An Indiana judge won’t hear arguments until next week on a lawsuit seeking to block the state’s abortion ban, leaving that new law set to take effect on Thursday.
The special judge overseeing the case issued an order Monday setting a court hearing for Sept. 19, which is four days after the ban’s effective date.
Indiana’s Republican-dominated Legislature approved the tighter abortion restrictions during a two-week special legislative session that ended Aug. 5, making it the first state to do so since the U.S. Supreme Court eliminated federal abortion protections by overturning Roe v. Wade in June.
Indiana abortion clinic operators filed the lawsuit Aug. 31, saying the ban, which includes limited exceptions, “strips away the fundamental rights of people seeking abortion care” in violation of the Indiana Constitution.
The American Civil Liberties Union of Indiana, which is representing the clinics, asked the judge Monday to issue an order before Thursday to temporarily prevent enforcement of the law. It argued that allowing the law to take effect “will prohibit the overwhelming majority of abortions in Indiana and, as such, will have a devastating and irreparable impact on the plaintiffs and, more importantly, their patients and clients.”
The lawsuit was filed in southern Indiana’s Monroe County, which includes the liberal-leaning city of Bloomington and Indiana University’s main campus, but two elected Democratic judges from that county declined to handle the case without stating any reasons.
Judge Kelsey Hanlon, a Republican from neighboring Owen County, accepted appointment as special judge last week. Hanlon, who was first elected as a judge in 2014, was among three finalists that the state Judicial Nominating Commission selected in July for GOP Gov. Eric Holcomb to consider for appointment to the state appeals court.
No court action had yet taken place as of Monday on a separate lawsuit filed Thursday in Marion County arguing the ban is at odds with the state’s religious freedom law, which Republicans enacted seven years ago.
The Indiana ban includes exceptions allowing abortions in cases of rape and incest, before 10 weeks post-fertilization; to protect the life and physical health of the mother; and if a fetus is diagnosed with a lethal anomaly.
The new law also prohibits abortion clinics from providing any abortion care, leaving such services solely to hospitals or outpatient surgical centers owned by hospitals.
Planned Parenthood, which operates four of Indiana’s seven licensed abortion clinics, has said it planned to keep those sites open for other medical services, while those operated by other providers faced possible closure.
The lawsuit argues the ban would violate the state constitution by infringing on “Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and includes unconstitutionally vague language.”
The question of whether the Indiana Constitution protects abortion rights is undecided.
A state appeals court decision in 2004 said privacy was a core value under the state constitution that extended to all residents, including women seeking an abortion. But the Indiana Supreme Court later upheld a law mandating an 18-hour waiting period before a woman could undergo an abortion while not deciding whether the state constitution included a right to privacy or abortion.
The state attorney general’s office hasn’t yet filed a response to the lawsuit in court, but Republican Attorney General Todd Rokita said in a statement that “The text, history, and structure of our Constitution excludes any serious argument that abortion is a fundamental right in our state.”