Indiana Supreme Court Upholds Law Banning Most Abortions, Establishes Right To Life-Saving Abortion

After the U.S. Supreme Court’s landmark decision in Dobbs v. Jackson Women’s Health Organization,[1] Indiana became the first state to enact a new law protecting unborn life from the moment of conception. In a special legislative section following the Dobbs decision, the Indiana General Assembly enacted Senate Bill 1, which protects unborn life with three exceptions: (1) before 20 weeks post-fertilization, if “reasonable medical judgment dictates that performing the abortion is necessary to prevent any serious health risk to the pregnant woman or to save the pregnant woman’s life”; (2) before 20 weeks post-fertilization, if “the fetus is diagnosed with a fetal anomaly”; or (3) before 10 weeks post-fertilization, if “the pregnancy is a result of rape or incest.”[2] SB 1 also requires that any abortions falling into the statute’s exceptions be performed by physicians in a hospital or ambulatory surgical center.[3]

Three Indiana abortion facilities—Planned Parenthood, Women’s Med Group, and Whole Woman’s Health[4]—along with an Indiana abortionist and a pro-abortion non-profit, filed suit to enjoin enforcement of SB1, claiming that Article 1, Section 1 of the Indiana Constitution—declaring “[t]hat all people are created equal; that they are endowed by their CREATOR with certain inalienable rights”; and “that among these are life, liberty, and the pursuit of happiness”—enshrines a fundamental state right to abortion.[5] The complaint also challenged SB1’s hospital/ASC requirement under the Indiana Constitution’s “equal privileges and immunities” provision.[6]

One week after SB 1 went into effect, a state trial court entered a preliminary injunction against the law. The trial court held that (1) Article 1, Section 1 is judicially enforceable,[7] (2) Article 1, Section 1 protects a right to abortion,[8] and (3) SB 1 “materially burdens” that right.[9] But the trial court rejected plaintiffs’ “equal privileges and immunities” claim.[10] The state appealed the preliminary injunction directly to the Indiana Supreme Court.

The Indiana Supreme Court, in a 4-1 decision written by Justice Derek Molter, reversed the trial court and vacated the injunction.[11]

The court first addressed whether plaintiffs had standing to challenge SB 1—an issue the court raised sua sponte in its order accepting jurisdiction over the appeal.[12] Citing an Indiana law encyclopedia, the court held that the plaintiff abortion providers had direct standing to challenge SB 1. The court explained that “if a statute’s enforcement imminently threatens a plaintiff with their own direct injury, they have standing to challenge the statute’s constitutionality, even if their claim is that the statute is invalid because it violates the rights of third parties.”[13] Since SB1 criminalizes the plaintiffs’ work, the court held they had standing even though the plaintiffs claimed the statute was unconstitutional because it violated the constitutional rights of women in Indiana to access their services. The court did not address whether plaintiffs had met the requirements for third-party standing.

Next, the court agreed with the trial court that Article 1, Section 1 is judicially enforceable.[14] The court recognized that Article 1, Section 1 is a “Lockean Natural Rights Guarantee,”[15] but it nevertheless held that held that “a review of Article 1, Section 1’s text, changes made in the 1851 Constitution, our Constitution’s structure and purpose, and case law applying the provision leads us to continue recognizing Section 1 as judicially enforceable.”[16]

Third, the court held that Article 1, Section 1 “precludes the General Assembly from prohibiting an abortion that is necessary to protect a woman’s life or to protect her from a serious health risk,” but that it “generally permits the General Assembly to prohibit abortions that do not fall within one of those categories.”[17] The court explained that Article 1, Section 1 protects a “fundamental right of self-protection—whether considered an exercise of the right to life, an exercise of the right to liberty, a limitation on the scope of the police power, or as a matter of equal treatment—[that] is . . . firmly rooted in Indiana’s history and traditions.”[18] It further noted that “all of Indiana’s abortion statutes since 1851 have recognized an exception for abortions that are required to protect a woman’s life,” including SB 1.[19]

However, the court concluded that this right “does not support Plaintiffs’ . . . facial challenge” because “Plaintiffs had to show that Article 1, Section 1’s protection of ‘liberty’ establishes a woman’s right to terminate a pregnancy in all circumstances.”[20] It held that plaintiffs had failed to make that showing, explaining that the “framers and ratifiers” of both the original 1851 Constitution and the 1984 amendment (which changed “men” to “people”) understood Article 1, Section 1 as leaving “the General Assembly with broad legislative discretion to limit abortion.”[21] The court then applied the rational basis test, holding that “[o]ur precedents have long recognized that protecting prenatal life is an appropriate exercise of the police power,” and that “Plaintiffs do not argue that” SB 1 “has no reasonable relation to protecting prenatal life.”[22]

Finally, the court vacated the preliminary injunction against SB 1, but clarified that its decision did not resolve plaintiffs’ “equal privileges and immunities” claim and did not “foreclose future abortion litigation” concerning “as applied” challenges to the law.

Justice Geoffrey Slaughter concurred in the judgment of the court that “the disputed injunction must be vacated,” but he “would [have] reach[ed] that result based on the lack of standing and not on the merits.”[23] He argued that the plaintiffs’ claim of injury on the part of pregnant women was not sufficient to satisfy the elements of standing.[24] According to Justice Slaughter, the Indiana Supreme Court’s prior cases finding that abortion providers had standing to challenge abortion laws relied on federal standing principles and thus were called into question by Dobbs.[25] Moreover, Justice Slaughter argued that even if there had been standing, the majority should have finished its opinion by stating that the plaintiffs had failed to prove that all components of Senate Bill 1 are unenforceable, with no further discussion of any constitutional implications.[26]

Justice Christopher Goff concurred “with the [majority]’s conclusion that the Plaintiffs have standing to seek injunctive relief” and the majority’s conclusion that “Article 1, Section 1 . . . is judicially enforceable and that it prohibits the government from compelling a woman to continue a pregnancy that would kill or endanger her.” But he dissented from the majority’s “decision to terminate the trial court’s injunction in its entirety” because “there is a reasonable likelihood that Article 1, Section 1’s guarantee of ‘liberty’ includes a qualified right to bodily autonomy.”[27] He argued that the decision of whether “liberty” in Article 1, Section 1 includes the right to “bodily autonomy” “should be decided directly by the sovereign people of Indiana.”[28] He also opined that despite the failed facial challenge, the majority should have addressed the as-applied challenge implicit in the plaintiffs’ facial challenge.[29] Justice Goff would have “affirm[ed] the trial court’s temporary injunction to the extent it enjoins enforcement against plaintiffs’ previously protected abortion activities” and “remand[ed] these proceedings to the trial court for full development of the parties’ evidence and arguments on the constitutionality of the statute . . . as applied to the Plaintiffs.”[30]

While this case resolved the facial constitutionality of Indiana’s pro-life law, the Indiana Supreme Court left unexplored the precise contours of the non-textual right it established “to an abortion that is necessary to protect [the mother’s] life or to protect her from a serious health risk.”[31] It also did not address whether Indiana’s Religious Freedom Restoration Act might require an exception for women who argue that their religion mandates an abortion in certain circumstances, an issue that is pending at Indiana’s Court of Appeals.[32] Thus, as the court predicted, “the decision will not foreclose future abortion litigation in Indiana more broadly.”[33]

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