INDIANAPOLIS (CN) — The Indiana Supreme Court provisionally upheld the state’s near-total abortion ban Friday in a decision that also ended a preliminary injunction preventing the ban’s enforcement.
Justice Derek Molter penned a 43-page opinion explaining the court’s 4-1 decision, with Justice Geoffrey Slaughter adding his own concurrence and Justice Christopher Goff dissenting.
Molter wrote that the ban, which makes exceptions for cases of lethal fetal anomalies and lasting harm to or death of the mother, and for rape and incest only within 10 weeks of conception, balanced “two irreconcilable interests.”
“Given the nuance inherent in each woman’s experience and private life, a woman’s desire to continue or terminate a pregnancy is, likewise, intensely personal,” Molter wrote. “At the same time, our laws have long reflected that Hoosiers, though their elected representatives, may collectively conclude that legal protections inherent in personhood commence before birth.”
The law, passed shortly after the U.S. Supreme Court’s June 2022 Dobbs decision overturned the abortion right established in 1973’s Roe v. Wade decision, was put on hold almost immediately when a Monroe County Circuit Court judge granted a preliminary injunction to Planned Parenthood, the ACLU and a coalition of local abortion providers in their suit against a number of state officials.
Those groups argued before the state’s high court that the law made abortions unfairly difficult for patients to obtain even if they qualify for those exceptions, in part because it also requires that all abortions be performed in hospitals. Under 1.6% of abortions performed in Indiana in 2021 took place in hospitals, according to a report the state published last year. Over 98% were performed at the plaintiffs’ facilities, which would not be allowed under the ban.
Attorney General Todd Rokito’s office, meanwhile, argued that the Monroe County judge’s finding that the ban threatened violations of the state constitution’s privacy protections improperly found a right to abortions in the state constitution.
While Molter conceded that Planned Parenthood and its allies had standing to challenge the law — a concession that Slaughter contested in his dissent — he found that the abortion ban represented a guarantee of “Lockean natural rights” in keeping with the intent of the Indiana Constitution’s framers when they penned the constitution’s first section, which guarantees Hoosiers “an indefeasible right to alter and reform their government” and declares that they have inalienable rights to “life, liberty and the pursuit of happiness.”
“Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk,” Molter wrote. “Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. … They framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances.”
He also found that Indiana’s long history of banning abortions created adequate precedent for further bans in the wake of Dobbs.
“Our State’s history and traditions, as reflected in our Court’s precedents, indicate that the common understanding of Section 1 among those who framed and ratified it was that it generally left the General Assembly with broad legislative discretion to limit abortion,” Molter wrote. “And the common understanding of those who proposed and ratified the 1984 amendment changing Section 1’s reference from ‘men’ to ‘people’ was that this change did not alter Section 1’s meaning.”
The court returned the case to Monroe County, revoking the preliminary injunction but leaving the door open for a narrower challenge to the ban. In the meantime, it’s unclear when exactly the ban will become enforceable.
Rokito’s office issued a statement heralding the decision Friday.
“We celebrate this day — one long in coming, but morally justified,” the statement read. “Thank you to all the warriors who have fought for this day that upholds LIFE.”
The Indiana ACLU took a dimmer view of the decision in its own joint statement with Planned Parenthood and other allies.
“We are devastated by the Indiana Supreme Court’s ruling today which will deprive more than 1.5 million people in Indiana — particularly Black, Latino and Indigenous people, people with low incomes, and LGBTQ+ people, who already face the most challenges when seeking medical care — of life-saving, essential health care,” the statement said.
“Despite this setback, we’ll keep fighting to restore reproductive rights in Indiana and to help Hoosiers get access to the services they need,” the groups continued. “Today’s decision is not the end of our fight for equitable, compassionate care in Indiana, or the patients in surrounding states who rely on Indiana for access to abortion.”
The ban still faces another court challenge. A group of anonymous women have joined the ACLU and the organization Hoosier Jews for Choice filed suit to overturn the ban in September, arguing that the abortion restrictions violate a 2015 law prohibiting governmental entities from “substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability.
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