Justices grill lawyers in Indiana Supreme Court abortion ban hearing
INDIANAPOLIS (WISH) — A Thursday morning hearing left it up to Indiana’s five highest-ranking judges whether to allow the state’s abortion law to remain on hold.
The Indiana Supreme Court took more than an hour of testimony on a trial court judge’s order to put the law on hold. The case is meant to be separate from the underlying question of whether the ban violates a right to privacy but much of the day’s discussion revolved around that underlying question.
State lawmakers last summer approved a near-total ban on abortion. Exceptions are available only in the first 10 weeks of pregnancy in cases of rape or incest and in the first 20 weeks of pregnancy if needed to save the mother’s life or if the fetus has a fatal abnormality.
The American Civil Liberties Union sued on behalf of several abortion care providers on the grounds that the ban violates Article 1, Section 1 of the state constitution, which begins, “We declare that all people are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.”
Abortion care providers argue bodily autonomy is a form of liberty. A trial judge last fall agreed to block the law while the courts review it.
Solicitor General Tom Fisher, arguing on behalf of the state, said pregnant women are the only people who would be directly affected by the law and thus abortion care providers lack standing to bring the lawsuit. He said the section of the constitution in question is not meant to confer any specific right.
“There would be no limits to what judges might personally think ought to be included as a fundamental right if all they’re doing is using the word ‘liberty’ in Article 1, Section 1,” Fisher said.
Fisher told the court’s five justices the entire lawsuit should be thrown out because there is no way to determine how to carry out a trial. The justices repeatedly pushed back on his logic.
“Do we ignore all our jurisprudence with regard to the lens that we look at a case that comes up to us, not on the full merits but on a preliminary injunction, you want us to review that case law?” Chief Justice Loretta Rush asked at one point.
“Our position is that there is no likelihood of success on the merits because there is no right to abortion in Indiana,” Fisher replied.
Before he could continue, Rush cut him off by asking, “Would you agree with me that that’s an issue of first impression?” Fisher conceded it was.
The ACLU’s Ken Falk said abortion care providers are directly affected by the law because it provides for criminal penalties for providing abortion services under any conditions other than its extremely narrow exceptions. He argued that previous state supreme court rulings have relied at least in part on Article 1, Section 1 to provide for the expansion of certain rights.
“The whole idea of constitutional analysis is to apply what are the core, essential parts of old documents to today’s conditions. That’s exactly what we asked to do and that’s what the trial court did,” Falk argued.
The justices pressed Falk on whether the idea of using the opening lines of the state constitution to define liberty would lead to a virtually limitless interpretation of the law. Falk said he disagreed with the notion.
“Within each constitutional provision, there are essential values, core values, that can be qualified but not alienated,” he said. The founders recognized that we have ceded some of our rights to form the police power. We retain the rest.”
The justices will issue their ruling at a later time. Even if they throw out the privacy lawsuit entirely, a separate injunction against the law would remain in effect. That order involves a still-pending lawsuit based on the state’s Religious Freedom Restoration Act.