Abortion providers reignite constitutional challenge
Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
The legal fight over Indiana’s new abortion law has reignited in the Monroe Circuit Court, where abortion providers are once again asking for an injunction against the law on Indiana constitutional grounds.
The American Civil Liberties Union of Indiana on Thursday filed an amended complaint for injunctive and declaratory relief targeting Senate Enrolled Act 1, which prohibits abortion in Indiana except in limited cases of rape or incest, fatal fetal anomaly, or to protect the life or health of the pregnant woman. The law also eliminates licensed abortion clinics in the state and instead requires legal abortion procedures to be carried out in a hospital or ambulatory outpatient surgical care.
A violation of SEA i is a Level 5 felony punishable by up to six years in prison, a fine of up to $10,000 and revocation of a doctor’s medical license.
Thursday’s amended complaint specifically targets the portions of SEA 1 related to the life-or-health exception and the elimination of abortion clinics, alleging those portions violate Article 1, Section 1 of the Indiana Constitution.
“(Senate Bill) 1 severely limits access to abortion care, prohibiting nearly all pregnant Hoosiers from accessing care in Indiana,” the amended complaint says. “S.B. 1’s unconstitutionally narrow Health or Life Exception and needlessly restrictive Hospital Requirement infringe upon Article 1, Section 1 of the Indiana Constitution as applied to Plaintiffs and to pregnant Hoosiers who have a constitutional right to access an abortion because they face a serious health risk.
“… Moreover, by slashing the number of facilities providing abortion, which will be limited to hospitals concentrated in and around Indianapolis, the Hospital Requirement materially burdens even the few people who may qualify for the ban’s exceptions,” the complaint continues. “This means that even the Hoosiers who are entitled to abortion under Indiana law will be forced to disrupt their lives to travel either in state or out of state for their care, significantly delaying their abortions and causing them to incur higher expenses.”
A previous argument under the same provision of the Indiana Constitution resulted in an injunction against SEA 1 in September 2022 based on a “reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana constitution … .”
But the Indiana Supreme Court lifted the injunction in June, then certified its decision in August, allowing SEA 1 to take effect.
“We first hold that the (abortion) providers have standing to contest the constitutionality of Senate Bill 1 because the statute criminalizes their work, and thus they face the sort of imminent, direct, personal injury our standing doctrine requires,” Justice Derek Molter wrote in the June decision. “Then, after examining Article 1, Section 1’s text, history, structure, and purpose, as well as our prior case law interpreting the provision, we hold that it is judicially enforceable. Finally, we hold that Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions.”
Justice Christopher Goff partially dissented, writing, “Enforcement of Senate Bill 1 would irreparably harm pregnant women who seek to exercise the choice not to carry a pregnancy to term. As to the balance of the equities and the public interest, I cannot find an abuse of discretion in the trial court maintaining the fifty-year status quo that was mandated by the United States Supreme Court in an effort to balance a woman’s liberty against society’s interest in fetal life.”
Goff would have affirmed the injunction and remanded for full development of evidence and arguments on the constitutionality of SEA 1.
Returning to the trial court, two of the plaintiffs — Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky Inc. and Women’s Med Group Professional Corporation — argued that SEA 1’s hospital requirement prevents them from providing abortion care “at all.”
“S.B. 1’s unconstitutionally narrow Health or Life Exception, coupled with its severe criminal and licensure penalties, chills and prevents doctors practicing in hospitals from providing the care that Hoosiers are entitled to under the Indiana Constitution,” the complaint argues.
It then references another defendant, Dr. Amy Caldwell, who became a figure in the state’s abortion discussion last year alongside her medical partner, Dr. Caitlin Bernard.
“The chilling effect is all the more acute due to Indiana’s history of targeting abortion providers,” the complaint says. “The severe penalties have forced Dr. Caldwell to sharply curtail the types of abortions she performs, contrary to her patients’ needs and wishes.”
The final plaintiff, All-Options Inc., argues that the health-or-life exception and the hospital requirement have “severely limited” its “ability to provide meaningful financial assistance to Hoosiers because (1) All-Options has had to provide larger grants to patients facing serious health risks, but who are forced to travel out of state for abortion care due to the uncertainty and narrowness of the Health or Life Exception, and (2) abortions are often more expensive at hospitals.
“For all these reasons,” the amended complaint says, “S.B. 1’s Health or Life Exception and Hospital Requirement have caused — and will continue to cause — immediate and irreparable harm to Plaintiffs and pregnant Hoosiers seeking abortion because they face a serious health risk, including the Plaintiffs’ patients and clients, unless and until this Court intervenes.”
Defendants include the members of the Indiana Medical Licensing Board and the Hendricks, Lake, Marion, Monroe, Tippecanoe and Warrick County prosecutors, all in their official capacities.
“The fight isn’t over in Indiana,” a joint statement from the plaintiff organizations, Planned Parenthood Federation of America, the ACLU of Indiana and the Lawyering Project said. “Today, we are asking the trial court to protect Hoosiers’ health and limit the scope of the state’s unconstitutional abortion ban. We are hopeful that the court will grant our request, ensuring that Hoosiers in the most vulnerable circumstances can still access care in their state.
“While this would be a critical step forward for reproductive freedom, it would not restore access for most people seeking abortion in Indiana,” the statement continues. “We will continue working to support Hoosiers in getting abortions — and we will continue to fight until access is fully restored.”
Indiana Lawyer has reached out to the Office of the Indiana Attorney General for comment.
The case is Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical Licensing Board of Indiana, in their official capacities, et al., 53C06-2208-PL-001756.
The Monroe County case is not the only ongoing challenge to SEA 1.
A case challenging the law on religious freedom grounds is currently pending before the Court of Appeals of Indiana.
Meanwhile, the ongoing abortion debate in the state led to a public feud between Attorney General Todd Rokita, a staunchly anti-abortion Republican, and Bernard, an Indianapolis OB-GYN who disclosed to the media that she had performed an abortion on a 10-year-old rape victim from Ohio.
The feud between the two culminated in Bernard being reprimanded and fined by the Indiana Medical Licensing Board and Rokita being publicly reprimanded by the Indiana Supreme Court.