Local, state leaders react to IN Supreme Court vacating injunction against near-total abortion ban

IL file photo

Editor’s note: This article has been updated.

The Indiana Supreme Court has vacated the preliminary injunction against the state’s controversial near-total abortion ban, reinstating the law that bans abortion except in three narrow circumstances.

Justice Derek Molter, the court’s most junior justice, wrote the Friday opinion in Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, et al., 22S-PL-338.

Chief Justice Loretta Rush and Justice Mark Massa concurred in full. Justice Geoffrey Slaughter concurred in the judgment, while Justice Christopher Goff concurred and dissented in part. Slaughter and Goff each penned their own opinions.

Passed as part of a special legislative session last August, Senate Enrolled Act 1 bans abortion in Indiana except in limited cases of rape or incest, fatal fetal anomaly, or to protect the life or health of the mother.

The law took effect Sept. 15, 2022, but was preliminarily enjoined one week later after Special Judge Kelsey Hanlon found the plaintiffs were likely to prevail on their claim that SEA 1 violates women’s right to privacy under Article 1, Section 1 of the Indiana Constitution.

At oral arguments in January, the state urged the justices to overturn the injunction, arguing the right to “liberty” in the Indiana Constitution does not include the right to an abortion.

Conversely, the plaintiffs, including Planned Parenthood, argued “liberty” has a definable meaning that includes a person’s right to manage the most personal aspect of their lives — including deciding when and if to have a child.

In vacating the preliminary injunction, Molter wrote, “We first hold that the (abortion) providers have standing to contest the constitutionality of Senate Bill 1 because the statute criminalizes their work, and thus they fact the sort of imminent, direct, personal injury our standing doctrine requires. Then, after examining Article 1, Section 1’s text, history, structure, and purpose, as well as our prior case law interpreting the provision, we hold that it is judicially enforceable. Finally, we hold that Article 1, Section 1 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.”

He continued, “Based on these holdings, we conclude the record does not support the preliminary injunction. The providers brought a ‘facial’ challenge to the entire law, so they had to show a reasonable likelihood of success in proving there are no circumstances in which any part of Senate Bill 1 could ever be enforced consistent with Article 1, Section 1.

“Because there are such circumstances, the providers cannot show a reasonable likelihood of success on their facial challenge. We therefore vacate the preliminary injunction.”

The case was remanded for further proceedings.

Following are reactions to the Supreme Court’s decision that were sent to Indiana Lawyer by our deadline:

Indiana Attorney General Todd Rokita: “The Indiana Supreme Court has just upheld the abortion laws passed by the Indiana General Assembly. We celebrate this day — one long in coming, but morally justified. Thank you to all the warriors who have fought for this day that upholds LIFE.” 

Indiana Black Legislative Caucus
Rep. Earl Harris Jr., D-East Chicago, chair: “This decision from the state Supreme Court is disheartening, but I and my colleagues remain committed to helping every Hoosier — regardless of gender, race or income — access the health care that is best for themselves and their families, and to ensure that women are not second-class citizens in Indiana.”

Rep. Carolyn Jackson, D-Hammond, vice chair: “This is a dark day for Indiana. Last summer, we heard from countless women and health care providers about how access to safe and legal abortions saves lives, the health of women and allows countless women to remain active members of society and the workforce. With the ban now in effect, I’m terrified to think about the effect this will have on women, girls and public health outcomes in Indiana. We cannot forget that this near-total abortion ban will disproportionally impact African American women and women of color. Indiana already has the third highest rate of maternal mortality in the nation, and the rates for Black women are much higher than the average rate for Hoosier women overall. We simply cannot afford to do anything that will put pregnant Hoosier women at greater risk for health complications, and yet, here we are. We in the House Democratic Caucus and the IBLC will continue to do everything in our power to reinstate bodily autonomy for Hoosier women and girls. The right to control one’s own body is the right to control one’s own destiny,”

Indiana House Democrats
Rep. John Bartlett, D-Indianapolis: “What an unbelievably sad day for Indiana. This is simply a form of bigotry against women. Last summer during the special session, I offered an amendment restricting certain health care treatments for men in the hopes my Republican colleagues would see how egregious it is to legislate health care. They quickly voted it down, yet proceeded to tell Hoosier women and girls what they can and cannot do with their bodies. Even with the narrow exceptions for survivors of rape and incest, health care professionals told us repeatedly that 10 weeks is not enough time, especially for child survivors in need of health care. This policy is not pro-life, it is anti-woman, and it puts our already most vulnerable populations at increased risk of harm. This is shameful.”

