By Dave Andrusko
In a new legal filing, Attorney General Todd Rokita has urged the Indiana Supreme Court to put Senate Enrolled Act 1 into effect immediately. His filing asks the Court to deny an ACLU-Planned Parenthood request that it leave intact a preliminary injunction against Senate Enrolled Act 1 while court challenges to the state law continue to play out.
Denying a rehearing and certifying the law is a necessary step for the law to be in effect.
Senate Bill 1 allows abortions only in cases of rape or incest, when there’s a serious risk to the life of the mother, or when fatal fetal anomalies are present.
“Artificially prolonging an erroneously issued injunction through an exercise of raw judicial power would contravene this court’s precedents, subvert the purpose of preliminary relief and undermine the democratic process,” Rokita said. “The state, its citizens, and especially the unborn lives protected by S.B. 1 all will suffer grievously from an unjustified extension of the injunction.”
Plaintiffs’ attempt to minimize the harm to the State because “abortion has been widely legal in Indiana since Roe v. Wade,” borders on farcical. As the U.S. Supreme Court has explained, Roe represented an unjustified federal intrusion into a realm the U.S. Constitution leaves to ‘the people and their elected representatives’ in each state.’ And as this Court has recognized, from the very beginning of the Roe era, Indiana ‘made clear it disagreed with Roe.’
Plaintiffs’ invocation of Roe reveals what this case is about—whether ‘policy making responsibility’ for abortion should be vested in democratically accountable representatives or “our five-member, unelected Court, which does not have the institutional tools to discern Hoosiers’ divergent views on whether” and when abortion should be legal. But Roe—an unprincipled exercise of ‘raw judicial power’ by the U.S. Supreme Court that ‘has embittered our political culture for a half century’—provides a cautionary tale against exercising such raw power here. The Court should not tolerate plaintiffs’ continued attempts to make the judiciary abortion policy czars
Writing for The Times of Northwest Indiana, Dan Carden explained that Rokita said “there’s absolutely no basis for an Indiana appellate court to refuse to vacate a preliminary injunction after concluding the trial court exceeded its authority in issuing it — as the Supreme Court did in this case.”
As noted above, a month ago the Indiana Supreme Court ruled that the law does not violate the state Constitution. Justice Derek R. Molter wrote that the state’s 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.”
While there is no timeline for the state Supreme Court to rule on the ACLU’s petition for rehearing, according to Casey Smith, “until the high court certifies its decision, an injunction remains in place — blocking the new law from taking effect. At earliest, decisions can be certified 30 days after a ruling is issued. Because the June 30 ruling was not certified by Monday, it will not take effect on Tuesday.”
In short, the ACLU of Indiana had a month to petition the court to rehear the case and they took full advantage, waiting until the last second. Moreover, “The ACLU of Indiana additionally filed for a rehearing on Monday, pushing back the date of certification even farther,” Brandon Smith reported.