“Plaintiffs have not shown that (Senate Bill 1) materially burdens the rights of any specific or well-defined class of patients to access constitutionally protected abortion care,” the decision said. “Significant and compelling evidence regarding the policy implications of S.B. 1 — and its effects on medical professionals specifically — was presented. However, the court cannot substitute its own policy preferences for that of the Indiana General Assembly.”
Attorneys with the American Civil Liberties Union of Indiana, representing the local Planned Parenthood affiliate as well as Bloomington-based All-Options and other plaintiffs, sought to expand the exemptions under the ban, which was signed into law in 2022.
“Today’s decision means that pregnant Hoosiers’ lives will continue to be endangered by Indiana’s abortion ban,” said a statement from Planned Parenthood. “Already, Hoosiers with serious health complications have been forced to endure unjustifiable suffering due to miscarriages, ectopic pregnancies and other pregnancy-related issues or leave the state to access appropriate care.”
Indiana legislators drafted the law with three exceptions: for fatal fetal anomaly, serious health risk to the mother, and rape or incest. One part of the law says these exceptions are up to 20 weeks but another part says they can be used anytime. Rape survivors can get an abortion up to 10 weeks post-fertilization.
It also stripped abortion clinics of their facility licenses, and limits abortions to only hospitals and hospital-owned ambulatory surgical centers.
Indiana Right to Life said the ruling strongly affirms Indiana’s right to limit abortions in the state.
“The limits in Indiana law have been highly effective in ending the killing of over 9,000 babies per year and stopped the abortion profiteers from making millions at the expense of women and their babies,” said Indiana Right to Life President and Chief Executive Officer Mike Fichter.
“The Indiana Supreme Court has already ruled Indiana’s law is constitutional and the U.S. Supreme Court affirmed in its 2022 Dobbs ruling the right for states to determine abortion law. As abortion businesses like Planned Parenthood continue to seek ways to undermine Indiana law, we will remain focused on helping Indiana become a model state in showing compassion for pregnant mothers and providing protection for unborn babies.”
Health risks
Special Judge Kelsey Blake Hanlon, a Republican, heard oral arguments in the latest round of court hearings back in May.
She previously enacted the injunction that paused the ban’s implementation until the summer of 2023, when the Indiana Supreme Court ruled in favor of the state but said the constitution provided for an abortion exception for the health and life of the mother.
However, Hanlon denied the latest move for an injunction on narrower grounds, which included specific examples of women experiencing complications during pregnancy.
“The Supreme Court did not ‘establish the precise contours’ of this protection nor did it determine a specific test under which to assess the availability of constitutionally protected abortion. In essence, the amount of health risk the Indiana General Assembly may constitutionally require women in Indiana to tolerate in pregnancy and childbirth remains an open question subject to review through as-applied challenges,” Hanlon wrote, quoting other legal filings.
“However, the decision does make that clear that to enjoy constitutional protection, an abortion must be ‘necessary’ to protect life or health of the woman and the health risk posed to the woman must be either life-threatening or ‘serious,’” Hanlon continued.
But Hanlon said plaintiffs failed to show that the life and health exception had prevented any constitutionally protected abortion from occurring. Physicians have repeatedly expressed concerns about the law impairing their ability to make quick decisions in emergency situations. The judge found the law doesn’t require that doctors “wait until a woman is clinically unstable to provide care” because it allows abortion when the doctor’s “reasonable medical judgment” is that she’d face serious risks.
Conditions discussed in court, like hyperemesis gravidarum, preeclampsia and gestational diabetes have other treatments, though doctors can perform abortions in severe cases requiring more drastic measures, Hanlon said.
What are categorically excluded, she acknowledged, are mental and emotional conditions.
The judge said the plaintiffs had presented “compelling evidence” showing how serious such illnesses can be, but hadn’t shown any specific scenarios in which abortion would be necessary as treatment.
The court also disagreed that the hospital requirement is overly burdensome, and noted that increased cost and travel for an abortion is not enough to overturn the law.
The plaintiffs can appeal the case to the Indiana Court of Appeals.
According to IDOH’s latest aggregate terminated pregnancy report, abortions in Indiana have continued to decrease — falling to 27 reported abortions between April 1 and June 30.
Prior to the ban, Indiana regularly reported hundreds of procedures each month.
All of the procedures occurred in Marion and Allen counties and 19 were due to lethal fetal anomalies, which accounted for 70% of the procedures. Serious health risks to the mother and rape/incest exceptions were also cited as reasons for abortions during the quarter — all of which are allowed under Indiana’s ban. One fetus was reportedly born alive.