FILED
Jun 30 2023, 9:57 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 22S‐PL‐338
Members of the Medical Licensing Board of Indiana,
et al.,
Appellants/Defendants,
–v–
Planned Parenthood Great Northwest, Hawai’i,
Alaska, Indiana, Kentucky, Inc., et al.,
Appellees/Plaintiffs.
Argued: January 19, 2023 | Decided: June 30, 2023
Appeal from the Monroe Circuit Court
No. 53C06‐2208‐PL‐1756
The Honorable Kelsey B. Hanlon, Special Judge
Opinion by Justice Molter
Chief Justice Rush and Justice Massa concur.
Justice Slaughter concurs in the judgment with separate opinion.
Justice Goff concurs in part and dissents in part with separate opinion.
Molter, Justice.
Abortion is an intractable issue because it brings two irreconcilable
interests into conflict: a woman’s interest in ending a pregnancy and the
State’s interest in protecting the life that abortion would end. Pregnancy is
a highly personal experience that can alter a woman’s life and health in
countless ways. For some, a pregnancy may be planned, supported, or
generally free of any significant health complications. But for others, a
pregnancy may be unplanned, lacking significant support, or induce
significant health complications. Given the nuance inherent in each
woman’s experience and private life, a woman’s desire to continue or
terminate a pregnancy is, likewise, intensely personal. At the same time,
our laws have long reflected that Hoosiers, through their elected
representatives, may collectively conclude that legal protections inherent
in personhood commence before birth, so the State’s broad authority to
protect the public’s health, welfare, and safety extends to protecting
prenatal life.
Last summer, the General Assembly passed, and the Governor signed,
Senate Bill 1, which balances these interests by broadly prohibiting
abortion but making exceptions in three circumstances: (1) when an
abortion is necessary either to save a woman’s life or to prevent a serious
health risk; (2) when there is a lethal fetal anomaly; or (3) when pregnancy
results from rape or incest. Several abortion providers sued to invalidate
the law, contending that a woman’s right to “liberty” under Article 1,
Section 1 of the Indiana Constitution encompasses a fundamental right to
abortion, and that Senate Bill 1 materially burdens a woman’s exercise of
this right. On that constitutional basis, the trial court preliminarily
enjoined the State from enforcing the law. Now, on appeal, the State seeks
to vacate the injunction, arguing that the abortion providers lack standing;
that Article 1, Section 1 is not judicially enforceable; and that even if it is, it
does not protect a fundamental right to abortion.
We first hold that the providers have standing to contest the
constitutionality of Senate Bill 1 because the statute criminalizes their
work, and thus they face the sort of imminent, direct, personal injury our
standing doctrine requires. Then, after examining Article 1, Section 1’s
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text, history, structure, and purpose, as well as our prior case law
interpreting the provision, we hold that it is judicially enforceable. Finally,
we hold that 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, but the General Assembly otherwise retains broad legislative
discretion for determining whether and the extent to which to prohibit
abortions.
Based on these holdings, we conclude the record does not support the
preliminary injunction. The providers brought a “facial” challenge to the
entire law, so they had to show a reasonable likelihood of success in
proving there are no circumstances in which any part of Senate Bill 1
could ever be enforced consistent with Article 1, Section 1. Because there
are such circumstances, the providers cannot show a reasonable likelihood
of success on their facial challenge. We therefore vacate the preliminary
injunction.
Facts and Procedural History
I. History of Indiana’s Abortion Laws
For all of Indiana’s history, abortion has been the subject of state
lawmaking, and to the extent federal courts interpreting the Federal
Constitution have permitted, the legislature has generally prohibited
abortions except for pregnancies that threaten a woman’s life. Rebecca S.
Shoemaker, The Indiana Bill of Rights: Two Hundred Years of Civil Liberties
History, in The History of Indiana Law 193, 204–05 (David J. Bodenhamer &
Hon. Randall T. Shepard eds., 2006). Before statehood, the territorial
government enacted a receiving statute adopting English law as of 1607,1
see Act of Sept. 17, 1807, ch. XXIV, in The Laws of Indiana Territory 1801-
1The year 1607 was significant because it was the time of the English settlement at Jamestown.
