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Judge hears arguments in first lawsuit over abortion ban

BLOOMINGTON, Ind. (WISH) — A special judge on Monday did not rule on Indiana’s new abortion ban, but said she will make a decision as soon as possible.

Monday’s arguments in a Monroe County courtroom marked the first day in court for the new law. Arguing on behalf of several abortion service providers including Planned Parenthood and Women’s Med, American Civil Liberties Union of Indiana Legal Director, Ken Falk said the law violates the state constitution’s right to privacy. Even though the words “privacy” and “abortion” do not appear in the constitution, Falk said the constitution was written with flexibility in mind. He noted the original text of the state constitution, adopted in 1851, limited voting rights to white men and explicitly barred Black Americans from the state, two provisions which have long since been discarded.

“Our bill of rights are not designed, as I say, as a micromanagement of what rights you have and what rights you don’t have,” he said. “They’re designed in broad terms to be interpreted throughout history.”

The lawsuit also argues the new law violates the constitution’s guarantee of equal legal privileges by restricting abortions to hospitals.

Arguing on behalf of the state, Solicitor General Tom Fisher said the legislature used its regulatory authority when it enacted the abortion ban. He noted Indiana had an abortion ban in place from 1835 until the Roe v. Wade ruling in 1973. Fisher said the ACLU’s argument asks the courts to ignore the intent of the constitution’s framers simply because they did not share the values of later generations.

“The Indiana Constitution does not, through any text or any history, or any implication whatever, secure a right to have an abortion,” Fisher said. “Indiana outlawed abortion before its current constitution was adopted, through the time when it was adopted, all the way up through Roe v. Wade.”

Special Judge Kelsey Hanlon is tasked with determining whether the abortion ban should be put on hold while the courts review it further. At the end of Monday’s hearing, she said she would rule “expeditiously.” If Hanlon grants a preliminary injunction against the law, Indiana’s abortion regulations would revert to their pre-Sept. 15 status.

The Monroe County case is the first of two lawsuits against the abortion ban. A second case, which argues the law violates Indiana’s Religious Freedom Restoration Act, is set to go before a Marion County judge on Oct. 14.