Indiana Supreme Court Vacates Injunction of State’s Near-Total Abortion Ban
- July 07, 2023
The Indiana Supreme held June 30 that a state law significantly restricting access to abortion services may go into effect and vacated a lower court decision that enjoined its enforcement.
At issue is Senate Bill 1 (S.B. 1), which criminalizes abortion in Indiana, subject to limited exceptions involving rape, incest, a lethal fetal anomaly, to save a woman’s life, or to prevent a serious health risk.
The law also restricts the procedure from being performed at licensed abortion clinics, where the majority of abortions were performed prior to S.B. 1’s enactment.
In September 2022, Monroe County Circuit Court Judge Kelsey Hanlon found the law at odds with the liberty guarantee of Article I, Section 1 of the Indiana Constitution, which she said provides a privacy right that includes a woman’s right to determine whether she will carry a pregnancy to term. Hanlon issued a preliminary injunction enjoining the law’s enforcement a week after it took effect.
The Indiana Supreme Court vacated the injunction, holding that Article 1, Section 1 “protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk,” but that the General Assembly “retains broad legislative discretion” to prohibit abortions on other grounds.
The high court noted that its decision did not end the litigation on plaintiffs’ remaining claim that S.B. 1’s hospital requirement for performing abortion discriminates against abortion providers in violation of the state’s constitution, which was an issue that was not part of the appeal. The decision also did not foreclose future abortion litigation.
“By saying Senate Bill 1 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 opinion said.
Two Justices joined the majority opinion. One Justice concurred in the judgment but wrote separately. Another Justice concurred in part and dissented in part, noting there was a reasonable likelihood that Article 1, Section 1’s guarantee of “liberty” includes a qualified right to bodily autonomy. “More importantly, I believe that the abortion question is fundamentally a matter of constitutional dimension that should be decided directly by the sovereign people of Indiana,” the opinion said in urging lawmakers to let voters consider the issue.
Members of Med. Licensing Bd. of Ind. v. Planned Parenthood Great NW, Hawai’i, Alaska, Ind., Ky., Inc., No. 22S‐PL‐338 (Ind. June 30, 2023).