By Casey Smith
Indiana Capital Chronicle
INDIANAPOLIS – A critical court hearing set for next week could put a pause on Indiana’s near-total abortion ban, with behind-the-scenes maneuvers over the judge and counsel in the meantime.
The new law is still set to take effect on Thursday, Sept. 15, but the Republican judge – the third tasked in the case – is a Republican who might be less inclined to toss the law.
Up for debate is a suit filed in Monroe County Circuit Court last month by the American Civil Liberties Union of Indiana on behalf of health care providers and a pregnancy resource center.
The plaintiff organizations argue that the abortion ban “will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and violate the Constitution’s due course of law clause through its unconstitutionally vague language.”
The court challenge is based on the Indiana Constitution and maintains that the new law blocks patients from exercising an abortion-including “fundamental right to privacy,” which the state constitution protects as an individual liberty. The Supreme Court of the United States in June ruled that the U.S. Constitution does not guarantee abortion rights.
Arguments are scheduled to be heard Monday afternoon in Monroe County. The judge could decide at that time whether or not to issue a preliminary injunction, which would temporarily stop the ban from being enforced. A later decision in the case could strike down the ban altogether.
Finding a judge for the case
Republican judge Kelsey Blake Hanlon of the Owen County Circuit Court accepted an appointment as special judge last week. That was after two elected Democratic judges in neighboring, liberal-leaning Monroe County declined to take on the case earlier this month. They did not give any reasons as to why they recused themselves.
Hanlon was first elected as a judge in 2014 and is now one of three finalists that the state Judicial Nominating Commission selected in July for Gov. Eric Holcomb to consider for appointment to the state appeals court.
The GOP governor is slated to announce his decision Wednesday afternoon. The judge he selects will fill the vacancy created by the upcoming retirement of Judge Edward W. Najam Jr.
An ACLU representative said legal counsel could not comment on whether the switch to a Republican judge might affect the outcome of the case.
Who’s handling the defense?
Behind the scenes, tensions also appear to be flaring over the handling of the state’s legal defense.
Last week, attorneys representing the Marion County Prosecutor’s Office — one of several defendants in the ACLU lawsuit — appeared before the court. Marion County Prosecutor Ryan Mears said in July that he would not prosecute abortion-related cases if the state legislature criminalized the procedure.
Representatives from Indiana Attorney General Todd Rokita’s office on Monday filed a motion to strike that appearance, however. The Attorney General’s filing said that “only the Indiana Attorney General has authority to represent the defendants in this case.”
Mears — a Democrat — likely would have a different legal strategy than Rokita, a Republican.
“By law, the attorney general is the lawyer for the state and prosecutors are arms of the state,” Rokita’s office told the Indiana Capital Chronicle Tuesday in a written statement. “The Office of the Attorney General represents prosecutors on a daily basis on many cases, and this one is no different. Of course, the attorney general is leading the defense of the duly-enacted statutes.”
Mears was not available for comment Tuesday, but his office is expected to file a response to the AG’s motion to strike before Thursday. Hanlon could make a ruling on the defense matter before Monday.
Other legal action is still pending
The ACLU filed a separate class action lawsuit last week that seeks to strike down the ban on the basis that it violates Indiana’s Religious Freedom Restoration Act.
The legal challenge was filed in Marion County Superior Court on behalf of Hoosier Jews for Choice, as well as five anonymous women who represent a variety of faiths including, Judaism, Islam, and independent spiritual belief systems.
They argue that they have “sincere religious beliefs that direct them to obtain an abortion” that would be banned “and who are at risk of needing an abortion in the future consistent with these beliefs.”
Like the first lawsuit, the filing also seeks an injunction on the Indiana abortion law. An initial hearing in the case has not been set yet.
Indiana was the first state in the nation to approve abortion-restricting legislation since the high court ruling that overturned Roe v. Wade.
The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. One part of the law says these exceptions are up to 20 weeks but another part says they can be used anytime. Rape survivors can get an abortion up to 10 weeks post-fertilization. It also strips abortion clinics of their state medical licenses, and provides that only hospitals and hospital-owned ambulatory surgical centers can provide abortions.
The Indiana Capital Chronicle is an independent, nonprofit news organization dedicated to giving Hoosiers a comprehensive look inside state government, policy and elections.
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