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The Indiana attorney general is attempting to skip a step in the appellate process and take the question of whether the state’s new abortion law is constitutional straight to the Indiana Supreme Court.
In a notice of appeal filed Friday, the state’s top lawyer is seeking a judicial review of the Monroe Circuit Court ruling in Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical Licensing Board of Indiana et al., 53C06-2208-PL-001756, which blocked Senate Enrolled Act 1 from being enforced. The decision, issued Thursday, granted a preliminary injunction on the basis that the near-total abortion ban violated the rights enshrined in Article 1, Section 1, of the Indiana Constitution.
Citing to Indiana Appellate Rule 56(A), Indiana Attorney General Todd Rokita is requesting the Supreme Court accept jurisdiction rather than first going before the Court of Appeals of Indiana.
The justices can take a case over the Court of Appeals. However, the appellate rule notes the skip is for rare case in which the issue “involves a substantial question of law or great public importance and that an emergency exists requiring a speedy determination.”
With the Monroe Circuit order, Indiana’s previous abortion law is in effect. Clinics are resuming abortion care services since women can now obtain the procedure up to 20 weeks of pregnancy.
Jennifer Drobac, professor at Indiana University Robert H. McKinney School of Law, said shortcutting the appeals process will not provide a full airing of the constitutional question.
“To go directly to the Supreme Court of Indiana, really, is to shortcut the process that our judiciary was set up to promote,” Drobac said. “And that is the opportunity for intelligent people to weigh in from a variety of different perspectives so that the highest and last considering court can have all voices, or as many as possible, weigh in on the controversy. If they do directly to the Supreme Court, they’ve cut off their opportunity for intelligent minds to weigh in.”
James Bopp Jr., general counsel for the National Right to Life Committee, declined to comment on the attorney general’s strategy.
“I’ll let him decide how to litigate the case,” Bopp said. “I’m sure he’ll do it as effectively and as expeditiously as they can because lives are going to be taken.”
In its motion for preliminary injunction, the American Civil Liberties Union of Indiana had argued the new law infringed on a woman’s right to privacy. The attorney general countered by asserting neither the text nor history of the state’s constitution supported the plaintiffs’ stance.
Special Judge Kelsey Hanlon has been seen as taking a broad view. She found the new restrictions violated on the Indiana Constitution’s guarantee of the right to liberty.
“Regardless of whether the right is framed as a privacy right, a right to bodily autonomy, a right of self-determination, a bundle of liberty rights, or by some other appellation, there is a reasonable likelihood that decisions about family planning, including decisions about whether to carry a pregnancy to term – are included (in) Article I, Section 1’s protections,” Hanlon wrote.
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