INDIANAPOLIS (Indiana Capital Chronicle) – The Indiana Supreme Court on Monday denied a request to rehear its ruling upholding the state’s near-total abortion ban.

The ruling was certified on the court docket Monday afternoon, meaning the new law — which prohibits the procedure with few exceptions — immediately takes effect. Abortions can now only be performed in hospitals under very narrow circumstances.

In a split, 4-1 decision, high court justices reaffirmed in their order that Planned Parenthood and other health care providers “cannot show a reasonable likelihood of success” with their challenge to the abortion restrictions because there are cases in which the ban could be constitutionally enforced.

Chief Justice Loretta H. Rush, who concurred with the ruling, reiterated in her own opinion that Indiana’s Constitution grants a woman’s right to terminate a pregnancy “to protect her life or to protect her from a serious health risk … under circumstances that extend beyond the current law.”

“Given that possibility, 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. 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,” Rush wrote in her opinion. “But Plaintiffs have not properly put these concerns before us.”

Individual court challenges based on specific cases will now likely head to court as conflicts arise.

Justices close the matter — for now

Rush said the original injunction — which prevented the near-total abortion ban from being enforced in its entirety — was improper, and that “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.”

She added that, “for good reason,” the judicial system requires those challenging the law to first seek narrower relief in the trial court, which unlike the state Supreme Court, “can receive and weigh competing evidence, including expert testimony.”

But Justice Christopher M. Goff dissented, writing in a separate opinion that he would rather leave a revised statewide injunction in place, preventing the ban from being enforced “in circumstances where a physician has determined in good faith that an abortion is medically necessary.”

“This would be for a limited time — perhaps 60 days — so the trial court can hear arguments and evidence and consider whether to enter a new injunction,” Goff wrote. “Maintaining this restriction for now would provide the added benefit of preserving a stable legal environment for women, healthcare providers, and law enforcement.”

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.

Goff, who also dissented in the June ruling, said the new abortion restrictions do not prohibit the procedure when necessary “to prevent death or a serious risk of substantial and irreversible physical impairment of a major bodily function.”

But the justice noted that the exception does not include psychological or emotional conditions, including instances in which a woman shows signs that she intends to hurt herself.

Goff contended that the law, as written, does not allow abortions in response to:

• conditions that cause serious pain, suffering, or disability without irreversible impairment
• severe psychiatric illnesses, which may require medication that can’t be taken during pregnancy
• psychiatric issues that may lead to suicide or self harm

“These are all potentially severe medical problems. And seeking medically necessary treatment for them likely falls within the ambit of the constitutional right to protect one’s life and health,” Goff wrote. “Unless our colleagues in the General Assembly act to address these deficiencies, the State must be enjoined from enforcing Senate Bill 1 in ways that prevent women from seeking necessary medical aid.”

“No one yet knows the precise contours of the life and health protections guaranteed by the Indiana Constitution,” he continued. “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.”

What happens next

In a similar split, 4-1 decision in June, the high court nixed a preliminary injunction that has kept the ban on hold since September. An injunction issued in a separate religious freedom challenge to the ban only applies to the plaintiffs in that case. The separate matter is continuing to play out in the Court of Appeals.

The American Civil Liberties Union (ACLU) of Indiana, Planned Parenthood and the other plaintiffs that challenged the law in the constitutional case had 30 days after the Indiana Supreme Court’s June ruling to seek a rehearing, before the decision was certified. In the meantime, that put the ban on hold. Rehearings are rarely granted, though.

Justices left open the possibility for other challenges in the future, however.

“Today is a dark day in Indiana’s history, as a near-total abortion ban takes effect. We have seen the horrifying impact of bans like this across the country, and the narrow exceptions included in this extreme ban will undoubtedly put Hoosiers’ lives at risk,” ACLU of Indiana executive director Jane Henegar said Monday in a statement. “We will continue to fight in court to clarify and expand upon the current exceptions. Every person should have the fundamental freedom to control their own body and politicians’ personal opinions should play no part in this personal decision.”

Indiana Attorney General Todd Rokita, on the other hand, said the high court’s decision “is great news for Hoosier life and liberty.”

“My office promised to defend Indiana’s pro-life law, and we have done that every step of the way. Today, the Indiana Supreme Court certified its opinion rejecting a constitutional challenge to Indiana’s pro-life law, which protects the lives of innocent, unborn babies,” Rokita said Monday. “We defeated the pro-death advocates who try to interject their views in a state that clearly voted for life.”

Medical providers across the state had already stopped providing abortion care services altogether. Patients are instead being referred to clinics outside the state.

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 2022 by the ACLU 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.

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.