Abortion Ban Upheld in Indiana

A ruling by Indiana’s highest court on Friday cleared the way for a ban in the state on most abortions from conception.

The court said that the state Constitution guarantees a limited right to abortion, but not a fundamental one — that means allowing abortion only when it is necessary to save a woman’s life or protect her from a serious health risk.

The court’s decision removes the temporary injunction on a near-total ban on abortion that the state’s Republican-controlled legislature passed last August, after the United States Supreme Court overturned Roe v. Wade and the right to abortion under the U.S. Constitution.

The Indiana case resembles those in other states, where abortion-rights groups have challenged bans passed after Roe’s reversal by arguing that varying provisions in state constitutions protect a right to abortion.

On Friday, a federal judge ruled that the bulk of a North Carolina abortion ban after 12 weeks of pregnancy could move forward.

The Indiana high court said that it was trying to resolve what its opinion called the conflict between “two irreconcilable interests”: a woman’s decision to end a pregnancy, and the state’s desire to protect potential life.

By saying there was a limited but not a “fundamental” right to abortion, the justices left open a door for future lawsuits, but only in cases where a woman’s life or health was at risk: “The General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortion.”

“We celebrate this day — one long in coming, but morally justified,” the state’s Republican Attorney General, Todd Rokita, said in a statement.

The coalition of providers and abortion-rights groups that had brought the suit, which included Planned Parenthood and the American Civil Liberties Union, said it was “devastated” by the ruling, arguing that it would deny “essential health care” to 1.5 million people in Indiana, and especially the poor and others who already face hurdles seeking medical care.

“Now, patients will be forced either to flee the state to access abortion if they have the means, seek abortion outside of the health care system, or carry pregnancies against their will with profound medical risk and life-altering consequences,” the plaintiffs said.

Indiana was the first state to pass a ban after the Supreme Court’s ruling striking down Roe. The emotional two-week legislative debate over the measure displayed the divisions — in Indiana and other states — among even Republicans who oppose abortion rights. Some argued that the measure went too far, while others objected that it allowed too many exceptions.

The law bans abortion except in cases of rape or incest, as long as the procedure is not done more than 10 weeks after fertilization; cases of fatal fetal anomalies; and when the mother faces risk of death.

It also requires abortions to be done in certain hospitals, eliminating the licenses for clinics that specialize in the procedure. Doctors who perform illegal abortions face up to $10,000 in fines and six years in prison.

Abortion-rights groups had argued that abortion was protected in the first section of the state Constitution, which endows its citizens with “certain inalienable rights” among them “life, liberty and the pursuit of happiness.”

As long as the ban was blocked, abortion remained legal in the state until 22 weeks of pregnancy, making Indiana critical to abortion access for women in nearby states that enacted near-total bans. The state became the center of the abortion debate last summer after a 10-year-old rape victim from Ohio, where abortion was banned, sought an abortion in Indiana.

The Indiana ban is scheduled to take effect on Aug. 1, but the court’s decision left a small opening: A separate lawsuit argues that the ban violates a religious freedom act passed in 2015, because some religions permit abortion. A judge in that case put a temporary injunction on the ban in December, and the case is to be heard in September. Until then, those who say that the abortion ban violates their religious liberty can still seek abortions.

The four out of five justices who agreed on Friday to allow the ban to take effect said, essentially, that the Indiana legislature had the right to ban abortion because it had a long tradition of doing so. That tradition was interrupted only “under protest” in 1973 when Roe v. Wade established that states could not ban abortion until the third trimester, and then only in limited circumstances.

“Our laws have long reflected that Hoosiers, through their elected representatives, may collectively conclude that legal protections inherent in personhood commence before birth,” the opinion said, referring to Indiana residents, “so the state’s broad authority to protect the public’s health, welfare and safety extends to protecting prenatal life.”

One justice, Christopher M. Goff, disagreed that the state Constitution did not protect a more fundamental right to abortion, saying that within its “bundle of liberty rights” was “the fundamental ‘right to be let alone.’” He wrote that “many of the liberties Hoosiers take for granted — the right to vote, to travel, to marry, to educate one’s children as one sees fit, or to refuse medical treatment — stand on federal precedents that are also now vulnerable to reversal.”

In his dissent, Justice Goff argued that Indiana residents should be allowed to vote on whether they want abortion to be legal, and urged the legislature to put the question on a ballot measure.

A Public Religion Research Institute poll in December found that 61 percent of Indiana residents believed abortion should be legal in all or most cases, and 10 percent believed it should be illegal in all cases, which is in line with public opinion nationwide.