The future of Indiana’s abortion rights now rests in the hands of the five justices of the state’s Supreme Court.
The court on Thursday heard arguments in a lawsuit challenging Indiana’s near-total abortion ban.
Abortion service providers, including Planned Parenthood, Whole Woman’s Health, All-Options, Inc. and Women’s Med Group, want the court to determine that the Indiana Constitution’s right to liberty includes a right to an abortion.
Ken Falk, legal director of the ACLU of Indiana, represents the providers.
“In every constitutional provision there are essential values, core values,” Falk said. “We reserve a right to liberty.”
Some of the judges — including the newest, Derek Molter — backed down, wondering if such a ruling would be too broad.
“For example, is there a point in pregnancy where our Constitution allows the Assembly to withdraw the right to have an abortion if it is not necessary to protect the woman’s life or health?” Molter said.
Judge Geoffrey Slaughter seemed equally skeptical.
“For example, does it mean the right to use illegal drugs because it’s my body and I have autonomy?” slaughter said. “Does it include the right to physician-assisted suicide? What other rights fall under the broader right that you are asking us to do?”
Falk argued that Indiana’s previous law — banning abortions after 20 weeks of pregnancy — was acceptable.
Attorney General Thomas Fisher is representing the state trying to uphold the abortion ban. He said abortion care providers are “trying to strip away the right to protect the unborn child.”
“You are asking the court to recognize a novel, unwritten, historically contraindicated right to abortion,” Fisher said.
Chief Justice Loretta Rush appeared to refute Fisher’s notion of the historical approach to abortion.
“So if you’re saying that we should look at what the writers were talking about, the laws at the time — when I reviewed every single law in Indiana that ever dealt with abortion, every single one protected the mother’s right , in terms to a medical decision to save her life,” Rush said.
READ MORE: Why Weren’t Indiana Abortion Restrictions Decided by a Vote?
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Indiana’s near-total ban allows abortions when the life or serious health of a pregnant person is at risk. Abortion providers argue the law was deliberately written to confuse doctors while still endangering patients’ lives.
Judge Christopher Goff focused on another part of the ban, which forces abortion clinics to shut down completely — not even allowing abortions to be performed, which would remain legal.
“If someone with limited resources wanted to go and access a procedure to save her life and she couldn’t, isn’t that a problem?” Goff said.
The court did not give a timetable for its decision.