Judge Blocks Indiana’s Abortion Ban Over Possibility State Constitution Protects Freedom of Choice

With federal abortion protections removed by the US Supreme Court, anti-abortion conservatives have felt the wind beneath their wings and rushed to pass new bans in states across the country. Meanwhile, liberals have attempted to buttress existing abortion protections and accommodate “refugees” from states where the practice is banned.

Special Judge Kelsey B. Hanlon, a judge of the Owen County Circuit Court in Indiana, issued a preliminary injunction on Thursday, blocking the state’s abortion ban that went into effect last week from being used.

Judge Hanlon argued in her ruling that while the Indiana state constitution doesn’t explicitly mention abortion, and that while abortion was illegal when it was written, there is nonetheless "a reasonable likelihood" that its language protects decisions about family planning, including the right to abort a pregnancy early, according to the Indianapolis Star.

Judge Hanlon wrote that the Indiana Constitution can be read “as protecting bodily autonomy, including a qualified right by women not to carry a pregnancy to term.”

She added that the ban, which strips abortion clinics of their licenses to practice, “materially burdens the bodily autonomy of Indiana’s women and girls by significantly and arbitrarily limiting their access to care.”

The decision was made after a lawsuit was filed against the law by the American Civil Liberties Union (ACLU), Planned Parenthood of Indiana, and a group of clinics and abortion providers.

The law took effect last week and bans essentially all abortions in the state, providing narrow exceptions for rape or incest, which critics blasted as a “death sentence” for people who can become pregnant. It is the first such ban passed since the US Supreme Court in June overturned Roe vs. Wade, a 1973 decision that created the right to an abortion nationwide.

“We knew this ban would cause irreparable harm to Hoosiers, and in just a single week, it has done just that," read a joint statement by a group of ACLU and Planned Parenthood divisions from different US states.

"We are grateful that the court granted much needed relief for patients, clients, and providers but this fight is far from over. Indiana lawmakers have made it abundantly clear that this harm, this cruelty, is exactly the reality they had in mind when they passed SB 1,” the designation used for the bill while it was in the legislature.

"Our office remains determined to fight for the lives of the unborn, and this law provides a reasonable way to begin doing that," Republican Attorney General Todd Rokita said in a statement, indicating his office intends to appeal the decision.

Rokita attracted special ire in July after he spread false information and threatened charges against an Indiana abortion provider after she helped a 10-year-old girl abort a pregnancy conceived when she was raped. The girl had traveled to Indiana from Ohio for the procedure because that state’s abortion ban is so severe it does not allow terminating a pregnancy, even if it’s caused by rape.

Since the high court’s June decision, a tense legal battle has played out across the country as states saw old abortion bans never removed from the books suddenly reactivate, as well as so-called “trigger bans,” or laws that lay dormant until Roe was overturned, at which time they immediately activated, banning abortions in that state. Close to one-third of American women have or are likely to soon lose abortion access in their home state.

In neighboring Michigan earlier this month, a state judge struck down that state’s abortion ban that dates to 1931, saying it violates the Michigan state constitution even if it doesn’t violate the US Constitution.

In other states where Democrats hold political sway, lawmakers and governors have moved to solidify abortion access, including expanding coverage to compensate for so-called “refugees” coming there from states with abortion bans in order to receive the procedure. The Biden administration has also ordered the Department of Veterans Affairs to offer abortion and counseling services to pregnant veterans in all 50 states, including those where state law has banned the procedure.