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Explained: Why Indiana’s abortion ban remains on hold

Abortion-rights protesters fill Indiana Statehouse corridors and cheer outside legislative chambers on Aug. 5, 2022, as lawmakers vote to concur on a near-total abortion ban, in Indianapolis. (AP Photo/Arleigh Rodgers)

INDIANAPOLIS (WISH) — An expert on reproductive law on Tuesday said the uncertainty over Indiana’s abortion ban has created a de facto ban even though the law is still officially on hold.

When the Indiana Supreme Court on June 30 overturned a trial judge’s order blocking Indiana’s abortion ban on privacy grounds, the law did not immediately take effect because the justices’ order had to be certified, a process that takes at least 30 days.

Late Monday, hours before the ban took effect, the ACLU of Indiana filed a new petition with the court asking that the law remains on hold while the group requests a new injunction based on the potential medical risks the law poses.

IU Maurer School of Law Prof. Jody Madeira, whose specialties include law and medicine and reproductive endocrinology, said the filing automatically paused the law while the court considers the ACLU’s filing and any response from the state.

“They’re asking for the preliminary injunction to remain in place, basically, until they can file another proceeding in the lower court that they address how broad the serious health risk exemption is,” she said. “Technically, the preliminary hearing prevents the Supreme Court from certifying their final order. Without that petition, the ban would have taken effect.”

The move is the latest in a long legal battle over the ban that began almost from the moment Gov. Eric Holcomb signed it into law following last year’s special legislative session.

The law completely bans abortion in the state of Indiana with three exceptions: up to 10 weeks into pregnancy in cases of rape or incest and up to 20 weeks into pregnancy in cases of fatal fetal anomalies or to prevent the mother’s death or a serious health complication.

The ACLU quickly filed a lawsuit that claims the law violates the state constitution’s right to privacy. So far, all of the legal wrangling has involved whether to allow the law to take effect while the privacy lawsuit proceeds. The lawsuit itself has yet to go to trial.

Meanwhile, a separate judge has issued an order blocking the law in a case involving Indiana’s Religious Freedom Restoration Act. That lawsuit was filed on behalf of several Jewish and Muslim women whose faiths allow abortion at a later stage in pregnancy.

The judge’s order in that case only blocks the law for people who have a sincerely-held religious objection to the abortion ban. ACLU lawyer Stevie Pactor said someone could claim a religious exemption by filling out an affidavit, the same process used for other cases of religious exemptions.

Although abortion remains legal in Indiana for now, Planned Parenthood has discontinued abortion services due to the uncertainty surrounding the law. Indiana Right to Life CEO Mike Fichter said he’s pleased by this development but the law’s legal limbo continues to jeopardize fetal lives.

“We’re hopeful that the Indiana Supreme Court moves quickly to affirm that this law is in effect and it can proceed with ending 95 percent of abortions in our state,” he said.

Late Tuesday afternoon, Attorney General Todd Rokita’s office filed a response in which the state’s lawyers argued the ACLU has not indicated it will amend its prior complaint. The filing accused the ACLU of trying to “short-circuit (the) process by requesting relief from this Court before any factual development or briefing has taken place.”

Madeira said the extent of the legal wrangling over the law shows how significant its impact is and how much opposition there is to it.

“I believe that the more controversial the law, the more heavily it will be litigated and certainly, this is a law that has a pervasive effect on millions of Hoosier lives, not just women, but also men, children, et cetera,” she said.

Pactor said there is currently no timeline for when the Indiana Supreme Court might consider the group’s new petition.