The Indiana Supreme Court made a ruling on Friday stating that the state’s abortion ban is not in violation of the state constitution, thus removing a significant obstacle to enforcing the ban that was approved by Republicans last summer.
The court’s decision overturns the previous ruling by a county judge, who believed that the ban likely infringed upon the privacy protections outlined in the state constitution, which were considered stronger than those provided by the U.S. Constitution. As a result of that judge’s order, abortions have been permitted in Indiana since September, despite the ban being in place.
In the opinion of three out of the five justices on the court, while the Indiana constitution does offer some degree of protection for abortion rights, the “General Assembly still retains wide-ranging legislative authority to determine whether and to what extent abortions should be prohibited.”
It is worth noting that all five justices on the Indiana Supreme Court were appointed by Republican Governors.
Although the court’s decision nullifies the injunction that had blocked the ban, it remains unclear when exactly the ban will take effect. The justices have referred the case back to the county judge for further action.
In addition to this legal challenge, Indiana’s abortion ban is also facing another court case based on claims that it violates the state’s religious freedom law enacted in 2015 under then-Governor Mike Pence, a member of the GOP.
Indiana became the first state to implement more stringent abortion restrictions in August, following the U.S. Supreme Court’s decision to overturn Roe v. Wade in June 2022, which removed federal protections. Since then, many Republican-controlled states have enacted similar restrictive measures on abortion, all of which have been met with legal challenges.
Over the past year, judges in Arizona, Iowa, and South Carolina have ruled that such bans are not permissible under their respective state constitutions.
Apart from Indiana, the enforcement of abortion restrictions in Montana, North Dakota, Ohio, Utah, and Wyoming is currently on hold pending court decisions. In North Dakota, lawmakers have adopted an alternative ban to replace the one that was blocked, while in South Carolina, another ban has been implemented but is also on hold due to a court ruling.
Democratic-led states, such as Indiana’s neighbors of Illinois and Michigan, have mostly taken steps to protect abortion access.
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; to protect the life and physical health of the mother; and if a fetus is diagnosed with a lethal anomaly.
The American Civil Liberties Union of Indiana, which represented Planned Parenthood and other abortion clinic operators, 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.
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.
