First Post-Dobbs Abortion Law Now in Indiana Top Court’s Hands

The fate of one of the most restrictive abortion laws in the country will be decided by the Indiana Supreme Court following oral arguments Thursday.

The near-total ban “invades the most private of spaces,” namely a person’s right to decide whether to end a pregnancy, Kenneth Falk told the state’s top court justices. That’s a core liberty interest protected by the Indiana Constitution’s inalienable rights clause, he said. Falk, of the ACLU of Indiana, represents multiple abortion providers, including Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana Kentucky Inc., in the case.

But there’s no provision in the Indiana Constitution that protects a right to abortion, Indiana Solicitor General Tom Fisher said. The document’s inalienable rights clause doesn’t create a standalone right enforceable in court, he said. The inalienable rights to life, liberty, and the pursuit of happiness can be enforced only when joined with other rights expressly granted in the founding document, such as the right to equal protection, he said.

At issue is Indiana’s SB 1, the first state abortion law adopted after the US Supreme Court decided in Dobbs v. Jackson Women’s Health Organization that there’s no federal constitutional right to abortion. It’s part of a litigation trend that arose after the top court’s ruling in which advocates for abortion rights turned to arguing in state courts that their constitutions provide greater protections.

The case is being watched closely, as it’s one of the first that may be decided on the merits of the issue. It also could be a harbinger of things to come, as the state constitution’s inalienable rights clause mirrors language found in other states’ founding documents.

Two other state top courts, so far, have reached opposite conclusions about whether their constitutions protect a right to abortion.

Limited Exceptions

SB1 criminalizes abortion except in cases of rape or incest that are still within the first 10 weeks of pregnancy; in instances of a “lethal fetal anomaly;” or to prevent “any serious health risk,” including death, for pregnant patients. It’s been blocked since an Indiana trial court judge found in September that the law likely violates rights guaranteed under the state constitution.

The Indiana Constitution doesn’t contain an express right to privacy or abortion, leading Fisher, Falk, and the five justices to debate whether one can be based on the right to liberty and whether people can sue to enforce a liberty right.

The only actionable constitutional rights are those that would have been recognized at the time of the state’s founding, as shown by textual or historical evidence of the right’s acceptance, Fisher said. There is no such evidence of a right to abortion, and, in fact, Indiana considered abortion to be a crime at the time its governing document was ratified in 1851, he said.

Justice Mark S. Massa asked if that means the inalienable rights clause isn’t enforceable. Fisher said that’s correct—the rights to life, liberty, and the pursuit of happiness can be enforced only through some other constitutional provision.

Falk disagreed. There can be no more fundamental right than the right to make one’s own medical decisions—a right that has been accepted by the Indiana Supreme Court as found within the liberty right, he said. He argued that it’s clear that the founders would have rejected other laws that affect procreation, such as one limiting the number of children a person could have. That’s core to the concept of liberty, Falk said.

“Liberty has meaning,” and it means a right to manage one’s life free from government intrusion, Falk said.

Procedural Questions

The court may not reach the merits, as several justices raised concerns about other issues.

The court was asked to review the trial court’s preliminary injunction, which blocked the state’s enforcement of SB1 and reinstated an Indiana law that allows abortion up to 22 weeks of pregnancy, Chief Justice Loretta H. Rush said. The trial court said only that the providers were likely to prevail on their argument that the law’s restrictions violated the state constitution.

Fisher said he wasn’t certain than anything would be gained by a decision solely on the preliminary injunction that would send the case back for trial. Everything turns on whether the constitution protects a right to abortion, he said. Once a decision on that issue is made, the case is over except possibly for a challenge to SB1’s hospital-only provision brought under a different section of the constitution that wasn’t raised on appeal, Fisher said.

Falk appeared to agree, but argued that the rights of clinics to perform abortions that would be legal even under SB1 would still need to be determined at trial.

Justice Derek R. Molter quizzed the attorneys about the providers’ right to assert the rights of their potential plaintiffs. Fisher argued that the clinics had no third-party standing, but Molter noted that a pregnancy likely would be long over by the time of a final decision on a pregnant person’s objection to SB1.

There are mechanisms that allow for quick decisions in some cases, Fisher said. Justice Geoffrey G. Slaughter raised the issue with Falk, who noted that the providers argued both third-party standing and direct standing based on their own injuries.

Justice Christopher M. Goff also actively participated in the arguments.

Planned Parenthood receives 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., Hawaii, Alaska, Ind., Ky., Inc., Ind., No. 22S-PL-00338, oral arguments 1/19/23.