INDIANAPOLIS (AP) — The fate of Indiana’s Republican-backed abortion ban goes Thursday before the state Supreme Court, which is hearing arguments about whether it violates privacy protections under the state constitution.
Abortions have been allowed to continue in the state since a district judge blocked enforcement of the law in September, a week after the law passed in August went into effect.
Indiana was the first state to enact stricter abortion restrictions after the U.S. Supreme Court removed federal protection by overturning Roe v. Wade lifted in June.
The arguments, which will be brought before Indiana judges, come after top courts in two other conservative states split this month over similar constitutional challenges to their abortion bans, with the ban crushed by South Carolina and Idaho in recent patchwork examples state laws now in force.
The Indiana ban, which eliminated licenses for all abortion clinics in the state, includes exceptions allowing in-hospital abortions in cases of rape and incest before 10 weeks of conception; to protect the life and physical health of the mother; and when a fetus is diagnosed with a fatal abnormality.
Owen County Judge Kelsey Hanlon, a Republican, blocked enforcement of the Indiana ban in the lawsuit filed by operators of abortion clinics, writing that “there is a reasonable likelihood that this substantial limitation of personal autonomy violates constitutional guarantees of liberty.” of Indiana violates” and so on the clinics were able to assert themselves in the legal dispute.
The five-member Supreme Court, all appointed by Republican governors, is scheduled to hear arguments Thursday morning from prosecutors and the American Civil Liberties Union of Indiana, which represents Planned Parenthood and other abortion clinic operators challenging the abortion ban.
There is no time limit for the court to publish a decision and it usually takes several weeks or more before hearing cases.
The Attorney General’s Office has argued that Indiana had anti-abortion laws when its current constitution was drafted in 1851 and that the judge’s decision erroneously created an abortion right.
“The judiciary has no power to amend the constitution by resolution,” said a court document. “Reading novel ‘rights’ into the constitution would set the judiciary down a dangerous, unprincipled path that would destroy the rule of law.”
Court rulings have allowed abortions to continue under previous Indiana laws that outlawed abortions after 20 weeks of gestation and strictly restricted abortions after 13 weeks.
The ACLU said the clinics didn’t argue that the state couldn’t regulate abortion at all, but instead believed the ban violated “core constitutional rights of privacy and bodily autonomy.”
“Under the extremely narrow exceptions (of the ban), only a tiny fraction of Hoosiers have access to essential health care and only if they have suffered rape, incest or certain serious medical threats,” attorneys for the ACLU said in a court filing. “Even then, myriad logistical hurdles would keep eligible Hoosiers from obtaining abortions.”
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 of the state constitution that extends to all residents, including women seeking an abortion.
But the Indiana Supreme Court later upheld a law mandating an 18-hour wait before a woman can have an abortion, without addressing whether the state constitution includes the right to privacy or the right to an abortion.
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