Indiana’s Supreme Court hears ACLU challenge to new state abortion ban 

By Dave Andrusko

The state Supreme Court today heard the ACLU’s challenge to Senate Enrolled Act 1, the first national legislation to pass following the Dobbs decision which overturned Roe v. Wade. Owen County Judge Kelsey Hanlon blocked the law from going into effect in September because, she said, “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.

Indiana Right to Life president and CEO Mike Fichter said “There is no right to abortion in the Indiana Constitution.”

“The United States Supreme Court made it clear abortion policy is to be decided by the people of each state, which is exactly what happened when the Indiana legislature acted following the overturning of Roe vs. Wade. We hope the court will act quickly in upholding the new law so Indiana can move forward in ending the majority of abortions in our state. There is a great urgency to the court acting swiftly as over 150 unborn children continue to die from abortion in Indiana every week the new law remains blocked.”

Writing for the Associated Press, Tom Davies explained that “The Indiana ban, which eliminated the licenses for all abortion clinics in the state, includes exceptions allowing abortions at hospitals 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.”

After appearing in Judge Hanlon’s court September 19, Indiana Solicitor General Tom Fisher spoke with reporters.

“[W]e always have to ask, ‘What is the legitimate purpose of the legislation?’ no matter what we’re talking about. And with abortion, it’s clear. The purpose of the legislation, which is not only legitimate, but compelling, is to save human lives. To save the lives of the unborn.”

Fisher’s office “has argued that Indiana had laws against abortion when its current constitution was drafted in 1851 and that the judge’s ruling wrongly created an abortion right,” Davies wrote. “‘The judiciary has no power to amend the Constitution by fiat,’ it said in a court filing. ‘Reading novel ‘rights’ into the Constitution would set the judiciary on a dangerous, unprincipled path destructive to rule of law.”

At today’s hearing, Bloomberg Law’s Mary Anne Pazanowski wrote that the ACLU’s Kenneth Falk argued that “whether to end a pregnancy,” is “a core liberty interest protected by the Indiana Constitution’s inalienable rights clause.”

Not so, said Fisher

There’s no provision in the Indiana Constitution that protects a right to abortion, Indiana Solicitor General Tom Fisher said. The document’s inalienable rights clause doesn’t create a standalone right enforceable in court, he said. The inalienable rights to life, liberty, and the pursuit of happiness can be enforced only when joined with other rights expressly granted in the founding document, such as the right to equal protection.

The Indiana legislature passed SB 1 on August 5 and the ACLU lawsuit was filed August. 31. The new abortion ban law then briefly went into effect on September 15.