Indiana Supreme Court won’t fast track abortion case

The Indiana Supreme Court has declined to take a second case involving Indiana’s near-total abortion ban — sending the matter through the usual lower court process instead.

Attorney General Todd Rokita had asked to bypass the Indiana Court of Appeals after a Marion Superior Court judge granted a second preliminary injunction against the ban, this one based on a controversial religious freedom law.

Under Indiana’s Religious Freedom Restoration Act, government can only “substantially burden” exercise of religion if it advances a “compelling” government interest in the least restrictive way possible.

The class action lawsuit argues that the new abortion law violates RFRA. The plaintiffs include practitioners of Judaism, Islam, Unitarian Universalism, Episcopalianism and paganism — all belief systems that allow abortions under circumstances outside the ban’s narrow exceptions.

The state, meanwhile, has argued that its compelling interest in this case is “protecting the unborn.”

This is the second case involving the ban. Earlier this month, the five Supreme Court justices heard a case against the ban based on liberty and privacy rights. They have not issued a ruling.

The new abortion ban was in effect for just a week in September before a Republican judge in Owen County issued a first temporary injunction in a separate ACLU lawsuit, which challenges the constitutionality of the law based on liberty and privacy protections.

The decision put the ban on hold while Indiana Supreme Court justices weigh the case.  Under that injunction, the state’s previous abortion law stands — allowing abortions up to 20 weeks.

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