Indiana’s law banning most abortions in the state will take effect on Aug. 1 after the Indiana Supreme Court vacated a preliminary injunction.

Legislators enacted Senate Enrolled Act 1 (SEA 1) during a special session of the Indiana General Assembly in 2022, but the law has been on hold since last September after a lower court judge ruled that the plaintiffs were likely to prevail on their claim that SEA 1 violates women’s right to privacy under Article 1, Section 1 of the Indiana Constitution. Because of that likelihood, the judge issued a preliminary injunction to prevent the law from being enforced while the lawsuit went forward.

On June 30, a 4-1 Supreme Court ruled that the injunction should not have been granted. 

Justice Derek Molter’s majority opinion concluded that the constitution’s “natural rights” clause guarantees the right to an abortion when the mother’s life or health is at risk. Beyond that, however, Molter wrote that the General Assembly “retains broad legislative discretion for determining whether and the extent to prohibit abortions.”

“None of this is to comment on whether the General Assembly’s approach has been wise or unwise, just or unjust, moral or immoral,” Molter wrote.

But the court concluded that the record did not support the preliminary injunction.  The lawsuit was a “facial” challenge to the entire law, so the plaintiffs had to show a reasonable likelihood of success in proving that there are no circumstances in which any part of SEA 1 could ever be enforced consistent with Article 1, Section 1 of the Indiana Constitution.  

“We simply recognize that enjoining Senate Bill 1 as a facially arbitrary law would not be an appropriate exercise of our judicial review power,” the majority opinion stated.

Legislators convened weeks after the U.S. Supreme Court struck down Roe v. Wade last summer to pass a law outlawing abortion except when the mother faces a serious health risk or her life is in danger, or in cases of lethal fetal anomalies. The law also includes an exception up to 10 weeks after conception in cases of rape or incest.

Justice Geoffrey Slaughter joined Molter, Chief Justice Loretta Rush and Justice Mark Massa in voting to vacate the injunction, but wrote that he would have ruled that the abortion clinics who sued to block the law lacked standing to do so, and would have steered clear of addressing the constitutionality of abortion at all.

Dissenting, Justice Christopher Goff argued there is a “reasonable likelihood” that the constitution’s liberty guarantee includes a right to bodily autonomy and urged legislators to turn the question over to Hoosier voters in a binding referendum. 

The case was remanded to the lower court for further proceedings on the underlying case.

The majority opinion leaves the door open for separate legal challenges to the law. One such lawsuit, arguing the law runs afoul of Indiana’s religious freedom law, is scheduled for arguments before the Court of Appeals of Indiana on Sept. 12. An injunction against the law in that case remains in effect, but the parties are currently seeking clarification from the courts about the scope of that injunction.