Members of the Med. Licensing Bd. of Ind. v. Planned Parenthood Great Nw.

• Docket Number: 22S-PL-338
• Decision Date: 30 June 2023
• Parties: Members of the Medical Licensing Board of Indiana, et al., Appellants/Defendants, v. Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc., et al., Appellees/Plaintiffs.
• Court: Indiana Supreme Court

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Members of the Medical Licensing Board of Indiana, et al., Appellants/Defendants,
v.
Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc., et al., Appellees/Plaintiffs.

No. 22S-PL-338

Supreme Court of Indiana

June 30, 2023

Argued: January 19, 2023

Appeal from the Monroe Circuit Court No. 53C06-2208-PL-1756 The Honorable Kelsey B. Hanlon, Special Judge

Attorneys for Appellants Theodore E. Rokita Attorney General of Indiana Thomas M. Fisher Solicitor General James A. Barta Deputy Solicitor General Melinda R. Holmes Deputy Attorney General Indianapolis, Indiana

Attorneys for Appellees Kenneth J. Falk Gavin M. Rose Stevie J. Pactor ACLU of Indiana Indianapolis, Indiana

Attorneys for Amici Curiae the American College of Obstetricians and Gynecologists, the American Medical Association, and the Society for Maternalfetal Medicine Mark W. Sniderman Findling Park Conyers Woody & Sniderman, P.C. Indianapolis, Indiana Nicole A. Saharsky Mayer Brown LLP Washington, D.C.

Attorney for Amicus Curiae Eric Rasmusen Eric B. Rasmusen Pro Se Bloomington, Indiana

Attorneys for Amici Curiae Frederick Douglass Foundation and National Hispanic Christian Leadership Conference Jared M. Schneider Schneider Law, P.C. Bloomington, Indiana Mathew D. Staver Liberty Counsel Orlando, Florida

Attorney for Amici Curiae Historians and State Constitutional Law Scholars Lauren Robel Val Nolan Professor of Law Emerita Indiana University Maurer School of Law Bloomington, Indiana

Attorney for Amicus Curiae Indiana Family Institute Zechariah D. Yoder Adler Attorneys Noblesville, Indiana

Attorneys for Amicus Curiae the Thomas More Society Carlos Federico Lam Lam Law Office Indianapolis, Indiana Paul Benjamin Linton Northbrook, Illinois

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OPINION

MOLTER, JUSTICE

Abortion is an intractable issue because it brings two irreconcilable interests into conflict: a woman's interest in ending a pregnancy and the State's interest in protecting the life that abortion would end. Pregnancy is a highly personal experience that can alter a woman's life and health in countless ways. For some, a pregnancy may be planned, supported, or generally free of any significant health complications. But for others, a pregnancy may be unplanned, lacking significant support, or induce significant health complications. Given the nuance inherent in each woman's experience and private life, a woman's desire to continue or terminate a pregnancy is, likewise, intensely personal. At the same time, our laws have long reflected that Hoosiers, through their elected representatives, may collectively conclude that legal protections inherent in personhood commence before birth, so the State's broad authority to protect the public's health, welfare, and safety extends to protecting prenatal life.

Last summer, the General Assembly passed, and the Governor signed, Senate Bill 1, which balances these interests by broadly prohibiting abortion but making exceptions in three circumstances: (1) when an abortion is necessary either to save a woman's life or to prevent a serious health risk; (2) when there is a lethal fetal anomaly; or (3) when pregnancy results from rape or incest. Several abortion providers sued to invalidate the law, contending that a woman's right to "liberty" under Article 1, Section 1 of the Indiana Constitution encompasses a fundamental right to abortion, and that Senate Bill 1 materially burdens a woman's exercise of this right. On that constitutional basis, the trial court preliminarily enjoined the State from enforcing the law. Now, on appeal, the State seeks to vacate the injunction, arguing that the abortion providers lack standing; that Article 1, Section 1 is not judicially enforceable; and that even if it is, it does not protect a fundamental right to abortion.

We first hold that the providers have standing to contest the constitutionality of Senate Bill 1 because the statute criminalizes their work, and thus they face the sort of imminent, direct, personal injury our standing doctrine requires. Then, after examining Article 1, Section 1's

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text, history, structure, and purpose, as well as our prior case law interpreting the provision, we hold that it is judicially enforceable. Finally, we hold that Article 1, Section 1 protects a woman's right to an abortion that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions.

Based on these holdings, we conclude the record does not support the preliminary injunction. The providers brought a "facial" challenge to the entire law, so they had to show a reasonable likelihood of success in proving there are no circumstances in which any part of Senate Bill 1 could ever be enforced consistent with Article 1, Section 1. Because there are such circumstances, the providers cannot show a reasonable likelihood of success on their facial challenge. We therefore vacate the preliminary injunction.