Rep. Maureen Bauer, D-South Bend: “The ruling from Indiana’s Supreme Court today allows the GOP near-total abortion ban to now go into effect, undoing decades of progress for the rights of women. As we heard through the hours of testimony last summer, abortion is necessary, medical health care. This policy strips women and girls of their fundamental right to bodily autonomy. To all the women and girls who are left feeling afraid and helpless after today’s ruling: My fellow House Democrats and I will continue to work to restore your right as an Indiana resident to have power over your own health and future.”

Rep. Chris Campbell, D-West Lafayette: “The Indiana Supreme Court’s decision this morning has reversed over 50 years of freedom, liberty, and bodily autonomy for Hoosier women. This strips them of their personal dignity to make their own, private medical decisions. Having a child is potentially the most serious choice individuals and families can make during their lives. No matter what, I remain committed to fighting for freedom of choice.”

Rep. Sue Errington, D-Muncie: “Today I am disheartened, today I am upset, today I am disappointed. With the Indiana Supreme Court’s decision to uphold the Indiana GOP’s near-total abortion ban, the state endangers the lives and safety of Hoosier women. This ban will not stop abortions, only safe and legal ones. For decades, I have fought for the rights of women. I was part of the generation that fought to legalize abortion with Roe, and I will fight to make it legal again. For the mothers, sisters, daughters, aunts and so many more that this will affect, I am here, and I stand with you.”

House Minority Leader Phil GiaQuinta, D-Fort Wayne: “This is a tremendously sad day for Hoosiers, but House Democrats will continue to fight for the fundamental right of women and girls to control their own destinies. Throughout the course of the 2022 special session, we heard countless women testify that access to abortion allowed them to do the right thing for themselves and their families. Abortion is a serious and emotional matter, and I believe firmly that it is an issue best left to a woman and her doctor, not politicians. The Indiana Republican abortion ban won’t stop abortions, it will simply ban access to safe abortions. Hoosiers don’t want this future for Hoosier women and girls. While today’s decision is disheartening, the fight to secure access to safe and legal reproductive health care has just begun. With the Republican’s near-total abortion ban now in effect, we will soon see the full scope of the devastation it will bring to Hoosier women and families. The House Democratic Caucus will continue to fight to reinstate a woman’s right to own her own body.”

Rep. Carey Hamilton, D-Indianapolis: “My heart breaks today as the Supreme Court in my beloved state of Indiana has ruled that the GOP’s near-total abortion ban can now go into effect. Indiana joins those states that have chosen to take fundamental health care rights away from women following the Dobbs decision last year. As a woman in leadership within the Indiana House Democratic Caucus, I make this promise to all women and girls: this is not the end. My fellow Democrats and I will fight to reinstate the basic right of a woman to make private choices regarding their health.”

Rep. Blake Johnson, D-Indianapolis: “Today, the Indiana Supreme Court had the opportunity to serve as an important check against an extreme, supermajority agenda that threatens the rights and lives of Hoosier women. They have abdicated that responsibility. My colleagues and I will continue fighting against these laws that suggest one group is guaranteed rights while others are not.” 

Rep. Kyle Miller, D-Fort Wayne: “While I wasn’t in the legislature last summer when the Indiana Republican near-total abortion ban was rushed through by the majority party, I know that this decision from the Indiana Supreme Court will have huge negative impacts for Hoosier women, girls and families. I’m disappointed in the court’s ruling, which threatens the futures of Indiana women and girls. The freedom to own your own body is fundamental to carving out your own future, and the House Democratic Caucus remains committed to fighting for that right for women. I eagerly await word on how the other, religious-based challenge in the court pans out.”

Rep. Cherrish Pryor, D-Indianapolis: “Today, my heart is with the women who bravely shared their stories last summer, highlighting the crucial need for abortion access in our state, as well as every woman and girl in Indiana who have now been told that they have no authority over their own bodies. Abortion is health care, plain and simple, and this decision will cost women — disproportionally Black women, women from low-income households and women facing domestic violence — their long-term health, and in some tragic cases, their lives. As we take time to mourn this loss of human rights in Indiana, the House Democratic Caucus will continue to fight for women and girls in Indiana to maintain autonomy over their bodies and health care.”

