Indiana abortion ban on hold until certification

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By Casey Smith
Indiana Capital Chronicle

INDIANAPOLIS — Despite confusion and hesitancy among health care providers, Indiana’s near-total abortion ban will not take effect until the state Supreme Court certifies its June ruling.

Numerous media outlets were reporting overnight that the ban would begin today.

Indiana Supreme Court justices tossed out a wide-ranging preliminary injunction in late June when they largely upheld the state’s abortion ban on constitutional liberty grounds.

But until the high court certifies its decision, an injunction remains in place — blocking the new law from taking effect.

At the 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.

For now, that leaves in place the state’s previous abortion law, which allows abortions up to 20 weeks.

“From a legal perspective, we’re still in limbo, just waiting for the case to be sent back, and for some clarity,” said Gavin Rose, a senior attorney with the American Civil Liberties Union (ACLU) of Indiana.

“But from a practical perspective … I certainly know that the nature of medical practice is such that they need some definiteness about when they can provide services because they obviously schedule more than five minutes out,” Rose continued. “Certainly, my assumption is that they are preparing to wind things down.”

Indiana abortion clinics said they’ll stop offering abortions when the ban takes effect but continue to support patients with information about out-of-state clinics.

The ACLU of Indiana additionally filed for a rehearing on Monday, pushing back the date of certification even further.

In their latest filing, ACLU attorneys asked the Indiana Supreme Court to put a short pause on its decision while a trial court determines whether there are people who have a constitutional right to obtain an abortion to protect their health who are not protected under the current language laid out in the near-total abortion ban.

The ACLU requested for the Supreme Court to allow the earlier preliminary injunction to remain in effect while the trial court resolves the matter.

Kathryn Dolan, a spokesperson for the Indiana Supreme Court, told the Indiana Capital Chronicle that if a party seeks rehearing, certification will not happen until after the court “considers the matter and issues a decision on whether to grant or deny the rehearing petition, thus considering the case or disposing of the rehearing petition.”

A narrower injunction is also still in place in a second lawsuit using the state’s controversial Religious Freedom Restoration Act (RFRA) to argue that the abortion ban infringes on the religious beliefs of plaintiffs of multiple faiths.

That injunction only applies to the plaintiffs in that case, however.

Lingering questions in ongoing legal challenges

Attorneys challenging the state’s abortion ban on religious freedom grounds asked the trial court to dispel confusion in that case by explicitly stating a preliminary injunction extends to all members of the class-action suit.

The narrow injunction grants a temporary religious exemption from the state’s abortion ban. But it’s been mired in confusion about who it protects.

That’s because the case initially involved only a handful of plaintiffs, and a judge granted the injunction before the case was certified as a class-action suit.

The ACLU last month asked the Marion Superior Court to clarify that the preliminary injunction — in its view — applies to the full class of plaintiffs. The organization also asked the court to clarify that the injunction protects entities, such as a hospital, performing abortions for class members.

The trial court still has not issued any such clarification, however.

A hearing before the Indiana Court of Appeals on the preliminary injunction in the religious freedom case was also pushed back to December 6.

Changes under the ban

When the law starts being enforced, Indiana will join more than a dozen states with abortion bans.

The Republican-dominated Indiana General Assembly advanced the abortion-restricting measure during a heated, two-week special session that concluded in August 2022.

That made Indiana the first state in the nation to approve such legislation since the high court ruling that overturned Roe v. Wade.

The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. 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 strips abortion clinics of their state medical licenses, and provides that only hospitals and hospital-owned ambulatory surgical centers can provide abortions.

Under the law, surgical abortions can only be done in hospitals or standalone ambulatory surgical centers owned by a hospital.

Existing Indiana law makes it a felony for a doctor to perform an illegal abortion, and under the newly-enacted legislation, most abortions will be illegal. There are no criminal penalties for women who seek abortions.

The final language of the ban states explicitly that it does not apply to in vitro fertilization, miscarriages or ectopic pregnancies. The ban also will not limit access to the “morning after” pill or any forms of contraception.

Planned Parenthood said it plans to keep its four Indiana clinics that offer abortions open and provide sexually transmitted disease testing and treatment alongside contraception and cancer screenings, which it says comprise the bulk of its services.

Indiana University Health, the state’s largest hospital system, said it has advisory teams available for physician consultations on whether patients meet the legal requirements for abortions.

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The Indiana Capital Chronicle is an independent, nonprofit news organization dedicated to giving Hoosiers a comprehensive look inside state government, policy and elections. The site combines daily coverage with in-depth scrutiny, political awareness and insightful commentary.

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