In another ruling premised on state constitutional protections, Indiana state judge Kelsey Hanlon issued a preliminary injunction today, September 22, 2022, blocking the state's abortion ban that went into effect last week from being enforced, pending the underlying litigation on the merits. Judge Hanlon found that there is a "reasonable likelihood" that the ban, which bans abortion other than in cases of rape or incest up to 10 weeks post-fertilization or to protect the life or physical health of the mother or in the case of a fatal fetal abnormality up to 20 weeks post-fertilization, violates the Indiana Constitution's guarantees of liberty. Similar to an Ohio state judge's issuance of a temporary restraining order against that state's abortion ban, Judge Hanlon found that Indiana's Constitution is broader than the US Constitution in its protection of individual rights and the limits of state legislative power to encroach on them.

It is worth noting the Indiana law also eliminated abortion clinics as state-licensed facilities and instead required all abortions be performed in hospitals or ambulatory surgical centers that are majority owned by hospitals. While the plaintiffs in the case had argued that this aspect of the law discriminates against abortion providers and therefore violates the Indiana Constitution's equal privileges and immunities clause, Judge Hanlon disagreed on this point.

Like Ohio's abortion ban put on hold last week and its ensuing litigation, this and other cases premised on state constitutional protections continue to underscore the patchwork of laws and protections that will be sewn across the country as the question of abortion is "returned to the states" in the wake of the Supreme Court's Dobbs ruling, and bans are enacted and tested in the courts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.