Indiana Supreme Court Hears Challenge to Pro-Life Law

Jan 19, 2023

INDIANAPOLIS, IN – Indiana Supreme Court heard oral arguments today regarding the challenge whether the state’s pro-life law is in violation of Indiana’s constitutional privacy protections. SB1 prohibits abortion at any stage of gestation except in cases of rape, incest, fatal fetal anomalies or when the woman’s life is at risk. 

Six weeks after the U.S. Supreme Court overruled the Roe v. Wade and Planned Parenthood v. Casey abortion decisions, Indiana Governor Eric Holcomb signed SB1 into law which became effective as of September 15, 2022. Owen County Circuit Judge Kelsey Hanlon blocked it just one week after the law had taken effect. 

In Members of the Medical Licensing Board of Indiana, et al., v. Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, al., the ACLU sued on behalf of Planned Parenthood abortionists against the ban. It was revealed during today’s argument there are no pregnant women suing against the law but rather only the abortionists.

Indiana Solicitor General Thomas Fisher presented a defense of the pro-life law for the Medical Licensing Board of Indiana. Senior Counsel Kenneth Falk of ACLU of Indiana argued for the Planned Parenthood plaintiffs that the state should only have a minimal infringement on a woman’s right to an abortion. 

During today’s argument, Justice Mark Massa asked Falk, “I’ve watched this controversy rage over constitutional interpretation, living constitutionalists and original public meaning. The trial court seemed to suggest the original public meaning was a farce and a fraud. Are we to hold the U.S. Constitution’s Amendment’s 4, 5, and 6 in less reverence because they come from an 18th century Virginian?” 

Falk: “We take the core concepts and apply them to the modern context. I’m not faulting the Founders.” 

Justice Massa: “Would we not have to abandon original public meaning?” 

Falk: “Not at all. What’s the core value? Individual liberty. We have to apply that today.” 

Justice Geoffrey Slaughter: “What else does liberty mean? Physician assisted suicide, illegal drugs?” 

Falk: “There’s limiting principles. Material burden. You’re talking about a much more de minimus impact on a person’s identity. Difficult to think about something more horrible than I’m sorry you can’t get an abortion when you have a horrible medical condition as a result of the pregnancy.” 

Justice Slaughter: “You’re agreeing it’s a qualified right?” 

Falk: “Yes.” 

Chief Justice Lorette Rush: “What’s the qualifier?” 

Falk: “The right is subject to legislation that may tailor the right as long as there remains a meaningful opportunity to obtain an abortion.” 

Solicitor General Fisher stated, “Opposing counsel argued that we need to take the concept of liberty and broaden it to include abortion as that is a modern manifestation of liberty. Abortion is not a modern manifestation of liberty. The Framers were aware of abortion and banned it. Indiana has always recognized the right of the baby. Abortion would end so many of these rights. There is a failure to recognize the unborn life and that is something the legislature has decided to respect. As to what the delegates thought about natural rights, it would be a misapprehension to read Section 1 as anything other than the rights of nature. Abortion is not one of those…Faulk’s argument is illogical that the legislature cannot redefine life with a statute because he argues using a previous definition of life in a statute.” 

Liberty Counsel filed an amicus brief in this case on behalf of the National Hispanic Christian Leadership Conference (NHCLC) and the Frederick Douglass Foundation that holds there is no right to abortion within the Indiana Constitution and defends the state’s pro-life law that limits the killing of innocent unborn children. In the brief Liberty Counsel states, “Abortion has a dark eugenic foundation that violates key protections of the Indiana Constitution, and the State of Indiana is right to take measures to limit it as much as possible. As members of or ministers to the African American and Hispanic communities, Amici have a strong interest in exposing the racist and eugenic history of the abortion movement.” 

Liberty Counsel’s Founder and Chairman Mat Staver said, “Every person, whether unborn or born, has a constitutional right to life. Planned Parenthood makes huge profit from ending the lives of innocent children and harming their mothers. Liberty Counsel is proud to stand with Indiana on behalf of the National Hispanic Christian Leadership Conference and the Frederick Douglass Foundation to finally end the dark, racist, eugenic history of abortion. We must make the womb a safe place once again.” 

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