, unlike Martin, the act does not totally foreclose access to the courts, but simply imposes a trip to the compensation board as a pre-requisite to an appeal through the court system. In this sense the statute operates no differently than the Medical Malpractice Act, which requires aggrieved plaintiffs to first take their claims to a review board before filing suit in court. "[The] statute is not unconstitutional merely because it alters or restricts the manner of achieving a remedy in the court system." 64 Third, Judge Baker cited to Mcintosh as reaffirming the General Assembly's authority to modify the common law.65 Fourth, he accused the majority of erroneously relying on cases decided before the statute came into effect.66 Finally, he found no violation ofthe right to jury trial because lack ofajury trial was simply "one ofthe policy trade-offs involved in guaranteeing to workers a system of compensation superior to that which preceded it." 67 On the other hand, the dissent expressed its concern for the 57. See Stump v. Commercial Union, 601 N.E.2d 327, 331-32 (Ind. 1992). 58. See IND. CODE § 22-3-4-12.1 (2000). 59. See Sims, 730 N.E.2d at 238 (Baker, J., dissenting). 60. Id. at 236 (emphasis in original). 61. See id. at 236-37. 62. Id. at 237 (internal citations omitted). 63. See id. at 238-39 (Baker, J., dissenting). 64. Mat 238. 65. See id. (citing Mcintosh v. Melroe Co., 729 N.E.2d 972, 977-78 (Ind. 2000)). 66. See id. at 238 n.3. 67. /rf. at239. 566 INDIANA LAW REVIEW [Vol. 34:557 $20,000 limitation set forth in this statute, which might very well preclude meaningful recovery in some cases. Judge Baker urged the legislature "to consider raising the $20,000 limitation on recovery to avoid constitutional challenges in the future." 68 II. The Due Process Clause Although the text of the Due Process Clause appears to ensure only procedural fairness, the U.S. Supreme Court has long recognized that it also contains a substantive component that bars arbitrary, wrongful conduct. Where the government interferes with a fundamental right, the Court has demanded that the conduct meet a strict scrutiny standard. The Supreme Court has ruled that parents have a fundamental right to guide the upbringing of their children and that government interference with this right must be strictly scrutinized. 69 This term, in Troxel v. Granville, 10 the Supreme Court decided that this right — "perhaps the oldest ofthe fundamental liberty interests recognized by this Court"—trumps the interest of grandparents who seek visitation.71 However, a majority could only agree that the law's sweeping breadth and application in this case violated the mother's constitutional rights. 72 Thus, the opinion provides little guidance to other states, all of which in recent years have enacted Grandparent Visitation Statutes. At issue in Troxel was a Washington law that permitted "any person" to petition for visitation rights "at any time" whenever such visitation would be in the child's best interest. 73 Paternal grandparents sought to obtain visitation of their deceased son's two young daughters, who were in the custody of their mother. The father had never married the mother and her new husband adopted the children. The mother was willing to grant the grandparents visitation ofone day per month plus participation in holiday celebrations, but the grandparents wanted more. The trial court granted them one weekend ofvisitation per month, one week in the summer, and time on the grandparents' birthdays. The Washington Supreme Court declared the statute unconstitutional on its face because it interfered with parental rights without any showing of harm. 74 The Supreme Court, in a splintered decision, ruled that the trial court violated the mother's fundamental right to make decisions concerning the care, custody and control ofher children. 75 In writing the plurality opinion, Justice O'Connor termed the statute "breathtakingly broad" because it "effectively permits any 68. Id. 69. See Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). 70. 120 S.Ct. 2054 (2000). 71. Id at 2060. 72. See id. at 2064. 73. Wash. Rev. Code § 26.10.160(3) (2000). 74. See Troxel, 120 S. Ct. at 2057-58. 75. See id. at 2061. 200 1 ] CONSTITUTIONAL LAW 567 third party seeking visitation to subject any decision by a parent concerning visitation of the parent's children to a state-court review." 76 The trial court infringed on the mother's substantive due process rights by ignoring the traditional presumption that fit parents act in the best interest oftheir children. 77 The trial court appeared to require the mother to disprove that visitation by the grandparents would be in her daughters' best interest. Justice O'Connor reasoned that as long as a parent adequately cares for her children "there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." 