This morning, September 22, 2022, Special Judge Kelsey B. Hanlon, sitting in Monroe County Circuit Court, granted a preliminary injunction against the enforcement of Senate Enrolled Act No. 1 (SB 1) by members of the Medical Licensing Board of Indiana and Prosecutors from Hendricks, Lake, Marion, Monroe, St. Joseph, Tippecanoe and Warrick counties. Notably, the injunction does not appear to be state-wide and therefore likely does not prohibit criminal prosecution in any other county.
The lawsuit was brought by Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., Women’s Med Group Professional Corporation, Whole Woman’s Health Alliance and All-Options, Inc., as well as Amy Caldwell, MD, all on behalf of their patients and themselves. The Plaintiffs operate or provide services at licensed, non-hospital abortion clinics in the aforementioned counties. The action, therefore, sought to enjoin enforcement in the counties where the clinics were located.
The Court issued its ruling based upon Article I, § 1 of the Indiana Constitution. The Court first ruled, based upon established Indiana precedent, that Article I, § 1 is not merely aspirational; rather, it provides judicially enforceable rights. It also referenced a prior Indiana Supreme Court opinion adopting the United States Supreme Court’s “undue burden” test defined in Planned Parenthood v. Casey for analyzing a violation of a privacy interest under the Indiana Constitution. While Casey was overturned by the recent Dobbs decision, that ruling would not affect the application of the “undue burden” test to questions under Indiana’s Constitution.
The core of the Court’s decision, upon determining that Article I, § 1 created enforceable rights, was its analysis of Indiana’s long history, from the State’s original Constitutional Convention, of defining liberty to include “the opportunity to manage one’s own life except in those areas yielded up to the body politic.” The Court did observe that abortion was not legal at the time of ratification, but also noted that “then-existing deficits of those who wrote our Constitution – particularly as they pertain to the liberty of women and people of color – are readily apparent,” and considered instead today’s “fundamental principle of ordered liberty.”
The Court, in a preliminary decision subject to a final determination after trial, concluded that SB 1 “materially burdens Hoosier women and girls’ right to bodily autonomy.”
The Court’s Order enjoined the named Defendants from enforcing SB 1.
As noted above, though, the named Defendants include only the Medical Licensing Board and Prosecutors from seven different counties, the counties where the clinics are located. The injunction appears on its face to have no effect, other than as to the Medical Licensing Board, in any of Indiana’s other 85 counties. While there are no abortion clinics in those counties, other providers in those counties, including hospitals, physicians and pharmacies, have historically offered services that are now prohibited by SB 1. Those providers must continue to comply with SB 1 or risk facing criminal prosecution, with a possible Level 5 felony conviction punishable by imprisonment of one to six years and a fine of up to $10,000. The Medical Licensing Board, though, would be enjoined from revoking licenses based upon breaches of the new statute.
The effect of the preliminary injunction may be clearer in the coming days, as the litigation continues. The state of Indiana is expected to file an appeal, as well as to ask the Court to stay its ruling pending that appeal. The motions and briefing to follow will provide additional guidance about the scope of the Court’s Order.
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