Ray F. Bowman, III, English Common Law and Indiana Jurisprudence, 30 Ind. L. Rev. 409, 413–14
n.25 (1997).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 3 of 43
1809 323, 323 (Francis S. Philbrick ed., 1930), which criminalized abortion
after “quickening”—“the first felt movement of the fetus in the womb,
which usually occurs between the 16th and 18th week of pregnancy,”
Dobbs v. Jackson Women’s Health Org., 597 U.S. ----, 142 S. Ct. 2228, 2249, 213
L. Ed. 2d 545 (2022). Indiana codified this reception provision again
shortly after achieving statehood in 1816. Act of Jan. 2, 1818, ch. LII, § 1,
1818 Ind. Acts 308, 308–09.
Roughly two decades later, in 1835, the General Assembly passed its
own statute criminalizing abortion, making it a crime to “wilfully
administer to any pregnant woman, any medicine, drug, substance or
thing whatever, or . . . use or employ any instrument or other means
whatever, . . . to procure the miscarriage of any such woman, unless the
same shall have been necessary to preserve the life of such woman.” Act
of Feb. 7, 1835, ch. XLVII, § 3, 1835 Ind. Acts 66, 66. Then in 1852, one year
after Indiana adopted its current Constitution, the General Assembly
revised the statute to cover “any woman whom [the defendant] supposes
to be pregnant.” Ind. Rev. Stat. vol. II, pt. III, ch. 6, § 36, at 437 (1852). The
General Assembly expanded the law seven years later by prohibiting a
“druggist, apothecary, physician, or other person selling medicine” from
selling any “medicine . . . known to be capable of producing abortion or
miscarriage, with [the] intent to produce abortion.” Act of Mar. 5, 1859, ch.
LXXXI, § 2, 1859 Ind. Acts 130, 131. About twenty years after that, in 1881,
the General Assembly raised the offense of providing an abortion from a
misdemeanor to a felony and made it a misdemeanor for a pregnant
woman or anyone aiding her to solicit an abortion. Act of Apr. 14, 1881,
ch. XXXVII, §§ 22, 23, 1881 Ind. Acts 174, 177. In 1905, the legislature
enacted a new criminal code and incorporated the 1881 statute. Act of
Mar. 10, 1905, ch. 169, §§ 367, 368, 1905 Ind. Acts 584, 663–64.
There were many abortion cases early in our Court’s history evaluating
the propriety of indictments and convictions under the abortion statutes,
see, e.g., State v. Vawter, 7 Blackf. 592, 592 (1845), but none of the
defendants argued the General Assembly exceeded its authority under the
Indiana Constitution or the Federal Constitution by criminalizing
abortion. The first time our Court heard such a claim was in 1972 when we
considered an appeal under the Federal Constitution. We concluded in
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Cheaney v. State that there was no federal constitutional right precluding
the State from enacting its law prohibiting abortion except when necessary
to protect a woman’s life. 259 Ind. 138, 285 N.E.2d 265, 271–72 (1972). But a
year later, the United States Supreme Court reached the opposite
conclusion in Roe v. Wade, recognizing a qualified federal constitutional
right to abortion: during the first trimester, states could not restrict
abortion at all; during the second trimester, they could regulate, but not
prohibit, abortion, and then only to protect maternal health; and during
the third trimester, they could prohibit abortion except when it was
necessary to protect a woman’s life or health. 410 U.S. 113, 164–65, 93 S.
Ct. 705, 35 L. Ed. 2d 147 (1973).
Mindful that the Federal Constitution trumps state law, and the United
States Supreme Court’s interpretation of the Federal Constitution trumps
our interpretation of that document, our General Assembly reformed
Indiana’s abortion laws. But it did so under protest, explaining it revised
the abortion laws only to comply with “recent Supreme Court decisions,”
Pub. L. No. 322, § 1, 1973 Ind. Acts 1740, 1741, and disclaiming any
“constitutional right to abortion on demand” or approval of “abortion,
except to save the life of the mother,” id. at 1740. The legislature also
continued to prohibit any abortions that federal law did not require to be
permitted. Id. § 2, 1973 Ind. Acts at 1743–44.
Then, in 1992, the United States Supreme Court revisited Roe. While
reaffirming Roe’s central holding that a woman has a federal constitutional
right to terminate a pregnancy before fetal viability, the Court abandoned
the “rigid prohibition on all previability regulation aimed at the protection
of fetal life” because the trimester “formulation . . . misconceives the
nature of the pregnant woman’s interest” and “it undervalues the State’s
interest in potential life.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 873, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). Replacing the rigid
trimester framework was a new “undue burden” test. Id. at 878. After
Casey, women had a federal constitutional right to abortion without undue
interference from states before viability, but states could prohibit
abortions after viability (so long as there was an exception for pregnancies
which endangered a woman’s health or life), and states had a legitimate
interest in protecting both women’s health and prenatal life from the
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outset of pregnancy. Id. at 834. Again, Indiana reformed its laws to permit
abortion only to the extent the United States Supreme Court required.
Pub. L. No. 187-1995, 1995 Ind. Acts 3327, 3327–29.
