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September 23, 2022
Health Law Weekly

Court Halts Indiana’s Near-Total Abortion Ban

  • September 23, 2022

Monroe County Circuit Court Judge Kelsey Hanlon issued September 22 a preliminary injunction halting enforcement of an Indiana law restricting access to abortion services in the state one week after the law took effect.

At issue is Senate Bill 1 (S.B. 1), which criminalizes abortion in Indiana, subject to limited exceptions involving rape, incest, or a serious risk of substantial and irreversible physical impairment of a major bodily function or death of the expectant mother.

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.

Judge Hanlon found the law at odds with the liberty guarantee of Article I, § 1 of the Indiana Constitution, which provides a privacy right that includes a woman’s right to determine whether she will carry a pregnancy to term.

Hanlon said the court is not bound by the Dobbs v. Jackson Women’s Health Organization majority’s analysis in interpreting the state’s constitution.

The opinion distinguished the state's constitution from its federal counterpart, noting “Several provisions of the Indiana Constitution, despite having the same or similar language to an analogous provision of the United States Constitution, have been interpreted to give greater protection to the individual liberties” of the state’s residents.

The court said the fact that abortion was not lawful at the time the Indiana Constitution was ratified “does not foreclose the language of Article I, § 1 from being interpreted at this point as protecting bodily autonomy, including a qualified right by women not to carry a pregnancy to term.”

“The significant, then-existing deficits of those who wrote our Constitution—particularly as they pertain to the liberty of women and people of color—are readily apparent,” the court reasoned.

Accordingly, the court found a reasonable likelihood that decisions about family planning, including decisions about whether to carry a pregnancy to term, are protected by the state’s constitution.

Indiana Attorney General Todd Rokita said in a statement that he plans to appeal and that his office “remains determined to fight for the lives of the unborn.”

Planned Parenthood NW Hawaii, Alaska, Indiana, Kentucky, Inc. v. Members of Med. Licensing Bd. of Ind., No. 53C06-2208-PL-001756 (Ind. Cir. Ct. Sept. 22, 2022).