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Abortion access has fluctuated dramatically in Indiana and Kentucky in recent months. New laws restricting services have gone into effect and been the subject of legal challenges in both states.
Access may continue to evolve as cases head to state supreme courts in the months ahead. Kentucky voters will also decide next month whether to solidify the restrictions in the state constitution through an amendment.
Indiana Restrictions Status
Abortions are currently legal in Indiana, after a judge temporarily blocked enforcement of the state’s new ban passed in August. The case is heading to the state Supreme Court for a hearing in January.
During a special abbreviated legislative session this summer, Indiana lawmakers passed Act registered in the Senate 1, which prohibits abortion in almost all cases. There are exceptions to save the life of the pregnant patient, in the event of fatal fetal anomalies or in the event of rape or incest, up to 10 weeks.
The law requires that abortions only occur in hospitals or hospital-owned outpatient centers and makes it a Level 5 felony for anyone offering an abortion outside of the exceptions.
Lawsuits in Indiana
ACLU and Planned Parenthood file complaint first: Planned Parenthood, ACLU of Indiana and several abortion providers filed a lawsuit Aug. 30 in state court against members of the Indiana Medical Licensing Board and prosecutors in Hendricks, Lake, Marion, Monroe counties , Joseph, Tippecanoe and Warrick.
The plaintiffs argue that the law violates the right to privacy and equal protection privileges in the state constitution.
On September 22, a week after the new abortion law took effect, Owen County Judge Kelsey Hanlon granted a preliminary injunction, blocking the ban’s enforcement. Attorney General Todd Rokita challenged the judge’s decision in the appeals court and the state Supreme Court. The Indiana Supreme Court recently accepted the case and is due to present oral arguments on January 19.
Hoosier Jews for Choice and others cite religious freedom as a challenge: On September 8, a week before the Indiana law took effect, the ACLU of Indiana filed a lawsuit in state court on behalf of Hoosier Jews for Choice and five people who practice religions such as Judaism and Islam.
They argue the law violates the state’s Religious Freedom Restoration Act, passed in 2015 to prevent government entities from interfering with religious practices. They asked the court for a preliminary injunction as the case continues.
Lawyers say the law infringes on the rights of people who do not believe that life begins at conception, a Christian belief at the heart of Indiana’s abortion law.
Judaism includes the belief that the life of the pregnant person takes precedence over the life of the fetus and that life begins when a child takes its first breath.
The judge heard arguments in the case on October 14 and both sides have until October 28 to file additional findings of fact. After that, the judge expects to issue a decision on the preliminary injunction within 30 days.
The Satanic Temple denounces violations of religious freedom: On September 21, The Satanic Temple filed a lawsuit in federal court against Indiana Governor Eric Holcomb and Attorney General Todd Rokita, arguing that the new law violates religious freedom.
The plaintiffs say the law violates the state’s Religious Freedom Restoration Act, as well as the US Constitution. They argue that this prevents Satanic Temple members from exercising their right to bodily autonomy and performing the “abortion ritual,” which includes exemptions to “medically unnecessary and unscientific regulations when seeking to interrupt their pregnancy,” according to the Satanic Temple.
Online court records did not show a hearing set in the case on Friday afternoon.
Kentucky Restrictions Status
Abortions are illegal in Kentucky except in cases to save the life of the pregnant patient. The state Supreme Court will hear oral arguments in November on a challenge to the state’s near-total bans. Voters will also decide in November whether to add language to the state constitution explicitly stating there is no right to abortion.
Kentucky is one of 13 states that had “trigger laws” on the books set to go into effect after the U.S. Supreme Court decided to overturn Roe v. Wade in June, giving states the power to decide abortion access.
Although some states had waiting periods, Kentucky Law, adopted in 2019, entered into force immediately. The Supreme Court ruling also paved the way for a roughly six-week abortion ban, which had previously been blocked.
The trigger law prohibits abortion in almost all cases, with exceptions only to save the life of the pregnant patient. There is no exemption for people who become pregnant as a result of rape or incest.
Kentucky lawsuits
Providers challenge the near total ban on abortion: Planned Parenthood and the ACLU filed a challenge in state court on June 27, three days after Kentucky’s near-total abortion ban went into effect.
Jefferson County Circuit Court Judge Mitch Perry granted a restraining order less than a week after the law took effect, and later blocked enforcement with an injunction .
The state’s two abortion providers — EMW Women’s Surgical Center and Planned Parenthood, both in Louisville — have resumed their services. EMW previously provided abortions up to 21 weeks and six days, but capped them at 15 weeks after the US Supreme Court’s Roe decision.
Kentucky Attorney General Daniel Cameron appealed Perry’s decision. On August 18, the state Supreme Court upheld a previous decision by state appeals court to allow the application of restrictions.
This case is set for oral argument on November 15, a week after voters will decide whether or not to add a language to the state constitution enshrining restrictions.
Religious Freedom Trial: On October 6, three Jewish women in Louisville filed a lawsuit in state court, arguing that the state’s trigger ban and six-week ban violate their religious and reproductive freedoms.
They also want the language removed from state law that defines life as beginning at conception.
The plaintiffs are also concerned about the impact the laws could have on their future reproductive rights, related to in vitro fertilization, and the ability of health care providers to terminate a pregnancy if they had serious or life-threatening problems.
Omnibus Abortion Bill: Abortion access in Kentucky was already uncertain before the U.S. Supreme Court overturned Roe.
In April, the Republican-led state legislature overwhelmingly passed a omnibus package over 70 pages which imposed heavy restrictions on abortions, without outright banning them.
The bill’s provisions included a 15-week ban, restrictions on abortive medications, and a series of new regulations and forms for providers and public health agencies. It also makes it more difficult for minors to have an abortion.
The providers shut down the services and filed a federal lawsuit, arguing the new law was unconstitutional and claiming they couldn’t comply with new regulations that weren’t yet in place.
District Judge Rebecca Grady Jennings temporarily blocked the bill a week after it took effect and later extended the blockage for certain parts, including regulations that were not yet in place.
Since then, elements of the bill have come into force.
This includes the 15-week ban, which was implemented in July after the Supreme Court ruling.
The judge gave the Office of Health and Family Services and the plaintiffs in the case until Nov. 7 to file briefing notes and reports on the status of implementing the new processes .
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