The state’s historic abortion limitations have been held up by a spurious legal challenge, but those who speak for the voiceless will ultimately prevail.
The state’s historic abortion limitations have been held up by a spurious legal challenge, but those who speak for the voiceless will ultimately prevail.
I ndiana made history this August when its legislature became the first in the nation to address abortion policy following the Supreme Court’s reversal of Roe v. Wade. Unlike many other pro-life states, Indiana did not have a trigger clause, because of concerns that such a clause would violate Indiana’s constitution. While some states had pre-Roe abortion laws still on the books, Indiana’s law prohibiting abortion was officially repealed by the Indiana legislature in 1977. This left a post-Roe special session as Indiana’s best option for tackling abortion policy with the highest probability of success in the courts.
The result of Indiana’s special session was two bills: SB1 and the oft-ignored SB2, both of which passed by overwhelming majorities before receiving the signature of Governor Eric Holcomb. With a projected outcome of ending at least 95 percent of abortions in the Hoosier State, SB1 is the largest stride forward in pro-life legislation in Indiana since 1973. The law eliminates abortion clinics in Indiana but allows some abortions, under limited circumstances, to occur at hospitals or hospital-owned surgical centers. Exceptions remain for protecting the life of the pregnant mother, pregnancy resulting from rape or incest (limited to ten weeks), and lethal fetal anomalies (limited to 20 weeks). The law also requires the Indiana Medical Licensing Board to revoke the license of any physician who violates it.
SB2 creates significant funding for compassionate programs serving pregnant mothers and their babies. Indiana’s Pregnancy and Parenting Support Program, which has served over 90,000 Hoosier women since its creation by then-governor Mike Pence in 2014, received a $2 million increase in its budget. Another $1 million was allocated to expand Safe Haven Baby Boxes, units at which newborn babies can be safely and anonymously surrendered to the immediate care of first responders, and to raise public awareness of them. Adoption was made a more affordable option for Hoosier families through an increase in Indiana’s adoption tax credit from $1,000 per child to $2,500 per child.
Altogether, Indiana seized its post-Roe opportunity and secured significant, albeit imperfect, gains for the protection of unborn children and the care of pregnant mothers. Yet, as can always be expected when abortion is the issue, significant challenges threaten to undermine all the good that the new law will do.
Several of these challenges involve enforcement. Marion County prosecutor Ryan Mears, a Democrat, has indicated that he will not enforce the law. The law itself raised red flags with its lack of any requirement that claims of rape or incest as grounds for an abortion be reported to police, so that they can be investigated: The doctor performing the abortion possesses the sole responsibility to confirm such claims. This leaves the potential for an abortion doctor to falsify information and for perpetrators of such horrific violence against women to avoid prosecution. These are deficiencies the legislature must address.
The legal challenges are also lining up. For anyone who thinks the overturning of Roe settled the abortion issue once and for all, these challenges may seem confusing. But such a view was never reality. The reversal of Roe was not the end of the war, but merely marked the beginning of its next phase. Three lawsuits to date have been filed against SB1. The most predictable challenge, coming from the ACLU on behalf of Planned Parenthood, resulted in the law’s being blocked, just one week after it took effect, by the order of Judge Kelsey Hanlon, a Republican.
Shockingly, Hanlon cites the Indiana constitution’s right to “life, liberty, and the pursuit of happiness” as part of her reason for why she believes it allows for a right to an abortion, arguing that the right to kill an unborn child is surely found within a right to privacy, which is surely found within the right to liberty. This type of conclusion, created by federal courts in equating privacy to abortion, has now been rejected by the United States Supreme Court because it simply never existed.
Hanlon’s position is further discredited by the fact that Indiana law prohibited abortion before 1851, when the Indiana constitution was last updated, and continued to prohibit it until the travesty of Roe in 1973. How could the framers of the Indiana constitution in 1851 have possibly intended it to include the right to abortion? Hanlon attempts to sidestep this problem by criticizing what she calls the “significant, then-existing deficits of those who wrote our Constitution.”
In plain language, she invalidates the Indiana constitution based on her belief that the Hoosiers who crafted the 1851 revision were bad men with bad motives because of the social injustices existing in their day. By this logic, every state constitution, at every stage of American history, would be invalid. Why have a constitution at all?
Sadly, what Hanlon fails to grasp is that while many social injustices undeniably existed in 1851, the writers of Indiana’s constitution rightly recognized one of the most egregious violations of human dignity — the act of killing a defenseless child in the womb.
The Indiana Supreme Court has accepted a direct appeal and expedited this case by scheduling a hearing for January 12. Unfortunately, until that court considers the case, the law will remain unenforceable, and abortions will continue in Indiana against the people’s will. In terms of human life, this means 116 unborn babies will needlessly die every week in Indiana abortion clinics. For our youngest Hoosiers, protection under the Indiana constitution’s guarantee of the unalienable right to life will come too late to help.
Indiana’s experience as the first state to enact an abortion ban after Roe is not unlike the road traveled by other states that are fighting to defend pro-life laws in the courts. The abortion industry has always counted on deep pockets and progressive judges to carry its water. Only the fields of battle have shifted, most notably from federal courts to state courts, where every conceivable attack against pro-life laws can be expected. Even as these legal challenges progress, each side of the abortion debate understands that the long-term objective is not piecemeal victories in the courts, but winning the hearts and minds of enough Americans to turn the cultural tide definitively in its favor.
For seven days in September, all abortion clinics in the state of Indiana closed. One day in the not-too-distant future, and by the grace of God, they will close forever. Until that day, regardless of how long it takes, Indiana’s pro-life movement, and its counterparts in every other state, will press on without fail. We are a movement deeply acquainted with overcoming challenges, and no setbacks in this post-Roe era will diminish our resolve. The reason is quite simple: It’s never been about us. It’s always been about those who have no voice.