78 There were no "special factors" here, i.e., unfitness of a parent or total denial of visitation that might justify state interference with the mother's fundamental right. 79 Because of the sweeping breadth of the statute and the application in this case, Justice O'Connor refused to address the core constitutional question of "whether the Due Process Clause requires all nonparental visitation statutes to include a showing ofharm or potential harm to the child as a condition precedent to granting visitation." 80 She left unanswered the basic question ofwhether use of a "best interest" test is constitutionally permitted. Nor did she address who should have standing to assert visitation rights, nor even the primary question of whether grandparents have any substantive due process liberty interest in visitation rights. She simply concluded that the problem was that the law as applied here gave no deference to the mother's views. The "breathtakingly narrow" scope ofJustice O'Connor's plurality opinion leaves the fate ofdozens of state laws in doubt. In a separate concurrence, Justice Souter would have affirmed the state's Supreme Court's decision to invalidate the visitation statute on its face because it allowed interference with parental rights without a showing ofharm. 81 Justice Thomas concurred, emphasizing that because the statute infringed on fundamental rights, it must be subjected to strict scrutiny. He found that the state lacked any compelling interest in "second-guessing a fit parent's decision regarding visitation with third parties." 82 Three dissenters argued that the law was neither facially invalid nor invalid as applied. Justice Stevens would not have required a snowing of actual or potential harm to the child before allowing visitation over a parent's objection. He argued that the Washington Supreme Court ignored the fundamental liberty interest of the child—there may be situations where the child has a stronger interest than mere protection from serious harm caused by termination of 76. Id. 77. See id. at 2061-62. 78. Id. (citation omitted). 79. See id. 80. Mat 2064. 81. See id. at 2065-66 (Souter, J., concurring). 82. Id. at 2068 (Thomas, J., concurring). 568 INDIANA LAW REVIEW [Vol. 34:557 visitation by a person other than a parent. 83 He contended that the Due Process Clause allows a state to consider the impact on a child of possibly arbitrary parental decisions that neither serve nor are motivated by the best interest ofthe child. 84 Similarly Justice Kennedy said the Washington Supreme Court erred "by announcing a categorical rule that third parties who seek visitation must always prove the denial of visitation would harm the child," instead of basing the decision on the child's best interest. 83 Justice Scalia deemed the extension ofthe doctrine of Substantive Due Process inappropriate to this context, and he chastised the majority for creating "a new regime ofjudicially prescribed, and federally prescribed, family law." 86 He argued that issues touching on parents' rights to direct the upbringing of their children are best left to the state legislature. 87 Although there was no majority opinion, the Troxel decision clearly affects the Grandparent Visitation Laws enacted by all fifty states between 1966 and 1986. The Court recognized the fundamental right of parents, not grandparents or state courtjudges, to decide what is best for their children. On the other hand, the ruling leaves open the door to visitation rights for non-parents who have strong bonds with children. Although the decision does not declare all laws unconstitutional simply because they use a "best interest ofthe child" approach, it clearly directs that in applying their statutes, state judges must weigh the parents' interest more heavily. Prior to Troxel, Indiana courts had sustained Indiana's Grandparent Visitation Act, 88 which, unlike the Washington statute, provides more specificity for when it can be invoked (e.g., only where parents have divorced, one parent has died, a child is born out of wedlock, or in certain adoption situations). 89 In Sightes v. Barker, 90 an Indiana appellate court held that the Act, dating back to 198 1 , did not unconstitutionally burden the parents' right to raise their children. The court reasoned that even under strict scrutiny, the state had a compelling interest in protecting the welfare of a child. 91 It stressed that the burden was on the grandparents to demonstrate by a preponderance of the evidence that visitation is in the child's best interest, and, that even "[i]f such a showing is made, it falls to the court to evaluate the evidence, assess the circumstances, and carefully devise a visitation schedule that is in the children's best interest." 