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By Casey Smith

Indiana Capital Chronicle

June 30, 2023

Indiana’s near-total abortion ban, which prohibits the procedure with only narrow exceptions, will go back into effect after the Indiana Supreme Court upheld the law Friday. But justices left open the possibility for other challenges in the future.

Plaintiffs have 30 days to seek a rehearing before the decision is certified, meaning the ban won’t be effective until Aug. 1, according to the ACLU of Indiana, which challenged the law. Rehearings are rarely granted.

With the new ruling, the case heads back to the county judge for further action. An injunction issued in a separate challenge to the ban only applies to the plaintiffs in that case.

In a split, 4-1 decision, the high court nixed a preliminary injunction that has kept the ban on hold since September.

Justices opined that the plaintiffs — including Planned Parenthood and other health care providers — unsuccessfully brought a “facial” challenge to the entire law, which alleged that the abortion ban is always unconstitutional and should therefore be voided.

The state Supreme Court, however, said the providers “cannot show a reasonable likelihood of success” with that challenge because there are cases in which the ban could be constitutionally enforced.

” … we hold that Article 1, Section 1 (of the Indiana Constitution) protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions,” Justice Derek Molter wrote in the ruling.

Molter is the newest member of the court, appointed by Republican Gov. Eric Holcomb in June 2022.

The five Indiana justices heard oral arguments over the constitutionality of the new law in January.

The court challenge was originally filed in Monroe County Circuit Court in August by the American Civil Liberties Union (ACLU) of Indiana on behalf of health care providers and a pregnancy resource center.

A special judge in Owen County later ruled that the ban likely violates the Indiana Constitution. An injunction issued by Judge Kelsey Blake Hanlon, a Republican, halted the state’s new abortion law one week after it took effect. Under the injunction, the state’s previous abortion law stood — allowing abortions up to 20 weeks.

A joint statement from leaders of Planned Parenthood Federation of America, Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky, ACLU of Indiana, Whole Woman’s Health Alliance, All-Options, the Lawyering Project, and Women’s Med Center bemoaned the ruling.

In particular, the group decried the disparate impact the decision would have on nonwhite people, LGBTQ+ people and low-income Hoosiers who can’t afford to travel elsewhere.

“Now, patients will be forced either to flee the state to access abortion if they have the means, seek abortion outside of the health care system, or carry pregnancies against their will with profound medical risk and life-altering consequences,” the statement said. “Despite this setback, we’ll keep fighting to restore reproductive rights in Indiana and to help Hooisers get access to the services they need. Today’s decision is not the end of our fight for equitable, compassionate care in Indiana, or the patients in surrounding states who rely on Indiana for access to abortion.”

The Republican-dominated Indiana General Assembly advanced the abortion-restricting measure during a heated, two-week special session last August.

That action made Indiana the first state in the nation to approve such legislation since the high court ruling that overturned Roe v. Wade.

The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. One part of the law says these exceptions are up to 20 weeks but another part says they can be used anytime. Rape survivors can get an abortion up to 10 weeks post-fertilization. It also strips abortion clinics of their state medical licenses, and provides that only hospitals and hospital-owned ambulatory surgical centers can provide abortions.

“We celebrate this day – one long in coming, but morally justified,” Indiana Attorney General Todd Rokita’s office said in a statement. “Thank you to all the warriors who have fought for this day that upholds LIFE.”

Justices weigh the case

Molter, along with concurring Chief Justice Loretta Rush and Justice Mark Massa, emphasized that — even when the Indiana General Assembly revised the state’s abortion laws in response to U.S. Supreme Court decision overturning Roe v. Wade —  abortion continued to remain available “to save the life of the mother.”

That keeps in line with Indiana’s Constitution, which protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. It also protects a fundamental right to “liberty.”

Plaintiffs in the case contended that right includes “a bundle of liberty rights” — like inferred rights to privacy, bodily autonomy, and self-determination — which coalesce to allow abortions up to fetal viability outside the womb: about 23 or 24 weeks.

But justices said that’s not how the framers and ratifiers of Indiana’s Constitution understood that language.

