The Indiana Supreme Court ruled Friday that the state’s abortion ban doesn’t violate the state constitution, removing a major hurdle to enforcing the ban Republicans approved last summer ahead of a wave of restrictions by conservative states in response to the overturning of Roe v. Wade.
The court’s decision, which does not put the ban immediately into effect, invalidates a county judge’s ruling that the ban likely violated the state constitution’s privacy protections, which she said are stronger than those found in the U.S. Constitution. That judge’s order has allowed abortions to continue in Indiana since September, despite the ban.
Three of the court’s five justices agreed that while Indiana’s constitution provides some protection of abortion rights, the “General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions.”
All five Indiana Supreme Court justices were appointed by Republican governors.
The Indiana ban would eliminate the licenses for all seven abortion clinics in the state and ban the vast majority of abortions even in the earliest stages of a pregnancy. It includes exceptions allowing abortions at hospitals in cases of rape or incest before 10 weeks post-fertilization. It also allows abortions up to 20 weeks to protect the life and physical health of the mother or if a fetus is diagnosed with a lethal anomaly.
In 2022, an Indiana Department of Health report stated that 9,529 abortions were performed in Indiana — an uptick of more than 1,000 from 2021, when 8,414 abortions were counted statewide. More than two-thirds of the state’s abortions occurred at or before 8 weeks of pregnancy. Less than 1% of abortions occurred at or after 14 weeks. Nonsurgical — or medication — abortions account for more than half of procedures (52%).
Lake County facilities performed 1,170 abortions — about 12% of the state’s total — with most procedures done at Planned Parenthood of Merrillville. According to the report, 499 Lake County residents received an abortion last year, while 154 were from Porter County.
Republican state Attorney General Todd Rokita issued a statement praising the decision: “We celebrate this day — one long in coming, but morally justified. Thank you to all the warriors who have fought for this day that upholds LIFE.”
A representative from Porter County Right to Life could not be reached for comment,
State Rep. Carolyn Jackson, D-Hammond, said she is fearful of the impact of the ban on the health of women and girls in the state.
“We cannot forget that this near-total abortion ban will disproportionally impact African American women and women of color,” Jackson said in a statement on behalf of the Indiana Black Legislative Caucus (IBLC), of which she is the vice chair. “Indiana already has the third highest rate of maternal mortality in the nation, and the rates for Black women are much higher than the average rate for Hoosier women overall. We simply cannot afford to do anything that will put pregnant Hoosier women at greater risk for health complications, and yet, here we are. We in the House Democratic Caucus and the IBLC will continue to do everything in our power to reinstate bodily autonomy for Hoosier women and girls.”
Nearly half of the women who got abortions in Indiana last year were white (48%) and one-third were Black (36%), according to the state report.
State Rep. Earl Harris Jr., D-East Chicago, chair of the IBLC, echoed Jackson’s statement with one supporting abortion rights.
“The right to control one’s own body is the right to control one’s own destiny,” Harris Jr. said. “This decision from the state Supreme Court is disheartening, but I and my colleagues remain committed to helping every Hoosier — regardless of gender, race or income — access the health care that is best for themselves and their families, and to ensure that women are not second-class citizens in Indiana.”
Valparaiso’s Julie Storbeck, president of Northwest Indiana’s chapter of the National Organization for Women, said the decision denies women bodily autonomy.
“Indiana NOW condemns this decision by the Indiana Supreme Court which flies in the face of every credible medical association, and denies women and others who can get pregnant the right to determine for ourselves who uses our bodies and for what purpose,” she said in a statement.
Although the court’s decision strikes down the injunction blocking the ban, it was unclear Friday how soon the ban would take effect. The justices returned the case to the county judge for further action, and left open the possibility of a narrower legal challenge.
The American Civil Liberties Union of Indiana, representing Planned Parenthood and other abortion clinic operators in the lawsuit, has 30 days to ask the Supreme Court to review its decision but didn’t say whether it would do so. The groups said in a statement that they are “devastated” but that the court’s decision “is not the end of our fight for equitable, compassionate care in Indiana.”
Indiana’s abortion ban also faces a separate court challenge over claims it violates the state’s 2015 religious freedom law signed by GOP then-Gov. Mike Pence.
Indiana became the first state to enact tighter abortion restrictions, acting in August, after the U.S. Supreme Court’s eliminated federal protections by overturning Roe v. Wade in June 2022.
Most Republican-controlled states have enacted tighter abortion restrictions since U.S. Supreme Court’s ruling last summer. All the restrictions have been challenged in court.
In the past year, judges in Arizona, Iowa and South Carolina have ruled that the bans are not permissible under the state constitutions. Besides Indiana, enforcement of restrictions are on hold as courts decide the cases in Montana, North Dakota, Ohio, Utah and Wyoming. In North Dakota, lawmakers adopted a different ban since to replace the one that was blocked. In South Carolina, another ban has been put into place and put on hold by a court.
And on Friday, a federal judge blocked a small part of North Carolina’s new abortion restrictions, allowing other provisions to take effect on Saturday. North Carolina has banned most abortions after 20 weeks; the new rules reduce it to 12 weeks, but add new exceptions through 20 weeks for cases of rape and incest and through 24 weeks for “life-limiting” fetal anomalies. A medical emergency exception also remains in place.
Democratic-led states, such as Indiana’s neighbors of Illinois and Michigan, have mostly taken steps to protect abortion access.
The ACLU of Indiana argued before the Supreme Court in January that the state constitution’s liberty protections provide a right to privacy and to make decisions on whether to have children.
The state attorney general’s office countered that Indiana had laws against abortion when its current constitution was drafted in 1851 and that the county judge’s ruling would wrongly create an abortion right.
The Indiana Supreme Court’s decision said that while the state constitution’s liberty clause “protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, the provision does not protect a fundamental right to abortion in all circumstances.”
The majority, however, did not present Friday’s ruling as the final word on the legality of Indiana’s abortion restrictions.
“By saying (the ban) is not unconstitutional in its entirety in all circumstances, we do not say the opposite either — that every single part of the law can be applied consistent with our Constitution in every conceivable set of circumstances,” the decision said.
Indiana University law professor Jody Madeira said the court’s decision “almost invites explicitly” other legal challenges to the ban.
Madeira said abortion rights supporters and opponents can “start from scratch with this additional guidance, that they have to frame their claims more narrowly.”
A separate court challenge to the ban is ongoing as another county judge in December sided with residents who claim it violates the state’s religious freedom law, which Republican legislators pushed through in 2015 and sparked a widespread national backlash as critics argued it allowed discrimination against gay people.
The state Supreme Court in January turned down a request from the attorney general’s office that it immediately take up the religious freedom lawsuit. The state’s intermediate Court of Appeals is scheduled to hear arguments over that lawsuit on Sept. 12.
Marion County Judge Heather Welch in December agreed with five residents who hold Jewish, Muslim and spiritual faiths and who argued that the ban would violate their religious rights on when they believe abortion is acceptable. For now it only directly affects those plaintiffs — legal experts say anyone else claiming religious protections of their abortion rights would need their own court order.
Arleigh Rodgers is a corps member for The Associated Press/Report for America Statehouse News Initiative.
The Post-Tribune contributed.
