Indiana justices set to hear first challenge to state’s new abortion law

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The Indiana Supreme Court bench in the Indiana Statehouse (IL file photo)

The Hoosier State’s new abortion law, passed weeks after Roe v. Wade was struck down last summer, will go before the Indiana Supreme Court Thursday, becoming one of the first near-total abortion bans in the country to face scrutiny from a state’s justices.

Oral arguments in Members of the Medical Licensing Board of Indiana, et al. v. Planning Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al., 22S-PL-00338, are scheduled for 9 a.m. in the Supreme Court’s courtroom in the Indiana Statehouse. All five justices will be hearing the case.

Planned Parenthood and other plaintiffs, represented by the American Civil Liberties Union of Indiana, are challenging the constitutionality of Senate Enrolled Act 1.

The Monroe Circuit Court granted the plaintiffs’ motion for preliminary injunction just days after the new abortion law took effect. In response, the Indiana Attorney General’s Office, representing the members of the medical licensing board, immediately appealed the ruling and convinced the Supreme Court to grant emergency transfer.

An analysis by the Brennan Center for Justice and the Center for Reproductive Rights reported 34 lawsuits fighting new abortion restrictions have been filed in 19 states since the U.S. Supreme Court found the U.S. Constitution does not confer a right to abortion in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. ____ (2022). Of those, 27, including two cases in Indiana, remain pending.

On Jan. 5, the South Carolina Supreme Court became the first state court to find abortion was protected by the state constitutional right to privacy. The justices split 3-2 in striking down the Palmetto’s State’s ban on abortion after six weeks.

In the Indiana lawsuit, the plaintiffs are arguing, in part, that Article 1, § 1 of the Indiana Constitution provides a “judicially enforceable guarantee of liberty, which encompasses the right to determine whether to terminate a pregnancy.”

They cite precedent and outline the history of the state’s constitution to assert the Supreme Court has long interpreted Article 1, § 1 “to embody specific liberty rights necessary for Hoosiers to make deeply personal decisions foundational to their control over their own bodies ….”

Indiana calls the trial court’s ruling a “judicial amendment” to the state’s constitution and dismisses the plaintiffs’ argument about enforceable rights. The state contends Article 1 § 1 of the Indiana Constitution’s declaration of inalienable rights is an expression of “basic philosophy of government” and does not enumerate individual rights enforceable by the judiciary.

Three amicus briefs from four organizations — Thomas More Society and Indiana Family Institute as well as the Frederick Douglas Foundation and National Hispanic Christian Leadership Conference — have been filed in support of the Senate Enrolled Act 1.

Also, the Supreme Court granted the motion  rom professor Eric Rasmussen (the docket also spells his last name as Rasmusen) to file an amicus brief in support of the state law. However, the docket does not indicate he submitted any briefing.

Two friend-of-the-court briefs have been filed opposing the law. One was submitted by the American College of Obstetricians and Gynecologists, the American Medical Association and the Society for Maternal-Fetal Medicine and the other was written by former Indiana University Maurer School of Law dean Lauren Robel for Historians and State Constitutional Law Scholars.

Second challenge

While Indiana is preparing for oral arguments at the Supreme Court, it is also trying to get the justices to accept an emergency transfer of a second challenge to SEA 1. The lawsuit filed by five unnamed women and Hoosier Jews for Choice argues the new abortion statute violates Indiana’s Religious Freedom Restoration Act.

In December, the Marion Superior Court granted a preliminary injunction, finding the law was interfering with the plaintiffs’ religious beliefs.

Indiana’s attorney general has appealed, and, as it did with the constitutional challenge, the state is trying to skip the Court of Appeals and take the case directly to the Indiana Supreme Court.

The justices have not issued a decision on the transfer in Individuals Members of the Medical Licensing Board of Indiana, et al. v. Anonymous Plaintiff 1, et al., 22A-PL-02938.

In its motion for transfer, the state contends the case presents substantial questions of law. Included is the “gravely important question of whether Indiana’s statutory protection of religious exercise through RFRA undermines the State’s authority to prohibit abortions in most cases.”

The ACLU pf Indiana, which is representing the plaintiffs, countered the issue does not call for immediate supreme court review.

“While the State obviously does not agree with the decision of the trial court, it is undeniable that RFRA exists for the sole purpose of “undermin[ing] the State’s authority” to compromise and burden sincere religious exercises,” the ACLU argued in its opposition brief. “The fact that the trial court, after considering the statutory requirements, found in favor of the plaintiffs and enjoined a state law as applied to them does not create a ‘gravely important question.’”

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