Abortion providers file lawsuit against Indiana’s near-total abortion ban

A group of Indiana abortion care providers on Tuesday filed a lawsuit in state court challenging Indiana’s near-total abortion ban that is set to take effect in just 16 days.

The suit — filed in Monroe County Circuit Court by the American Civil Liberties Union of Indiana on behalf of Planned Parenthood, Whole Women’s Health Alliance, and others — argues that the abortion ban “will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and violate the Constitution’s due course of law clause through its unconstitutionally vague language.”

The court challenge is based on the Indiana Constitution. The Supreme Court of the United States in June ruled that the U.S. Constitution does not guarantee abortion rights.

Indiana was the first state in the nation to approve such legislation since the high court ruling that overturned Roe v. Wade. The ban is still set to take effect on Sept. 15.

“From its very inception, the Indiana Constitution has protected the right to privacy. Implicit in this right, is the right for a woman to make medical decisions regarding her own reproductive health,” ACLU of Indiana Legal Director Ken Falk said in a statement. “This ban on abortion will force Hoosiers to carry pregnancies against their will, leading to life-altering consequences and serious health risks.”

The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. One part of the law says these exceptions are up to 20 weeks but another part says they can be used anytime. Rape survivors can get an abortion up to 10 weeks post-fertilization. It also strips abortion clinics of their state medical licenses, and provides that only hospitals and hospital-owned ambulatory surgical centers can provide abortions.

Filing arguments

In the filing, the plaintiff organizations argue the new law blocks their patients from exercising an abortion-including “fundamental right to privacy,” which the Indiana Constitution protects as an individual liberty.

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They also allege the law discriminates against abortion providers by limiting the procedures to hospitals.

That’s despite the fact that licensed abortion clinics “have safely provided the vast majority of abortion care in Indiana for decades,” the organizations wrote.

They added that “there is no distinct, inherent medical reason” why hospitals and surgical centers should be preferred over abortion clinics for the “medically uncomplicated and extremely low-risk” procedure.

Finally, the abortion providers identified a contradiction in the ban’s language and argued it rendered the law unconstitutionally vague because of the steep penalties physicians face if abortions they perform are found to be unlawful.

An exception for the health and life of the mother, they wrote, has a clause indicating physicians can perform abortions only before 20 weeks — or earlier viability — while another clause gives the all-clear for before 20 weeks “and any time after.”

The groups asked the court to issue a preliminary and permanent injunction blocking enforcement of the law, as well as declare it unconstitutional.

“With almost no available abortion care in Indiana, Hoosiers will suffer irreparable harm to their autonomy, their well-being, and their dignity, in violation of their rights under the Indiana Constitution,” the organizations wrote in the filing. “[The law] inflicts immediate and irreparable harm on Hoosiers seeking vital and time-sensitive healthcare.”

Reaction

The Republican-dominated Indiana General Assembly advanced the measure during a heated, two-week special session that concluded earlier this month. Senate President Pro Tem Rodric Bray told the Indiana Capital Chronicle he was confident the legislative body’s work could hold up to a lawsuit.

“(It’s) not a surprise. We feel like we drafted a bill that will hopefully withstand a constitutional challenge and I hope that’s the case,” Bray said Tuesday. “Outside of that, I probably shouldn’t say anything else since it’s a pending case, and we’ll let the courts figure it out.” 

Indiana House Speaker Todd Huston said lawmakers in the House also “believe the law is constitutional,” adding that he won’t comment further while the case plays out in court.

In a written statement following the court filing, the anti-abortion group Indiana Right to Life said that “there [is] no right to an abortion in the Indiana Constitution,” insisting instead current Indiana law “actually states life is one of our inalienable rights.”

“We are confident the state will prevail and pray the new law is not blocked from going into effect on Sept. 15, knowing that any delay will mean the indiscriminate killing of unborn children will continue at abortion clinics across Indiana,” Right to Life CEO Mike Fichter said.