92 The 83. See id. at 2069-70 (Stevens, J., dissenting). 84. See id. at 2071. 85. Id. at 2076 (Kennedy, J., dissenting). 86. Id. at 2075 (Scalia, J., dissenting). 87. See id. 88. IND. CODE § 31-17-5-1 (2000). 89. The Act was amended in 1 997 to cut off visitation rights to a paternal grandparent of a child born out of wedlock if the child's father has not established paternity. See Ind. Code §31- 17-5- 1(b). 90. 684 N.E.2d 224 (Ind. Ct. App. 1997). 91. See id. at 233. 92. Mat 230. 200 1 ] CONSTITUTIONAL LAW 569 court specifically noted that judicial oversight will ensure protection against "an unwarranted intrusion into the fundamental liberty of the parents and child." 93 Because visitation would be granted only if after careful scrutiny, the court determined such visitation was in the child's best interest, the Act was no more intrusive than necessary. 94 Although Troxel challenges whether the best interest of the child can suffice to trump parents' rights, 95 the more restricted scope and narrow construction of the law may mean that it at least can survive a facial challenge. Although the Supreme Court in Troxel did not invalidate the Washington statute on its face, it did rule that the Washington trial judge erred in failing to give sufficient weight to the parents' interest. 96 Indiana courts have not taken this approach. In Swartz v. Swartz 91 the court ruled that a trial courtjudge abused his discretion in granting grandparents regular, overnight visitation. The St. Joseph Superior Court had awarded the grandparents visitation with a nine- year-old child every other weekend, alternating among the grandparents' three homes, since one set of grandparents had divorced and remarried new spouses. Each grandparent also was granted one week of visitation during the summer.98 The appellate court found that this schedule would require the child to live outside of her mother's home seventy-three days per year and thus would "fundamentally alter the relationship between Mother and C.S., which by all accounts was close, healthy, and loving." 99 Additionally, the child would be living in four different households on alternating weekends. The court emphasized that this was not a case of access, since the mother had agreed to unsupervised daytime visitation with the grandparents, but rather was simply a matter ofdegree, and here the trial court overstepped its bounds. 100 In light of the subsequent Troxel decision, it would appear the court of appeals was correct in its reasoning. Reiterating the holding in Sightes, the court in Swartz, while finding an impermissible application of the Act, held the visitation rights conferred by the statute did not substantially infringe on parents' fundamental right to raise their children because it "only contemplates occasional, temporary visitation as found to be in the best interest ofthe child" and thus met even strict scrutiny analysis. 101 93. Mat 231. 94. See id. at 233. 95. The court specifically acknowledged a Tennessee Supreme Court decision holding that states cannot interfere with parental rights unless substantial harm threatens a child's welfare. The court found that this same standard does not apply under the federal constitution in the absence of a substantial infringement by the state on a family relationship, and it found that Indiana's Grandparent Visitation Statute did not impose this type of substantial burden. See id. at 231, 232 n.2 (citing Hawk v. Hawk, 855 S.W.2d 573, 582 (Tenn. 1993)). 96. See Troxel v. Granville, 120 S. Ct. 2054, 2060-61 (2000). 97. 720 N.E.2d 1219 (Ind. Ct. App. 1999). 98. See id. at 1221. 99. /rf. at 1222. 100. See id at 1222-23. 101. Id at 1222. 570 INDIANA LAW REVIEW [Vol. 34:557 Although Troxel has cast doubt on the broad, undifferentiated use of a "best interest" test to override parental rights, it appears that Indiana courts have cautiously applied the law, giving significant weight to parents' wishes. 102 A second, far more contentious substantive due process case addressed the question of whether states may bar a widely used second-trimester abortion procedure. 103 The Nebraska statute in question banned any procedure that involved "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child." 104 The procedure has been tagged "partial birth" abortion by its opponents. Under the Nebraska statue, violation ofthe law is a felony, carrying a penalty of up to twenty years in prison, a fine of up to $25,000, and it provides for automatic revocation of a convicted doctor's state license to practice medicine. 105 Dr. LeRoy Carhart is the only physician in the state of Nebraska who performs second-term abortions. He contested the constitutionality of the law and, following a trial, a federal court judge agreed that the ban was unconstitutional because it forced the doctor to use a riskier surgery on some patients. 