Near-total abortion ban reinstated: Legislative, court action likely to continue challenges to state law

The Indiana Supreme Court waited until the last day of June to deliver one of its most highly anticipated opinions in recent years, vacating a preliminary injunction against the state’s near-total abortion ban and reinstating the law.

The high court upheld the abortion ban on constitutional liberty grounds in its opinion penned by its newest member, Justice Derek Molter.

The split opinion had Chief Justice Loretta Rush and Justice Mark Massa concurring with the majority opinion, Justice Geoffrey Slaughter concurring in the judgment with a separate opinion and Justice Christopher Goff concurring in part and dissenting with a separate opinion.

The court found that the record didn’t support the preliminary injunction, which was based on the guarantee of “liberty” in Article 1, Section 1 of the Indiana Constitution.

“… Section 1 generally permits the General Assembly to prohibit abortions which are unnecessary to protect a woman’s life or health, so long as the legislation complies with the constitutional limits that apply to all legislation, such as those limiting legislation to a proper exercise of the police power and providing privileges and immunities equally,” Molter wrote. “Because the State can enforce Senate Bill 1 (the abortion law) within those constitutional parameters, Plaintiffs have failed to show a reasonable likelihood of success on the merits of their facial challenge.”

Indiana University Maurer School of Law professor Jody Madeira said the case is one she plans to dissect with her students.

“I do think that the court was trying to give more clarity and then paradoxically ended up giving less,” Madeira said.

She pointed to Goff’s partial dissent, which opined that there is a likely qualified right to bodily autonomy under Article 1, Section 1 of Indiana’s Constitution.

“But one Republican judge did find this right to liberty and an autonomy out of Article 1, Section 1, and then the court does not,” Madeira said, referencing Owen County Judge Kelsey Hanlon, who issued the preliminary injunction last September. “If there’s only, as many conservative constitutional scholars believe, … one way to interpret the Constitution, why is there this disagreement between the conservative judges in the state?”

Goff concurred with the majority that the plaintiffs have standing to seek injunctive relief and that Article 1, Section 1 of the Indiana Constitution is judicially enforceable.

He disagreed, however, on terminating the trial court’s injunction completely.

“Enforcement of Senate Bill 1 would irreparably harm pregnant women who seek to exercise the choice not to carry a pregnancy to term. As to the balance of the equities and the public interest, I cannot find an abuse of discretion in the trial court maintaining the fifty-year status quo that was mandated by the United States Supreme Court in an effort to balance a woman’s liberty against society’s interest in fetal life,” he wrote.

Goff said he would have affirmed the trial court’s preliminary injunction on the ban and remanded for full development of evidence and arguments on the constitutionality of the statute.

“In the meantime, of course, our colleagues in the General Assembly would be free to consider amending the legislation to account for a woman’s qualified right to bodily autonomy or to begin the process of a constitutional referendum,” Goff wrote.

Sen. Sue Glick, R-LaGrange, authored the law, Senate Enrolled Act 1, which bans abortion except if the life or health of the mother is at risk, if there is a lethal fetal anomaly up to 20 weeks postfertilization, and in cases of rape or incest up to 10 weeks.

“We thought that with the legislation we had reached a point where that was something that could pass the Legislature and was acceptable to the vast majority of Hoosiers, so that’s what we did,” Glick told Indiana Lawyer. “We (tried to) find that part, that place, where it’s acceptable to the vast majority of the people, and I think that’s what we did during the (2022) special session.”

In a statement emailed to Indiana Lawyer, House Minority Leader Phil GiaQuinta, D-Fort Wayne, pointed to a specific portion of Goff’s dissent.

“Writing in his dissent for the 4-1 decision, state Supreme Court Justice Christopher Goff discussed a ballot referendum to let Hoosiers decide abortion policy. Rep. Sue Errington, D-Muncie, proposed the same idea during the 2022 special session,” GiaQuinta wrote. “House Republicans voted down the amendment 68-32 because they know what we know; their unpopular, near-total abortion ban could not pass as a public question with a majority of Hoosiers supporting access to safe and legal reproductive healthcare.”

Indiana Attorney General Todd Rokita released a statement the day the opinion was issued celebrating the ruling.

“The Indiana Supreme Court has just upheld the abortion laws passed by the Indiana General Assembly,” Rokita said. “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.”

30 days

There are 30 days from June 30 until the ban goes into effect — the amount of time the parties are given to seek rehearing.

Planned Parenthood locations in Indiana are completely booked ahead of the ban retaking effect, leaders say.

“We’re getting phone calls obviously every day from patients who are overwhelmed, trying to get care, worried about the future and wondering how they’re going to get access to basic, time- sensitive health care,” Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, said. The group was one of the plaintiffs in the challenge to SEA 1.

Gibron said Planned Parenthood has had a 160% increase in surgical abortion care in Indiana, and more than a fourth of those patients have been from Kentucky.

Also, Gibron said more than half of their patients in 2022 were from out of state.

What’s next?

The case has been remanded to the Monroe Circuit Court for further proceedings, but that’s not the end of abortion-related litigation.

Another case currently pending challenges the ban under the Indiana Religious Freedom Restoration Act. The lawsuit, also filed by the American Civil Liberties Union of Indiana on behalf of the plaintiffs, argues the ban infringes on the religious beliefs of the plaintiffs’ faiths.

The ACLU is seeking clarification from the Marion Superior Court in that case, because it granted the preliminary injunction before the case was certified as a class-action suit, according to the Indiana Capital Chronicle.

Oral arguments for the case are set to be held before the Court of Appeals of Indiana on Sept. 12.

As far as possible future legislation, Glick said she is focused issues that relate to why people have abortions, and maternal mortality. She said it’s been found that drug use is one of the many causes of maternal mortality, as well as a general mental health component.

“There are so many ramifications of that kind of loss that the state has to be concerned,” Glick said.

Gibron agreed with Glick that maternal mortality rates are too high.

According to the World Population Review, Indiana ranks third highest in the nation when it comes to maternal mortality, and there are 33 counties without a hospital or OB-GYN.

“With a total abortion ban, we will see a likely 21% increase in the number of pregnancy-related deaths and a 33% increase among Black women,” Gibron opined.

She added that when the ban goes into effect, Hoosiers will most likely go to Illinois or Michigan for abortion access.•