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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowLess than a month after Indiana’s near-total abortion ban was signed into law, the battle for reproductive rights has moved to the state courts with two lawsuits challenging the new statute on constitutional and religious freedom grounds.
The American Civil Liberties Union of Indiana filed both lawsuits seeking to block the ban, which is scheduled to take effect Thursday.
In the first complaint, filed Aug. 31 in Monroe Circuit Court on behalf of abortion providers, the plaintiffs assert the new law violates the right to privacy and guarantees of equal privileges and immunities under the Indiana Constitution. The second complaint, filed Sept. 8 in Marion Superior Court on behalf of individuals, argues the ban violates the state’s Religious Freedom Restoration Act because some religions, including Judaism and the Episcopal Church, believe in access to abortion.
“We recognize that the law raised a number of issues including the state constitutional issue and the RFRA issue,” Ken Falk, legal director of the ACLU of Indiana, said. “They are certainly completely distinct issues and it made sense, if we were going to proceed and if people were aggrieved, that we proceed with two different pieces of litigations because the arguments are completely separate.”
Both cases list the same defendants. The lawsuits identify the opposing parties as the members of the state’s medical licensing board because they will enforce the penalties in the law against the physicians who perform abortions, and the prosecutors in the counties where abortions have occurred in recent years.
Already in the Monroe County lawsuit, Linda Pence, a former attorney with the U.S. Department of Justice and current partner at SmithAdmunsen in Indianapolis, has filed an appearance for the Marion County Prosecutor’s Office.
The Indiana Prosecuting Attorneys Council said it would not be getting involved in either case.
Indiana Attorney General Todd Rokita held a virtual press conference Sept. 1 to discuss “his work to protect Hoosiers and defend life.” He dismissed the constitutional arguments raised by the ACLU, saying the Indiana Constitution does not contain a right to abortion.
“The left can’t stand a culture of life,” Rokita said during the press conference, calling the ACLU and Planned Parenthood, which frequently challenges Indiana’s abortion regulations, “leftist organizations.” He added, “The ACLU and Planned Parenthood push back every time there is a win for liberty but we will not back down in the fight to protect future generations.”
Privacy question unanswered
Previously, when the Legislature imposed restrictions on abortion, lawsuits would be filed in federal court. However, the U.S. Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization found the U.S. Constitution does not give women the right to seek abortions and consequently sent the matter back to the states to decide.
Even so, the Indiana Supreme Court did hear a case involving abortion and privacy rights under the state’s constitution in 2005. The case, Clinic for Women, Inc. v. Carl J. Brizzi, 837 N.E.2d 973 (Ind. 2005), challenged an Indiana law that required women seeking an abortion to wait 18 hours after their first visit with an abortion provider before terminating their pregnancies.
Representing the plaintiff, the ACLU of Indiana argued the law violated Article 1 Section 1 by infringing on women’s “liberty interests to determine the course of their medical treatment.”
The trial court dismissed the complaint, but the Court of Appeals of Indiana reversed in part. Specifically, the appellate panel held Article 1 Section 1 does provide a fundamental right to privacy that includes the protection to make the decision to end a pregnancy.
A majority opinion of the Indiana Supreme Court upheld the law but sidestepped the question of privacy. The justices maintained they did not need to determine the constitutional claim, in part because the statute did not “impermissibly impinge upon any right to privacy or abortion that might exist.”
Then-Justice Ted Boehm dissented. He argued the Court of Appeals was correct in finding the Indiana Constitution includes the right for women to choose whether to have an abortion.
“The fundamental right to personal and procreative autonomy and, in the broader sense, to individual privacy, prohibits the government from dictating, approving or condemning values, beliefs and matters ultimately involving individual conscience …,” Boehm wrote, quoting the Montana Supreme Court.
Falk noted the 2005 ruling does not impact the ACLU’s current challenge to the constitutionality of the state’s abortion restrictions.
“It certainly left the question open in the abortion context as to whether Article 1 Section 1 does protect (privacy rights),” he said.
Constitution Day
During a recent Constitution Day symposium at Indiana University Robert H. McKinney School of Law, the discussion about Dobbs incited the most impassioned responses.
John Hill, an IU McKinney professor, used a PowerPoint presentation to highlight U.S. Supreme Court decisions using substantive due process, which included the ruling that legalized abortion. Describing the court’s use of substantive due process as “fraught with a lot of controversy,” he was unequivocal about the justices’ decision in the 1973 landmark reproductive rights opinion.
“Roe v. Wade was wrongly decided,” Hill said. “It didn’t become right by virtue of being followed for 50 years any more than Plessy v. Ferguson became right by being followed for 50 years before Brown v. Board of Education.”
Falk opened his own remarks at the symposium by noting he does not talk about the Supreme Court as being wrong. However, he did express concern at what he sees as the damage the majority of justices, who were all appointed by Republican presidents, did by taking away a right women had for 50 years. He asserted the Dobbs decision has tarnished the reputation of the judiciary.
“The point is that Dobbs has done profound and untold damage to the institutional validity of the court because America now views the Supreme Court as just another political institution,” Falk said. “… For a long time, people are going to see the Supreme Court that makes these incredibly important decisions as nothing more than taking a straw poll that can quickly be reversed. … For those who respect and love the law … this is a tragedy.”•
Indiana Lawyer Editor Olivia Covington contributed to this report
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