Indiana Supreme Court upholds near-total abortion ban

Indiana’s top court ruled Friday that the state’s near-total abortion ban is constitutional and lifted a preliminary injunction that had been blocking the law from taking effect.

Writing for three of the five Supreme Court justices, Justice Derek Molter said the Constitution “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.”

All five Indiana Supreme Court justices were appointed by Republican governors.

With the new ruling, abortion will be banned in Indiana, with limited exceptions, as soon as Aug. 1.

In a statement, Attorney General Todd Rokita (R) praised the ruling, saying it was “morally justified. Thank you to all the warriors who have fought for this day that upholds LIFE.”

However, a second injunction remains in effect as a result of another lawsuit brought by the American Civil Liberties Union of Indiana (ACLU) on behalf of Hoosier Jews for Choice. That suit claims the law violates the Religious Freedom Restoration Act (RFRA) adopted in 2015 under then-Gov. Mike Pence (R), an ardent abortion opponent who is running for president. 

The plaintiffs in the religious case were granted class-action status, but it’s not clear how that immediately impacts abortion access given the Supreme Court’s ruling. The ACLU contends the injunction applies to all Indiana residents who have sincere religious beliefs that they must be able to obtain an abortion, rather than just the specific plaintiffs in the case.

That state is appealing both the class-action certification and the injunction. The case is set to be heard by the Indiana Court of Appeals in September.

Indiana was the first state to pass an abortion ban after the U.S. Supreme Court overturned Roe v. Wade in June 2022. The GOP-dominated Legislature passed the ban, and Gov. Eric Holcomb (R) signed it in August.

The ban initially took effect Sept. 15 but was blocked a week later by a state circuit court following a lawsuit by abortion providers. 

The providers argued that a woman’s right to “liberty” under the Indiana Constitution encompassed a fundamental right to abortion. As a result of the injunction, abortion was allowed to continue up to 20 weeks gestation. 

The law bans abortion almost entirely and revokes the licenses of the state’s abortion clinics.

The ban contains limited exceptions for serious risk to the health or life of a pregnant person, diagnoses of a “lethal fetal anomaly,” and rape or incest, before 10 weeks post-fertilization. In those cases, abortions are allowed only at hospitals and hospital-owned ambulatory surgical centers.

The law also bans abortion drugs after eight weeks post-fertilization.