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Horn v. Hendrickson3/29/2005
cover for the wrongful death of a viable fetus is a return to the 19th century when, in tort law, a fetus and its mother were considered one and the same. We do not believe that the Indiana legislature intended to turn the clock back a century when it modified the child wrongful death statute in 1987. For the reasons explained herein, should Horn seek transfer, we would encourage our supreme court to address Horn's arguments and reconsider its interpretation of Indiana Code Section 34-23-2-1.
Issue Two: Article I, Section 23
Horn also raises multiple federal and state constitutional attacks on Bolin's interpretation of the statute. Specifically, Horn asserts that Indiana Code section 34-23-2-1, as interpreted by Bolin, is unconstitutional. Because we conclude that Horn's argument under Article I, Section 23 should be dispositive, we only address that constitutional claim.
The appellant in Bolin did not raise any constitutional claims. Accordingly, Horn presents an issue of first impression regarding Article I, Section 23, namely, whether the child wrongful death statute, as interpreted by Bolin, violates Indiana's Equal Privileges and Immunities Clause. Because there are no inherent differences between the parents of a child born alive and the parents of a viable fetus, we conclude that the statute, as interpreted in Bolin, violates Article I, Section 23.
In Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994), our supreme court established the following two-part test to be applied to claims under Article I, Section 23:
First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated.
As the court further explained in Collins, 644 N.E.2d at 78, legislative classification under Article I, Section 23 must be "based upon substantial distinctions germane to the subject matter and the object to be attained." (Citation omitted). In other words,
he distinctions must involve something more than mere characteristics which will serve to divide or identify a class. There must be inherent differences in situation related to the subject-matter of the legislation which require, necessitate, or make expedient different or exclusive legislation with respect to the members of the class. Id. (citation omitted, emphasis added).
Regarding the first part of the Collins two-part test, Hendrickson baldly asserts that " arents giving birth to a child are inherently different from parents who do not have children born alive." Brief of Appellee at 14. But Hendrickson fails to articulate how those groups of parents are inherently different. Significantly, and as we have emphasized, the statute confers rights on the parents, not on the children. Thus, in evaluating the statute, the two relevant groups are parents of a child born alive and parents of a viable unborn fetus, and the question is not whether the two classes of offspring are inherently different.
Even under the relaxed scrutiny of Collins, there is no inherent distinction between parents of a child born alive and parents of a viable unborn fetus. Both groups of parents have the same interest at stake, namely, the wrongful death of their child, and they suffer the same loss. Both groups of parents have suffered the loss of a child by a wrongful act and are in the same class for purposes of Article I, Section 23. Any distinction between the two groups of parents is a distinction without a constitutional difference.
The concurring-in-result opin
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