106 The Eighth Circuit affirmed, and the state, supported by some thirty states that have enacted similar laws, appealed. 107 Eight years ago the Supreme Court, in PlannedParenthood ofSoutheastern Pennsylvania v. Casey, m upheld the basic principle ofRoe v. Wade, 109 that the Constitution protects a woman's right to terminate a pregnancy. 110 Casey determined, however, that a state has the right to regulate the abortion decision before fetal viability provided it does not impose an "undue burden," i.e., it does not have the purpose or effect of placing a substantial obstacle in a woman's attempt to obtain an abortion. 111 The precise meaning ofthe "undue burden" test has created much uncertainty. In Casey only one ofseveral contested provisions (a requirement of spousal notice), was found to impose a constitutionally 102. See, e.g., In re Visitation of J.P.H., 709 N.E.2d 44, 47 (Ind. Ct App. 1999) (granting visitation to paternal grandparents of child born out of wedlock but later legitimated against the wishes of the parents would have constituted unwarranted encroachment into right of custodial parents to raise their child as they sought fit); Lockhart v. Lockhart, 603 N.E.2d 864, 867 (Ind. Ct. App. 1 992) ("As a pure matter of law, the statute clearly requires that grandparents may not obtain visitation against the wishes of a custodial parent;" thus visitation would not be permitted where the grandparents' son was awarded custody.). 103. Stenberg v. Carhart, 120 S. Ct. 2597 (2000). 104. Id. at 2605 (citing NEB. Rev. Stat. § 28-328(1) (Supp. 1999)). 105. See NEB. REV. STAT. § 328(2) (Supp. 1999). 106. See Stenberg, 120 S. Ct. at 2610. 107. See id. at 2634. 108. 505 U.S. 833(1992). 109. 410 U.S. 113(1973). 1 10. See Planned Parenthood ofS.E. Pa., 505 U.S. at 852-53. 111. A*at878. 2001] CONSTITUTIONAL LAW 571 impermissible "undue burden." 112 After viability, the state, in promoting its interest to protect potential human life, may regulate, and "even prescribe, abortion except where it is necessary, inappropriate medical judgment, for the preservation of the life or health of the mother." 113 The Court in Stenberg held that the Nebraska law violated both ofthese basic principles because it lacked any exception for the preservation of a mother's health, and its definition ofthe prescribed procedure was so broad as to include the most frequently used second-trimester abortion method, thus imposing an undue burden." 4 The statute did not distinguish between abortions performed before or after viability, but it failed both tests because it did not provide any health exception for pre- or post-viable abortions. "[A] State may promote but not endanger a woman's health when it regulates the methods of abortion."115 Despite significant conflicting medical evidence, the Court reasoned that the district court's determination that the prescribed method was the safest procedure under some circumstances was supported by the record. 116 Further, even if the statute's basic target was to ban dilation and extraction (D & X), whereby the fetus is delivered through the cervix feet first, and the skull is then collapsed and extracted through the cervix, the statutory language made clear that it covered a much broader category of procedures. 117 The district court judge conducted extensive fact finding and established that the law would have the effect of prohibiting the most common form ofabortion (dilation and evacuation) and that the intended effect was to prohibit a procedure (dilation and extraction) that was the safest procedure for late pre-viable abortions. 1 !8 In a separate concurrence, Justice O'Connor pointed out that [b]y restricting their prohibitions to the D & X procedure exclusively, the Kansas, Utah, and Montana statutes avoid a principal defect of the Nebraska law ... a ban on partial-birth abortion that only proscribed the D& X method ofabortion and that included an exception to preserve the life and health ofthe mother would be constitutional in my view. 119 Although Justice O'Connor's dictum is a non-binding opinion, her vote was critical in forming a majority. Hence, states will have to determine whether their own laws are more like the broad statute enacted by Nebraska, or the more narrow prohibitions, which arguably would muster majority support on this Court. Three of the four dissenters argued that Casey was wrongly decided and should be overturned. Justice Kennedy, although he co-authored the plurality 112. See id. at 893-94. 113. Id at 879. 1 14. See Stenberg v. Corhart, 120 S. Ct. 2597, 2609 (2000). 115. Id. 116. See id at 2610-13. 117. &*?/