Indiana judge halts enforcement of abortion ban

BLOOMINGTON, Ind. (CN) — Indiana’s near-total ban on abortions has been temporarily suspended pending a final decision on whether it violates the state’s constitution. 

Monroe County Circuit Court judge Kelsey Hanlon on Thursday issued a preliminary injunction requested by a coalition of local abortion providers, Planned Parenthood and the ACLU in a suit against several state officials. The injunction suspended enforcement of a law, passed in August, which criminalized abortions in Indiana with limited exceptions for rape, incest and serious risks of harm to expectant mothers. 

The law would subject abortion providers who do not comply with its rules to fines of up to $10,000 and felony charges, under which they could be imprisoned for up to six years. 

Those rules permit abortions within 10 weeks of fertilization in cases of rape and incest, along with cases of lethal fetal anomalies and situations where the mother faces lasting harm or death if the fetus is not aborted. Planned Parenthood, the ACLU, abortion providers the Women’s Med Group Professional Corporation, Whole Woman’s Health Alliance, All-Options Inc. and doctor Amy Caldwell argued that the law made abortion procedures unfairly difficult to obtain even when patients qualified for those exceptions, especially since the ban requires that they be performed in hospitals. 

According to a report the state published this year, only a tiny fraction of abortions in Indiana in 2021 were performed in hospitals– just under 1.6%. Over 98% were performed at the plaintiffs’ facilities, all of which would be forbidden from performing abortions under the ban. 

The plaintiffs have also argued that the ban’s life-of-the mother exceptions are too vague, leaving physicians to guess at whether they could face felony charges for performing an abortion. 

Hanlon found that the plaintiffs were likely to succeed on one of their constitutional claims, under the state constitution’s privacy guarantee, but not on claims that the ban discriminates against abortion providers under the constitution’s guarantee of equal privileges and immunities.

"Even if S.B. 1 is viewed as treating abortion clinics... differently from and less favorably than hospitals and ASCs [ambulatory outpatient surgical centers], any differential treatment would be reasonably related to inherent characteristics that distinguish those classes. Post-Dobbs, and absent protection of abortion by the Indiana Constitution...there is no requirement that the State codify and recognize abortion clinics as a separate classification of medical facility," Hanlon wrote, referring to the Supreme Court's June decision in Dobbs v. Jackson Women's Health Organization overturning the federal right to abortion.

The plaintiffs withdrew a third claim, under the constitution’s guarantee of open courts, earlier this week. 

Hanlon also found that the ban had the potential to cause irreparable harm to the plaintiffs, though she hedged a little on the question of the public interest.

“The Court must consider the constitutional rights of Indiana women and girls, but the Court cannot and should not disregard the legitimate public interest served by protecting fetal life,” she wrote. “The Court specifically acknowledges the significant public interest in both.” 

Nevertheless, Hanlon wrote, the public’s interest was still better served by preserving the status quo established by Roe v. Wade until the constitutional questions were settled. 

“We are grateful that the court granted much needed relief for patients, clients, and providers,” the plaintiffs said in a joint statement. “Indiana lawmakers have made it abundantly clear that this harm, this cruelty, is exactly the reality they had in mind when they passed S.B. 1. There are 1.5 million people of reproductive age in the state of Indiana, and every single one of them deserve the right to make their own decisions about their bodies, families, and futures.”

Indiana Attorney General Todd Rokita issued his own statement on the topic. 

"We plan to appeal and continue to make the case for life in Indiana,” the statement said. “Our office remains determined to fight for the lives of the unborn, and this law provides a reasonable way to begin doing that."

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