Now, the United States Supreme Court has embraced the view of our
predecessors in Cheaney and abandoned Roe and Casey altogether,
overturning these precedents and deciding to “return” the authority to
regulate or prohibit abortion “to the people and their elected
representatives” in each state. Dobbs, 142 S. Ct. at 2284. Indiana’s executive
and legislative branches immediately seized that opportunity. During a
special legislative session last summer, the General Assembly passed and
the Governor signed Senate Bill 1, which prohibits abortion with three
exceptions: when abortion is necessary either to prevent any serious
health risk or to save a woman’s life; when there is a lethal fetal anomaly;
or when pregnancy results from rape or incest. Ind. Code § 16-34-2-1(a).
II. Procedural History
A couple of weeks before Senate Bill 1 went into effect on September 15,
2022, the plaintiffs—Planned Parenthood Great Northwest, Hawai’i,
Alaska, Indiana, Kentucky, Inc.; Women’s Med Group Professional
Corporation; All-Options, Inc.; and Amy Caldwell, M.D. (collectively,
“Plaintiffs”)—filed a complaint for declaratory and injunctive relief
against Members of the Medical Licensing Board of Indiana, the
Hendricks County Prosecutor, the Lake County Prosecutor, the Marion
County Prosecutor, the Monroe County Prosecutor, the St. Joseph County
Prosecutor, the Tippecanoe County Prosecutor, and the Warrick County
Prosecutor (collectively, the “State”). That same day, Plaintiffs moved for
a preliminary injunction to enjoin enforcement of Senate Bill 1, arguing the
law violated Article 1, Sections 1, 12, and 23 of the Indiana Constitution. A
little over a week later, Plaintiffs moved for a temporary restraining order,
which the trial court denied, allowing the law to go into effect.
The trial court then held a hearing on Plaintiffs’ motion for a
preliminary injunction. After the hearing, the trial court issued a detailed,
thoughtful order on September 22. The court found that Plaintiffs were
“unlikely to prevail on the merits of their” Article 1, Section 23 claim,
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which asserted that Senate Bill 1’s hospital requirements for performing
abortions discriminated against abortion providers in violation of the
Equal Privileges and Immunities Clause. Appellants’ App. Vol. II at 39.
The court also recognized that, during the hearing, Plaintiffs withdrew
their Article 1, Section 12 claim that the law’s health and life exceptions
are unconstitutionally vague. But, based on Plaintiffs’ Article 1, Section 1
claim, the court enjoined enforcement of Senate Bill 1, which had then
been in effect for seven days, “pending trial on the merits.” Id. at 42.
For that claim, the trial court first found that Article 1, Section 1
“provides judicially enforceable rights.” Id. And the court then concluded
that Plaintiffs established a reasonable likelihood of success on the merits
of their claim. In reaching that conclusion, the court found “a reasonable
likelihood that decisions about family planning, including decisions about
whether to carry a pregnancy to term[,] are included” within Section 1’s
protections. Id. at 37. The court also found that Plaintiffs satisfied the other
requirements for preliminary injunctive relief and granted the preliminary
injunction.
The State exercised its right to appeal the injunction immediately rather
than waiting for a final judgment, see Ind. Appellate Rule 14(A)(5), and we
accepted appellate jurisdiction under Appellate Rule 56(A).
Standard of Review
The resolution of this appeal hinges on the trial court’s conclusion that
Plaintiffs satisfied the first requirement for a preliminary injunction:
movants must establish by a preponderance of the evidence a reasonable
likelihood of success on the merits of their claim. See, e.g., Leone v. Comm’r,
Ind. Bureau of Motor Vehicles, 933 N.E.2d 1244, 1248 (Ind. 2010). It is well
settled that the grant of a preliminary injunction rests within the sound
discretion of the trial court, and our review is limited to whether the court
abused that discretion. Apple Glen Crossing, LLC v. Trademark Retail, Inc.,
784 N.E.2d 484, 487 (Ind. 2003). One way a trial court abuses its discretion
is by misinterpreting the law. State v. Econ. Freedom Fund, 959 N.E.2d 794,
800 (Ind. 2011). And to the extent our analysis of the reasonable-
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likelihood-of-success requirement turns on the trial court’s interpretation
of purely legal issues, we review those issues de novo. See Heraeus Med.,
LLC v. Zimmer, Inc., 135 N.E.3d 150, 152 (Ind. 2019).2
Discussion and Decision
Article 1, Section 1 of the Indiana Constitution declares that all Hoosiers
have “certain inalienable rights” which include “life, liberty, and the
pursuit of happiness.” Ind. Const. art. 1, § 1. Plaintiffs contend Senate
Bill 1 is properly enjoined because the trial court correctly concluded they
have established a reasonable likelihood of success on the merits of their
claim that Section 1 “confers liberty rights that guarantee Hoosiers’ ability
to determine whether to carry a pregnancy to term.” Appellees’ Br. at 32.
