Indiana Supreme Court Upholds State’s Near-Total Abortion Ban

Pro-life and pro-abortion activists protest on multiple floors within the Indiana State Capitol rotunda in Indianapolis, Indiana, on July 25, 2022. Activists are gathering during a special session of the Indiana state Senate concerning abortion access in the state. Jon Cherry/Getty Images

The Indiana Supreme Court has denied a request to rehear a case seeking to overturn the state’s abortion restrictions, thus allowing the law to be implemented.

Senate Bill 1 (SB 1) bans all abortions except in cases of rape, incest, a diagnosis of lethal fetal anomaly, or when the life of the mother is in danger. The exceptions to rape and incest are restricted to 10 weeks following fertilization.

The law was approved in August 2022. One month later in September 2022, a county judge issued a preliminary injunction against SB 1 in response to a lawsuit filed by the American Civil Liberties Union (ACLU) representing abortion clinics including Planned Parenthood. This put the bill on hold amid ongoing litigation.

On June 30, the Indiana Supreme Court ruled that the state’s abortion restrictions do not violate the state constitution and lifted the injunction, paving the way for SB 1 to go into effect. The ACLU and Planned Parenthood requested a rehearing, which the state Supreme Court denied on Monday in a 4–1 decision.

The rehearing request, filed in July, sought to clarify the scope of exemptions provided in SB 1’s abortion restrictions with regard to protecting the life of the mother.

With the request denied, the abortion restrictions of SB 1 will come into effect once the ruling is certified, a procedural step expected to be completed in just a few days.

SB 1 was originally supposed to take effect on Aug. 1. Abortion providers in the state have already stopped providing services.

In an Aug. 21 post on X, the ACLU of Indiana called the Supreme Court decision a “dark day” for the state as it allows Indiana’s near-total abortion ban “to take effect immediately.”

“We have seen the horrifying impact of bans like this across the country, and this extreme ban will undoubtedly put Hoosiers’ lives at risk,” it said.

Indiana Attorney General Todd Rokita welcomed the court’s decision.

“This is great news for Hoosier life and liberty,” he said in an Aug. 21 post on X. “We defeated the pro-death advocates who try to interject their views in a state that clearly voted for life.”

Denying Rehearing Request

In the Aug. 21 order denying the rehearing, Chief Justice Loretta H. Rush wrote that plaintiffs have not properly put forward their concerns regarding the law to the court.

The majority of the court “has already concluded that the original injunction was improper,” it said.

“And Plaintiffs acknowledge our appellate courts have never granted the relief they seek. There is simply no sound legal basis for an interim injunction that is even broader than the relief Plaintiffs intend to pursue in the trial court.”

In the lone dissenting opinion, Justice Christopher Goff raised concerns that SB 1’s exceptions to abortions related to the safety of the mother “does not include psychological or emotional conditions.”

The exceptions would not be applicable in situations when pregnancy would cause serious pain or suffering to the woman or trigger “severe psychiatric illness” that would require the mother to consume medication which can’t be taken during pregnancy, Justice Goff said.

It would also not be applicable to “psychiatric issues that may lead to suicide or self-harm.”

“These are all potentially severe medical problems. And seeking medically necessary treatment for them likely falls within the ambit of the constitutional right to protect one’s life and health,” he argued.

When SB 1 passed in August 2022, Indiana became the first state in the United States to approve and pass a bill banning most abortions following the overturning of Roe v. Wade earlier in June.

At the time, Republican Gov. Eric Holcomb said that SB 1 was the result of “long days of hearings filled with sobering and personal testimony from citizens and elected representatives on this emotional and complex topic.”

“Ultimately, those voices shaped and informed the final contents of the legislation and its carefully negotiated exceptions to address some of the unthinkable circumstances a woman or unborn child might face.”

Section 1 Argument for Abortion

Article 1, Section 1 of the Indiana Constitution states that all residents have “certain inalienable rights” which include “life, liberty, and the pursuit of happiness.”

In the lawsuit challenging SB 1, plaintiffs argued that SB 1 violated Section 1 as it confers “liberty rights that guarantee Hoosiers’ ability to determine whether to carry a pregnancy to term.”

The State of Indiana put forward three arguments to back its stance—that the plaintiffs lack standing; that even if they have standing, Section 1 is not “judicially enforceable”; and that even if Section 1 is judicially enforceable, it does not protect abortion rights as claimed by plaintiffs.

In the June 30 ruling (pdf) upholding SB 1, the Indiana Supreme Court agreed that the plaintiffs have standing as SB 1 “criminalizes their work.”

However, it pointed out that “while Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, the provision does not protect a fundamental right to abortion in all circumstances.”

“And it is undisputed that protecting prenatal life falls within the State’s broad authority under Article 1, Section 1 to protect the public’s health, welfare, and safety.”