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The Marion Superior Court has declined to provide clarity on who is covered under a temporary injunction entered against the state’s near-total abortion ban on religious freedom grounds.
Marion Superior Judge Heather Welch on Monday issued an order denying the plaintiffs’ motion to clarify the scope of the preliminary injunction, finding she lacks subject-matter jurisdiction because the case is up on appeal.
The case in the trial court — Anonymous Plaintiff 1, et. al. v. The Individual Members of the Medical Licensing Board, in their official capacity, et. al., 49D01-2209-PL-031056 — was filed last September, one week before the abortion ban , which prohibits the procedure except in limited cases of rape, incest, fatal fetal anomaly, or to protect the life or health of the mother, was set to take effect.
The lawsuit alleged the ban, known as Senate Enrolled Act 1, violates Indiana’s Religious Freedom Restoration Act. Welch entered a preliminary injunction against SEA 1 last December.
The state filed its notice of appeal in the RFRA case on Dec. 9, 2022, one week after Welch entered the injunction. Welch’s injunction only applied to the plaintiffs, which initially included five anonymous plaintiffs and the group Hoosier Jews for Choice.
Meanwhile, in June, Welch certified the case as a class action. The state is also appealing the class-action certification.
Then in late June, the Indiana Supreme Court lifted a separate injunction against SEA 1. The justices declined to grant rehearing to that case, which raised Indiana constitutional claims, on Monday, allowing the law to take effect statewide.
Shortly after the Supreme Court’s ruling, the American Civil Liberties Union of Indiana in July requested that Welch clarify whether the injunction in the RFRA case applies only to the original plaintiffs or to the entire class.
The state opposed that motion, arguing Welch lacked subject-matter jurisdiction because the case was already before the Court of Appeals of Indiana. The judge agreed.
“Upon review of the Appellate Rules and case law, the Court agrees with the Defendants and finds that the issues raised in Plaintiffs’ Motion to Clarify Preliminary Injunction are currently before the Court of Appeals with oral argument scheduled on December 6, 2023. The Court, therefore, lacks jurisdiction to determine whether to clarify The Court’s Order Granting Plaintiffs’ Motion for Preliminary Injunction and whether it includes all members of the certified class which was issued after the Court’s Order Granting Plaintiffs’ Preliminary Injunction and whether it includes abortion providers,” Welch wrote.
The case is currently set to be heard by a panel of Court of Appeals judges at 10 a.m. on Dec. 6 in the Indiana Supreme Court Courtroom.
The ACLU of Indiana declined to comment on Welch’s order.
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