Doe v. Smith

527 N.E.2d 177 (1988)

John DOE, Appellant,
v.
Jane SMITH, Appellee.

No. 20S00-8806-CV-551.

Supreme Court of Indiana.

August 24, 1988. Rehearing Denied December 14, 1988.

Robert J. Palmer, Maggie Mawby Chipman, May, Oberfell & Lorber, South Bend, Steven J. Strawbridge, Indianapolis, James Bopp, Jr., Richard E. Coleson, Brames, McCormick, Bopp & Abel, Terre Haute, for appellant.

Richard A. Waples, Legal Director, John M. Hamilton, Cooperating Atty., Indiana Civ. Liberties Union, Indianapolis, Dawn Johnson, American Civ. Liberties Union, Reproductive Freedom Project, New York City, Marie Waring-Mengel, Elkhart County Legal Aid Soc., Elkhart, for appellee.

PER CURIAM.

This appeal arises from a decision of the Elkhart Superior Court, wherein the trial court issued a temporary restraining order barring Jane Smith from having a scheduled abortion. John Doe had sought the temporary restraining order to protect his rights as the father of the unborn child. At a subsequent hearing, the trial court denied the request for an injunction against Smith but continued the temporary restraining order until June 15, 1988, in order to allow the parties to take an appeal from the trial court's decision.

This Court, on June 14, 1988, granted the appellant's petition for transfer pursuant to Ind.R.App.P. 4(A)(10) but at the same time denied the motion for stay "because of the presumption of the validity accorded all trial court judgments, and in light of Planned Parenthood v. Danforth (1976), 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788, this Court is not satisfied that there is a sufficient likelihood that appellant will prevail on the merits of this appeal". The parties have perfected the appeal and the cause is fully briefed before this Court.

On July 15, 1988, 526 N.E.2d 958, this Court adopted and affirmed the opinion of the unanimous First District of the Court of Appeals in In Re Conn (1988), Cause No. 73S01-8807-CV-631 (handed down on July 12, 1988 by the Court of Appeals, found at 525 N.E.2d 612). In that cause, the petitioner, Jennifer Conn, had perfected an interlocutory appeal from the granting of a temporary injunction by the Shelby Circuit Court in favor of her husband, Erin Conn, enjoining her from obtaining an abortion. The Court of Appeals, relying heavily on two United States Supreme Court cases, Danforth, supra, and Roe v. Wade (1973), 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, reversed, holding that the trial court's order violated Jennifer's federal and state constitutional rights. Our order of July 15, 1988 adopted and affirmed this ruling (Pivarnik, J., dissented with opinion).

In the present cause, the trial court ruled that Danforth, supra, controlled. The trial court found that any issuance of an injunction and the possible invocation of the court's contempt power would sufficiently constitute state action, which was proscribed by Danforth. R. at 140. The trial court also found that the mother's interests outweighed the father's. R. at 141.

Based upon this Court's decision in In re Conn, we now affirm the judgment of the trial court.

All Justices concur, except PIVARNIK, J., who dissents for the reasons set forth in his dissent in In re Conn.