An Indiana judge on Thursday blocked the state’s abortion ban from being enforced, putting the new law on hold as abortion clinic operators argue that it violates the state constitution.
Owen County Judge Kelsey Hanlon issued a preliminary injunction against the ban that took effect one week ago. The injunction was sought by abortion clinic operators who argued in a lawsuit that the state constitution protects access to the medical procedure.
Indiana Attorney General Todd Rokita said his office would appeal the decision.
The ban was approved by the state’s Republican-dominated Legislature on Aug. 5 and signed by GOP Gov. Eric Holcomb. That made Indiana the first state to enact tighter abortion restrictions since the U.S. Supreme Court eliminated federal abortion protections by overturning Roe v. Wade in June.
The judge wrote “there is reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana Constitution” and that the clinics will prevail in the lawsuit. The order prevents the state from enforcing the ban pending a trial on the merits of the lawsuit.
The ban, which includes limited exceptions, replaced Indiana laws that generally prohibited abortions after the 20th week of pregnancy and tightly restricted them after the 13th week.
In a statement after the ruling Indiana Right to Live said the order means “over 161 unborn children will continue to lose their lives to abortion every week this injunction stays in effect.”
“We are encouraged by the judge’s acknowledgement of the state’s legitimate interest in protecting unborn babies and are hopeful the blockage will be brief,” the statement said.
And Rokita issued a statement saying, “We plan to appeal and continue to make the case for life in Indiana. Our office remains determined to fight for the lives of the unborn, and this law provides a reasonable way to begin doing that.”
The American Civil Liberties Union of Indiana, which is representing the abortion clinics, filed the lawsuit Aug. 31 and argued the ban would “prohibit the overwhelming majority of abortions in Indiana and, as such, will have a devastating and irreparable impact on the plaintiffs and, more importantly, their patients and clients.”
Ken Falk, the ACLU of Indiana’s legal director, pointed to the state constitution’s declaration of rights including “life, liberty and the pursuit of happiness” in arguing before the judge on Monday that it included a right to privacy and to make decisions on whether to have children.
The state Attorney General’s Office had argued the court should uphold the ban, calling arguments against it based on a “novel, unwritten, historically unsupported right to abortion” in the state constitution.
“The constitutional text nowhere mentions abortion, and Indiana has prohibited or heavily regulated abortion by statute since 1835 — before, during, and after the time when the 1851 Indiana Constitution was drafted, debated, and ratified,” the office said in a court filing.
The Indiana abortion ban includes exceptions allowing abortions in cases of rape and incest, before 10 weeks post-fertilization; to protect the life and physical health of the mother; and if a fetus is diagnosed with a lethal anomaly.
The new law also prohibited abortion clinics from providing any abortion care, leaving such services solely to hospitals or outpatient surgical centers owned by hospitals.
The lawsuit was filed in southern Indiana’s Monroe County, which includes the liberal-leaning city of Bloomington and Indiana University’s main campus, but two elected Democratic judges from that county declined to handle the case without stating any reasons.
Hanlon, a Republican from neighboring Owen County, accepted appointment as special judge. Hanlon, who was first elected as a judge in 2014, was among three finalists that the state Judicial Nominating Commission selected in July for for appointment to the state appeals court, but the governor last week named a different judge to the position.