In 2022, Indiana’s governor signed SB 1, banning virtually all abortions in the state.
SB 1: “Terminates the licensure of abortion clinics. Specifies that the abortion statutes do not apply to in vitro fertilization. Makes changes to when an abortion may be performed, including when: (1) the abortion is necessary to prevent any serious health risk of the pregnant woman or to save the pregnant woman’s life; (2) the fetus is diagnosed with a lethal fetal anomaly; or (3) the pregnancy is a result of rape or incest. Specifies time frames and conditions that must be met in order for the abortion to be performed. Provides that the statute requiring consent of a parent or legal guardian for a minor’s abortion does not apply to a minor who is pregnant as a result of rape or incest by a parent, legal guardian, or custodian of the unemancipated minor. Requires the revocation of a physician’s license for specified violations. Provides a defense for a pregnant mother charged with a criminal offense for terminating or seeking the termination of her pregnancy. Specifies that a person who terminates the pregnancy of a pregnant woman upon her request may only be charged with certain crimes. Exempts from the crime of feticide: (1) the pregnant mother; (2) a person who provides medical treatment in good faith to a pregnant woman that results in the accidental or unintentional termination of the pregnancy; and (3) a physician who performs a medical procedure to terminate the pregnancy upon request of the pregnant woman. Requires the maternal mortality review committee to study how changes in the state’s abortion laws affect maternal mortality in Indiana and extends the committee until June 30, 2027. Voids certain administrative rules concerning abortion clinics. Establishes the prosecutorial oversight task force and specifies duties of the task force. Makes conforming amendments.”
Plaintiffs, including Planned Parenthood, immediately filed a challenge alleging the law “criminalizes their work.”
But on Friday, the preliminary injunction was vacated by the Indiana Supreme Court and the law will go into effect as soon as August 1.
Despite the ruling, the Court left the door open for additional legal challenges.
Plaintiffs have 30 days to seek a rehearing before the decision is certified, meaning the ban won’t be effective until Aug. 1, according to the ACLU of Indiana, which challenged the law. Rehearings are rarely granted.
In a split, 4-1 decision, the high court nixed a preliminary injunction that has kept the ban on hold since September. An injunction issued in a separate religious freedom challenge to the ban only applies to the plaintiffs in that case.
Justices opined that Planned Parenthood and other health care providers unsuccessfully brought a “facial” challenge to the entire law, which alleged that the abortion ban is always unconstitutional and should therefore be voided.
Last summer, the General Assembly passed, and the Governor signed, Senate Bill 1, which balances these interests by broadly prohibiting abortion but making exceptions in three circumstances: (1) when an abortion is necessary either to save a woman’s life or to prevent a serious health risk; (2) when there is a lethal fetal anomaly; or (3) when pregnancy results from rape or incest. Several abortion providers sued to invalidate the law, contending that a woman’s right to “liberty” under Article 1, Section 1 of the Indiana Constitution encompasses a fundamental right to abortion, and that Senate Bill 1 materially burdens a woman’s exercise of this right. On that constitutional basis, the trial court preliminarily enjoined the State from enforcing the law. Now, on appeal, the State seeks to vacate the injunction, arguing that the abortion providers lack standing; that Article 1, Section 1 is not judicially enforceable; and that even if it is, it does not protect a fundamental right to abortion.
We first hold that the providers have standing to contest the constitutionality of Senate Bill 1 because the statute criminalizes their work, and thus they face the sort of imminent, direct, personal injury our standing doctrine requires. Then, after examining Article 1, Section 1’s text, history, structure, and purpose, as well as our prior case law interpreting the provision, we hold that it is judicially enforceable. Finally, we hold 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 the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions.
Based on these holdings, we conclude the record does not support the preliminary injunction. The providers brought a “facial” challenge to the entire law, so they had to show a reasonable likelihood of success in proving there are no circumstances in which any part of Senate Bill 1 could ever be enforced consistent with Article 1, Section 1. Because there are such circumstances, the providers cannot show a reasonable likelihood of success on their facial challenge. We therefore vacate the preliminary injunction.
Read the full opinion below.
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