The Charlotte T. Zietlow Justice Center in Bloomington was the site of a hearing in a lawsuit challenging Indiana's near-total abortion ban on Sept. 19, 2022. The judge in that case temporarily halted enforcement of the ban. (Brandon Smith / IPB News)
This story has been updated.
Indiana’s near-total abortion ban has been temporarily halted.
Just three days after a judge heard arguments in a lawsuit challenging the ban, she ruled that the law likely violates the Indiana Constitution.
Article 1, Section 1 of the Indiana Constitution says that all people have a right to liberty. Judge Kelsey Hanlon said Indiana courts have recognized before that a right to bodily autonomy is part of that.
And her ruling said Indiana’s near-total abortion ban goes too far in restricting that right “by making that autonomy largely contingent upon first experiencing extreme sexual violence or significant loss of physical health or death.”
Hanlon’s decision also said the law’s ban on clinics performing abortions – restricting the procedure only to hospitals and certain surgical centers – will limit availability, increase costs and “is unlikely to increase the safety of Hoosier women and girls.”
The ruling means that, for now, abortion is legal for anyone up to 20 weeks, without needing to provide a reason. Other pre-existing regulations are also in effect, including provisions that require two separate trips to an abortion care provider, an ultrasound, informed consent and parental consent for those under age 18.
In a statement, Attorney General Todd Rokita pledged to appeal the decision.
"Our office remains determined to fight for the lives of the unborn, and this law provides a reasonable way to begin doing that," Rokita said.
However, the state will likely ask for the ruling's impact to be halted while the appeal is ongoing, meaning the abortion ban might take effect again soon.
Democratic state lawmakers cheered Thursday's ruling. Senate Democratic Leader Greg Taylor (D-Indianapolis) acknowledged the pause may be temporary, but said it was still a win for every Hoosier who needs vital care.
"Abortion care is health care and every extra day that this healthcare is available to women is critical," Taylor said.
🎉BREAKING: A judge has granted our request to block enforcement of Indiana's abortion ban.
— ACLU of Indiana (@ACLUIndiana) September 22, 2022
Abortion is once again legal in the state of Indiana.
Indiana House Democratic Caucus spokesperson Hannah Smith said the lawsuit was further evidence of Republicans wasting taxpayer dollars in their pursuit of an abortion ban.
"The GOP’s endless crusade to disenfranchise women and girls of personal choice and autonomy has already cost our state countless dollars, and this lawsuit will surely add to the tab of hard-working folk," Smith said.
Gov. Eric Holcomb only said his office would continue to monitor the case. Senate President Pro Tem Rodric Bray declined to issue a new statement, pointing to previous remarks that he hopes the ban will survive a legal challenge.
Read more: Reflecting on pre-Roe Indiana: "People don't remember how bad it was"
Indiana abortion care providers Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky; Whole Woman’s Health Alliance, Women's Med Group Professional Corporation and All-Options Pregnancy Resource Center brought this lawsuit challenging the ban.
In a joint statement, they said the ruling provides relief, but said the fight is not over.
"Indiana lawmakers have made it abundantly clear that this harm, this cruelty, is exactly the reality they had in mind when they passed [the ban]," the providers said.
Indiana Right to Life is one of the state's most influential anti-abortion organizations. President and CEO Mike Fichter said the group was encouraged the judge's ruling acknowledged that the state has a legitimate interest in protecting fetuses.
"[We] are hopeful the blockage will be brief," Fichter said.
— Todd Rokita (@AGToddRokita) September 22, 2022
The American Civil Liberties Union of Indiana, which is representing the abortion clinics, filed the lawsuit Aug. 31 and argued the ban would “prohibit the overwhelming majority of abortions in Indiana and, as such, will have a devastating and irreparable impact on the plaintiffs and, more importantly, their patients and clients.”
Ken Falk, the ACLU of Indiana’s legal director, pointed to the state constitution’s declaration of rights including “life, liberty and the pursuit of happiness” in arguing before the judge on Monday that it included a right to privacy and to make decisions on whether to have children.
The state attorney general’s office said the court should uphold the ban, calling arguments against it based on a “novel, unwritten, historically unsupported right to abortion” in the state constitution.
“The constitutional text nowhere mentions abortion, and Indiana has prohibited or heavily regulated abortion by statute since 1835 — before, during, and after the time when the 1851 Indiana Constitution was drafted, debated, and ratified,” the office said in a court filing.
Read more: Is Indiana's abortion law bad for business?
The Indiana abortion ban includes exceptions allowing abortions in cases of rape and incest, before 10 weeks post-fertilization; to protect the life and physical health of the mother; and if a fetus is diagnosed with a lethal anomaly.
The new law also prohibited abortion clinics from providing any abortion care, leaving such services solely to hospitals or outpatient surgical centers owned by hospitals.
The lawsuit was filed in southern Indiana’s Monroe County, which includes the liberal-leaning city of Bloomington and Indiana University’s main campus, but two elected Democratic judges from that county declined to handle the case without stating any reasons.
Hanlon, a Republican from neighboring Owen County, accepted appointment as special judge. Hanlon, who was first elected as a judge in 2014, was among three finalists that the state Judicial Nominating Commission selected in July for for appointment to the state appeals court, but the governor last week named a different judge to the position.
Contact reporter Brandon at bsmith@ipbs.org or follow him on Twitter at @brandonjsmith5.
