Indiana Judge Kelsey Hanlon, a Republican, has temporarily suspended the enforcement of an abortion ban that recently took effect in the state blocking almost all abortions across the entirety of pregnancy, excluding limited cases including some involving rape, incest, or serious threats to the health of the pregnant person.
The lawsuit leading to Hanlon’s decision, in which she pointed to protections available from the state Constitution after the U.S. Supreme Court dismantled federal legal protections, was from abortion providers. The Indiana measure that was challenged — and remains the subject of ongoing litigation — was identified as the first of its kind that was passed and enacted after Roe was overturned. In other cases, restrictions on abortion that were formulated before the Supreme Court undid Roe took effect. A ban in Texas on abortion across the entirety of pregnancy that makes violations a felony punishable by up to life in prison was among the so-called trigger laws, which were designed to take effect if triggered by the end of Roe.
Hanlon concluded rights to liberty and bodily autonomy from the state Constitution could provide support for letting those directly involved (instead of activists and government officials) choose “whether to carry a pregnancy to term.” The judge added the ban “materially burdens the bodily autonomy of Indiana’s women and girls by significantly and arbitrarily limiting their access to care.” In Indiana, this ban also made performing a prohibited abortion a felony, with potential punishments including up to six years in prison. Those behind the case also cite rights to privacy and equal protection as among legal frameworks the ban violates. Although Tom Fisher, arguing for the state, pushed the idea during recent proceedings that historical precedent undercut the idea of any protection for abortion in Indiana’s 19th Century Constitution, which was formulated amid abortion prohibitions, the judge countered that legitimate interpretations remained available that the document is “protecting bodily autonomy, including a qualified right by women not to carry a pregnancy to term.”
There is another lawsuit against the ban that is based on arguments it violates religious freedom, since measures like the Indiana ban impede the practice of those who support reproductive rights for religious purposes. Elsewhere, a Michigan judge recently issued an injunction against the enforcement of a pre-Roe abortion ban in the state, which the Democratic state attorney general already expressed opposition to implementing. A measure will appear on ballots there this fall that, if passed, would formally protect the right to abortion in the Michigan state Constitution. California and New York also have constitutional amendments protecting abortion moving through the processes required for ratification. In contrast, Florida Republican Governor Ron DeSantis recently moved for the ouster of a southern Florida prosecutor who said he wouldn’t prosecute abortion-related cases. The official, elected by voters, never altered the course of any case concerning abortion, and he’s challenging DeSantis in court.