Attorney General urges state Supreme Court to restore abortion ban
The Indiana Attorney General’s office has laid out its arguments for reinstating Indiana’s new ban on abortion, contending a lower court ruling which blocked the law in a legal challenge by Indiana abortion providers takes an overbroad view of the Indiana Constitution.

Indiana Solicitor General Thomas Fisher, who oversees constitutional issues for Attorney General Todd Rokita, submitted the 64-page brief to the Indiana Supreme Court on Nov. 2, skipping the Indiana Court of Appeals. The five-member court hears oral arguments Jan. 19.

The law enacted in August, Senate Enrolled Act 1 (SEA 1), makes abortion illegal in Indiana except in cases of serious risk to the health or life of the mother, or in cases of rape or incest within the first 10 weeks of pregnancy. The measure also permits abortions within the first 20 weeks in cases of lethal fetal anomalies. Physicians found to have performed abortions outside those exceptions face criminal charges and automatic revocation of their license by the Indiana Medical Licensing Board.

During the July and August special legislative session which ended in the passage of SEA 1, the ISMA successfully lobbied against versions of the bill that did not include exceptions for rape, incest, lethal fetal anomalies or danger to the mother’s health.

In September, the ISMA House of Delegates adopted resolutions reaffirming the critical importance of those exceptions and establishing ISMA’s opposition to mandatory criminal penalties for physicians.

The law had been in effect for one week before Owen Circuit Judge Kelsey Hanlon issued an injunction Sept. 22, blocking it as contrary to the Indiana Constitution. Judge Hanlon adopted reasoning from a 2005 Indiana Supreme Court dissenting opinion that Indiana’s Bill of Rights represents a cluster of “core values,” and declared that laws cannot create a situation in which “the right, as impaired, would no longer serve the purpose for which it was designed.” The ruling notes that other cases unrelated to abortion have treated “bodily autonomy” and “self-determination” as core rights.

Fisher’s brief argues that Hanlon’s ruling places undue weight on Article I of the Constitution, which asserts Indiana’s commitment to the rights of “life, liberty and the pursuit of happiness” outlined in the Declaration of Independence. The brief contends Article I is a “statement of political philosophy,” not a grant of specific and enforceable rights.

Fisher argues that the court’s interpretation is inconsistent with the history of Indiana abortion law. The Indiana legislature explicitly banned abortion in 1835 except to save the life of the mother, and the Indiana Supreme Court rejected a challenge to abortion restrictions as late as 1972, six months before Roe v. Wade struck down abortion restrictions nationwide. Even before the 1835 law, Fisher argues, abortion was illegal in Indiana under English common law, which was adopted for governance of the Indiana Territory. The brief accuses Hanlon of basing the lower court ruling “on the unprecedented notion that judges can disregard constitutional limits that offend their sensibilities.”

The American Civil Liberties Union filed the legal challenge in August on behalf of three operators of Indiana abortion clinics, including Planned Parenthood; an Oregon nonprofit that provides counseling and financial assistance to women considering abortion; and IU Health OB/GYN Amy Caldwell, MD. The Indiana Supreme Court has specifically asked both sides to include arguments on whether those clients have the legal standing to challenge the law in the first place. Fisher argues they don’t. If Hanlon is correct that Indiana law guarantees a right to abortion, he contends, that right belongs to pregnant women, not to physicians or clinic operators. Fisher argues that filing suit in Indiana requires a showing of direct personal injury, not harm to someone else, especially if the harm in question involves an individual constitutional right.

A separate lawsuit in Marion Superior Court, also filed by the ACLU, includes five anonymous women as plaintiffs, in an attempt to address any questions regarding standing. Judge Heather Welch has promised a ruling in that case by Nov. 28.

Even if the state Supreme Court adopts Hanlon’s interpretation of Article I, Fisher argues, any right to privacy must be balanced against what he argues is a legitimate state interest in “preventing the killing of unborn children.” He argues that if “liberty” is treated as a right specific enough to be enforced by the courts, “life” deserves the same interpretation. He notes that even Hanlon’s ruling acknowledges the state’s authority to qualify how a right is exercised, as it did under Roe.

ACLU attorneys have until Dec. 1 to submit a response brief on why Hanlon’s ruling blocking the law should stand, with a state rebuttal brief due by Dec. 16. After oral arguments on Jan. 19, the court has no set timeline to issue a ruling.

If the justices agree the law is unconstitutional, legislators could attempt to pass a revised version, depending on whether they’re still in session when the ruling is issued. By law, the 2023 General Assembly must adjourn by April 29. Action after that date would have to wait until 2024, unless Gov. Eric Holcomb calls a special session.