“We do not diminish a woman’s interest in terminating a pregnancy because, for starters, it is a privately held interest — informed by privately held considerations. Moreover, we recognize that many women view the ability to obtain an abortion as an exercise of their bodily autonomy,” Molter wrote. “Yet, and however compelling that interest is, it does not follow that it is constitutionally protected in all circumstances.”

“By saying Senate Bill 1 is not unconstitutional in its entirety in all circumstances, we do not say the opposite either — that every single part of the law can be applied consistent with our Constitution in every conceivable set of circumstances,” the ruling continues. “We do not prejudge those questions.”

Even so, the court held that the plaintiffs have standing to challenge the abortion ban “because the law criminalizes their work and the injunction they seek would protect them from the law’s criminal and regulatory penalties.”

Justices maintained that the plaintiffs could still be successful if they challenge “a particular part of the statute,” or with a challenge that focuses on the law’s application “in a particular set of circumstances” where a pregnancy endangers a woman’s life or health.

But in this lawsuit, the court contended that the plaintiffs’ claim for a preliminary injunction failed to outline the specific limits on life or health exceptions and when those limits needed to be broader.

Justice Geoffrey Slaughter joined the majority but said in a separate opinion that he would have ruled the health care providers who sought the injunction lacked a standing to sue in the first place, rather than ruling on the merits of the overall lawsuit.

“Despite our differences, I ultimately agree with the Court that the disputed injunction must be vacated, and so I concur in its judgment. But unlike the Court, I would reach that result based on the lack of standing and not on the merits,” Slaughter wrote. “… the Court today dives into the constitutional scrum, pronouncing its views of myriad issues not squarely before us and not necessary to today’s disposition. I would limit our decision today to Plaintiff’s lack of standing.”

Justice Christopher M. Goff dissented, in part, writing that medical providers have standing to contest the constitutionality of Senate Bill 1 because the statute criminalizes their work. He also disagreed with his colleagues’ decision to terminate the trial court’s injunction “in its entirety.”

“Many of the liberties Hoosiers take for granted — the right to vote, to travel, to marry, to educate one’s children as one sees fit, or to refuse medical treatment — stand on federal precedents that are also now vulnerable to reversal. Within this ‘bundle of liberty rights’ stands the fundamental ‘right to be let alone,’” he wrote. “In my view, even those who abhor abortion in all circumstances should be wary of unfettered government power over the most personal, private aspects of a person’s life.”

Goff instead urged the General Assembly to put the question of bodily autonomy directly to Hoosier voters.

“In my view, there is a reasonable likelihood that (Indiana’s Constitution)’s guarantee of ‘liberty’ includes a qualified right to bodily autonomy, one which the General Assembly must accord some weight in the legislative balance,” he wrote. “More importantly, I believe that the abortion question is fundamentally a matter of constitutional dimension that should be decided directly by the sovereign people of Indiana.”

Other case still ongoing

Appeals in a second case that seeks to strike down Indiana’s abortion ban on the basis of the state’s controversial religious freedom law are still playing out in court.

That underlying lawsuit was filed in August by the ACLU of Indiana on behalf of Hoosier Jews for Choice, as well as four anonymous women who represent a variety of faiths. The lawsuit argues that the new abortion law violates Indiana’s Religious Freedom Restoration Act (RFRA).

The lawsuit prompted a Marion Superior Court judge to grant a second preliminary injunction against the state’s abortion ban in December. Despite the Indiana Supreme Court ruling, the injunction will remain in the RFRA case.

However, that injunction only applies to the plaintiffs in the case. ACLU of Indiana Legal Director Ken Falk contends it also applies to the class that the Marion County trial court has certified. The class includes all Hoosiers whose religious beliefs “direct them to obtain abortions in situations” prohibited by Senate Enrolled Act 1 — the near-total abortion ban — and “who need, or will need, to obtain an abortion and who are not, or will not be, able to obtain an abortion because of the Act.”

Rokita’s office is appealing the injunction and the class action certification.

Both parties have since asked for a pause on the underlying lawsuit. The Marion County Superior Court granted the motion in a brief ruling earlier this month.

That separate appeal of the preliminary injunction is set for oral argument in the Indiana Court of Appeals on Sept. 12.

Indiana Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: info@indianacapitalchronicle.com.