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The Office of the Attorney General has filed its response to the American Civil Liberties Union of Indiana’s petition for rehearing in the case against Indiana’s near-total abortion ban, urging the state’s high court to reject a request to keep an injunction against the ban in place, at least temporarily.
The petition filed Monday asks the Indiana Supreme Court to allow the preliminary injunction against the abortion law to remain in place while the plaintiffs continue pursuing injunctive relief in the trial court. The high court in June lifted the injunction against the law, known as Senate Enrolled Act 1.
In its response, the AG’s office calls that request “improper in the extreme.”
“Artificially prolonging an erroneously issued injunction through an exercise of raw judicial power would contravene this Court’s precedents, subvert the purpose of preliminary relief, and undermine the democratic process,” the response, signed by Indiana Solicitor General Thomas M. Fisher, says.
SEA 1 prohibits abortions in Indiana except in limited cases of rape or incest, fatal fetal anomaly, or to protect the life or health of the mother. It had been enjoined since September 2022 when the justices ruled 4-1 in June to lift the injunction.
The law would’ve retaken effect on Aug. 1, but the filing of the petition for rehearing means the court’s June ruling can’t be certified until the question of rehearing is resolved.
The case — Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical licensing Board of Indiana, in their official capacities, et al., 22S-PL-00338 — was remanded back to the Monroe Circuit Court, where the plaintiffs say they will file a “renewed” preliminary injunction motion. They want the first injunction to remain in effect while those efforts play out.
In opposing that request, the state is raising three main points, the first being, “Prolonging an erroneously issued injunction by judicial fiat would contravene precedent and raise serious constitutional issues.”
The response says the Indiana Supreme Court already decided in its June 30 opinion that the plaintiffs weren’t entitled to the relief they are seeking.
“Plaintiffs ask this Court to preserve the preliminary injunction nevertheless,” the response says. “But they cite no authority from this Court or the Court of Appeals holding that an appellate court may refuse to vacate a preliminary injunction after concluding that the trial court exceeded its authority in issuing it.”
Second, the state is arguing the rehearing petition constitutes an improper, prejudicial attempt to short-circuit the process for obtaining injunction relief.
And finally, the state says the petition should be denied because it is a “transparent attempt to delay certification of this court’s opinion and the vacatur of an injunction that should never have been issued in the first place.”
The plaintiffs had argued that leaving the injunction in place would cause minimal harm because Roe v. Wade was law for nearly half a century, but the state says that argument “borders on farcical.”
Katlyn Milligan, a spokesperson for Indiana Attorney General Todd Rokita, issued an emailed statement to the Indiana Lawyer about the rehearing petition.
“On the eve of Indiana’s pro-life law going into effect, the ACLU and Planned Parenthood made a desperate attempt to prevent Indiana from enforcing our own law,” she said. “We responded to this filing immediately and are now waiting for the Court to rule. The ACLU and Planned Parenthood have made their intentions clear — this is just another grab for fundraising dollars.”
As of now, abortion is legal in Indiana up to 20 weeks postfertilization.
Indiana Lawyer has reached out to the ACLU of Indiana for comment on the state’s response.
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