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Indiana Supreme Court lifts injunction on state’s near-total abortion ban

INDIANAPOLIS (WISH) — The Indiana Supreme Court on Friday ruled to lift an order blocking the state’s near-total ban on abortion.

The court overturned a preliminary injunction against the abortion ban on privacy grounds, meaning the ban will go into effect for most Hoosiers while the lawsuit proceeds.

A separate injunction blocking the ban on religious liberty grounds remains in effect, which means the ban is not enforceable for people who have a sincere religious objection to the ban. The religious liberty lawsuit involves several adherents to the Jewish and Islamic faiths.

Last year, shortly after the United States Supreme Court’s Dobbs ruling, the Indiana General Assembly passed a near-total abortion ban. The only exceptions were for rape or incest, up to 10 weeks into pregnancy, or to save the life of the mother, up to 20 weeks into pregnancy. The law went into effect in September but was blocked by a Marion County judge a week later on privacy grounds. The state appealed the order and the Indiana Supreme Court agreed to take up the case.

The privacy case centers on Article 1, Section 1 of the Indiana Constitution, which begins with, “We declare that all people are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” The ACLU argued bodily autonomy, in the form of deciding whether or not to obtain an abortion, is a form of liberty protected by the state constitution. Justice Derek Molter wrote while the state constitution clearly allows abortions in a medical emergency, it provides no such protections outside of that scenario.

“Indiana’s long history of generally prohibiting abortion as a criminal act… suggests that the common understanding among Article 1, Section 1’s framers and ratifiers was that the provision left the General Assembly with legislative discretion to regulate or limit abortion,” he wrote, adding Indiana has a long history of prohibiting abortion to the extent federal case law allows.

Justice Christopher Goff partly dissented from the ruling, saying the abortion ban likely is unconstitutional as enacted. He said pregnancy involves so many consequences for a woman’s body, family and life that it likely falls under the category of liberty, if liberty is defined as being left alone to manage one’s life.

“We cannot draw constitutional law on the particular matter of women’s rights from the doings of exclusively male institutions in times when women were excluded and marginalized from public discussion,” he wrote.

The case now returns to the trial court. ACLU of Indiana attorney Ken Falk said no trial date has yet been set. Meanwhile, a hearing on the religious liberty injunction is set for Sept. 12 before the Indiana Court of Appeals.

Reaction from local and state lawmakers

Indianapolis Mayor Joe Hogsett sharply criticized the high court’s opinion, saying in a statement:

“This ruling is a bad decision that upholds terrible policy, and Indiana women will be less safe as a result. Full access to reproductive healthcare should be a fundamental right and Hoosier women deserve the autonomy to make these personal decisions with their doctors. Just as I fought against these changes in state law, I will continue to fight at the Statehouse for the restoration of full reproductive healthcare in Indianapolis.”

Indiana Attorney General Todd Rokita celebrated the court’s decision as “another win for Hoosier life”:

“The Indiana Supreme Court has just upheld the abortion laws passed by the Indiana General Assembly. We celebrate this day – one long in coming, but morally justified. Thank you to all the warriors who have for this day that upholds life.”

Senate President Pro Tem Rodric Bray expressed gratitude for the court recognizing the importance of protecting unborn life in the wound:

“We set out to pass a bill in the special session that would protect life and support mothers and babies, and that’s what we did. It was always our intent to draft a bill that could withstand a constitutional challenge, and I am grateful to see Indiana’s Supreme Court recognize that the General Assembly has the constitutional authority to protect unborn life in the womb.”

Indiana House Democratic Leader Phil GiaQuinta called Friday a ” tremendously sad day for Hoosiers,” saying in part:

“Abortion is a serious and emotional matter, and I believe firmly that it is an issue best left to a woman and her doctor, not politicians. The Indiana Republican abortion ban won’t stop abortions, it will simply ban access to safe abortions. Hoosiers don’t want this future for Hoosier women and girls. 

While today’s decision is disheartening, the fight to secure access to safe and legal reproductive healthcare has just begun. With the Republican’s near-total abortion ban now in effect, we will soon see the full scope of the devastation it will bring to Hoosier women and families. The House Democratic Caucus will continue to fight to reinstate a woman’s right to own her own body.” 

State Senator J.D. Ford stated his disappointment in the court’s decision by saying:

“On the weekend of Independence Day, the Indiana Supreme Court robbed Hoosier women of independence, autonomy and liberty, undermining the very American ideals we should have been celebrating. Today, women across Indiana have lost the right to determine their own future, the right to privacy and the right to govern their own bodies. 

“Women will not be the only ones who suffer because of shortsighted, radical laws like SEA 1—the erosion of healthcare rights for some means an erosion for all. Indiana has doomed itself to an exodus of doctors, nurses and OB-GYNs, all of whom this state needs desperately. Providers will flee Indiana—where their expertise is clearly not respected or welcomed—and all Indiana citizens and families will be left to grapple with a devastating shortage that affects their ability to get even the simplest and most necessary healthcare. Every single citizen should be furious and worried today: the majority has successfully passed legislation that means your privacy, your body is theirs to control if they wish. They’ve passed this legislation over your protests and despite Hoosiers’ wishes— SEA 1’s ramifications will be severe and long-lasting. I stand beside Hoosier women, beside healthcare providers and beside every citizen, regardless of faith or political party, who reject this law and will fight tooth and nail to overturn it.

“I remain hopeful that the RFRA lawsuit will be successful, but the fact remains that every woman should have access to this necessary care and ownership over her own body. I will always fight to ensure the liberty of our citizens.”

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