Rep. Robin Shackleford, D-Indianapolis: “Today, the Indiana Supreme Court decided to affirm a near-total abortion ban that will affect all Hoosiers, especially women of color. Historically, Black women have been mistreated, abused, and ignored in the reproductive health care system. The Indiana near-total abortion ban strips women of their bodily autonomy and will worsen these ongoing issues. One of my biggest struggles with this decision is very simple: the government should not be making health decisions for women. The choice to have an abortion is an extremely personal one that should be left up to a woman and her doctor. It’s a well-known fact that restricting abortions is not an effective way of stopping abortions, it just stops safe abortions. Restricting access to health care poses a direct threat to Hoosier women. To the women of Indiana, I will continue to be your voice and fight for you.”

Rep. Vanessa Summers, D-Indianapolis: “I’m incredibly disappointed in the Supreme Court’s decision, which will ultimately cost Hoosier women their lives. Unfortunately, I’m not surprised. This is Indiana. Science and facts tell us that abortion bans don’t prevent abortions, they prevent safe abortions. Women will always seek to have control over their own bodies, regardless of any bans set in place by a government body. With this ban one step closer from taking effect, we need to be prepared to see an influx of women facing unnecessary medical complications and death from either attempting to end their pregnancies on their own, being forced to wait until they are ‘sick enough’ to warrant a life-saving abortion, or simply not being able to access abortion services.”

Rep. Victoria Garcia Wilburn, D-Fishers: “As a woman who has three children, I understand the complexities of pregnancy.  Many women, including myself, are familiar with the complications surrounding miscarriages and access to swift medical attention to ensure our health. The abortion ban passed into law by the Indiana General Assembly in no way reflects the totality of Hoosiers’ views on abortion. Without a balanced legislature, Hoosiers are subjected to one party’s fringe elements and Indiana pays the price.”

Indiana Senate Democrats
Sen. J.D. Ford, D-Indianapolis: “On the weekend of Independence Day, the Indiana Supreme Court robbed Hoosier women of independence, autonomy and liberty, undermining the very American ideals we should have been celebrating. Today, women across Indiana have lost the right to determine their own future, the right to privacy and the right to govern their own bodies. Women will not be the only ones who suffer because of shortsighted, radical laws like SEA 1 — the erosion of health care rights for some means an erosion for all. Indiana has doomed itself to an exodus of doctors, nurses and OB-GYNs, all of whom this state needs desperately. Providers will flee Indiana — where their expertise is clearly not respected or welcomed — and all Indiana citizens and families will be left to grapple with a devastating shortage that affects their ability to get even the simplest and most necessary health care. Every single citizen should be furious and worried today: the majority has successfully passed legislation that means your privacy, your body is theirs to control if they wish. They’ve passed this legislation over your protests and despite Hoosiers’ wishes — SEA 1’s ramifications will be severe and long-lasting. I stand beside Hoosier women, beside health care providers and beside every citizen, regardless of faith or political party, who reject this law and will fight tooth and nail to overturn it. I remain hopeful that the RFRA lawsuit will be successful, but the fact remains that every woman should have access to this necessary care and ownership over her own body. I will always fight to ensure the liberty of our citizens. 

Sen. Andrea Hunley, D-Indianapolis: “I condemn, in the strongest possible terms, the Indiana Supreme Court’s ruling and the real damage that will follow the enactment of SEA 1. This abortion ban will inevitably cause damage in all Indiana communities, but the most severe consequences of this law will fall on low-income Hoosiers, Hoosiers of color and other marginalized communities. Everyone should be able to determine their own future and have access to comprehensive healthcare. The rights to life, liberty and privacy should not be bound by gender, skin color or ZIP code—they should be guaranteed to all citizens. The right to an abortion is always guaranteed to Hoosier women with the time, money and connections to seek care outside of the confines of Indiana law. There is no court, no law that can ban abortions — they can only ban the safe administration of abortions and send desperate women to unsafe, underground providers. Abortion laws simply aren’t pro-life — they are only pro-birth. As a Black mother, I understand the unique fear of being pregnant in Indiana, where Black women die at nearly double the already-high rate of white women. I’ve always hoped my daughters would have a better future and more rights than I do — this ruling is a major setback for that dream, for Hoosier women and for our state at large. I will fight tirelessly for every Hoosier to be guaranteed bodily autonomy and full access to affordable, comprehensive health care.”

