INDIANAPOLIS (Indiana Capital Chronicle): Indiana’s near-total abortion ban that 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.
In a split decision, the high court nixed a preliminary injunction that has kept the ban on-hold since September.
Justices opined that the plaintiffs — which included Planned Parenthood and multiple other health care providers — unsuccessfully brought a “facial” challenge to the entire law, alleging that the abortion ban is always unconstitutional and should therefore be voided.
The state Supreme Court said the providers “cannot show a reasonable likelihood of success” with that challenge, however.
” … 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.
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.
With the new ruling, however, the abortion ban once again takes effect.
The Republican-dominated Indiana General Assembly advanced the abortion-restricting measure during a heated, two-week special session last August.
That 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.
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 American Civil Liberties Union (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.”
The Indiana Attorney General’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.
