NOTE: The following report has been updated to include arguments from the state’s response to the plaintiffs’ rehearing petition.

By Marilyn Odendahl

The Indiana Citizen

Aug. 1, 2023

Planned Parenthood is asking the Indiana Supreme Court to temporarily block the state’s near-total abortion ban from taking effect while the nonprofit revamps its constitutional challenge to the new law.

The plaintiffs in Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical Licensing Board of Indiana, et al., 22S-PL-338, filed a petition for rehearing Monday with the Supreme Court. They argue the preliminary injunction against the new abortion law should remain in place while the trial court considers the scope of protections under the Indiana Constitution when the health of the mother is endangered.

“This ban will prevent pregnant Hoosiers from making decisions about their own bodies, and prevent their providers from giving them the care they need – even while ongoing litigation proceeds through the Court,” Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., said in a statement.If the Indiana Supreme Court allows the ban to go into effect now, pregnant people and their health care providers will be left to navigate this confusing legal environment on their own. We are hopeful that the court will act to protect the health and wellbeing of Hoosiers.”

The request for rehearing was filed by Planned Parenthood Federation of America, the Lawyering Project, the ACLU of Indiana, and Wilmer Hale on behalf of Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Women’s Med Group Professional Corp, All-Options, Inc., and Dr. Amy Caldwell.

Tuesday afternoon, the Indiana Attorney General’s office filed a response with the Supreme Court, arguing the plaintiffs’ petition is just “artificially prolonging an erroneously issued injunction.” In a statement, the attorney general accused the plaintiffs of seeking the rehearing to raise contributions from donors.

“On the eve of Indiana’s pro-life law going into effect, the ACLU and Planned Parenthood made a desperate attempt to prevent Indiana from enforcing our own law,” Katlyn Milligan, spokesperson for the Indiana Attorney General’s office, said in an emailed statement. “We responded to this filing immediately and are now waiting for the Court to rule. The ACLU and Planned Parent have made their intentions clear – this is just another grab for fundraising dollars.”

The Indiana General Assembly passed the abortion law during a special session in the summer of 2022. Senate Enrolled Act 1 restricts abortion with the exceptions of when the woman’s life is threatened, there is a lethal fetal anomaly or the pregnancy is the result of rape or incest.

The plaintiffs in this case sued, claiming SEA 1 violates Article 1, Section 1 of the Indiana Constitution which guarantees the right to liberty.

On June 30, a split Supreme Court lifted the preliminary injunction that had been blocking the new abortion law. The majority of justices ruled the plaintiffs failed to show a “reasonable likelihood of success” in proving Indiana’s enforcement of its tightened restrictions in all circumstances would violate Article 1, Section 1 of the state’s constitution.

However, the majority found Article 1, Section 1 does protect a woman’s right to an abortion that is “necessary to protect her life or to protect her from a serious health risk.”

The plaintiffs assert the language of the new abortion statute is not broad enough to comply with that constitutional protection.

Specifically, the plaintiffs point to the exception in the new law which allows for a woman to have an abortion “to prevent death or a serious risk of substantial and irreversible physical impairment of a major bodily function.” They argue “serious health risk” encompasses more circumstances than would be included under the statute’s provision of “substantial and irreversible physical impairment.”

The plaintiffs contend that keeping the preliminary injunction in place will give the trial court the ability to address the breadth of the constitutional right which the Supreme Court has recognized.

“…(T)he alternative,” the plaintiffs asserted in their petition, “is allowing the statute to go into effect immediately upon remand, leading to many abortion patients being forced to suffer serious (and unconstitutional) consequences while the trial court receives the evidence and argument necessary to decide this profoundly important issue of first impression.”

In its response, the state argues the plaintiffs are trying to short-circuit the judicial process by raising the new issue of health risks at the Supreme Court. The preliminary injunction granted by the trial court “reaches well beyond the scope” of the plaintiffs’ narrower claim that the new abortion law violates Article 1, Section 1 in circumstances involving “serious health risks.” Consequently, the state asserts, the plaintiffs must start over and present their health argument first to the trial court.

The state also disputes the plaintiffs’ contention that the health exception in S.E.A. 1 violates the Indiana Constitution. Pointing to history, the state maintains when the Indiana Constitution was adopted, Indiana law permitted abortions only to “preserve the life” of the pregnant mother and not for “general health reasons.”

“Any challenge on health-related grounds would have to provide the precise risks an actual woman desiring an abortion faces and cite materials showing that abortion was historically allowed to alleviate those risks,” the state argues in its response. “Planned Parenthood supplies no evidence or argument touching on these critical issues.”

Constitutional protection dispute

The majority’s reading of Article 1, Section 1 drew separate opinions from Justices Geoffrey Slaughter and Christopher Goff.

Slaughter concurred with the majority’s decision to lift the preliminary injunction but admonished his colleagues for broaching the constitutional question. He believes the court should have vacated the hold on the law because the plaintiffs do not have standing to bring the lawsuit. They are not claiming that the new abortion law is directly injuring them or violating their rights.

The justice did note the majority’s ruling was the first time in the state’s history that the Supreme Court found the Indiana Constitution protects a woman’s right to terminate her pregnancy.

 “We engage in judicial overreach – and flout our doctrine of constitutional avoidance – when we proclaim the existence and scope of an unenumerated constitutional right without first addressing when Senate Bill 1’s exceptions protecting a pregnant woman’s life and health allow the procedure,” Slaughter wrote.

Goff agreed with the majority’s interpretation of the state’s constitution but he dissented from the decision to terminate the injunction. He argued that Article 1 Section 1 guarantees liberty, which includes a “qualified right to bodily autonomy.”

 “Beyond severe health emergencies and the exceptions mentioned, Senate Bill 1 fails to account for the myriad ways in which denial of abortion access restricts a woman’s liberty,” Goff wrote. “It permits the government’s invasion of bodily autonomy from the moment of conception and offers no freedom of choice whatsoever in circumstances beyond the statutory exceptions.”

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