Trial court rules abortion ban violates state constitution

The ruling that blocked Indiana’s new abortion law brought a mix of reactions, the reopening of abortion clinics, a pledge to appeal and an indication that the fight over reproductive rights could be long and messy.

In a Sept. 22 order, Special Judge Kelsey Hanlon enjoined enforcement of Senate Enrolled Act 1, finding the state’s near-total abortion ban violated women’s right to privacy as guaranteed by Article 1, Section 1 of the Indiana Constitution. However, she pointed out the debate around how and when to end a pregnancy invokes complex and adverse concerns that will not be easily resolved.

“Abortion continues to be a legally and morally fraught issue presenting challenges to both legislatures and courts when balancing constitutional protection of bodily autonomy of women and girls and the policy considers of maternal health and protection of fetal life,” Hanlon wrote.

The decision was handed down in the first lawsuit filed challenging the new abortion law, Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical Licensing Board of Indiana, et al., 53C06-2208-PL-001756. In response, Indiana Attorney General Todd Rokita said his office would be appealing. The notice of appeal was filed Sept. 23.

Democrats in the Indiana General Assembly, who unanimously opposed SEA 1, applauded the Monroe Circuit Court’s order. Republican lawmakers did not issue any statements.

Within the legal community, some reactions illuminated the stark differences over the issue.

Jennifer Drobac, professor at Indiana University Robert H. McKinney School of Law, described Hanlon’s 16-page ruling as a “mini-treatise on freedom.” She said the judge looked beyond the privacy argument the plaintiffs raised and held liberty rights are the central issue.

“This is so much broader than just the right of women to access medical care and abortion,” Drobac said. “It is an affirmation of liberty and bodily integrity of all Hoosiers. This is an opinion for all of us.”

However, James Bopp Jr., an Indiana lawyer and general counsel for the National Right to Life Committee, called the decision “classic liberal judicial activism at work.” He characterized the court’s reasoning as finding “secret code words” in the state’s constitution in an effort to support abortion.

“It’s really preposterous to think that in 1851, when Indiana’s Constitution was written, that the abolitionists that dominated that convention would have been secretly sneakily legalizing abortion on-demand throughout pregnancy by any of its provisions,” Bopp said. “That’s just absurd.”

With the order, Indiana law returns to the previous abortion statute, which allows women up to 20 weeks postfertilization to end their pregnancies. Whole Women’s Health of South Bend and Planned Parenthood said their clinics would be resuming abortion care.

Origins of the ruling: Hanlon’s decision was issued in response to a motion for preliminary injunction filed by the plaintiffs’ attorney, the American Civil Liberties Union of Indiana. That motion led to the first oral argument on SEA 1 which took place Sept. 19. Hanlon opened the hearing by asking the opposing parties if the state’s constitution included a right to privacy.

The ACLU of Indiana argued in its brief that Article 1, Section of the Indiana Constitution confers on Hoosiers “the freedom to live their private lives as they see fit, without unnecessary government interference.” As a consequence, the right to privacy is a “core value protected by the Constitution that is independently judicially enforceable and includes the right to abortion.”

The attorney general maintained no text or history supported the plaintiffs’ contention and Article 1, Section 1 “does not confer any judicially enforceable rights, let alone a right to abortion. The constitutional text nowhere mentions abortion as a protected right, and Indiana history demonstrates abortion was regarded as criminal — not a cherished core value.”

Previous denial: In a single-page ruling issued Sept. 15, the day the new abortion law took effect, the Monroe Circuit Court denied the plaintiffs’ motion for a temporary restraining order. The plaintiffs had hoped to prevent the law from being enforced until the court ruled on their motion for preliminary injunction.

No private counsel: The Marion County Prosecutor’s Office had attempted to retain private counsel to represent its interest in the constitutional challenge to SEA 1. SmithAmundsen partners Linda Pence and Suzannah Overholt filed an appearance with the Monroe Circuit Court.

Rokita’s office responded with a motion to strike. The state’s top lawyer asserted local prosecutors are state officers and, under Indiana Code § 4-6-2-1(a), the attorney general shall “defend all suits brought against the state officers in their official relations.”

Marion County Prosecutor Ryan Mears countered I.C. 4-6-2-1.5 grants state officials the ability to select their own counsel without having to get consent from the attorney general. Moreover, he argued the attorney general would not represent his view that the new abortion law “beats down the poorest women and intimidates doctors who are simply trying to provide routine care and treatment.”

The Monroe Circuit Court ruled in favor of the attorney general and struck the appearances of Pence and Overholt.

Substantial burden: Another lawsuit challenging SEA 1 is moving through Marion Superior Court. The complaint in Anonymous Plaintiff 1, et al. v. Individual Members of the Medical Licensing Board of Indiana, et al., 49D01-2209-PL-031056, asserts the new abortion law violates Indiana’s Religious Freedom Restoration Act.

Mirroring the action in Monroe Circuit Court, the ACLU of Indiana, which is representing the plaintiffs, has filed a motion for preliminary injunction in Marion Superior Court.

In its brief, the ACLU argues SEA 1 contradicts the doctrines of many religions and religious beliefs, including Judaism and Unitarian Universalism, that allow women to terminate their pregnancies. While a right to obtain an abortion no longer exists under the U.S. Constitution, Indiana’s Religious Freedom Restoration Act provides that right because being denied reproductive choice imposes a substantial burden on the plaintiffs’ religious exercise, the brief argues.

The state’s interest in protecting potential life “is not strong enough to overcome plaintiffs’ rights, protected by RFRA, to obtain an abortion, at least previability, when the abortion is directed by their religious beliefs,” the ACLU argues.

Change of course: The private counsel hired by the Marion County prosecutor filed a motion to withdraw their appearance, which the Marion Superior Court granted Sept. 21.

Pence and Overholt had filed an appearance with the Marion Superior Court on Sept. 16. Rokita’s office filed a motion to strike, which cited in part to the ruling from Monroe Circuit Court striking the appearances of the private attorneys.

In its withdrawal motion, the prosecutor stated that while the Indiana attorney general will not represent the Marion County prosecutor’s interests, Mears requested the attorneys withdraw their appearances so as “not to delay
the litigation.”

Class certification: The ACLU of Indiana is seeking a class certification for its RFRA lawsuit. The religious views expressed by the plaintiffs are “well-accepted” within their respective religions. Arguing the requirements of Indiana Trial Rule 23 are met, the ACLU maintained, in part, that the class is sufficiently numerous and that there are questions of law or fact common to the class.

“… (N)o class member will be injured if plaintiffs prevail,” the motion for class certification states. “Rather, all class members will benefit from a favorable judgment in this case.”

The defendants had not responded to the complaint or class certification motion at Indiana Lawyer deadline. Marion Superior Judge Heather Welch has granted a motion for enlargement of time giving the defendants until Nov. 2 to respond to the complaint.•