Indiana Supreme Court Justices hear arguments in challenge to near-total abortion ban

Attorneys for the state and the ACLU of Indiana made their cases before the five justices on Thursday

By: - January 19, 2023 12:30 pm

Indiana Supreme Court members heard arguments on Indiana’s abortion ban Thursday. (Photo courtesy of Indiana Supreme Court.)

Indiana Supreme Court Justices will decide the future of Indiana’s near-total abortion ban after hearing oral arguments over the constitutionality of the new law on Thursday.

Attorneys for abortion care providers maintained that the ban will “severely” injure women and girls, while lawyers for the state doubled down on their position that abortion access is not enshrined in the Indiana Constitution. The Indiana Attorney General’s Office said in court filings that abortion was banned by law in Indiana as early as 1835.

Solicitor General Thomas Fisher with the attorney general’s office said the injunction will lead to the deaths of “so many” unborn fetuses.

Ken Falk with the American Civil Liberties Union (ACLU) of Indiana pushed back, saying the abortion ban amounts to government infringement into private lives.

The five justices grilled both sides, largely questioning the attorneys about their interpretations of the rights guaranteed to Hoosiers in the state constitution.

court hearing
Indiana Solicitor General Tom Fisher speaks to reporters from outside the Indiana Superior Court in Indianapolis on Jan. 19, 2023. (Casey Smith/Indiana Capital Chronicle)

The state’s highest court granted a request by Republican Attorney General Todd Rokita to bypass the Indiana Court of Appeals. The court also denied the state’s request to stay the preliminary injunction that is currently blocking the abortion law.

The court challenge up for debate was originally filed in Monroe County Circuit Court in August by the ACLU of Indiana 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 stands — allowing abortions up to 20 weeks.

The state quickly appealed that decision and asked the Indiana Supreme Court to bypass the Court of Appeals and take the case directly.

It’s not clear when the justices will make their ruling. Chief Justice Loretta Rush said an opinion will be issued “in due course.”

The court has numerous options. For instance, it could rule only on whether the preliminary injunction was proper and send it back to the trial court for further proceedings. Or it can move forward with ruling on the legality of the law. 

Courtroom debate

Addressing the justices, Fisher said Indiana’s founders were “well aware” of abortion when they crafted the constitution, adding that the state “has always recognized the right of the embryo to life.”

But Rush, who led most of the questioning, said she had looked at “every law” that was in place at the time of the constitution’s writing, and they all protected the right of the mother to make decisions to protect her own life, implying that abortion could be one of those options.

Rush asked Fisher if a total abortion ban — with no exceptions — would be acceptable under the constitution.

Fisher conceded no, saying he doubts it would be. 

ACLU of Indiana legal director Ken Falk (From the ACLU of Indiana Website)

Justice Christopher M. Goff also asked Fisher why the near-total abortion ban shouldn’t be placed on a referendum voters decide. Fisher rebutted that the public already decided the issue when they elected lawmakers to the General Assembly.

Goff asked, too, why the law must force abortion clinics to shut down entirely. Fisher said they could become hospitals or ambulatory surgical centers owned by hospitals, but Goff responded that he doesn’t understand why “it’s all or nothing.”

Fisher further argued that abortion care providers want the justices to create a “novel, unindicated” right in the Indiana Constitution.

He additionally said medical providers who are plaintiffs in the case shouldn’t be allowed to sue based on the alleged rights violations of their patients. Fisher maintained “it would have to be a woman who is pregnant” to file such a lawsuit.

Addressing Falk, Justice Geoffrey Slaughter pointed out that the Court usually does not allow health care providers to bring cases on behalf of their patients.

Falk emphasized that medical providers are harmed by the law and have standing to sue, as well, in part because they could face criminal penalties under the new abortion restrictions.

Existing Indiana law makes it a felony for a doctor to perform an illegal abortion, and under the new legislation, most abortions will be illegal.

Doctors who perform abortions outside of an approved setting could face a Level 5 felony criminal charge — punishable by one to six years in prison and a fine of up to $10,000.

Slaughter also asked Falk how the constitution ensures a mother’s right to terminate a pregnancy over the right to life of the fetus. 

“We have never equated the life of the woman with the potentiality of life of the fetus,” Falk said. 

Ban background

The ACLU’s lawsuit argues that the abortion ban “will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and violate the Constitution’s due course of law clause through its unconstitutionally vague language.”

The court challenge is based on the Indiana Constitution. The Supreme Court of the United States in June ruled that the U.S. Constitution does not guarantee abortion rights.

Meanwhile, a second lawsuit, also led by the ACLU of Indiana, seeks to strike down the ban on the basis that it violates Indiana’s Religious Freedom Restoration Act. A Marion County judge is scheduled to hear arguments in this case on Friday.

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

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That 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 anytime. 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.

“It is unconscionable that anyone should have to leave their home states to access basic health care,” said Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawai‘i, Indiana, Kentucky. 

She added that Planned Parenthood will not shutter any health care centers in the state, even if the ban takes effect again: “We will continue to provide care and service to our patients, even if that means the need to help them access care out of the state of Indiana.”

Indiana Right to Life CEO Mike Fichter, on the other hand, held that “there is no right to abortion in the Indiana Constitution” and said “there is a great urgency” for the court to quickly put the law back in effect.

“The United States Supreme Court made it clear abortion policy is to be decided by the people of each state, which is exactly what happened when the Indiana legislature acted following the overturning of Roe vs. Wade,” he said in a statement Thursday. “We hope the court will act quickly in upholding the new law so Indiana can move forward in ending the majority of abortions in our state.”


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Casey Smith
Casey Smith

A lifelong Hoosier, Casey Smith previously reported on the Indiana Legislature for The Associated Press. Internationally, she has reported on water quality across South America. She holds a master’s degree in investigative reporting and narrative science writing from the University of California/Berkeley’s Graduate School of Journalism. She previously earned degrees in journalism, anthropology and Spanish from Ball State University, where she now serves as an instructor of journalism.