Abortion access has fluctuated dramatically in Indiana and Kentucky over the past few months. New laws restricting services have gone into effect and faced legal challenges in both states.
Access could keep shifting, as cases head to the states’ supreme courts in the coming months. Kentucky voters will also decide next month whether to solidify restrictions in the state constitution through an amendment.
Status of Indiana’s restrictions
Abortions are currently legal in Indiana, after a judge temporarily blocked enforcement of the state’s new ban that passed in August. The case is heading to the state supreme court for a hearing in January.
During an abbreviated special legislative session this summer, Indiana lawmakers passed Senate Enrolled Act 1, which bans abortion in almost all cases. There are exceptions to save the life of the pregnant patient, if there are fatal fetal anomalies or in cases of rape or incest, up to 10 weeks.
The law requires abortions to happen only in hospitals or outpatient centers owned by hospitals and makes it a level 5 felony for anyone to provide an abortion outside of the exceptions.
Indiana lawsuits
ACLU and Planned Parenthood file first suit: Planned Parenthood, ACLU of Indiana and several abortion providers filed a lawsuit on Aug. 30 in state court against members of the Indiana medical licensing board and prosecutors from Hendricks, Lake, Marion, Monroe, Joseph, Tippecanoe and Warrick counties.
Plaintiffs argue the law violates the right to privacy and equal protections privileges in the state constitution.
On Sept. 22, a week after the new abortion law went into effect, Owen County Judge Kelsey Hanlon granted a preliminary injunction, blocking enforcement of the ban. Attorney General Todd Rokita challenged the judge’s decision with the state court of appeals and state supreme court. The Indiana Supreme Court recently accepted the case and is set for oral arguments Jan. 19.
Hoosier Jews for Choice and others cite religious freedom in challenge: On Sept. 8, a week before the Indiana law went into effect, the ACLU of Indiana filed a lawsuit in state court on behalf of Hoosier Jews for Choice and five people who practice religions including Judaism and Islam.
They argue the law violates the state’s Religious Freedom Restoration Act, passed in 2015 to prevent government entities from interfering with religious practices. They have asked the court for a preliminary injunction as the case continues.
Attorneys say the law infringes on the rights of people who don’t believe life begins at conception, a Christian belief at the core of Indiana’s abortion law.
Judaism includes the belief that the life of the pregnant person takes precedence over the life of the fetus, and that life begins when a child takes their first breath.
The judge heard arguments in the case Oct. 14, and both sides have until Oct. 28 to file additional findings of fact. After that, the judge plans to issue a decision on the preliminary injunction within 30 days.
The Satanic Temple argues religious freedom violations: On Sept. 21, The Satanic Temple filed a lawsuit in federal court against Indiana Gov. Eric Holcomb and Attorney General Todd Rokita, arguing the new law violates religious freedom.
Plaintiffs say the law violates the state’s Religious Freedom Restoration Act, as well as the U.S. Constitution. They argue it prevents members of The Satanic Temple from exercising their right to bodily autonomy and from performing the “abortion ritual,” which includes exemptions from “medically unnecessary and unscientific regulations when seeking to terminate their pregnancy,” according to The Satanic Temple.
Online court records did not show a hearing set in the case as of Oct. 21.
Status of Kentucky’s restrictions
Abortions are illegal in Kentucky except in cases to save the life of the pregnant patient. The state supreme court will hear oral arguments in November on a challenge to the state’s near-total bans. Voters will also decide in November whether to add language to the state constitution explicitly saying there is no right to abortion.
Kentucky is one of 13 states that had “trigger laws” on the books set to go into effect after the U.S. Supreme Court ruled to overturn Roe v. Wade in June, thereby giving states the power to decide on abortion access.
Though some of the states had waiting periods, Kentucky’s law, passed in 2019, went into effect right away. The Supreme Court ruling also cleared the way for a ban on abortions around six weeks, which had previously been blocked.
The trigger law bans abortion in nearly all cases, with exceptions only to save the life of the pregnant patient. There are no exemptions for people who become pregnant by rape or incest.
Kentucky lawsuits
Providers challenge near-total abortion ban: Planned Parenthood and the ACLU filed a challenge in state court June 27, three days after Kentucky’s near-total abortion ban went into effect.
Jefferson County Circuit Court Judge Mitch Perry granted a restraining order less than a week after the law went into effect and later further blocked enforcement of the law with an injunction.
The state’s two abortion providers — EMW Women’s Surgical Center and Planned Parenthood, both in Louisville — resumed services. EMW had previously provided abortions up to 21 weeks and six days but capped them at 15 weeks after the U.S. Supreme Court’s Roe decision.
Kentucky Attorney General Daniel Cameron appealed Perry’s decision. On Aug. 18, the state supreme court upheld a previous decision by the state court of appeals to grant Cameron’s emergency requests, allowing the restrictions to be enforced.
On Oct. 24, Cameron filed a brief with the Kentucky Supreme Court, asking for Perry’s decision to be permanently overruled and for the court to dissolve his injunction. He added in the filing that abortion is not protected in the state’s constitution and said decisions about abortion access or regulations should be left to the state legislature.
The case is set for oral arguments Nov. 15, a week after voters will decide whether to add language to the state constitution enshrining restrictions.
Religious freedom lawsuit: On Oct. 6, three Jewish women from Louisville filed a lawsuit in state court arguing the state’s trigger ban and six-week ban violate their religious and reproductive freedoms.
They also want language removed from state statute that defines life as beginning at conception.
Plaintiffs also worry how the laws could impact their future reproductive rights, related to in vitro fertilization, and whether health care providers would be able to end a pregnancy if they were having serious or life-threatening issues.
Omnibus abortion bill: Access to abortion in Kentucky was already uncertain before the U.S. Supreme Court overturned Roe.
In April, the Republican-led state legislature overwhelmingly passed a more than 70-page omnibus package that placed heavy restrictions on abortions, without banning them outright.
The bill’s provisions included a ban at 15 weeks, restrictions on abortion medication and a series of new regulations and forms for providers and state health organizations. It also makes it harder for minors to get abortions.
Providers stopped services and sued in federal court, arguing the new law was unconstitutional and saying they couldn’t comply with new regulations not yet in place.
District Judge Rebecca Grady Jennings temporarily blocked the bill a week after it went into effect and later extended the block for certain parts, including regulations that weren’t yet set up.
Since then, pieces of the bill have gone into effect.
That includes the 15-week ban, which was implemented in July after the Supreme Court ruling.
The judge has given the Cabinet for Health and Family Services and the plaintiffs in the case until Nov. 7 to file briefings and status reports on the progress of implementing new processes.
This story was updated on Oct. 25, 2022.
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