Pro Choice Rally 3

Anti-abortion demonstrators protest at a pro-choice rally in Jeffersonville on June 29, 2022.

Indiana’s near-total abortion ban is in strange legal territory.

Abortion access in Indiana has carried on as usual since September, when a county judge issued an injunction against the ban approved by legislators after the federal reversal of Roe v. Wade in June.

Since then, the Indiana Supreme Court has maintained that injunction, and in January heard arguments on whether the ban is constitutional. The injunction remains in place until the justices issue a decision.

But whatever they decide might not matter. That’s because the legislation faces not one injunction but two.

In December, another county judge also put the ban on hold over concerns it violates Hoosiers’ religious freedom. That question is now before the Indiana Court of Appeals.

Two injunctions. Two courts. Two different arguments.

Add it all up, and the state ban faces uncharted legal territory, explained Jennifer Drobac, a law professor at Indiana University’s Robert H. McKinney School of Law.

“I don’t know of any other time that this has happened in Indiana,” she said.

“It’s not uncommon to have a variety of arguments to back up one side or another. But I don’t know of a situation where the arguments have been so different that different plaintiffs have gone for two different injunctions.”

Now, in order for the abortion ban to survive, state lawyers will have to convince two different courts that the law doesn’t violate constitutional freedoms.

At the Indiana Supreme Court, those arguments came to a conclusion in January when attorneys for abortion care providers made the case that the ban will hurt women and girls. The state argued that abortion access is not enshrined in the Indiana Constitution.

While the justices deliberate on that question, a host of religious groups have joined together in a separate lawsuit arguing their religion requires and directs them to obtain abortions that would be prohibited by the ban.

Four of the five plaintiffs in the case or Jewish. Other groups that have signed on in support of the suit include the Hindu American Foundation, Methodist Federation for Social Action, The Sikh Coalition, Unitarian Universalist Association and Muslims for Progressive Values.

The state had asked the Indiana Supreme Court to take up and decide the religious freedom question — just as it did for the constitutional question — but the justices declined. That leaves jurisdiction on the religious argument with the court of appeals.

Now, if the Supreme Court decides to uphold the abortion ban and do away with the injunction, the ban would still be on hold due to the second injunction currently being considered by the appeals court. Filings are still being made in the case, and no time frame has been set for oral arguments.

That could factor into how and when the state Supreme Court handles its ruling, explained law Professor Drobac. With the religious freedom injunction now outside its jurisdiction, the high court may wait to see what the appeals court decides before issuing its verdict.

“A lot of times, supreme courts like to get a full vetting of the lower courts, especially on novel issues,” she said. “And this can definitely be considered a novel issue because it’s not very common that a state defines when human life begins.”

State lawmakers approved the near-total abortion restriction under Senate Enrolled Act 1 during a heated two-week special session in August. Indiana became the first state to enact such a ban after the U.S. Supreme Court overturned Roe v. Wade.

The legal challenges facing Indiana’s ban are far from unique. A total of 36 cases have been filed challenging abortion bans or restrictions in 21 states. Of those, 26 remain pending at either the trial or appellate levels, according to the nonpartisan Brennan Center for Justice.

So far, the South Carolina Supreme Court has held that its state constitution protects the right to an abortion, while the Idaho Supreme Court has reached the opposite conclusion.

With courts in conservative states going both ways on the issue, how Indiana’s courts will decide the matter is anyone’s guess, Drobac noted.

“These cases are still percolating through the courts, and they’re not out of the woods yet,” she said. “It’s still up for grabs, whichever side you’re on.”

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