Indiana Supreme Court allows abortion ban to take effect

By Casey Smith | Indiana Capital Chronicle 

For The Tribune 

The Indiana Supreme Court on Monday denied a request to rehear its ruling upholding the state’s near-total abortion ban.

That means the new law — which prohibits the procedure with only narrow exceptions — immediately takes effect once the ruling is certified on the court docket, which is expected to be a matter of days, according to court officials.

In a split 4-1 decision, high court justices reaffirmed in their order that Planned Parenthood 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.

Chief Justice Loretta H. Rush, who concurred with the ruling, reiterated in her own opinion that Indiana’s Constitution grants a woman’s right to terminate a pregnancy “to protect her life or to protect her from a serious health risk … under circumstances that extend beyond the current law.”

“Given that possibility, 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. And I am likewise concerned about the law’s impact on health care providers who must determine whether to provide that care and potentially expose themselves to criminal penalties and professional sanctions,” Rush wrote in her opinion. “But plaintiffs have not properly put these concerns before us.”

Rush said the original injunction — which prevented the near-total abortion ban from being enforced in its entirety — was improper and that “there is simply no sound legal basis for an interim injunction that is even broader than the relief plaintiffs intend to pursue in the trial court.”

She added that “for good reason,” the judicial system requires those challenging the law to first seek narrower relief in the trial court, which unlike the state Supreme Court “can receive and weigh competing evidence, including expert testimony.”

But Justice Christopher M. Goff dissented, writing in a separate opinion that he would rather leave a revised statewide injunction in place, preventing the ban from being enforced “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,” Goff wrote. “Maintaining this restriction for now would provide the added benefit of preserving a stable legal environment for women, health care providers and law enforcement.”

Goff, who also dissented in the June ruling, said the new abortion restrictions do not prohibit the procedure when necessary “to prevent death or a serious risk of substantial and irreversible physical impairment of a major bodily function.”

But the justice noted that the exception does not include psychological or emotional conditions, including instances in which a woman shows signs that she intends to hurt herself.

Goff contended that the law, as written, does not allow abortions in response to conditions that cause serious pain, suffering or disability without irreversible impairment; severe psychiatric illnesses, which may require medication that can’t be taken during pregnancy; or psychiatric issues that may lead to suicide or self-harm.

“These are all potentially severe medical problems. And seeking medically necessary treatment for them likely falls within the ambit of the constitutional right to protect one’s life and health,” Goff wrote. “Unless our colleagues in the General Assembly act to address these deficiencies, the state must be enjoined from enforcing Senate Bill 1 in ways that prevent women from seeking necessary medical aid.

“No one yet knows the precise contours of the life and health protections guaranteed by the Indiana Constitution,” he continued. “But for the sake of the lives and health of Hoosier women, our health care professionals and our justice system need to know as quickly as possible. Having declared the right of a woman to protect her health, this court should not now let that right go unprotected.”

In a similar split 4-1 decision in June, the high court nixed a preliminary injunction that has kept the ban on hold since September. An injunction issued in a separate religious freedom challenge to the ban only applies to the plaintiffs in that case. The separate matter is continuing to play out in the Court of Appeals.

The American Civil Liberties Union of Indiana, Planned Parenthood and the other plaintiffs that challenged the law in the constitutional case had 30 days after the Indiana Supreme Court’s June ruling to seek a rehearing before the decision was certified. In the meantime, that put the ban on hold. Rehearings are rarely granted.

Justices left open the possibility for other challenges in the future, however.

Even so, hesitancy persists among medical providers across the state — all of which have already stopped providing abortion care services altogether. Patients are instead being referred to clinics outside the state.

The five Indiana justices heard oral arguments over the constitutionality of the new law in January.

The court challenge was originally filed in Monroe Circuit Court in August 2022 by the ACLU on behalf of health care providers and a pregnancy resource center.

A special judge in Owen County later ruled that the ban likely violates the Indiana Constitution.

An injunction issued by Judge Kelsey Blake Hanlon, a Republican, halted the state’s new abortion law one week after it took effect. Under the injunction, the state’s previous abortion law stood, allowing abortions up to 20 weeks.

The Republican-dominated Indiana General Assembly advanced the abortion-restricting measure during a heated two-week special session last August.

That action made Indiana the first state in the nation to approve such legislation since the high court ruling that overturned Roe v. Wade.

The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. One part of the law says these exceptions are up to 20 weeks, but another part says they can be used any time. Rape survivors can get an abortion up to 10 weeks post-fertilization.

It also strips abortion clinics of their state medical licenses and provides that only hospitals and hospital-owned ambulatory surgical centers can provide abortions.