Editor’s note: This article has been updated.
Seven days after Indiana’s near-total abortion ban took effect, the Monroe Circuit Court granted a preliminary injunction Thursday blocking the state from enforcing the new law.
Special Judge Kelsey Hanlon enjoined the named defendants from enforcing the provisions of Senate Enrolled Act 1 as enacted in Titles 16, 25, 27 and 35 of the Indiana Code. The judge acknowledged the state has an interest in regulating abortion but said the new law “materially burdens Hoosier women and girls’ right to bodily autonomy … .”
Hanlon found the plaintiffs, represented by the American Civil Liberties Union of Indiana, were likely to prevail on their claim that the state’s abortion law violates women’s right to privacy as granted by Article 1, Section 1 of the Indiana Constitution. Conversely, the judge was not convinced by the plaintiffs’ argument that the new law discriminates against abortion providers in violation of Article 1, Section 23’s guarantee of equal privilege and immunities.
With the injunction now in place, the state’s previous law, which allowed women to obtain abortions up to 20 weeks postfertilization, is in effect. The enforcement of SEA 1 has been temporarily stayed while the case continues in the Monroe Circuit Court.
Hanlon nodded to the heavy task brought by the fight over reproductive rights.
“Abortion continues to be a legally and morally fraught issue presenting challenges to both legislatures and courts when balancing constitutional protection of the bodily autonomy of women and girls and the policy considerations of maternal health and protection of fetal life,” she wrote in the order.
The ACLU of Indiana along with Planned Parenthood Federation of America, Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky, Whole Woman’s Health, All-Options, the Lawyering Project and Women’s Med released a joint statement applauding the ruling while conceding the fight is continuing.
“Indiana lawmakers have made it abundantly clear that this harm, this cruelty, is exactly the reality they had in mind when they passed S.B. 1,” the statement asserted. “There are 1.5 million people of reproductive age in the state of Indiana, and every single one of them deserve the right to make their own decisions about their bodies, families, and futures.”
Indiana Attorney General Todd Rokita released a statement saying his office would try to get Hanlon’s order overturned by a higher court.
“We plan to appeal and continue to make the case for life in Indiana,” Rokita said. “Our office remains determined to fight for the lives of the unborn, and this law provides a reasonable way to begin doing that.”
The attorney general did not clarify if his office would be going to the Court of Appeals of Indiana or taking the issue straight to the Indiana Supreme Court.
Monday, the Monroe Circuit Court heard oral arguments on the motion for preliminary injunction filed by the ACLU of Indiana. The trial court had rejected the plaintiffs’ motion for a temporary restraining order to prevent the new abortion restrictions from taking effect while the request for an injunction was being considered.
In its brief supporting its preliminary injunction motion, the ACLU of Indiana had argued the abortion law, which the Legislature passed in a special session in August, violated women’s right to privacy as provided by the Indiana Constitution. The ACLU maintained the right to privacy is a “core value protected by the constitution that is independently judicially enforceable and includes the right to abortion.”
The Indiana attorney general countered that no provision in or in the history of the state’s constitution supported the plaintiffs’ contention of a privacy right. Pointing to the document, the attorney general asserted, “The constitutional text nowhere mentions abortion as a protected right, and Indiana history demonstrates abortion was regarded as criminal — not a cherished core value.
As Hanlon acknowledged, the question remains open as to whether a right to privacy exists within the Indiana Constitution. The Indiana Supreme Court left that issue unresolved in Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973, 978 (Ind. 2005).
Yet Hanlon found guidance from then-Justice Ted Boehm’s dissent, which argued the state’s constitution did express a privacy right that enabled women to seek abortions.
The judge described Boehm’s reasoning as “most compelling” and providing “ample legal support” to the plaintiffs’ arguments. Moreover, she echoed the justice in noting that when Indiana adopted its current constitution in 1851, the state denied the right to vote on the basis of race and prevented married women from owning property.
However, Hanlon held the Indiana Constitution has a history of being interpreted to provide greater protection to individuals than the U.S. Constitution.
“… (T)here is a reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana constitution and the Plaintiffs will prevail on the merits as to their claim that S.B. 1 violates Article, 1 §1 of the Indiana Constitution,” she wrote.
The lawsuit — Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical Licensing Board of Indiana et al., 53C06-2208-PL-001756 — was filed Aug. 31 on behalf of abortion clinics and health care providers in Indiana.