Indiana’s near-total abortion ban is now in full effect after the Indiana Supreme Court denied a request for rehearing earlier this week. The ruling was certified Aug. 21, hours after the justice’s 4-1 decision was published, putting the law immediately into effect.

The justices’ majority opinion reaffirmed that abortion clinics and other health care providers “cannot show a reasonable likelihood of success” with their challenge to the abortion restrictions because there are cases in which the ban could be constitutionally enforced, Indiana Capital Chronicle reported.

Legislators enacted Senate Enrolled Act 1 (SEA 1) during a special session in 2022 after the U.S. Supreme Court ruling overturning Roe v. Wade. The law had been on hold since last September after a lower court issued a preliminary injunction, concluding the abortion providers who filed the suit were likely to prevail on their claim that SEA 1 violates women’s right to privacy under Article 1, Section 1 of the Indiana Constitution. 

On June 30, justices ruled 4-1 that the injunction in the case should not have been granted, finding the lawsuit was a “facial” challenge to the entire law, so the plaintiffs had to show there are no circumstances in which any part of SEA 1 could ever be enforced consistent with Article 1, Section 1 of the Indiana Constitution. The American Civil Liberties Union of Indiana, representing Planned Parenthood and other plaintiffs, requested the rehearing at the end of July while they pursued another, narrower injunction. The ACLU noted that the court’s prior ruling recognized a constitutional right to an abortion when medically necessary to avert a serious health risk, and argued for further court proceedings to safeguard that right in cases that might go beyond the law’s definition of medical necessity.

Justices Derek Molter, Mark Massa and Geoffrey Slaughter rejected the request without a written opinion. Chief Justice Loretta Rush joined the majority in denying a rehearing but issued a concurrence saying the constitutional protection might indeed extend beyond what is spelled out in the law. 

“I am deeply concerned about Senate Bill 1’s impact on Hoosier women’s constitutional right to seek medical care that is necessary to protect their life or to protect them from a serious health risk,” Rush wrote. “And I am likewise concerned about the law’s impact on healthcare providers who must determine whether to provide that care and potentially expose themselves to criminal penalties and professional sanctions.”

But Rush wrote if the providers want to challenge how the law is applied, they need to return to the trial court and present arguments and evidence there, not ask the Supreme Court to preserve an injunction it has already found to be improper. 

Justice Christopher Goff, the lone dissenter in the original ruling, dissented from the denial of rehearing as well, stating he would rather “leave a revised statewide injunction in place, restraining enforcement of Senate Bill 1 in circumstances where a physician has determined in good faith that an abortion is medically necessary. This would be for a limited time—perhaps 60 days—so the trial court can hear arguments and evidence and consider whether to enter a new injunction.”

Most abortion providers have been abiding by the new law since the high court’s ruling, despite the request for rehearing. The law allows abortions only in hospitals, and only in very limited circumstances involving rape, incest, or medical necessity.

Indiana residents can obtain abortions out of state without violating SEA 1.

Another lawsuit aimed at SEA 1, alleging the law violates Indiana’s Religious Freedom Restoration Act, is currently making its way through the courts. In December, the Indiana Court of Appeals will hear oral arguments in the case.

A day after the ruling, the Indiana Department of Health issued formal guidance to physicians performing abortions under the new law. The memo notes physicians must document their compliance with the law in the patient’s medical record, including the reason for the abortion. The new law allows abortion only if the mother faces serious health risk, in cases of a lethal fetal anomaly, or in cases of rape or incest up to 10 weeks after fertilization. 
The IDH simultaneously issued updated guidance for completing the Terminated Pregnancy Report required after all abortions.

View the full IDH guidance memos here.