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Editor’s note: This article has been updated.
Just one day before Indiana’s near-total abortion ban was technically supposed to take effect for the second time, the American Civil Liberties Union of Indiana filed a petition for rehearing, asking the Indiana Supreme Court to allow a preliminary injunction to remain in effect pending continued efforts to obtain injunctive relief.
The plaintiffs filed the petition for rehearing Monday in Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical licensing Board of Indiana, in their official capacities, et al., 22S-PL-00338.
Last month, the Indiana Supreme Court lifted an injunction against the abortion law, which prohibits the procedure except in limited cases of cases of rape or incest, fatal fetal anomaly, or to protect the life or health of the mother.
The law, known as Senate Enrolled Act 1, had been enjoined since September 2022.
The state justices ruled 4-1 to lift the injunction. Chief Justice Loretta Rush and Justice Mark Massa concurred in the majority opinion, written by Justice Derek Molter, while Justice Geoffrey Slaughter concurred in the judgment and Justice Christopher Goff concurred and dissented in part.
The high court remanded the case back to the Monroe Circuit Court.
The Indiana Office of the Attorney General, on behalf of the state defendants, has 15 days from Monday to file a response to the rehearing petition. If it does not do so, the Supreme Court could order a response. If the court orders the OAG to respond, it will again be given 15 days to do so.
Katlyn Milligan, an office spokesperson for Indiana Attorney General Todd Rokita, issued an emailed statement to the Indiana Lawyer about the rehearing petition.
“On the eve of Indiana’s pro-life law going into effect, the ACLU and Planned Parenthood made a desperate attempt to prevent Indiana from enforcing our own law. We responded to this filing immediately and are now waiting for the Court to rule. The ACLU and Planned Parenthood have made their intentions clear – this is just another grab for fundraising dollars,” Milligan said in the email.
The petition presents the Statement of the Issue as, “Whether, in order to prevent profound and potentially irreversible damage to patients who will suffer ‘a serious health risk’ absent an abortion, this Court should grant rehearing of its decision reversing the preliminary injunction entered by the trial court for the limited purpose of ordering that injunction to remain in effect pending the prompt filing and disposition of a renewed preliminary-injunction motion addressed to the breadth of the abortion right that this Court held to be protected by Article 1, Section 1 of the Indiana Constitution.”
Specifically, while the justices ruled that “the General Assembly … retains broad legislative discretion for determining whether and the extent to which to prohibit abortions,” they also held that “Article 1, Section 1 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 rehearing petition continues, “As indicated, consistent with this Court’s decision, on remand Plaintiffs intend to renew their preliminary-injunction request to pursue a claim that (SEA) 1 violates Article 1, Section 1 as applied to circumstances where an abortion is necessary to prevent ‘serious health risks’ not contemplated by Indiana’s current life-or-health exception. Notwithstanding its conclusion that the trial court improperly enjoined S.B. 1 on its face, this Court possesses authority to temporarily extend this injunction for a period of time sufficient to allow the trial court to resolve Plaintiffs’ to-be-filed request.”
The petition argues that any harm that may occur by allowing the injunction to temporarily remain in effect would be minimal given that Roe v. Wade existed for half a century.
“Plaintiffs believe that the precise timing of these proceedings should be left to the sound discretion of the trial court,” the petition concludes. “In the alternative, this Court may wish to order that the preliminary injunction will remain in effect for a set period of time — perhaps sixty or ninety days — following certification pursuant to Appellate Rule 65(E).”
Pursuant to Indiana Appellate Rule 65(E), the trial court and parties cannot take any action on the Supreme Court’s June opinion until the opinion is certified. The appellate clerk will not certify the opinion until the court decides the issue of rehearing.
Abortion is currently legal in Indiana up to 20 weeks postfertilization while the high court considers the rehearing petition.
According to the Indiana Capital Chronicle, Planned Parenthood centers in Indiana were fully booked leading up to Aug. 1, the date SEA 1 could have taken effect again following the June 30 ruling. Even though the ban is technically still on hold, Planned Parenthood announced Tuesday that its clinics are currently not providing abortion care in Indiana.
“No matter what extremists try to do in the political arena and courtrooms of Indiana, Planned Parenthood won’t back down. Our providers will continue to deliver compassionate, essential care to patients,” Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky said in a tweet.
Another lawsuit pending against SEA 1 claims the abortion ban violates Indiana’s Religious Freedom Restoration Act.
That case — Anonymous Plaintiffs 1 -5, on their own behalf and on behalf of those similarly situated; Hoosier Jews for Choice v. The Individual Members of the Medical Licensing Board of Indiana; and the Marion County Prosecutor, Lake County Prosecutor; Monroe County Prosecutor, St. Joseph County Prosecutor; Tippecanoe County Prosecutor, 22A-PL-2938 — is set for an oral argument before the Court of Appeals of Indiana at 10 a.m. on Dec. 6 in the Supreme Court courtroom at the Indiana Statehouse.
The defendants are appealing the Marion Superior Court’s grant of a preliminary injunction against SEA 1 on the ground of a RFRA violation. The state defendants are arguing on appeal that the plaintiffs either lack standing, or their claims are not ripe for adjudication. They also assert the plaintiffs have not shown that the law substantially burdens their religious beliefs or that they are entitled to injunctive relief.
The preliminary injunction in the RFRA case only covers the plaintiffs, not the whole state. The case before the Supreme Court would have a statewide effect.
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