by Casey Smith, Indiana Capital Chronicle
September 19, 2022

An Owen County judge heard arguments Monday centering on the right to privacy in a lawsuit that seeks to put a pause on Indiana’s near-total abortion ban.

The judge presiding over the case will next decide whether or not to issue a preliminary injunction, which would temporarily stop the ban from being enforced.

Judge Kelsey Blake Hanlon said she will issue an order “expeditiously,” but did not provide a specific timeline. A later decision in the case could strike down the ban altogether, but Hanlon — a Republican — might be less inclined to toss the law.

The court challenge up for debate was filed in Monroe County Circuit Court last month by the American Civil Liberties Union (ACLU) of Indiana on behalf of health care providers and a pregnancy resource center.

They argue that the abortion ban blocks patients from exercising a “fundamental right to privacy,” which the Indiana Constitution protects as an individual liberty. The Supreme Court of the United States in June ruled that the U.S. Constitution does not guarantee abortion rights.

There just isn’t enough there to one, identify a right to privacy or two, translate it over to the abortion right.  – Indiana Solicitor General Tom Fisher

Indiana’s new abortion law took effect last week after the state’s Republican-dominated legislature approved the measure in August during a special legislative session.

The ban outlaws most abortions except in the case of a fatal fetal anomaly or 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.

Debate over privacy rights

Court documents filed by the ACLU of Indiana maintain that the abortion ban “will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and violate the Constitution’s due course of law clause through its unconstitutionally vague language.”

In oral arguments for the plaintiff organizations on Monday, ACLU of Indiana Legal Director Ken Falk said the state legislature has overstepped the Indiana Constitution.

He argued the constitution endows people with certain inalienable rights, including life, liberty and the pursuit of happiness. Falk said those encapsulate the right to privacy — even though it is not explicitly stated in the constitution.

“Are there reasonable regulations on abortion? Certainly,” he said, adding that plaintiffs are not asking the court to rewrite their legislation. Rather, they are asking the court to acknowledge that the ban has gone “too far,” and to restore “the status quo.”

Indiana Solicitor General Tom Fisher, arguing on behalf of the state, disagreed.

He emphasized the ACLU’s position — that the state constitution’s right to liberty is a right to privacy, and thus to a right to abortion — is “too many leaps.”

“There’s nothing concrete there,” Fisher said before the court. “There just isn’t enough there to one, identify a right to privacy or two, translate it over to the abortion right.”

Fisher continued that the plaintiffs’ interpretation of the the state’s constitution would mean the right to consume drugs or engage in prostitution could also be argued under privacy rights. He said there’s no fundamental difference between those and abortion.

“We would be opening up a very large array of conduct that could not be regulated,” Fisher said.

What happens next

A ruling on the privacy argument could take days or weeks.

Following Monday’s court hearing, Falk said he’s confident that access to abortion is a “procreative right that is part of our liberty.”

“It makes no sense to say that there is no right that exists because it’s not mentioned in the constitution,” he said. “Our Bill of Rights are not designed as a micromanagement of what rights you have and what rights you don’t have. They’re designed to speak in broad terms to be interpreted throughout history.”

Still, Fisher said the General Assembly “has chosen to act as it did — and there’s no constitutional barrier to that.” He added, too, that he’s hopeful the judge will find the state’s arguments “persuasive.”

“The right to privacy … that’s not mentioned in the Indiana Constitution, and it has no meaningful boundaries or meaningful content,” Fisher said. “The the history of Indiana shows no matter what one thinks about privacy, generally, that abortion was never understood to be a right secured to people, either under common law or under the constitution.”

Hanlon, of the Owen County Circuit Court, accepted an appointment as special judge earlier this month. That was after two elected Democratic judges in neighboring, liberal-leaning Monroe County declined to take on the case earlier this month. They did not give any reasons as to why they recused themselves.

Behind the scenes, tensions have also flared over how the state is handling its legal defense in the case.

Legal counsel representing defendant Marion County Prosecutor’s Office argued in an earlier court filing that Indiana Attorney General Todd Rokita will not “adequately represent” the office in court. Marion County Prosecutor Ryan Mears, a Democrat, said in July that he would not prosecute abortion-related cases if the state legislature criminalized the procedure.

But representatives from Rokita’s office said in responsive court documents that “only the Indiana Attorney General has authority to represent the defendants in this case.” Hanlon ruled last week in favor of the AG’s office, saying attorneys for Mears “have no authority to represent the Marion County Prosecutor in his official capacity.”

Fisher maintained on Monday the AG’s office is representing the interests of all defendants in the case.

On the horizon, a second lawsuit, also led by the ACLU of Indiana, seeks to strike down the ban on the basis that it violates Indiana’s Religious Freedom Restoration Act. An initial hearing in the case has been set for Oct. 14.

Indiana Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: info@indianacapitalchronicle.com. Follow Indiana Capital Chronicle on Facebook and Twitter.