Updated Thursday, Sept. 22, at 7:52 a.m. PT.
The court’s preliminary injunction against the ban—in effect since Sept. 15—was a response to an American Civil Liberties Union (ACLU) lawsuit, filed on Aug. 30, which sought to enjoin enforcement of SB 1. The ACLU represented Planned Parenthood, Women’s Med Group Professional Corporation, Whole Women’s Health Alliance, Dr. Amy Caldwell and All-Options, Inc., against the members of the Medical Licensing Board of Indiana and select county prosecutors, who were expected to enforce the law if it had gone into effect.
“We knew this ban would cause irreparable harm to Hoosiers, and in just a single week, it has done just that,” according to a joint statement from the providers represented in the suit. “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 SB 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.”
On Sept. 8, the ACLU filed an additional lawsuit, this time on behalf of Hoosier Jews for Choice and five women. The class-action suit argued SB 1 violates the state’s Religious Freedom Restoration Act, since not all religions believe that life happens at the moment of conception.
Indiana GOP-Led Legislature Passes SB 1 During Special Session
Indiana’s Republican-dominated legislature passed SB 1 in a special August session called by Gov. Eric Holcomb, who signed the law the night it passed on Aug. 5. The new law declares “human physical life begins when a human ovum is fertilized by a human sperm.” Indiana is the first state to pass an abortion ban following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. This case prompted the demise of abortion protections, established almost 50 years ago in Roe v. Wade.
Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, called the abortion ban “both dangerous and incredibly cruel.” “We demand more for patients and providers, and we will continue fighting for everyone’s right to make their own decisions about their bodies, lives and futures,” she added.
The Aug. 30 lawsuit claimed SB 1 will “virtually eliminate abortion access across the state.” The ban provides for only three limited exceptions: cases of rape or incest before 10 weeks post fertilization; pregnancies threatening the life or physical (but not mental) health of the pregnant person; and cases involving lethal fetal anomalies.
Additionally, it shutters licensed abortion clinics, where most abortions occur in the state. Instead, it requires that abortion care occur in a hospital or a majority hospital-owned ambulatory outpatient surgical center (“ASC”) regardless of gestational age. SB 1 will needlessly increase the expense for abortion care by ten-fold in many cases, according to the suit, even though abortions in outpatient clinics are as safe as abortions in hospitals and ASCs.
“Abortion bans are designed to dehumanize people by chipping away at their dignity, disregarding their health and well-being, and telling them that the future they are creating for themselves and their families is less important than a politician’s agenda,” said Rupali Sharma, senior counsel and director of the Lawyering Project.
The initial suit listed numerous negative anticipated consequences of the ban. For example, Indiana’s infant and maternal mortality rates are already among our nation’s worst.
“In 2020, 522 babies in Indiana died before their first birthday … about 10 babies every week. In 2019, 60 pregnancy-associated deaths occurred, and the Indiana Maternal Mortality Review Committee determined 80 percent of those deaths were preventable.”
The infant mortality rate among Black, non-Hispanic children in Indiana is more than twice the infant mortality rate of non-Hispanic white babies. In contrast, legal abortion is one of the safest medical procedures and complications are rare. “The risk of death associated with childbirth is more than 12 times higher than that associated with abortion,” according to the August lawsuit. Indiana’s infant and maternal deaths are expected to rise if abortion care is prohibited.
Additionally, the plaintiffs argued Indiana’s abortion ban will disproportionally affect people of color and those with low incomes. “Nearly 75 percent of those who seek abortions nationwide have poverty-level incomes.”
Within Indiana in 2020, 35 percent of people obtaining an abortion identified as Black or African American, and 9.9 percent identified as Hispanic or Latino. The 2020 U.S. Census found that only 9.6 percent of Hoosiers identified as Black or African American alone and 8.2 percent identified as Hispanic or Latino. Thus, while less than 20 percent of the Indiana population identified as Black or Latino, almost 45 percent of abortion care recipients self-identified as such.
Indiana also strictly limits aid to low-income families with children. While the federal government permits states to offer Supplemental Nutritional Assistance Program (SNAP) benefits to individuals up to 200 percent of the federal poverty line, Indiana limits eligibility at 130 percent with less than $5,000 in assets.
Indiana also enforces a “family cap policy” barring anyone with one or more children from receiving additional Temporary Assistance for Needy Families (“TANF”) benefits for additional children. The suit emphasizes that “Indiana imposes this restriction knowing that the poverty rate for single mothers in Indiana is 32.8 percent compared with the state’s overall poverty rate of 11.9 percent.”
“Indiana’s abortion ban … will force Hoosiers to travel out of state for abortion care at great, sometimes life-long costs to their physical, psychological and financial health,” said Sharma. “Those who are unable to do so may be forced to remain pregnant against their will, something that is and should remain unacceptable to us as human beings regardless of the Supreme Court’s recent decision. This ban must be stopped.”
Constitutional Arguments for Abortion Access
To highlight the legal flaws with SB 1, the ACLU outlined three constitutional claims.
First, SB 1 denies the privacy rights of pregnant women and trans men or nonbinary people who seek abortion care. If today’s Indiana courts decline to find a right of privacy in bodily autonomy associated with abortion—as the U.S. Supreme Court’s Dobbs majority similarly failed to do under the federal Constitution—Hoosiers do not have much hope on appeal either within Indiana or beyond. Precedent in Indiana that predates Roe discusses “proper medical care” including abortion and acknowledges that a privacy interest exists. However, in Cheaney v. State (1972), the Indiana Supreme Court determined that Indiana also has a “valid and compelling” interest in “a living being and potential human life” “from the moment of conception.” Therefore, the court validated a ban on abortion with only the exception to preserve “the life of the mother.”
Second, the ACLU argued SB 1 violates Indiana’s guarantee of equality. This tact may hold a better chance of success, especially as applied to medical clinic businesses. The summary closure of clinics that perform abortions invites an economic analysis under what is known as the Indiana equal privileges and immunities clause. If Indiana has unfairly denied these medical clinic businesses the right to operate when hospitals and ASCs can still perform abortions, the court may not find a rational reason to close them and may find SB 1 punitive.
Finally, the ACLU raised a vagueness argument under the Indiana Constitution’s “due course of law clause,” Section 12. This claim might succeed, at least for an injunction. Specifically, SB 1 may not be clear to medical practitioners—let alone pregnant women seeking care—what exactly it prohibits and when. The language prohibits abortions using two arguably inconsistent and incongruent timeframes in two separate subsections of the statute.
“This inconsistent language inhibits physicians from providing legal abortion services because of uncertainty as to whether SB 1 allows their conduct. For example, if a physician is treating a pregnant patient facing a risk of death who is 23 weeks pregnant by LMP [last menstrual period], SB 1’s conflicting provisions do not provide clarity as to whether an abortion would be legal in that situation.”
This vagueness will certainly have a chilling effect on the provision of medical abortion care in Indiana because the criminal penalties for doctors are so severe. The law subjects “any ‘person who knowingly or intentionally performs an abortion prohibited’ … to criminal penalties, including imprisonment of one to six years and a fine of up to $10,000.”
Ken Falk, legal director of the ACLU of Indiana, explained the controversy: “This ban on abortion will force Hoosiers to carry pregnancies against their will, leading to life-altering consequences and serious health risks. … Whether Indiana elected officials personally agree with abortion access or not, it is not up to the government to make these decisions for Hoosiers.”
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