Indiana’s abortion ban is set to take effect in three days. While a majority of the Indiana General Assembly voted for Senate Enrolled Act 1, and Gov. Eric Holcomb signed it into law, it’s the subject of two lawsuits refuting its legality.
The first, filed by Planned Parenthood and the American Civil Liberties Union of Indiana Aug. 30 in the Monroe County Circuit Court, claims SEA 1 violates the right to privacy and equal privileges protections in the Indiana Constitution.
“We set out to pass a bill in the special session that would protect life and support mothers and babies, and that’s what we did,” Senate President Pro Tem Rodric Bray, R-Martinsville, said in a statement to The Statehouse File. “It was always our intent to draft a bill that could withstand a constitutional challenge, and I hope to see that will be the case.”
Abortion will be available with limited exceptions up to the 22nd week of pregnancy, but on Thursday, abortion after conception will become illegal—except in cases of rape, incest and if “the abortion is necessary to prevent any serious health risk of the pregnant woman or to save the pregnant woman’s life.”
The lawsuit that invokes RFRA specifically mentions Judaism, Islam, Unitarian Universalism, Paganism and the Episcopal Church as having beliefs that allow for abortions in certain cases the law wouldn’t allow.
“Jewish law recognizes that abortions may occur, and should occur as a religious matter, under circumstances not allowed by S.E.A. 1 or existing Indiana law,” the lawsuit states.
RFRA and similar laws in 20 other states as well as the federal government are seen as defending conservative religious views, said Jody Madeiras, law professor at Indiana University.
Madeiras said the ACLU is using RFRA to fight against a “moral principle” being forced through SEA 1, while typically the act relieves people of performing an action, like a baker not wanting to make a wedding cake for a same-sex couple on religious grounds.
The “moral principle” in question is that life begins at conception. Madeiras said the lawsuit is arguing that by defining when human life begins, certain people’s religious freedom is being infringed upon.
“[The state] would basically say that the health, safety and welfare powers allow them to define life and fertilization. Any religious claims counter to that must fail because what they’re doing is regulating health,” Madeiras said.
The first lawsuit makes a more historically prevalent argument, saying there’s a right to privacy—like in Roe v. Wade.
“The Indiana Constitution has been interpreted throughout the years as protecting privacy,” said Ken Falk, the Indiana ACLU’s legal director. “In fact, the Indiana Court of Appeals, in a case, … actually held that article I, section I protected privacy when it came to abortion.”
The case went to the state’s supreme court, which decided, “We’re not going to decide whether or not there’s a right to privacy in the Indiana Constitution, because … if there is, it’s no broader than what was then the federal right and therefore we don’t need to interpret it separately,” Falk said.
In Indiana Constitutional Developments: Laches, Sentences, and Privacy, Jon Laramore, currently executive director of Indiana Legal Services, wrote, “The Indiana Supreme Court began its analysis of the statute by noting that no right to privacy has previously been found in the Indiana Constitution. Defending the statute, attorneys for the State argued that the Indiana Constitution contains no such right. The State went further, arguing that article I, section 1 contains no judicially enforceable rights. The court did not decide whether article I, section 1 contains privacy protections.”
Planned Parenthood and the Indiana ACLU also argued SEA 1 violates the Equal Privileges and Immunities Clause of the state’s constitution by not allowing abortion centers to perform abortions.
The lawsuit says it “discriminates against abortion providers in violation of Article 1, section 23 by establishing that all abortion care must occur at a licensed hospital or ASC majority-owned by a licensed hospital.”
The judges presiding over the lawsuits could file an injunction, pausing the implementation of the law.
Madieras said she thinks even the weakest argument in the Indiana constitution lawsuit could be enough to win an injunction and described the RFRA lawsuit as “almost entirely untested,” stating legal scholars disagree on how effective such arguments will be.
