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By Marilyn Odendahl

The Indiana Citizen

August 23, 2023

With the Indiana Supreme Court’s decision to turn down a petition to rehear a challenge to the state’s near-total abortion ban, the Hoosier state is now considered to have some of the most restrictive abortion laws in the country.

On Monday, a split Supreme Court denied a request to reconsider its June ruling that found under the Indiana Constitution, the legislature can prohibit abortions that are “unnecessary to protect a woman’s life or health.” The plaintiffs in the lawsuit – Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al., 22S-PL-00338 – wanted the justices to continue blocking the law while the trial reviewed a motion for a narrower preliminary injunction focused on women’s health.

However, with a majority of the justices denying the plaintiffs’ petition, the abortion law passed by the Indiana General Assembly in 2022, weeks after the U.S. Supreme Court overturned Roe v. Wade, will now take effect.

Reaction to the Indiana Supreme Court’s ruling was swift and sharply divided.

Indiana Right to Life President and CEO Mike Fichter hailed the decision.

“Today’s closing of all abortion clinics is a victory for unborn babies throughout Indiana,” Fichter said in a statement. “Our state is sending a message to the rest of the nation that when we stand together with love and compassion in protecting unborn babies and supporting pregnant mothers, we save lives, improve lives and support a national culture that values life.”

The American Civil Liberties Union of Indiana, which represented the plaintiffs in the constitutional challenge, posted a statement on X (formerly Twitter) predicting harsh consequences for Hoosiers.

“We have seen the horrifying impact of bans like this across the country, and this extreme ban will undoubtedly put Hoosiers’ lives at risk,” the ACLU of Indiana stated.

As of Aug. 1, Planned Parenthood clinics in Indiana had stopped providing abortion services. In a statement released Monday, Rebecca Gibron, CEO for Planned Parenthood of Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., reiterated her organization is continuing to provide medical care.

“Patients across Indiana and the region are already suffering from this abortion ban,” Gibron said in a statement. “… Let us be clear: whether you’re white, Black, brown, or Indigenous – whether you’re straight, gay or trans – whether you have health insurance or you’re uninsured – Planned Parenthood will never back down, not now, not ever, from fighting for  and providing you the care you need.”

During a special session last summer, the Indiana General Assembly crafted and passed Indiana’s new abortion law, Senate Enrolled Act 1. Gov. Eric Holcomb signed it into law on Aug. 5, 2022. The statute allows abortion only if the pregnancy is the result of rape or incest, poses a serious health risk to the woman or if the fetus has a lethal fetal anomaly.

The Guttmacher Institute, a national nonprofit focused on reproductive rights, now ranks Indiana as one of 16 states with the “most restrictive” abortion laws in the nation. Neighboring Kentucky is also listed as having the “most restrictive” abortion prohibitions. Ohio and Michigan are described as “restrictive” and “some restrictions/protections,” respectively.

In Illinois, abortion is permitted until the fetus is viable, which occurs about the 24^th or 26^th week of pregnancy.

Abortion proponents have been challenging abortion restrictions in Kentucky, Ohio and Michigan.

They have had the most success in Ohio and Michigan. The Buckeye State’s ban on abortion after six weeks of pregnancy has been blocked and is awaiting a review in September by the Ohio Supreme Court. Also, abortion supporters have not only collected enough signatures to put a measure on the November ballot that would secure abortion rights in the state’s constitution but also beat back an attempt to make amending the Ohio Constitution more difficult.

Last November, Michigan voters tossed from their state’s constitution an abortion ban that dated back to 1931. In April, Gov. Gretchen Whitmer signed into law a bill that repealed the 1931 ban preventing it from ever being put back into the Michigan Constitution.

Kentucky proponents have seen mixed results. An attempt to enshrine abortion prohibitions into the Kentucky Constitution was defeated by voters in November 2022; but the Kentucky Supreme Court turned back a challenge in February to the commonwealth’s anti-abortion “trigger ban” and “heartbeat ban.”

Even as it overturned the preliminary injunction blocking SEA 1, the Indiana Supreme Court found 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 justices found the lawsuit was too broad and the plaintiffs had not shown any likelihood of success in proving the enforcement of SEA 1 in all circumstances would violate the state constitution.

The plaintiffs argued the Supreme Court should rehear the case and allow the preliminary injunction to remain in place so they could return to the trial court and seek another preliminary injunction focused on the abortion rights protected by Article 1, Section 1.

Chief Justice Loretta Rush agreed with the majority’s decision to deny the rehearing.

“There is simply no sound legal basis for an interim injunction that is even broader than the relief Plaintiffs intend to pursue in the trial court,” Rush wrote in her concurring opinion.

Still she saw a potential for harm in letting SEA 1 take effect.

“…I am deeply concerned about Senate Bill 1’s impact on Hoosier women’s constitutional right to seek medical care that is necessary to protect their life or to protect them from a serious health risk,” Rush wrote. “And I am likewise concerned about the law’s impact on healthcare providers who must determine whether to provide that care and potentially expose themselves to criminal penalties and professional sanctions.”

As he did in the June decision, Justice Christopher Goff dissented from the denial of the petition. He urged his colleagues to block SEA 1, asserting the health exception in the law does not extend to psychological or emotional conditions.

“No one yet knows the precise contours of the life and health protections guaranteed by the Indiana Constitution,” Goff wrote. “But, for the sake of the lives and health of Hoosier women, our healthcare professionals and our justice system need to know as quickly as possible. Having declared the right of a woman to protect her health, this Court should not now let that right go unprotected.”

Goff explained he would enjoin the state from enforcing SEA 1 in circumstances where a physician has determined in good faith that an abortion is medically necessary. He would have limited the revised injunction to 60 days to give the trial court time to hear arguments and render a ruling.

“Maintaining this restriction for now would provide the added benefit of preserving a stable legal environment for women, healthcare providers, and law enforcement,” Goff wrote.