Abortion is virtually illegal in Indiana after the state’s top court said Friday that a near-total ban doesn’t violate a fundamental right of access to the procedure in all circumstances.
The Indiana Constitution protects a person’s right to have an abortion to the extent that one is necessary to save their life or to protect them from a serious health risk, the Indiana Supreme Court said.
But the law enacted shortly after the US Supreme Court said in Dobbs v. Jackson Women’s Health Organization that there’s no federal constitutional right to abortion, likely passes muster under the state document because it allows abortions under those circumstances, the state’s top court said.
The court vacated a preliminary injunction put in place by a lower court, saying that the abortion provider plaintiffs hadn’t shown a likelihood of succeeding on their claim that the law was unconstitutional in all its applications.
The state constitution “precludes the General Assembly from prohibiting an abortion that is necessary to protect a woman’s life or to protect her from a serious health risk,” the court said. But this “liberty” protection generally allows lawmakers to prohibit abortions sought for other reasons, it said.
Indiana’s law, known as 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.
Fragmented Ruling
The decision didn’t end the case, the court said. The abortion providers’ claim that the law’s hospitalization provision violates the equal privileges and immunities clause wasn’t part of the appeal, it said.
The 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, Justice Derek R. Molter’s opinion said.
Chief Justice Loretta H. Rush and Justice Mark S. Massa joined. Justice Geoffrey G. Slaughter concurred in the judgment.
Justice Christopher M. Goff concurred in part, but said in a dissent that the Indiana Constitution’s liberty guarantee likely protects a qualified right to bodily autonomy. Goff suggested that the issue be put to the voters.
The case has been watched closely, as it was one of the first to present the question of whether a state constitution protects a right to abortion. 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.
The plaintiffs included Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky, Inc.
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.
ACLU of Indiana represents the plaintiffs. The Indiana Attorney General’s Office represents the state defendants.
The case is Members of Med. Licensing Bd. of Ind. v. Planned Parenthood Great Nw., Haw., Alaska, Ind., Ky., Inc., Ind., No. 22S-PL-00338, 6/30/23.
To contact the reporter on this story:
To contact the editors responsible for this story: