Bloomberg Law
Aug. 21, 2023, 8:01 PM

Abortion Ban Takes Effect in Indiana Despite Scope Question

Mary Anne Pazanowski
Mary Anne Pazanowski
Legal Reporter

The Indiana Supreme Court won’t reconsider whether the state’s near-total ban on abortion should be blocked while further proceedings to determine its validity under the state constitution take place, it said Monday.

The court allowed the ban to take effect on June 30, saying that it doesn’t violate a fundamental right of access to the procedure in all circumstances. It also said, however, that the Indiana Constitution protects a person’s right to have an abortion when needed to save their life.

Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky Inc. filed for a rehearing on July 31. The constitutionally protected right to a life-saving abortion is broader than the law’s exception for abortions needed “to prevent death or a serious risk of substantial and irreversible physical impairment of a major bodily function,” the group said.

If the constitutional right protects access to abortion in circumstances not covered by the law’s current life-health exception, then allowing the law to take effect might cause abortion patients “to suffer serious (and unconstitutional) consequences while the trial court” considers evidence on a novel question, the group said in its petition.

The court didn’t give any reasons for Monday’s order denying the motion for a rehearing.

In a concurring opinion, Chief Justice Loretta H. Rush said that Planned Parenthood improperly asked to keep the entire injunction in place while it went back to the trial court to ask for a narrower injunction defining the scope of the constitutional right to life.

“There is simply no sound legal basis for an interim injunction that is even broader than the relief Plaintiffs intend to pursue in the trial court,” Rush said.

Justice Christopher M. Goff dissented from the rehearing denial. No one knows “the precise contours of” the life-health exception, he said. “Having declared the right of a woman to protect her health, this Court should not now let that right go unprotected” while the case proceeds, he said.

Goff said he would put a limited, state-wide injunction in place so that the trial court could consider whether to issue a new injunction or for lawmakers to revise the statute.

Post-Dobbs Law

Indiana’s law bans all abortions with three narrow exceptions, including a health-life exception. It was one of the first state laws to take effect after the US Supreme Court said in Dobbs v. Jackson Women’s Health Organization that there’s no federal constitutional right to abortion.

A state trial court had halted its enforcement based on the state constitution’s inalienable rights clause, which mirrors language found in other states’ founding documents. That court will now be asked to determine if the law’s hospitalization provision violates the state constitution’s equal privileges and immunities clause, which wasn’t part of the appeal.

The state high court said its decision also doesn’t prevent future abortion litigation in Indiana, because there’s been no showing that every single part of the law can be applied consistently with the state constitution in every conceivable set of circumstances.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Members of Med. Licensing Bd. of Ind. v. Planned Parenthood Great Nw., Haw., Alaska, Ind., Ky., Inc., Ind., No. 22S-PL-338, 8/21/23.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Andrew Harris at

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