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Indiana Supreme Court asked to lift block on near-total abortion ban

A new state law criminalizing abortions with limited exceptions for rape, incest and serious risks of harm to expectant mothers has yet to take effect after being blocked by two judges.

INDIANAPOLIS (CN) — The Indiana Supreme Court heard oral arguments Thursday in the state's appeal of a lower court’s decision to block one of the nation's most restrictive abortion laws from going into effect.

The underlying lawsuit was filed by the ACLU, Planned Parenthood and abortion providers last August, less than a month after Indiana’s Republican-controlled Legislature passed Senate Bill 1, which bans abortions with minimal exceptions. It allows for the procedure up to 20 weeks post-fertilization only if the mother's health is in danger and up to 10 weeks for pregnancies caused by rape or incest.

Outside the narrow exceptions, physicians who violate SB 1 could face up to a $10,000 fine and be charged with a level 5 felony, which could land them a sentence of one to six years in jail.

The ACLU and Planned Parenthood argue SB 1 makes abortion procedures unfairly difficult to obtain even for patients who qualify under one of the law’s exceptions.

In September, Monroe County Judge Kelsey Hanlon agreed with the groups and granted them a preliminary injunction that prevented the law from taking effect.

The state appealed the ruling and the Indiana Supreme Court heard arguments Thursday in a packed courtroom.

Indiana Solicitor General Thomas Fisher told the justices the plaintiffs lack standing to pursue their claims and that liberty as described by the Indiana Constitution does not include abortion.

“Essentially, Planned Parenthood invites the court to amend the constitution and not to search for the law. The trial court accepted that invitation. This court should reject it,” Fisher said.

Chief Justice Loretta Rush immediately asked Fisher if the appeal was premature because the lower court’s ruling was a preliminary injunction and not a final ruling on the merits.

“The appeal before us is a preliminary injunction. This is not an appeal that the court below found the law unconstitutional that we would review under appellate rule 4. Tell me your argument for us to decide the full merits before the case has been tried out in the trial court,” Rush said.

Fisher responded by saying, “It is not clear what a trial could cover.”

The state's attorney added he was unsure what evidence the plaintiffs could bring forward for trial or what standard of evidence would apply, if the lower court decides that a right to abortion exists.

Rush also asked the solicitor general if he believes the Legislature could enforce an even stricter abortion ban, one that would contain no exceptions for the health of the mother.

“I have grave doubts about that,” Fisher said.

Fisher also said that he believes the contraception pill known as Plan B would not be banned under SB 1.

ACLU attorney Ken Falk countered that the plaintiff abortion providers do have standing and that under the Indiana Constitution, liberty does include a right to obtain an abortion.

“Liberty has meaning. And its core value is the right to manage the most private aspects of our lives free from unwarranted government interference. This includes the right of a women to reproductive control,” Falk said.

Justice Derek Molter asked Falk if he believed the justices could issue a ruling that narrows the lower court’s injunction.

“I certainly think so, your honor," the attorney responded.

While it's unclear when or how the Indiana Supreme Court will rule, the line of questioning indicate the justices might be open to the possibility of blocking only certain portions of law.

While the ruling will have drastic impacts on access to abortion in Indiana, the outcome of the case heard Thursday will not end the legal challenges to SB 1.

The abortion law has also been blocked by a different lower court’s ruling, in a case that challenged it on religious grounds. Marion County Judge Heather Welch sided with the plaintiffs and blocked SB 1, finding it interferes with sincerely held religious beliefs regarding access to abortion procedures.

The state has appealed that ruling as well.

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