INDIANAPOLIS — A special judge granted a preliminary injunction on Indiana's new abortion ban law stopping enforcement of the new law, at least temporarily. The order was issued on Sept. 22.
"I think we are very happy,” said Ken Falk, ACLU of Indiana. “You know, this case concerns a very important privacy right, which the court has recognized and which the legislature did not. And we're hopeful that the injunction will eventually be made permanent."
Falk and the state argued the merits of an injunction Monday in front of Judge Kelsey Hanlon. Three days later, the ACLU prevailed and now Attorney General Todd Rokita released a statement saying, "We plan to appeal and continue to make the case for life in Indiana," meaning the court of appeals or the Indiana Supreme Court may review the decision next and could reverse Hanlon's decision.
However, Indiana University law professor Jody Madeira said Hanlon is a well-known Republican judge.
“Judge Hanlon is a very, very well-respected jurist in Indiana,” Madeira said. “Her opinions carry weight. And I think that this opinion, carries more weight because she authored it."
Senate Bill 1 was passed by the Indiana Legislature on Aug. 5 and the ACLU lawsuit was filed Aug. 31. The new abortion ban law then went into effect on Sept. 15.
The judge wrote “there is reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana Constitution” and that the clinics will prevail in the lawsuit. The order prevents the state from enforcing the ban pending a trial on the merits of the lawsuit.
The ban, which includes limited exceptions, replaced Indiana laws that generally prohibited abortions after the 20th week of pregnancy and tightly restricted them after the 13th week.
The Indiana abortion ban 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.
Hanlon wrote, "SB1, however, materially burdens Hoosier women and girls' right to bodily autonomy by making that autonomy largely contingent upon first experiencing extreme sexual violence or significant loss of physical health or death"
“In other words, should you really have to risk death and sexual violence in order to have your civil rights” said IU law professor Jennifer Drobac. “Whoa, that's a new way of looking at this. That puts it into stark perspective. And that's a way of addressing and looking at the situation that's new, at least to me.”
The new law also prohibited abortion clinics from providing any abortion care, leaving such services solely to hospitals or outpatient surgical centers owned by hospitals.
As a result of the preliminary injunction, Planned Parenthood told 13News it will resume abortion care in Indiana starting Sept. 22.
Arguments made in court
In court Sept. 19, Planned Parenthood and other abortion clinics asked the judge to stop the ban from remaining in effect. In court documents, the ACLU, representing the abortion clinics, argued the new law violates the state constitution and a right to privacy, is vague and discriminates against the clinics.
Monday, the ACLU walked back its vagueness argument, but continued with the others.
Ken Falk, the legal director of the ALCU of Indiana, focused on the belief that the new law "goes too far" and "harms women.” He argued the law takes away autonomy, puts some women's health in danger and makes abortions more expensive by moving them to hospitals.
Indiana Solicitor General Tom Fisher argued "unborn children will literally die" without this law, going on to say the Legislature has the ability to limit actions that may harm others.
Fisher also made the argument Monday that the privacy argument is too broad, at one point seeming to compare abortion with drug use, prostitution and even revenge porn.
“The point is, the right that the plaintiffs are demanding have no limits,” he said when asked to clarify. “Today it's abortion, tomorrow it's something else. And regardless of what one thinks about abortion, the question is, 'Is there anything that’s not protected by the point the plaintiffs are claiming?' They talk about the right to privacy, but that’s not mentioned in the Constitution and has no meaningful boundaries or meaningful content.”
During their arguments, Judge Kelsey Hanlon asked the two sides to answer three main questions.
She asked if granting the preliminary injunction was an overstep that took power away from the Legislature. Falk argued no. In this case, he said, “If the Legislature wants to take another crack at it that’s fine” but argued the current law went “simply too far.”
Hanlon asked the state twice if it thought the Legislature had the right to eliminate the rape and incest exceptions in the current law. Fisher said he thought the Legislature had that right.
However, he didn’t quite answer her question if the Legislature had the power to limit access to contraception.
Fisher spoke further about the issue with news reporters after the hearing.
“Well, as I told the judge, it's a different question,” he said. “Because we always have to ask, ‘What is the legitimate purpose of the legislation?’ no matter what we’re talking about. And with abortion, it’s clear. The purpose of the legislation, which is not only legitimate, but compelling, is to save human lives. To save the lives of the unborn, but that's not what we're talking about, talking about oral contraception as the judge asked.”
After the hearing, the judge thanked both sides for their written and oral arguments, reporting she would make a decision “expeditiously.” That decision was issued Thursday with the judge saying she considered the arguments made in court along with relevant portions of the Indiana constitution, the record of evidence and relevant case law.
The full order can be read here:
Reaction to the preliminary injunction
Attorney General Todd Rokita issued the following 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."
Planned Parenthood Great Northwest Hawai‘i, Alaska, Indiana, Kentucky released the following statement:
In recent months, Indiana has become an important regional hub to provide abortion care to patients in Ohio, Kentucky, Tennessee, and beyond. As so many nearby states have banned abortion, we have seen an influx in out of state patients coming to Indiana for care. This makes today’s preliminary injunction even more important – every day that we can provide abortion care, is a day that the people of Indiana have control over their bodies and their future. This is a win for the entire state.
A joint statement was issued by Planned Parenthood, ACLU, Whole Woman’s Health, All-Options, the Lawyering Project, and Women’s Med in response to the preliminary injunction:
“We knew this ban would cause irreparable harm to Hoosiers, and in just a single week, it has done just that. We are grateful that the court granted much needed relief for patients, clients, and providers but this fight is far from over. Indiana lawmakers have made it abundantly clear that this harm, this cruelty, is exactly the reality they had in mind when they passed S.B. 1. There are 1.5 million people of reproductive age in the state of Indiana, and every single one of them deserve the right to make their own decisions about their bodies, families, and futures.”
Indiana Right to Life CEO Mike Fichter issued a statement on the preliminary injunction:
"Today’s blockage of Indiana’s new law means over 161 unborn children will continue to lose their lives to abortion every week this injunction stays in effect. We are encouraged by the judge’s acknowledgement of the state’s legitimate interest in protecting unborn babies and are hopeful the blockage will be brief."
The Indiana Democratic Party issued this statement in response to the injunction order:
"The Monroe County Circuit Court's decision for a preliminary injunction on the abortion ban today underscores what we all know: every Hoosier has a fundamental right to privacy. Only a woman and her doctor should make personal health care decisions, not politicians, and it's reassuring to see the decision show Hoosiers that the Indiana Republican Party's effort to ban a legal and safe abortion has crossed the line. But the loser today continues to be taxpayers who at minimum have spent $240,000 to carry out the GOP's extremist agenda. Enough is enough: A vote for Democrats is a vote to repeal the dangerous abortion ban and we urge all Hoosiers to support pro-choice candidates up and down the ballot this November." - Lauren Ganapini, executive director for the Indiana Democratic Party