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INDIANAPOLIS (AP) — An Indiana judge on Thursday blocked the state’s abortion ban from being enforced, putting the new law on hold as abortion clinic operators argue that it violates the state constitution.
Owen County
Judge Kelsey Hanlon issued a preliminary injunction against the ban that took
effect one week ago. The injunction was sought by abortion clinic operators who
argued in a lawsuit that the state constitution protects access to the medical
procedure.
The ban was
approved by the state’s Republican-dominated Legislature on Aug. 5 and signed
by GOP Gov. Eric Holcomb. That made Indiana the first state to enact tighter
abortion restrictions since the U.S. Supreme Court eliminated federal abortion
protections by overturning Roe v. Wade in June.
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.
Republican
state Attorney General Todd Rokita said in a statement: “We plan to appeal and
continue to make the case for life in Indiana.”
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.
An Ohio
judge has temporarily blocked that state law, indicating he will allow
abortions to continue up to 20 weeks’ gestation until after a court hearing
scheduled for Oct. 7.
With Indiana
now on hold, bans on abortion at any point in pregnancy are in place in 12
Republican-led states. In another state, Wisconsin, clinics have stopped
providing abortions amid litigation over whether an 1849 ban is in effect.
Georgia bans abortions once fetal cardiac activity can be detected and Florida
and Utah have bans that kick in after 15 and 18 weeks gestation, respectively.
The Indiana
ban, which includes limited exceptions, replaced state laws that generally
prohibited abortions after the 20th week of pregnancy and tightly restricted
them after the 13th week.
The American
Civil Liberties Union of Indiana, which is representing the abortion clinics,
filed the lawsuit Aug. 31 and argued the ban would “prohibit the overwhelming
majority of abortions in Indiana and, as such, will have a devastating and
irreparable impact on the plaintiffs and, more importantly, their patients and
clients.”
Ken Falk,
the ACLU of Indiana’s legal director, pointed to the state constitution’s
declaration of rights including “life, liberty and the pursuit of happiness” in
arguing before the judge on Monday that it included a right to privacy and to
make decisions on whether to have children.
The state
attorney general’s office said the court should uphold the ban, calling
arguments against it based on a “novel, unwritten, historically unsupported
right to abortion” in the state constitution.
“The constitutional text nowhere mentions
abortion, and Indiana has prohibited or heavily regulated abortion by statute
since 1835 — before, during, and after the time when the 1851 Indiana
Constitution was drafted, debated, and ratified,” the office said in a court
filing.
The question
of whether the Indiana Constitution protects abortion rights is undecided.
A state
appeals court decision in 2004 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 set aside that ruling without
addressing whether the state constitution included such a right.
Hanlon, a
Republican who was first elected in 2014 as a judge in the rural southern
Indiana county, wrote that Indiana’s constitution “is more explicit in its
affirmation of individual rights and its limitation of legislative power to
intrude into personal affairs” than the U.S. Constitution.
“There is a reasonable likelihood that
decisions about family planning, including decisions about whether to carry
pregnancy to term,” are protected by the state constitution, Hanlon wrote.
Planned
Parenthood and other abortion clinic operators involved in the lawsuit said in
a statement that they were “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 (the abortion ban,)” the
statement said.
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.
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.