Says state constitution gives only limited protections
By TOM DAVIES
and ARLEIGH RODGERS
Associated Press
INDIANAPOLIS (AP) — The Indiana Supreme Court ruled Friday that the state’s abortion ban doesn’t violate the state constitution, removing a major hurdle to enforcing the ban Republicans approved last summer ahead of a wave of restrictions by conservative states in response to the overturning of Roe v. Wade.
The court’s decision, which does not put the ban immediately into effect, invalidates a county judge’s ruling that the ban likely violated the state constitution’s privacy protections, which she said are stronger than those found in the U.S. Constitution. That judge’s order has allowed abortions to continue in Indiana since September, despite the ban.
Three of the court’s five justices agreed that while Indiana’s constitution provides some protection of abortion rights, the “General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions.”
All five Indiana Supreme Court justices were appointed by Republican governors.
Republican state Attorney General Todd Rokita issued a statement praising the decision: “We celebrate this day – one long in coming, but morally justified. Thank you to all the warriors who have fought for this day that upholds LIFE.”
The Indiana ban would eliminate the licenses for all seven abortion clinics in the state and ban the vast majority of abortions even in the earliest stages of a pregnancy. It includes exceptions allowing abortions at hospitals in cases of rape or incest before 10 weeks post-fertilization. It also allows abortions up to 20 weeks to protect the life and physical health of the mother or if a fetus is diagnosed with a lethal anomaly.
Although the court’s decision strikes down the injunction blocking the ban, it was unclear Friday how soon the ban would take effect. The justices returned the case to the county judge for further action, and left open the possibility of a narrower legal challenge.
The American Civil Liberties Union of Indiana, representing Parenthood and other abortion clinic operators in the lawsuit, has 30 days to ask the Supreme Court to review its decision but didn’t say whether it would do so. The groups said in a statement that they are “devastated” but that the court’s decision “is not the end of our fight for equitable, compassionate care in Indiana.”
Indiana’s abortion ban also faces a separate court challenge over claims it violates the state’s 2015 religious freedom law signed by GOP then-Gov. Mike Pence.
Indiana became the first state to enact tighter abortion restrictions, acting in August, after the U.S. Supreme Court’s eliminated federal protections by overturning Roe v. Wade in June 2022.
Most Republican-controlled states have enacted tighter abortion restrictions since U.S. Supreme Court’s ruling last summer. All the restrictions have been challenged in court.
In the past year, judges in Arizona, Iowa and South Carolina have ruled that the bans are not permissible under the state constitutions. Besides Indiana, enforcement of restrictions are on hold as courts decide the cases in Montana, North Dakota, Ohio, Utah and Wyoming. In North Dakota, lawmakers adopted a different ban since to replace the one that was blocked. In South Carolina, another ban has been put into place and put on hold by a court.
And on Friday, a federal judge blocked a small part of North Carolina’s new abortion restrictions, allowing other provisions to take effect on Saturday. North Carolina has banned most abortions after 20 weeks; the new rules reduce it to 12 weeks, but add new exceptions through 20 weeks for cases of rape and incest and through 24 weeks for “life-limiting” fetal anomalies. A medical emergency exception also remains in place.
Democratic-led states, such as Indiana’s neighbors of Illinois and Michigan, have mostly taken steps to protect abortion access.
The ACLU of Indiana argued before the Supreme Court in January that the state constitution’s liberty protections provide a right to privacy and to make decisions on whether to have children.
The state attorney general’s office countered that Indiana had laws against abortion when its current constitution was drafted in 1851 and that the county judge’s ruling would wrongly create an abortion right.
The Indiana Supreme Court’s decision said that while the state constitution’s liberty clause “protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, the provision does not protect a fundamental right to abortion in all circumstances.”
The majority, however, did not present Friday’s ruling as the final word on the legality of Indiana’s abortion restrictions.
“By saying (the ban) is not unconstitutional in its entirety in all circumstances, we do not say the opposite either — that every single part of the law can be applied consistent with our Constitution in every conceivable set of circumstances,” the decision said.
Indiana University law professor Jody Madeira said the court’s decision “almost invites explicitly” other legal challenges to the ban.
Madeira said abortion rights supporters and opponents can “start from scratch with this additional guidance, that they have to frame their claims more narrowly.”
A separate court challenge to the ban is ongoing as another county judge in December sided with residents who claim it violates the state’s religious freedom law, which Republican legislators pushed through in 2015 and sparked a widespread national backlash as critics argued it allowed discrimination against gay people.
The state Supreme Court in January turned down a request from the attorney general’s office that it immediately take up the religious freedom lawsuit. The state’s intermediate Court of Appeals is scheduled to hear arguments over that lawsuit on Sept. 12.
Marion County Judge Heather Welch in December agreed with five residents who hold Jewish, Muslim and spiritual faiths and who argued that the ban would violate their religious rights on when they believe abortion is acceptable. For now it only directly affects those plaintiffs — legal experts say anyone else claiming religious protections of their abortion rights would need their own court order.
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Arleigh Rodgers is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.