Facts and Procedural History

I. History of Indiana's Abortion Laws

For all of Indiana's history, abortion has been the subject of state lawmaking, and to the extent federal courts interpreting the Federal Constitution have permitted, the legislature has generally prohibited abortions except for pregnancies that threaten a woman's life. Rebecca S. Shoemaker, The Indiana Bill of Rights: Two Hundred Years of Civil Liberties History, in The History of Indiana Law 193, 204-05 (David J. Bodenhamer &Hon. Randall T. Shepard eds., 2006). Before statehood, the territorial government enacted a receiving statute adopting English law as of 1607,^[1]see Act of Sept. 17, 1807, ch. XXIV, in The Laws of Indiana Territory 1801-1809 323, 323

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(Francis S. Philbrick ed., 1930), which criminalized abortion after "quickening"-"the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy," Dobbs v. Jackson Women's Health Org., 597 U.S. ___, 142 S.Ct. 2228, 2249, 213 L.Ed.2d 545 (2022). Indiana codified this reception provision again shortly after achieving statehood in 1816. Act of Jan. 2, 1818, ch. LII, § 1, 1818 Ind. Acts 308, 308-09.

Roughly two decades later, in 1835, the General Assembly passed its own statute criminalizing abortion, making it a crime to "wilfully administer to any pregnant woman, any medicine, drug, substance or thing whatever, or . . . use or employ any instrument or other means whatever, . . . to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman." Act of Feb. 7, 1835, ch. XLVII, § 3, 1835 Ind. Acts 66, 66. Then in 1852, one year after Indiana adopted its current Constitution, the General Assembly revised the statute to cover "any woman whom [the defendant] supposes to be pregnant." Ind. Rev. Stat. vol. II, pt. III, ch. 6, § 36, at 437 (1852). The General Assembly expanded the law seven years later by prohibiting a "druggist, apothecary, physician, or other person selling medicine" from selling any "medicine . . . known to be capable of producing abortion or miscarriage, with [the] intent to produce abortion." Act of Mar. 5, 1859, ch. LXXXI, § 2, 1859 Ind. Acts 130, 131. About twenty years after that, in 1881, the General Assembly raised the offense of providing an abortion from a misdemeanor to a felony and made it a misdemeanor for a pregnant woman or anyone aiding her to solicit an abortion. Act of Apr. 14, 1881, ch. XXXVII, §§ 22, 23, 1881 Ind. Acts 174, 177. In 1905, the legislature enacted a new criminal code and incorporated the 1881 statute. Act of Mar. 10, 1905, ch. 169, §§ 367, 368, 1905 Ind. Acts 584, 663-64.

There were many abortion cases early in our Court's history evaluating the propriety of indictments and convictions under the abortion statutes, see, e.g., State v. Vawter, 7 Blackf. 592, 592 (1845), but none of the defendants argued the General Assembly exceeded its authority under the Indiana Constitution or the Federal Constitution by criminalizing abortion. The first time our Court heard such a claim was in 1972 when we considered an appeal under the Federal Constitution. We concluded in

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Cheaney v. State that there was no federal constitutional right precluding the State from enacting its law prohibiting abortion except when necessary to protect a woman's life. 259 Ind. 138, 285 N.E.2d 265, 271-72 (1972). But a year later, the United States Supreme Court reached the opposite conclusion in Roe v. Wade, recognizing a qualified federal constitutional right to abortion: during the first trimester, states could not restrict abortion at all; during the second trimester, they could regulate, but not prohibit, abortion, and then only to protect maternal health; and during the third trimester, they could prohibit abortion except when it was necessary to protect a woman's life or health. 410 U.S. 113, 164-65, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

Mindful that the Federal Constitution trumps state law, and the United States Supreme Court's interpretation of the Federal Constitution trumps our interpretation of that document, our General Assembly reformed Indiana's abortion laws. But it did so under protest, explaining it revised the abortion laws only to comply with "recent Supreme Court decisions," Pub. L. No. 322, § 1, 1973 Ind. Acts 1740, 1741, and disclaiming any "constitutional right to abortion on demand" or approval of "abortion, except to save the life of the mother," id. at 1740. The legislature also continued to prohibit any abortions that federal law did not require to be permitted. Id. § 2, 1973 Ind. Acts at 1743-44.

Then, in 1992, the United States Supreme Court revisited Roe. While reaffirming Roe's central holding that a woman has a federal constitutional right to terminate a pregnancy before fetal viability, the Court abandoned...