Indiana Supreme Court OKs near-total abortion ban, set to take effect soon

The Indiana Supreme Court ruled Friday that the state’s near-total abortion ban does not violate the Indiana Constitution.

The ban is set to go into effect within the next month or so.

Under the law, abortions are only allowed if the pregnant person’s serious health or life is at risk; if there’s a lethal fetal anomaly up to 20 weeks post-fertilization; and in cases of rape or incest, but only up to 10 weeks.

Justice Derek Molter, the newest member of the court, wrote the decision. In it, he said Article 1, Section 1 of the state constitution guarantees the right to abortion only to protect a woman's life or protect her from a serious health risk.

"It is undisputed that protecting prenatal life falls within the State's broad authority under Article 1, Section 1 to protect the public's health, welfare and safety," Molter wrote.

The ruling is also rooted in Indiana's history of limiting legal abortion as much as possible.

"Indiana’s long history of generally prohibiting abortion as a criminal act ... suggests that the common understanding among Article 1, Section 1’s framers and ratifiers was that the provision left the General Assembly with legislative discretion to regulate or limit abortion," Molter wrote.

READ MORE: What does Indiana’s abortion ban mean for the state?

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In a statement, Indiana Attorney General Todd Rokita celebrated the ruling, calling it "morally justified."

"Thank you to all the warriors who have fought for this day that upholds life," Rokita said.

Indiana Right to Life CEO and President Mike Fichter said in a statement, "Indiana's unborn babies are the victors in today's ruling."

"And Indiana is a light among states now, as we were the first state post Roe v. Wade to come together immediately and pass legislation to significantly restrict abortion. Today's ruling sends a message to the rest of the nation," Fitcher said.

Senate President Pro Tem Rodric Bray (R-Martinsville) also lauded the ruling in a statement.

"We set out to pass a bill in the special session that would protect life and support mothers and babies, and that's what we did," Bray said. "It was always our intent to draft a bill that could withstand a constitutional challenge, and I am grateful to see Indiana's Supreme Court recognize that the General Assembly has the constitutional authority to protect unborn life in the womb."

Indiana's abortion care providers who brought the lawsuit said they are "devastated" by the ruling.

"Now, patients will be forced either to flee the state to access abortion if they have the means, seek abortion outside of the health care system, or carry pregnancies against their will with profound medical risk and life-altering consequences," the providers said in a statement.

Planned Parenthood Federation of America; Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky; ACLU of Indiana; All-Options; the Lawyering Project; and Women’s Med said in their joint statement they'll continue to fight to "restore reproductive rights in Indiana."

In a statement, Indiana Democratic Party Chair Mike Schmuhl laid responsibility for the ban's impact on "the unbalanced supermajority of Republicans in the Statehouse."

"Many women will be forced to carry unsafe pregnancies to term because they don’t have the resources to travel, or will be denied care (despite meeting an exception) because of the risk to hospitals facing legal action," Schmuhl said.

Members of the Indiana Black Legislative Caucus called the ruling "a dark day for Indiana." Rep. Carolyn Jackson (D-Hammond), the IBLC's vice chair, called attention to the ban's potential disproportionate effect on Black Hoosiers.

"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," Jackson said. "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.”

House Minority Leader Phil GiaQuinta (D-Fort Wayne) said in a statement that the decision is "disheartening."

"The Indiana Republican abortion ban won’t stop abortions, it will simply ban access to safe abortions," GiaQuinta said. "Hoosiers don’t want this future for Hoosier women and girls."

The Supreme Court's decision was 4-1, with only Justice Christopher Goff disagreeing with the ruling.

He said that under the guarantee of "liberty" in the state constitution, the state is responsible for protecting "minority interests" against the majority – which he wrote 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," Goff wrote.

Goff urged the General Assembly to put a public question on the ballot to determine whether there is a right to abortion in the state constitution.

Molter's majority opinion does note that the ruling in this case does not prevent other challenges to the law.

For one, this lawsuit challenged a provision of the law that banned abortion clinics outright, limiting the procedures to hospitals and ambulatory surgical centers owned by hospitals. Molter's ruling said that issue was not part of this appeal, and sent the case back to the trial court to flesh out that challenge.

"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," Molter wrote.

Molter also said that this particular lawsuit does not give the court the opportunity to more clearly define the circumstances when a pregnancy endangers someone's life or health – which could be the subject of future lawsuits.

There is also another lawsuit challenging the abortion ban. That suit argues that ban violates the state's Religious Freedom Restoration Act by infringing on the rights of those whose religions accept and even encourage abortions in certain circumstances.

A Marion County judge temporarily halted the law from taking effect in that case, but only as it applies to the small handful of people who brought the suit. The judge later expanded the lawsuit to cover anyone whose religious beliefs clash with the abortion ban, but it's unclear how that now applies to enforcement of the ban.

This story has been updated.

CORRECTION: A previous version of this story said the ban now goes into effect. That was incorrect. The ban is set to go into effect within the next month or so.

Brandon is our Statehouse bureau chief. Contact him at bsmith@ipbs.org or follow him on Twitter at @brandonjsmith5.