Indiana Abortion

Abortion rights demonstrators protest outside the Indiana Statehouse July 30, 2022, during the General Assembly's special session. On Thursday, a southern Indiana judge halted the near-total abortion ban approved by the Legislature after concluding it likely infringes on liberties guaranteed by the Indiana Constitution.

The state's near-total abortion ban rests temporarily on the ash heap of history after a Republican Owen County judge ruled Thursday the law likely violates Hoosier liberties protected by the Indiana Constitution.

Judge Kelsey Hanlon said the apparent constitutional violation compelled her to issue a preliminary injunction halting enforcement of the new abortion restrictions and restoring to women and girls across the state the same abortion access they had before Senate Enrolled Act 1 took effect Sept. 15.

The judge's 16-page decision largely centers on Article I, Section 1 of the Indiana Constitution and its declaration that all people have a right to "life, liberty and the pursuit of happiness," and that government exists for the "peace, safety and well-being" of the people.

She said those provisions aren't mere throat clearing at the beginning of the Constitution, as the attorney general's office claimed during oral argument Monday, but judicially enforceable rights state courts previously have recognized, including the right to bodily autonomy.

Vice President Kamala Harris traveled to Indianapolis on Monday to speak with Democratic state lawmakers as the Republican-controlled General Assembly began debating new abortion restrictions.

Hanlon said it remains an open question whether a specific right to privacy exists under the Indiana Constitution, along with a corresponding right to abortion access.

But she noted Indiana courts have long recognized the state Constitution provides greater protection than the U.S. Constitution in some privacy-related circumstances, such as the right to consult counsel prior to consenting to a police search, and the national high court's Dobbs v. Jackson decision repealing the right to abortion established in 1973 by Roe v. Wade does not limit the enhanced privacy protections guaranteed to Hoosiers.

"Regardless of whether the right is framed as a privacy right, a right to bodily autonomy, a right of self-determination, a bundle of liberty rights, or by some other appellation, there is a reasonable likelihood that decisions about family planning, including decisions about whether to carry a pregnancy to term — are included in Article I, Section 1's protections," Hanlon said.

As such, Hanlon said it's likely the abortion providers and other plaintiffs will prevail in their constitutional challenge to Indiana's near-total abortion ban, and it's necessary to restore abortion access in the state as it was before the law took effect while the courts weigh a final decision.

"Senate Bill 1 ... materially burdens the bodily autonomy of Indiana’s women and girls by significantly and arbitrarily limiting their access to care. (It) does so by requiring women and girls to seek treatment at hospitals or ambulatory surgery centers that are majority hospital-owned. The huge majority of abortions are performed in the clinic setting. The evidence supports that the hospitalization requirement is likely to significantly limit the availability of the procedure (even for currently excepted rape and incest victims), will likely significantly increase the cost, and is unlikely to increase the safety of Hoosier women and girls," Hanlon said.

"Because of these considerations, and the history of Indiana’s Constitution being interpreted to provide greater protection to individual citizens than its federal counterpart, there is a reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana Constitution and the plaintiffs will prevail on the merits as to their claim that Senate Bill 1 violates Article I, Section 1 of the Indiana Constitution," she added.

In response to the ruling, Republican Attorney General Todd Rokita, a Munster native, immediately said he will seek review by a higher court in the hope of restoring the statute, which he sees as just the beginning of post-Dobbs abortion restrictions in the Hoosier State.

"We plan to appeal and continue to make the case for life in Indiana. Our office remains determined to fight for the lives of the unborn, and this law provides a reasonable way to begin doing that," Rokita said.

Similarly, Indiana Right to Life CEO Mike Fichter said he's optimistic Indiana's appellate courts will act quickly to reinstate the statute.

"Today’s blockage of Indiana’s new law means over 161 unborn children will continue to lose their lives to abortion every week this injunction stays in effect. We are encouraged by the judge’s acknowledgement of the state’s legitimate interest in protecting unborn babies and are hopeful the blockage will be brief," Fichter said.

Meanwhile, the various abortion clinics and health care providers who challenged the law, all represented by the Indiana chapter of the American Civil Liberties Union, said they "are grateful that the court granted much needed relief for patients, clients, and providers," but acknowledged "this fight is far from over."

"Indiana lawmakers have made it abundantly clear that this harm, this cruelty, is exactly the reality they had in mind when they passed Senate Bill 1. There are 1.5 million people of reproductive age in the state of Indiana, and every single one of them deserve the right to make their own decisions about their bodies, families and futures," the plaintiffs said.

State Sen. Rodney Pol, D-Chesterton, thanked the Indiana ACLU for its "tireless efforts" in the case and Hanlon "for taking the common sense step of granting a preliminary injunction."

"Judge Hanlon rightly notes that Senate Bill 1 ended 50 years of precedent and that it is in the public interest to block the new law to allow the court to address the issue on its merits. However, this may only be a temporary outcome, so I will continue to support efforts to restore a woman’s right to choose," Pol said.

Hannah Smith, spokeswoman for Indiana House Democrats, said she also expects the judge's ruling, unfortunately, will continue to be appealed — even though it's the right decision.

"The judge’s motion today temporarily restored dignity to Hoosier women. Indiana Republicans continue to waste Hoosier taxpayer dollars after a costly special session to ban abortion. The GOP’s endless crusade to disenfranchise women and girls of personal choice and autonomy has already cost our state countless dollars, and this lawsuit will surely add to the tab of hard-working folks," Smith said.

A separate lawsuit claiming the near-total abortion ban runs afoul of Indiana's Religious Freedom Restoration Act is scheduled for review next month by an Indianapolis court.

Indiana's Republican-controlled General Assembly was first in the country to legislatively impose new abortion restrictions following the U.S. Supreme Court's June 24 Dobbs ruling.

Riding Shotgun/DNR Conservation Officer Tyler Brock

As enacted by Republican Gov. Eric Holcomb, Senate Enrolled Act 1 prohibited all abortions in the state from the moment of conception, except within 10 weeks of fertilization for pregnancies caused by rape or incest, or 20 weeks if necessary to prevent serious physical impairment or the death of a pregnant woman, or because of a lethal fetal anomaly.

It also attempted to shut down all abortion clinics in the state by requiring every abortion be completed in a hospital or hospital-owned surgical center, and put doctors at risk of losing their medical license if they failed to sufficiently justify the legal basis for an abortion.

Among Northwest Indiana lawmakers, the 62-38 House in favor of the law vote split along party lines with the Region's Republican representatives all supporting the near-total abortion ban and the Region's Democratic representatives uniformly opposed.

In the Senate, state Sen. Mike Bohacek, R-Michiana Shores, broke away from many of his fellow Republicans and joined all Region Democrats in voting no because he said the legislation does not address sexual assault involving disabled adults, including Hoosiers with Down syndrome.

The proposal passed the Senate 28-19, with the support of Northwest Indiana state Sens. Ed Charbonneau, R-Valparaiso, and Rick Niemeyer, R-Lowell.

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