The Indiana supreme court issued an order Wednesday that prevents the state from enforcing a Republican-backed abortion ban while it considers whether it violates the state constitution.
The supreme court took over the case after a county judge blocked the ban last month, spurring the attorney general to appeal the decision. The court denied a request from the state attorney general’s office to set aside the preliminary injunction, setting a hearing on the lawsuit filed by abortion clinic operators for 12 January.
Owen county judge Kelsey Hanlon blocked the law from being enforced, writing that “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 ban was approved by the state’s Republican-dominated legislature on 5 August and signed by Republican governor Eric Holcomb. That made Indiana the first state to enact tighter abortion restrictions after the US supreme court eliminated federal abortion protections by overturning Roe v Wade in June.
“Following the overturning of Roe, I stated clearly that I would be willing to support legislation that made progress in protecting life,” Holcomb said in August when he approved the ban.
The five-member supreme court, all of whom were appointed by Republican governors, did not explain their decision.
The American Civil Liberties Union of Indiana, which is representing the abortion clinics, filed the lawsuit on August 31. It argued that 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”.
A joint statement by ACLU, Planned Parenthood and other women’s health centers said: “There are 1.5 million people of reproductive age in the state of Indiana, and every single one of them deserve the right to make their own decisions about their bodies, families, and futures”.
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 county judge 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, saying arguments against it are based on a “novel, unwritten, historically unsupported right to abortion” in the state constitution.
The attorney general’s office had asked the supreme court to take over the case, bypassing the typical intermediate step of it being considered by the state appeals court.
Neither the ACLU nor the state attorney general’s office immediately commented on the court’s action.
The Indiana ban aimed to replace state laws that generally prohibited abortions after the 20th week of pregnancy and tightly restricted them after the 13th week. The 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.
“This bill says, we are only going to give full constitutional rights to women if their very life is threatened, or they are a victim of rape. Then those women and girls have just 10 weeks to come to terms with the assault, being pregnant by their assaulter, and sorting through that trauma,” Indiana state senator Shelli Yoder told the Guardian last month.
The question of whether the Indiana constitution protects abortion rights is undecided.
