Indiana Supreme Court upholds abortion ban: State constitution gives only limited protections

INDIANAPOLIS - The Indiana Supreme Court ruled Friday that the state's abortion ban doesn't violate the state constitution, removing a major hurdle to enforcing the ban Republicans approved last summer.

The court’s decision overturns a county judge’s ruling that the ban likely violates the state constitution’s privacy protections, which she said are stronger than those found in the U.S. Constitution. That judge’s order has allowed abortions to continue in Indiana since September, despite the ban.

An opinion from three of the court’s five justices said that while Indiana's constitution provides some protection of abortion rights, the "General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions."

All five Indiana Supreme Court justices were appointed by Republican governors.

Although the court's decision strikes down the injunction blocking the ban, it wasn't immediately clear how soon the ban would take effect. The justices returned the case to the county judge for further action.

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Indiana’s abortion ban also faces a separate court challenge over claims it violates the state’s 2015 religious freedom law signed by GOP then-Gov. Mike Pence.

Indiana became the first state to enact tighter abortion restrictions, acting in August, after the U.S. Supreme Court’s eliminated federal protections by overturning Roe v. Wade in June 2022.

Most Republican-controlled states have enacted tighter abortion restrictions since U.S. Supreme Court’s ruling last summer. All the restrictions have been challenged in court.

In the past year, judges in Arizona, Iowa and South Carolina have ruled that the bans are not permissible under the state constitutions.

Besides Indiana, enforcement of restrictions are on hold as courts decide the cases in Montana, North Dakota, Ohio, Utah and Wyoming. In North Dakota, lawmakers adopted a different ban since to replace the one that was blocked. In South Carolina, another ban has been put into place and put on hold by a court. And in North Carolina, a federal judge weighed whether to temporarily block parts of new abortion restrictions set to take effect Saturday.

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.

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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.