Indiana Supreme Court: Lawmakers can ban abortion except to protect mother's health

A temporary injunction on Indiana's near-total abortion ban has been vacated by the Indiana Supreme Court in one lawsuit, although the law remains unenforceable for some in Indiana pending the outcome of a second lawsuit.

In a decision published Friday, Justice Derek R. Molter wrote on behalf of the court's majority that the state has an interest in "protecting prenatal life," and there are "circumstances" in which enforcement of the near-total ban falls within the state's power. On that basis, Planned Parenthood and the other plaintiffs in the case can't argue that the law as a whole clashes with the state's constitution, according to Molter.

The Indiana constitution "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," Molter wrote.

More: Inside all of IndyStar's coverage of abortion in Indiana since Roe v Wade decision

Chief Justice Loretta H. Rush and Justice Mark S. Massa agreed with Molter. Justice Geoffrey G. Slaughter agreed in a separate opinion.

Justice Christopher M. Goff dissented in part, saying in a separate opinion he would have upheld the injunction and kept the ban on hold. In his view, the constitution's guarantee of liberty likely includes the right for women to make decisions over their own bodies.However, he agreed with the majority that the initial plaintiffs did have standing to sue, that the constitutional rights in question are enforceable in court and that the constitution bars the government from forcing a woman to continue a life-endangering pregnancy.

"It seems to me that reproductive liberty is too personal and too important for the General Assembly to set at naught when weighed in the balance against the protection of fetal life," Goff wrote.

Rokita celebrates decision; ACLU says ban still blocked for some

"We celebrate this day – one long in coming, but morally justified," Indiana Attorney General Todd Rokita said Friday in a prepared statement. "Thank you to all the warriors who have fought for this day that upholds LIFE.”

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

The court's decision "sends a message to the rest of the nation that when we stand together with love and compassion in protecting unborn babies and supporting pregnant mothers, we save lives, improve lives and support a national culture that values life," Fichter continued.

The ACLU of Indiana, and the abortion and pregnancy services providers it represents in the case, said in a joint statement they're "devastated." "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 statement reads. "Today’s decision is not the end of our fight for equitable, compassionate care in Indiana, or the patients in surrounding states who rely on Indiana for access to abortion.”

The near-total ban remains unenforceable for some Hoosiers whose religions permit abortion, according to the ACLU, because a judge in a separate lawsuit that challenges the law on religious freedom grounds issued another preliminary injunction in December, three months after the first injunction. That decision is also being appealed by the state.

Legal experts say it's not over yet

Legal scholars told IndyStar the specific type of challenge that the ACLU of Indiana and plaintiffs brought against the law - essentially, that it is unconstitutional in any way, shape or form - is one of the hardest to argue.

Lauren Robel, former dean of Indiana University's Maurer School of Law, said the court's opinion made it clear that the Indiana constitution gives women the right to protect their own lives and leaves the door open for other women to challenge the near-total ban on the grounds it harms them.

"Given the horror stories we are hearing from other states with laws like Indiana’s, where women are denied treatment for life-threatening conditions, that is good news," Robel said.

The justices in the majority opinion said the appeal in front of them didn't "present an opportunity" to outline what exactly a constitutional exception to the abortion ban would look like, and "the extent to which that exception may be broader" than the current law.

"The case and broader issues are not fully resolved," Joel Schumm, a law professor at IU McKinney School of Law, told IndyStar.

Schumm said he thinks the plaintiffs in the religious freedom case will ultimately have a better shot at success.

"The legal standard is far more favorable to the plaintiffs because (Indiana's Religious Freedom Restoration Act) places a heavy burden on the state," he said.

Indiana first state to pass new abortion limits after Roe v. Wade

Indiana became the first state in the country to pass a new abortion law last summer following the fall of Roe v. Wade. Senate Bill 1, which was signed by Gov. Eric Holcomb in August, bans abortions except in cases of rape or incest, when there’s a serious risk to the life of the mother or when fatal fetal anomalies are present.

The near-total ban had been on hold since last September, when Special Judge Kelsey B. Hanlon, a Republican, found there was a "reasonable likelihood" that Indiana's constitution protects decisions about family planning ― including the decision to carry a pregnancy to term.

More: 'Some will die': Indiana Supreme Court mulls future of near-total abortion ban

While serving as a special judge in the Monroe County court where the lawsuit was filed, Hanlon said the Indiana Constitution is "more explicit" in protecting individual rights and shielding legislative interference into people's lives than the U.S. Constitution.

She granted the plaintiffs' request for a preliminary injunction, putting a temporary freeze on the law just a week after it took effect. Indiana Attorney General Todd Rokita's office appealed that injunction, and the original lawsuit has been on hold while the Indiana Supreme Court makes a decision.

State fears death of the unborn; ACLU fears harm to women

During oral argument in front of the state's Supreme Court earlier this year, Solicitor General Thomas Fisher with the Indiana Attorney General's Office told the judges that, if left intact, Hanlon's injunction on the law would lead to the deaths of "so many" unborn fetuses. He argued that the lawsuit is an attempt to rewrite the state's constitution.

More: Marion County judge moves forward RFRA challenge to Indiana abortion ban

Fisher's office argued in past court documents that the constitution "nowhere mentions an undifferentiated right to privacy or bodily integrity, much less abortion."

Ken Falk with the ACLU of Indiana, who represents the plaintiffs in the suit, told the justices "Hoosier women and girls will suffer" if the law goes into effect, adding that "some will die." Falk argued that the new abortion regulation amounted to a personal privacy breach by the government.

"It's difficult to think of something that cuts more to personhood, to our individualization, to our privacy than the state telling a woman, 'Look, we know you're suffering from this terrible preeclampsia or diabetes ... but I'm sorry, you can't get an abortion,'" Falk said.

Other suit claims near-total ban restricts religious freedom

The law is being challenged by another lawsuit filed last year in which women claimed it infringed on their right to exercise their religion under Indiana’s Religious Freedom Restoration Act from 2015, because their religions permit abortion. The Marion County judge in that case, Heather Welch, also placed an injunction on the law.

More: Todd Rokita's focus on abortion case reflects national trend of politicizing AG offices

Rokita's office is appealing the RFRA lawsuit decision. It was recently given class action status, meaning if plaintiffs win, the near-total abortion ban would no longer apply to Hoosiers whose sincerely-held religious beliefs allow abortion under the circumstances outlawed by Senate Bill 1.

That case is scheduled for oral argument in front of the Indiana Court of Appeals in September.

IndyStar Pulliam fellow Nicolas Napier contributed to this report.

Call the reporter at 317-273-3188.

This article originally appeared on Indianapolis Star: Indiana abortion ruling: Ban allowed except to protect mother's health