 Sen. Rodney Pol, D-Chesterton: “I am incredibly disappointed that Indiana’s Supreme Court has allowed SEA 1 to stand. This ruling is going to have incredibly adverse effects on women, increase Indiana’s abysmal maternal mortality rates and drive health care providers out of Indiana. I’m also deeply worried about the precedent set by this ruling — this decision affirms the government’s right to pass sweeping, hyper-intrusive legislation concerning the bodies and lives of individual citizens. If the state is allowed to make a decision this personal and private on behalf of Hoosiers, I don’t know where its authority over us ends. This ruling and this law undermine the core ideals of bodily autonomy, freedom and privacy that Hoosiers hold dear. I’ll continue to work for an Indiana where all citizens are guaranteed liberty and the right to self-determination.”

Sen. Shelli Yoder, D-Bloomington: “I am absolutely heartbroken and furious at the ruling handed down by the Indiana Supreme Court, which upheld all of the worst parts of SB 1. Today, millions of women lost their right to self-determination and were thrust back into the 1970s, a time when they died preventable deaths, sought dangerous and unregulated care, and lacked full access to their own bodies and self-determination. Frankly, I think the Supreme Court has completely failed to contend with the realities of this case: upholding SB 1 means more dead women, more health care deserts and a society where women are nothing more than second-class citizens. This ruling is a legal endorsement of inequality, of brutality and of an America that no longer holds the values of autonomy and justice dear. Quite simply, this legislation is a failure of democracy — Hoosiers want people to have access to this care, but their will was circumvented by a majority controlled by a vocal minority and special interest groups. A woman should not have to be raped or face death to control her body, to exercise her own right to autonomy. To Statehouse Republicans, I’d ask how close to death or how traumatized a woman has to be in order to access her own rights and to receive care. Indiana and its residents deserve more than this radical legislation, which shows little regard for Hoosiers’ voices or wellbeing. To Hoosier women, the fight for reproductive freedom is not over — if a vocal minority can revoke a long-held right, a vocal majority can restore it.”

Indiana Senate President Pro Tempore Rodric Bray, R-Martinsville: “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. It was always our intent to draft a bill that could withstand a constitutional challenge, and I am grateful to see Indiana’s Supreme Court recognize that the General Assembly has the constitutional authority to protect unborn life in the womb.”

Indianapolis Mayor Joe Hogsett (Democrat): “This ruling is a bad decision that upholds terrible policy, and Indiana women will be less safe as a result. Full access to reproductive health care should be a fundamental right and Hoosier women deserve the autonomy to make these personal decisions with their doctors. Just as I fought against these changes in state law, I will continue to fight at the Statehouse for the restoration of full reproductive health care in Indianapolis.”

Marion County Prosecutor Ryan Mears (Democrat): “Indiana’s ban on abortions strips women of their bodily autonomy and needlessly criminalizes the provision of safe medical care. At a time when law enforcement should be focused on violent crime, this law — which has zero nexus to public safety — encourages unnecessary, intrusive, and unjust investigations targeting private health care decisions.”

The Lawyering Project, All-Options, Women’s Med, Planned Parenthood Federation of America, Planned Parenthood Great Northwest, Hawai’i Alaska, Indiana, Kentucky, and American Civil Liberties Union of Indiana “We are devastated by the Indiana Supreme Court’s ruling today which will deprive more than 1.5 million people in Indiana — particularly Black, Latino, and Indigenous people, people with low incomes, and LGBTQ+ people, who already face the most challenges when seeking medical care — of life-saving, essential health care. Now, patients will be forced either to flee the state to access abortion if they have the means, seek abortion outside of the health care system, or carry pregnancies against their will with profound medical risk and life-altering consequences. Despite this setback, we’ll keep fighting to restore reproductive rights in Indiana and to help Hoosiers get access to the services they need. Today’s decision is not the end of our fight for equitable, compassionate care in Indiana, or the patients in surrounding states who rely on Indiana for access to abortion.”