The lawsuit filed in a Monroe County court claims the ban, which includes limited exceptions, “strips away the fundamental rights of people seeking abortion care” in violation of the Indiana Constitution. It asks for a judge to block the law from going into effect on Sept. 15, arguing the ban “will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and includes unconstitutionally vague language.”
Indiana’s Republican-dominated Legislature approved the tighter abortion restrictions during a two-week special legislative session that ended Aug. 5, making it the first state to do so since the U.S. Supreme Court eliminated federal abortion protections for abortions by overturning Roe v. Wade in June.
The Indiana law includes exceptions, allowing abortions 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 question of whether the Indiana Constitution protects abortion rights is undecided.
Ken Falk, legal director for the American Civil Liberties Union of Indiana, which filed the lawsuit, pointed to a 2004 state appeals court decision that said privacy was a core value under the state constitution that extended to all residents, including women seeking an abortion. But the Indiana Supreme Court later upheld a law mandating an 18-hour waiting period before a woman could undergo an abortion while not deciding whether the state constitution included a right to privacy or abortion.
The leader of Indiana’s most prominent anti-abortion group argued the state constitution protects life as among the “inalienable rights.”
“We are confident the state will prevail and pray the new law is not blocked from going into effect on September 15, knowing that any delay will mean the indiscriminate killing of unborn children will continue at abortion clinics across Indiana,” Indiana Right to Life CEO Mike Fichter said in a statement.
Jennifer Drobac, an Indiana University law professor, said she believed the argument that the state constitution prohibits lawmakers from stripping legal privileges from some residents that are available to others is a strong argument against the abortion ban.
“When you look at people who become pregnant, their medical care is being regulated in a way that the medical care of people who do not become pregnant is not being regulated,” she said. “Men, for example, can access the full panoply of available medical resources in a health situation.”
Under new Indiana law, abortions could be performed only in hospitals or outpatient centers owned by hospitals, meaning all abortion clinics would lose their licenses. Any doctors found to have performed an illegal abortion would be stripped of their state medical licenses and could face felony criminal charges punishable by up to six years in prison.
Indiana’s ban followed the political firestorm over a 10-year-old rape victim who traveled to the state from neighboring Ohio to end her pregnancy. The case gained wide attention when an Indianapolis doctor said the child came to Indiana because of Ohio’s “fetal heartbeat” ban.
The lawsuit was filed on behalf of abortion-rights supporters including Planned Parenthood, which operates four of Indiana’s seven licensed abortion clinics, along with groups that operate two of the other clinics and a doctor who performs abortions.
It will be heard by a judge in southern Indiana’s Monroe County, which includes the liberal-leaning city of Bloomington and Indiana University’s main campus. All nine of the county’s nine judges are Democrats, while all other counties with abortion clinics have judges who’ve either been elected as Republicans or been appointed by Republican governors.
The ACLU’s Falk said the suit was filed in Monroe County because an abortion clinic is located there but did not respond to a question about whether the group was seeking a friendly judge.
Drobac said she believed filing in the complaint in Bloomington could be where the ban opponents “have the greatest opportunity for success.”
Republican legislative leaders said they believed the abortion restrictions would be upheld by the courts.
“We set out to pass a bill in the special session that would protect life and support mothers and babies, and that’s what we did,” Senate President Pro Tem Rodric Bray said in a statement. “It was always our intent to draft a bill that could withstand a constitutional challenge, and I hope to see that will be the case.”
Arleigh Rodgers is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues. Follow Arleigh Rodgers on Twitter at https://twitter.com/arleighrodgers
This story has been corrected to show that Ken Falk, legal director for the American Civil Liberties Union of Indiana, cited past state court that left undecided the legal question of whether the state constitution includes a right to privacy or abortion, rather than saying the issue is unclear.