The Volokh Conspiracy
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Indiana Constitution Protects Right to Abortion When Necessary to Protect Woman's Life or Health, But Not Otherwise
In Members of the Medical Licensing Board of Indiana v. Planned Parenthood, decided Friday, the Indiana Supreme Court (in an opinion by Justice Derek Molter, joined by Chief Justice Loretta Rush and Justice Mark Massa) concluded that the Indiana Constitution's protection of "life, liberty, and the pursuit of happiness" "protects a woman's right to an abortion that is necessary to protect her life or to protect her from a serious health risk":
Plaintiffs emphasize that abortion procedures are sometimes their only means to save their patients' lives. That is undisputed, and we agree the Constitution—including Article 1, Section 1—does not permit the General Assembly to prohibit abortion in those circumstances. But that is not a basis for enjoining the entirety of Senate Bill 1 in all circumstances, including when abortion is unnecessary to protect a woman's life or to protect her from a serious health risk.
Article 1, Section 1 expressly protects an "inalienable" right to "life," which was a firmly established right long before Indiana became a state. That right to protect one's own life extends beyond just protecting against imminent death, and it includes protecting against "great bodily harm." Although the State disputes that Article 1, Section 1 is judicially enforceable, it recognizes that governmental authority is limited to the police power, and it acknowledges "grave doubt" that the police power would permit the State to prohibit an abortion that was necessary to save a woman's life.
Because this fundamental right of self-protection—whether considered as an exercise of the right to life, an exercise of the right to liberty, a limitation on the scope of the police power, or as a matter of equal treatment—is so firmly rooted in Indiana's history and traditions, it is a relatively uncontroversial legal proposition that the General Assembly cannot prohibit an abortion procedure that is necessary to protect a woman's life or to protect her from a serious health risk.
Reflecting that understanding, all of Indiana's abortion statutes since 1851 have recognized an exception for abortions that are required to protect a woman's life…. And now that the United States Supreme Court has returned broad discretion to the states to determine the legality of abortion, Senate Bill 1's general abortion ban continues to recognize an exception for "when reasonable medical judgment dictates that performing the abortion is necessary to prevent any serious health risk to the pregnant woman or to save the pregnant woman's life."
Accordingly, 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. Yet, this holding does not support Plaintiffs' claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law's application in any particular set of circumstances where a pregnancy endangers a woman's life or health. So this appeal does not present an opportunity to establish the precise contours of a constitutionally required life or health exception and the extent to which that exception may be broader than the current statutory exceptions. For purposes of this appeal, all we can say is that Senate Bill 1 is not facially invalid as interfering with a woman's access to care that is necessary to protect her life or health….
But the court concluded, on originalist grounds, that Article 1, Section 1 doesn't extend to "abortions that are unnecessary to protect a woman's life or to protect her from a serious health risk":
Plaintiffs argue abortion is a fundamental right necessarily implied in the protection of liberty. To recognize an unenumerated, implied right, we must conclude the right is "of such a quality that the founding generation would have considered it fundamental or 'natural.'"That is because what gives our Constitution force is that it reflects an agreement reached through the constitutional framing, ratifying, and amendment processes. So we cannot supplant what the framers and ratifiers believed they were agreeing to with our own notions of which aspects of liberty ought to be off limits for the legislative process, or our notions of which aspects of liberty we suspect voters today might embrace as worthy of heightened constitutional protections if asked.
This also means we do not analyze whether liberty, privacy, autonomy, self-determination, and abortion relate to each other in a colloquial sense. Rather, our task is to discern the contours of constitutionally protected liberty as Section 1's framers and ratifiers understood them, and then to decide whether that common understanding of liberty leaves the General Assembly discretion to generally prohibit abortions that are unnecessary to protect a woman's life or health.
