January 27, 2023

Pro-life court battle in Indiana hinges on question of ‘unwritten’ constitutional right to privacy

By Natalie Hoefer

On Jan. 19, the Indiana Supreme Court heard oral arguments on a case regarding Senate Bill 1 (SB 1), legislation enacted last August that provides sweeping protection for the unborn except in cases of rape, incest and in particular medical circumstances where the mother’s life is at risk.

The arguments addressed both a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of Planned Parenthood and other abortion providers against the state’s Medical Licensing Board regarding the constitutionality of SB 1, and a preliminary injunction on the law as a result of the suit.

The arguments hinged on the question of whether Article 1, Section 1 of the Indiana constitution protects the right to abortion. The text mirrors that of the Declaration of Independence regarding the right to “life, liberty and the pursuit of happiness.”

Among those three rights, State Solicitor General Thomas Fisher focused on the word “life.”

“Science tells us that abortion terminates the existence of a distinct, living human being with unique DNA,” he said in his opening statement at the Statehouse in Indianapolis. “Ethics tells us not to end innocent human life.”

Fisher noted the plaintiffs would “urge the Court to acknowledge a novel, unwritten, historically counter-indicated right to abortion” under Article 1, Section 1 of the Indiana constitution.

He said both the question of the preliminary injunction and the decision in the lawsuit could not be determined “without confronting that question” of whether such a right exists.

Representing the plaintiffs, attorney Kenneth Falk of the ACLU in Indiana later concurred, saying, “I do agree with Mr. Fisher that the ultimate question in this case is do [the plaintiffs] have a probability of success of establishing that Article 1, Section 1 is violated by SB 1.”

When asked by Justice Geoffrey Slaughter, “What do you want us to do here?” Fisher stated, “I think the whole point here is let’s vacate the preliminary injunction. From our point of view there shouldn’t be anything left in the case to decide … as to Article 1, Section 1.”

Fisher also addressed the issue that “abortion providers have no standing to assert the putative rights of hypothetical patients,” noting “there are no pregnant women in this case.”

Justice Slaughter took up this point with Falk, saying, “We typically don’t allow health care providers to assert claims on behalf of their patients. …Why is the abortion context different?”

“I think the plaintiffs have a say here because they are suffering injury,” he answered. Under SB 1, abortions can only be performed at hospitals or ambulatory surgery centers affiliated with a hospital.

In Falk’s opening remarks, he stated that the law injures the plaintiffs by prohibiting them “from providing necessary care to protect the physical and mental health of all Hoosier women. It will severely injure women and girls … .”

Regarding the state’s constitutional right to “life, liberty and the pursuit of happiness,” Falk focused his arguments on “liberty.”

That right “comports with the natural rights philosophy upon which our constitution is based. Liberty has meaning, and its core value is the right to manage the most private assets of our lives, free from unwarranted government interference. This includes the right of a woman to reproductive control. …This law invades the most private of spaces, where a private decision is and must be protected by liberty … .”

Regarding the life of the unborn, Falk argued that Indiana law has “never equated the life of the woman with the potentiality of the life that is the fetus.” As to Fisher calling an unborn baby “a distinct, living human being,” Falk labeled the comment “more of an opinion than a statement of fact.”

To define “life,” he turned to the Indiana Criminal Code, which he quoted as identifying “a human being as an individual who is born and is alive. Even under our tort law for wrongful injury or wrongful death where it’s possible to get damages for injury or death to a fetus, the fetus has to attain viability.”

At one point, Justice Christopher Goff suggested perhaps the people of the state should have a more direct say on the abortion issue.

“Why shouldn’t there be a referendum and the question put to the people?” he asked. “Why should that end with the courts or the general assembly?”

Fisher noted that citizens “have plenty of places in the process. They’ve elected representatives who enacted this law. There’s an amendment process to go through, and it’s fully available. That’s the system we have in Indiana. …We have a process for [modifying the state constitution], and that process needs to be respected.”

The oral arguments lasted one hour. The justices will use those arguments and transcripts of the original hearing from the lower court and amicus briefs filed in the case to make a ruling at an undisclosed time.

Overturning of Roe leads to state battles

The oral hearing was the culmination of a flurry of legislative and judicial events last summer and fall with the United States Supreme Court’s overturning of Roe v. Wade in June serving as the spark.

During a special session of the Indiana General Assembly in July and August, Senate Bill 1 was passed by the Indiana legislature on Aug 5, 2022, and signed into law as Senate Bill 1 by Gov. Eric Holcomb the same day.

The law went into effect on Sept. 15. It makes performing abortions a felony with the exceptions of rape and incest up to 10 weeks of gestation, and fetal abnormalities or medical emergencies until 20 weeks of pregnancy.

In a Monroe County circuit court on Aug. 30, the ACLU filed its suit against the law on behalf of Planned Parenthood et al. On Sept. 22, just one week after the pro-life law went into effect, the judge issued a preliminary injunction on the law until the case was decided.

Indiana Attorney General Todd Rokita bypassed the state’s appellate court and petitioned the Indiana Supreme Court to take up the case and to lift the preliminary injunction.

On Oct. 12, the Court agreed to hear the case but left the injunction in place until a decision was made after the January-scheduled oral arguments

Indiana is not the only state that has had judicial post-Roe activity this year.

Two rulings were announced on Jan. 5, one in South Carolina favoring of abortion rights and one in Idaho favoring the protection of unborn life.

South Carolina Gov. Henry McMaster signed into law a Fetal Heartbeat Act on Feb. 18, 2021, restricting abortion after six weeks gestation. According to a Jan. 5 AP report, after Roe was overturned, Planned Parenthood South Atlantic filed a suit last summer claiming the law violated the state constitution’s right to privacy.

The case resulted in the state’s Supreme Court ruling in favor of the plaintiffs on Jan. 5, overturning the state’s Fetal Heartbeat law.

Also that day, in a 3-2 decision, the Idaho Supreme Court upheld three state laws prohibiting abortion, ruling the state’s constitution provided no implicit right to abortion, according to a Jan. 5 Politico article.

As with Indiana’s SB 1 law, abortions in Idaho will be restricted to cases involving rape, incest and saving a pregnant mother’s life based on certain criteria.

(To listen to the hour of oral arguments, go to cutt.ly/SB1OralArguments.)

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