A top state lawyer on Thursday urged the Indiana Supreme Court to uphold the state’s Republican-backed abortion ban, even as the justices weighed whether they should decide its constitutionality before lower courts have fully considered the case.
The state’s highest court heard arguments in a lawsuit filed by abortion clinic operators against the ban, which has been blocked from being enforced since September when a county judge found it likely violated privacy protections under the state constitution.
Indiana became the first state to enact tighter abortion restrictions after the U.S. Supreme Court eliminated federal protections by overturning Roe v. Wade in June.
The arguments being made before the Indiana justices come after the top courts in two other conservative states went in opposite directions on similar state constitutional challenges to their abortion bans; South Carolina’s ban was struck down and Idaho’s was upheld.
Indiana Chief Justice Loretta Rush asked whether the Supreme Court should now decide the constitutionality of the abortion ban since it has been blocked by a judge’s preliminary injunction order — a legal step taken without a full trial on the merits of the lawsuit.
State Solicitor General Tom Fisher said a Supreme Court decision on constitutionality was needed to settle the dispute.
“Our position is that there’s no likelihood of success on the merits because there’s no right to abortion in Indiana,” Fisher said.
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The Indiana ban, which eliminated the licenses for all abortion clinics in the state, includes exceptions allowing abortions at hospitals in cases of rape and 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 is representing Planned Parenthood and other abortion clinic operators challenging the ban, argued that the ban violates the state constitution’s protections of liberty “to manage one’s own life.”
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“A central component of that interest is the right of a woman to make intensely private decisions concerning procreation,” said Ken Falk, the group’s Indiana legal director. “I would ask this court, what would the founders say if tomorrow the General Assembly passes a law which says Hoosier women can only have two children? Or all of us Hoosiers, we could only receive health care for substantial and irreversible impairment of major bodily functions, nothing else?”
The state attorney general’s office has argued that Indiana had laws against abortion when its current constitution was drafted in 1851 and that the judge’s ruling wrongly created an abortion right.
Fisher said the ACLU was asking Indiana courts “to recognize a novel, unwritten, historically counter-indicated right to abortion.”
The five-member Supreme Court, all of whom were appointed by Republican governors, faces no deadline for releasing a decision, and it typically takes weeks or longer.
The question of whether the Indiana Constitution protects abortion rights is undecided. A state appeals court ruled in 2004 that privacy is a core value under the state constitution that extends to all residents, including women seeking an abortion.
But the Indiana Supreme Court later upheld a law requiring an 18-hour waiting period before a woman could get an abortion without addressing whether the state constitution included the right to privacy or abortion.
Court orders have allowed abortions to continue since September under existing laws generally prohibiting abortions after the 20th week of pregnancy and tightly restricting it after the 13th week.
Justice Christopher Goff said he considered it “unprecedented” to have what was considered a federal constitutional right for 50 years eliminated and asked Fisher why the question of allowing abortions shouldn’t be directly voted upon by the public.
“Why shouldn’t there be a referendum and that issue put to the people?” Goff said. “Why should that end with the courts or the General Assembly?”
Abortion opponents lost votes on ballot measures last year in Kansas, Michigan and Kentucky, but Indiana law only provides for statewide referendums after a proposed constitutional amendment has twice been approved by the Legislature in a process that can take four years.
Fisher said the voting public elected the legislators who enacted the abortion ban and abortion-rights supporters can seek to amend the state constitution.
“We don’t modify the constitution by way of judicial decree to say, well, in this situation, we’re going to throw this question open to some kind of initiative or referendum,” Fisher said.
