Abortion Clinics Reopening in Indiana After Judge Blocks State’s Ban a Week After It Took Effect

An ultrasound machine sits next to an exam table in an examination room at Whole Woman's Health of South Bend in South Bend, Ind., on June 19, 2019. Scott Olson/Getty Images

Indiana abortion clinics are preparing to resume the procedure after a judge blocked the state’s near-total abortion ban just a week after the ban had gone into effect.

Owen County Judge Kelsey Hanlon on Sept. 22 issued a preliminary injunction (pdf) against Indiana’s new law banning abortion, putting it on hold temporarily amid ongoing litigation.

Abortion clinic operators had argued in the lawsuit challenging the state’s abortion ban that it violates the state constitution, and that the state’s constitution protects access to abortion. The lawsuit was filed on Aug. 31 (pdf) by the American Civil Liberties Union of Indiana, which is representing the abortion clinic operators.

“[T]here is a reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana Constitution and the Plaintiffs will prevail on the merits as to their claim that S.B. l violates Article I, § 1 of the Indiana Constitution,” Hanlon wrote in his order.

Hanlon wrote that Indiana’s constitution “is more explicit in its affirmation of individual rights and its limitation of legislative power to intrude into personal affairs” than the U.S. Constitution.

He also wrote that there is “a reasonable likelihood” that decisions about family planning, which includes “decisions about whether to carry pregnancy to term” are protected by the state constitution.

The order means that abortion is legal in Indiana up to 20 weeks for now, subject to other pre-existing regulations such as requirements for two separate trips to an abortion provider, an ultrasound, informed consent, and more.

Indiana’s abortion ban—also referred to as SB1—had taken effect on Sept. 15. The legislation was approved by Indiana’s Republican-majority Legislature and signed into law by Gov. Eric Holcomb on Aug. 5. The move made Indiana the first state to introduce a tighter ban on abortions since the U.S. Supreme Court on June 24 repealed Roe v. Wade.

SB1 bans all abortions, except in the case of incest, rape, a diagnosis of a lethal fetal anomaly, or in circumstances where abortion is determined necessary to protect the life and physical health of the mother. The rape and incest exceptions are limited to 10 weeks after fertilization; and in such cases, victims would not be required to sign a notarized affidavit attesting to an attack.

The legislation also prohibited abortion clinics from providing any other abortion-related services and only allowed hospitals or outpatient surgical centers owned by the hospitals to offer such services. As such, Indiana’s seven abortion clinics were set to lose their state licenses under the new abortion ban before Hanlon’s order on Sept. 22.

State Plans to Appeal Decision

In a joint statement, the abortion clinic operators, including Planned Parenthood and Whole Woman’s Health, said they were “grateful” for the judge’s decision, but noted that “this fight is far from over.”

Indiana Attorney General Todd Rokita responded to Hanlon’s order in a statement. “We plan to appeal and continue to make the case for life in Indiana. Our office remains determined to fight for the lives of the unborn, and this law provides a reasonable way to begin doing that.”

Rokita’s office had argued that the judge should uphold the state’s abortion ban. He said that arguments against the ban were based on a “novel, unwritten, historically unsupported right to abortion” in the state constitution.

“The constitutional text nowhere mentions abortion, and Indiana has prohibited or heavily regulated abortion by statute since 1835—before, during, and after the time when the 1851 Indiana Constitution was drafted, debated, and ratified,” his office said in a court filing.

Antonio Marchi, the executive director of Right to Life of Michiana, said in a statement that the group is “disappointed knowing that approximately 23 unborn lives will be lost every day that this injunction remains in effect, and we hope it will be temporary and brief,” reported WNDU.

With Indiana now on hold, bans on abortion at any point in pregnancy are in place in 12 Republican-led states.

The Associated Press contributed to this report.