Indiana's long history of generally prohibiting abortion as a criminal act—coupled with Plaintiffs' acknowledgment that protecting prenatal life falls within the State's broad authority to protect the public's health, welfare, and safety—suggests that the common understanding among Article 1, Section 1's framers and ratifiers was that the provision left the General Assembly with legislative discretion to regulate or limit abortion. Even before statehood, Indiana's territorial law prohibited abortions after quickening, and for the entire period between the ratification of the 1851 Constitution and the passage of Senate Bill 1, Indiana prohibited abortions at all stages of the pregnancy to the extent the federal courts interpreting the Federal Constitution permitted. [Further historical details omitted. -EV]
Justice Geoffrey Slaughter concurred in the judgment, concluding that it was unnecessary for the court to reach whether the Indiana Constitution protects a right to abortion when the woman's life or health is in danger.
Justice Christopher Goff concurred as to the life/health exception, but dissented as to the right to abortion more broadly:
Within [the] "bundle of liberty rights" stands the fundamental "right to be let alone." In my view, even those who abhor abortion in all circumstances should be wary of unfettered government power over the most personal, private aspects of a person's life.
When, like here, a longstanding right is stripped from the United States Constitution, the only remaining restraint on the Indiana General Assembly's lawmaking power is our state constitution. That document guarantees "liberty" to all, an idea that means different things to different people. And when those ideas stand in tension, the state is responsible for protecting the minority interests against those of the majority. Otherwise, no one's liberty is secure. In addressing this case, therefore, we decide how much power the legislature has to restrict many of the freedoms that Hoosiers have come to depend on. And we resolve whether our Court will require the legislature to balance those freedoms meaningfully against its legitimate policy goals….
In my view, there is a reasonable likelihood that Article 1, Section 1's guarantee of "liberty" includes a qualified right to bodily autonomy, one which the General Assembly must accord some weight in the legislative balance. More importantly, I believe that the abortion question is fundamentally a matter of constitutional dimension that should be decided directly by the sovereign people of Indiana. I would thus urge my colleagues in the General Assembly to put before Hoosier voters the question whether the term "liberty" in Article 1, Section 1 of the Indiana Constitution protects a qualified right to bodily autonomy….
Rather than hold a constitutional referendum (like some other states), our colleagues in the General Assembly used a special legislative session (called for a wholly unrelated purpose) to implement a moment-of-conception abortion ban with only narrow exceptions. From first reading to the Governor's desk, Senate Bill 1 took just eleven days to become law.5 In fairness to our colleagues in the General Assembly, the United States Supreme Court left the abortion issue "to the people and their elected representatives." The Dobbs decision, moreover, was unprecedented in our nation's history; it simply could not have been predicted a generation ago. Still, Dobbs highlights an important principle in the preservation of our constitutional order: The people's rights cannot be "only as secure" as the United States Supreme Court "wishes to make them." …
Of course, any action we take to fill the void risks criticism as violating the separation of powers. On the other hand, prudential concerns counsel in favor of searching judicial review of legislation. Our constitution aims to prevent the concentration of authority in one branch of government. This Court, then, must supply a balance to the political branches and check any legislative overreach. We forsake that duty by simply deferring to the General Assembly's decision on how to weigh the people's liberty. To be sure, line-drawing on this issue is generally beyond the judicial purview. As we've emphasized before, such "classification," is largely "a question for the legislature."13 Yet there are "certain preserves of human endeavor" on "which the State must tread lightly, if at all"—"core values" that the legislature "may qualify but not alienate." In these areas, this Court must ensure that statutes leave sufficient scope for Hoosiers to exercise their freedom.
Ultimately, however, legislatures and courts are not the ultimate authority on questions of constitutional dimension. The people of Indiana should speak directly to the issue before us today through the constitutional amendment process. As the Dobbs Court itself instructed, the "permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting." I would therefore urge my colleagues in the General Assembly to put to the people the issue of whether the guarantee of "liberty" in Article 1, Section 1 of the Indiana Constitution includes a qualified right to bodily autonomy.
Until that opportunity comes, and taking the constitution as it stands today, I would find a qualified right to bodily autonomy … I consider the Court's analysis flawed for two reasons. First, it fails to account for the absence of women in framing our 1851 constitution and unjustifiably diminishes the significance of the 1984 amendment to Article 1, Section 1. Second, it relies on a simplified historical narrative of what the framing generations of both 1851 and 1984 thought about abortion. [Details omitted. -EV]
For more on the broader protection of unenumerated rights under the Indiana Constitution, see here.
