Bans all over US under question
A local Indiana judge has temporarily halted the state’s law restricting abortion access. Indiana’s Senate Bill 1 restricts abortion in all cases except those of rape or incest up to ten weeks postfertilization. The bill, which contains exceptions for any serious health risk to the mother or fetal anomaly up to twenty weeks postfertilization, went into effect September 15. But one week later, Judge Kelsey Hanlon of the Owen County Circuit Court issued a preliminary injunction against the bill, barring it from execution until further litigation ensues.
Sherif Girgis, Associate Professor of Law at Notre Dame Law School, explained the implications of this injunction in an interview with the Rover:
“The judge held that the Indiana Constitution’s preamble, which declares that all people have an inalienable right to ‘liberty,’ creates an unwritten legal right to privacy or bodily autonomy or self-determination or some combination, and that this cluster of rights in turn creates a constitutional right to abort, even though abortion was unlawful when the state constitution was ratified in 1851.”
While this injunction temporarily delays enforcement of the law, according to Girgis, it is unlikely to suspend it entirely. “The district court has enjoined [legally blocked] state officials from enforcing the state’s new abortion restrictions. I think the state Supreme Court will ultimately reverse that decision and uphold the new abortion law, but I’m not sure how long it will take for the case to reach the high court,” he predicted.
Meanwhile, as litigation continues, “abortion facilities, including the local Whole Woman’s Health, have resumed performing abortions,” Girgis noted.
In the wake of the Dobbs decision, states wishing to pass abortion restrictions continue to face legal obstacles. Since the Supreme Court ruled that the U.S. Constitution holds no stance on abortion, states are bound by their individual constitutions on the issue. Girgis explained, “The U.S. Supreme Court has no power to interpret state law. So, abortion supporters have turned to state courts, asking them to find a basis for blocking abortion laws in state constitutions.”
This strategy of appealing to state-level courts in order to secure abortion access will likely become increasingly prevalent as states continue to pass laws restricting abortion. According to Girgis, however, these cases have little or no legal basis: “Most [state] constitutions were ratified at times when the state at issue (and indeed the overwhelming majority of other states) had sweeping abortion bans and no one had ever suggested there was a moral or legal right to abort.”
Therefore, the rulings of state courts, which have attempted to interpret state constitutions to include protection of abortion, are not necessarily final. “Citizens who disagree with state court decisions on this issue will have some options for responding, including by trying to vote state high court judges out of office for lawless rulings, or overturn those rulings by referendum,” Girgis concluded.
Indiana’s constitution does not explicitly protect access to abortion: the language used by Judge Hanlon to justify the injunction against Indiana’s S.B. 1 is nearly identical to that ruled by the Supreme Court as not entailing protection for abortion.
Currently, four states and the District of Columbia have explicitly codified abortion access in their constitutions, barring their legislatures from enacting restrictions on abortion at any point during pregnancy.
This injunction against a state-level abortion restriction demonstrates that, while states pursuing abortion protections or restrictions may find success through their legislatures, more efficacious and lasting change will require clarity about the legal status of abortion in the state’s constitution.
Mattie Lossing is a sophomore studying Political Science and Theology with minors in Constitutional Studies and Liturgical Music Ministry. When she’s not complaining about how cold it is in Indiana, you can find her reading on the beach in her hometown of Savannah, Georgia, which she will definitively tell you is the best city in the Union. Contact her at mlossing@nd.edu.
Photo Credit: Image Merlot Fogarty.
