Indiana's new abortion law passes 'constitutional litmus test,' says brief

By Natalie Hoefer, Catholic News Service

INDIANAPOLIS (CNS) -- The Thomas More Society, a not-for-profit, national public interest law firm based in Chicago, has submitted an amicus curiae, or friend-of-the-court brief, to the Indiana Supreme Court supporting the state in a suit challenging its recently passed abortion law.

The lawsuit was filed Aug. 30 by the American Civil Liberties Union on behalf of Planned Parenthood Northwest, Hawaii, Alaska, Indiana, Kentucky Inc., et al. It claims the new law protecting most unborn lives violates rights, privileges and protections granted in the state's constitution.

In an Oct. 31 news release, Peter Breen, vice president and senior counsel of the Thomas More Society, quoted from the brief.

"Nothing in the language, history, or interpretation of the Indiana Constitution supports a right to abortion," he said, "especially in light of Indiana's prohibition of abortion going back to 1835, 16 years before the relevant part of that constitution was adopted."

The law in question was enacted by the Indiana General Assembly and signed into law by Gov. Eric Holcomb Aug. 5. It bans most abortions except in cases of rape, incest and specific medical conditions.

"This law passes the constitutional litmus test," said Breen.

The amicus brief said that Article 1 of the constitution regarding inalienable rights "does not create any judicially enforceable rights. That is because the language ... does not provide courts with an ascertainable standard which could be applied to evaluate (the) 'inalienable rights' claims" of the lawsuit.

It goes on to state that neither the "plaintiffs nor the circuit court pointed to anything in the language, history or interpretation" of Article 1 that indicates "the liberty language" of the article "confers a right to abortion."

The article's language "says nothing about a right to abortion," the brief says, adding that "neither the history nor the interpretation" of Article 1 "or any other provision" of the Indiana Constitution "supports recognition of a state constitutional right to abortion."

The lawsuit, filed in a Monroe County court, has triggered several actions. The first was Sept. 22 with the issuing of a preliminary injunction on the law, which had gone into effect on Sept. 15. This action set the state law to its status prior to the ban, again allowing abortions in the state up to 22 weeks gestation.

Indiana Attorney General Todd Rokita sought to bypass the appeals court and asked the Indiana Supreme Court to take over the case and to lift the temporary injunction.

The court agreed Oct. 12 to take the case but left the temporary injunction in place until a decision is reached. In January, the state Supreme Court will begin hearing oral arguments in the case.

"The circuit court's decision to halt enforcement of Indiana's new protections for unborn children is unsupported in Indiana law and history," Breen said.

In response to the announcement that the temporary injunction would remain in place, Indiana Right to Life CEO Mike Fichter stated the organization estimates "at least 3,000 unborn babies, whose lives otherwise might have been saved, will now needlessly die from abortion as the law remains blocked."

"Thousands more will die as we await a final ruling after the January hearing," he said. "Although we are confident the law will be upheld, it will be far too late for those whose lives will be lost as this is argued in the courts."