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Little more than six months after the U.S. Supreme Court overturned Roe v. Wade, Indiana’s high court heard arguments Thursday in the case challenging the near-total abortion ban enacted in the state after the federal justices ended the federal right to an abortion.
Indiana Solicitor General Thomas M. Fisher and American Civil Liberties Union of Indiana Legal Director Ken Falk — frequent opponents in abortion and other civil rights-related cases — appeared before the state justices Thursday to argue the case, Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al., 22S-PL-338. The arguments focused on the constitutionality of Senate Enrolled Act 1 under Article 1, Section 1 of the Indiana Constitution.
The Supreme Court courtroom on the third floor of the Indiana Statehouse was nearly filled with media and interested spectators, prompting the court to call for complete silence and decorum before the arguments began. Outside the courtroom, both pro- and anti-abortion advocates waited, some holding signs.
SEA 1 bans abortions in Indiana except in limited cases of rape, incest, fatal fetal anomaly or to protect the life of the mother. Republican Gov. Eric Holcomb signed SEA 1 into law in August after a brief special session of the General Assembly, making Indiana the first state to enact an abortion ban after Roe was overturned via Dobbs v. Jackson Women’s Health Organization.
The ACLU of Indiana and the Planned Parent Federation of America sued to block the law in August, and on Sept. 22 — just seven days after SEA 1 took effect — a trial judge enjoined the law as a violation of Article 1, Section 1.
Indiana Attorney General Todd Rokita, a Republican and staunch anti-abortion advocate, sought emergency transfer to the Indiana Supreme Court, which was granted.
Before the high court on Thursday, Fisher and Falk echoed the arguments that both sides of the case have been advancing since the lawsuit was filed.
State case
Representing the state parties, Fisher described the time that Roe was in effect from January 1973 to June 2022 as a 50-year period of “federal-judicial micromanagement.” He said science supports the argument that abortion ends a life and argued the plaintiffs want to strip the voters of the ability to protect those lives by overturning SEA 1.
The trial court’s injunction was based on the premise that “there is a reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana Constitution and the Plaintiffs will prevail on the merits as to their claims that (SEA) 1 violates Article 1 § 1 of the Indiana Constitution.”
Fisher, however, maintained that the constitution’s definition of “liberty” does not include abortion — nor has it ever. The plaintiffs, he claimed, are essentially asking the court to amend the Indiana Constitution.
Indiana Chief Justice Loretta Rush began the questioning by asking a procedural question: If the justices were to vacate the injunction would that mean SEA 1 is constitutional? In other words, she asked, did the trial court’s entry of an injunction equate to a ruling that the law is unconstitutional?
Fisher answered yes, maintaining the justices would be ruling on the constitutionality of SEA 1. He added that he didn’t know what the issues would be if the case proceeded to trial because it centers on one question: Is there a constitutional right to an abortion?
Looking specifically at Article 1, Section 1 — which provides, in part, that “all people” have the right to “life, liberty, and the pursuit of happiness” — Justices Mark Massa and Geoffrey Slaughter questioned Fisher on the scope of the right to liberty.
Asked whether that section contains unenumerated rights or whether it is judicially enforceable, Fisher argued that Article 1, Section 1 has never been found to be the “only” source of rights. Rather, he said, the constitutional provision has always been paired with a statutory provision and used to aid in statutory interpretation.
Justice Christopher Goff asked why the question of whether Indiana should protect or limit abortion access shouldn’t go to the voters via a referendum. Fisher countered that the question is already in the hands of the voters, who have elected a General Assembly that has a Republican supermajority.
Justice Derek Molter, the court’s newest justice, focused part of his questioning on the facial challenge to all of SEA 1, rather than an as-applied challenge or challenges to certain parts of the law. In response, Fisher noted the plaintiffs want the entire statute “wiped out.”
Returning to that issue on rebuttal, Molter noted that both sides seemed to agree that women have a right to terminate a pregnancy if their lives are in danger. Given that agreement, Molter questioned why the injunction couldn’t be narrowed to enjoin the law so far as it limits that right.
Fisher responded that there had been no presentation on that narrow issue, and Slaughter added that the statute already provides an exception to the ban to protect the life of the mother.
Plaintiffs’ case
For his part, Falk maintained the state’s argument “sanitized” the harm that would be done by SEA 1: Health care would be limited, he said, and women would suffer, some to the point of death.
“Liberty” has meaning, he maintained, and that meaning includes a person’s right to manage the most private parts of their lives. The Indiana Constitution isn’t frozen in time, he added, meaning its values from the 19th century must be applied to the 21st century world.
Picking up on that argument, Rush questioned Falk about his claim that “natural law” provides for the right to an abortion.
The chief pushed back on that theory, noting that there are well-meaning, educated people on both sides of the abortion issue. How could the court decide that one group of those people align their beliefs with “nature” while the other does not?
Falk again pointed to the “values” of Article 1, Section 1, repeating the argument that the right to liberty includes a person’s right to govern the “intensely private” parts of their lives. He gave the example of a law limiting a woman to two children maximum — a law he said would obviously violate the right to liberty.
Massa described the trial court as taking a “shot across the bow” at the drafters of the Indiana Constitution, which were described in the injunction order as having “significant … deficits” in their views of equal rights, particularly the rights for women. Does that mean the court should abandon its traditionally originalist approach to constitutional interpretation? he asked.
Falk said no, again returning to the argument liberty is a core value of the Indiana Constitution, and the concept of liberty must be applied to modern circumstances.
Picking up on that, Slaughter asked if the right to liberty guaranteed the right to take illicit drugs. Falk again said no, insisting that situation was different because there is “nothing more private” than the decision of if and when to have a child.
Slaughter also asked about the state’s interest in protecting fetal life. Falk acknowledged that the Legislature has taken steps to protect fetal rights, but never at the expense of the mother carrying the fetus.
Additionally, Slaughter questioned Falk on standing, given that his clients are health care providers, not pregnant women. Falk maintained his clients have standing because they are being injured by the law, but also because they have third-party standing as well as public standing.
For his part, Goff asked Falk whether the court was “stuck” in 1851, when the Indiana Constitution was ratified, or 1984, when it was amended to provides protections for all “people,” not just all “men.”
Falk repeated his argument that the constitution is not “stuck” in time. Instead, the provisions of the constitution written in the past must be interpreted through a modern lens.
Molter returned to his questions about limiting the injunction when Falk took the podium, giving the example of the Affordable Care Act, which he described as a “massive” piece of legislation.
The ACA has been challenged on narrow grounds, Molter noted, pointing to the Burwell v. Hobby Lobby case that challenged the law’s mandate that employers provide health coverage for contraception. Could that law have been struck down in whole based on that narrow challenge?
Falk said no, and he later agreed that the high court could narrow the scope of the injunction in its final ruling. He maintained throughout the argument, however, that the whole of SEA 1 should be thrown out in favor of restoring the “status quo,” which allows abortions in Indiana up to 20 weeks.
As is customary, the court did not provide a timeframe for when it would rule. The full arguments are available online.
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