The State advances three main arguments on appeal: Plaintiffs lack
standing; even if they have standing, Section 1 is not judicially
enforceable; and even if Section 1 is judicially enforceable, it does not
protect the abortion right Plaintiffs describe.
We first hold that Plaintiffs have standing because almost all of them
are abortion providers, and it is undisputed that Senate Bill 1 criminalizes
their work. Then, after evaluating Article 1, Section 1’s text, history,
structure, and purpose, we conclude that we should adhere to our
precedents recognizing that the provision is judicially enforceable. Finally,
we hold that Plaintiffs have not shown a reasonable likelihood of success
on their facial challenge to Senate Bill 1, which requires them to prove
there are no circumstances in which the law can be enforced consistent
with Article 1, Section 1. While 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, the provision does not protect a fundamental right to
abortion in all circumstances. And it is undisputed that protecting
2We are grateful for the many amici briefs which were submitted to aid the Court in
considering the important issues before us.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 8 of 43
prenatal life falls within the State’s broad authority under Article 1,
Section 1 to protect the public’s health, welfare, and safety.
Because Senate Bill 1 can be enforced consistent with Article 1, Section
1, we vacate the preliminary injunction without prejudice to future,
narrower, facial or as-applied challenges.3
I. Plaintiffs have standing.
Plaintiffs, almost all of which are abortion providers, asked the trial
court to enjoin Senate Bill 1 because the law subjects them to criminal and
regulatory penalties for assisting their patients with what Plaintiffs
contend is a constitutionally protected liberty to terminate a pregnancy.
As a threshold matter, the State argues Plaintiffs lack standing to make
this claim because they are seeking to vindicate their patients’
constitutional rights rather than their own. We disagree.
Standing is a doctrine deriving from our constitutional separation of
powers. Under our tripartite system of government, the judicial branch is
limited to exercising the “judicial power” of resolving “real issues through
vigorous litigation.” Horner v. Curry, 125 N.E.3d 584, 589 (Ind. 2019); see
also Ind. Const. art. 7, § 1 (assigning the “judicial power”). To ensure
courts resolve only “real issues” rather than engage in “academic debate
or mere abstract speculation,” Horner, 125 N.E.2d at 589, we require
plaintiffs to show they have “standing” to present the contested issue and
to invoke a court’s adjudicative power. That means they must
demonstrate “a personal stake in the outcome of the litigation” and that
they have suffered, or are in imminent danger of suffering, “a direct injury
as a result of the complained-of conduct.” Solarize Ind., Inc. v. S. Ind. Gas &
Elec. Co., 182 N.E.3d 212, 217 (Ind. 2022) (quotations omitted); see also
Holcomb v. Bray, 187 N.E.3d 1268, 1286 (Ind. 2022) (“An injury must be
personal, direct, and one the plaintiff has suffered or is in imminent
3Because we agree with the State that Plaintiffs’ facial challenge to the constitutionality of
Senate Bill 1 fails, it is unnecessary to reach the State’s argument that the trial court
improperly weighed the preliminary injunction factors.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 9 of 43
danger of suffering.”). These requirements apply when a plaintiff seeks to
invoke a court’s authority to determine the constitutionality of a statute.
See, e.g., Gross v. State, 506 N.E.2d 17, 21 (Ind. 1987).
Because “[c]onstitutional rights are personal,” a plaintiff generally lacks
standing to contest state action that results in only a “violation of a third
party’s constitutional rights.” Adler v. State, 248 Ind. 193, 225 N.E.2d 171,
172 (1967). But if a statute’s enforcement imminently threatens a plaintiff
with their own direct injury, they have standing to challenge the statute’s
constitutionality, even if their claim is that the statute is invalid because it
violates the rights of third parties. See generally 5 Ind. Law Encyc.
Constitutional Law § 22 (“As a general rule, in criminal prosecutions, the
accused has the right to question the constitutionality of the law under
which he or she is being prosecuted.”). Here, Plaintiffs are suing to enjoin
Senate Bill 1 not just because they believe it infringes on their patients’
constitutional rights, but also because, if enforced, it places them in
immediate danger of sustaining their own direct injury from criminal
prosecution or regulatory enforcement. That is enough for standing, and
our Court has repeatedly reviewed the constitutionality of abortion laws
based on abortion providers’ claims that the laws are unconstitutional
because they violate their patients’ rights. See Clinic for Women, Inc. v.
Brizzi, 837 N.E.2d 973, 975 (Ind. 2005); Humphreys v. Clinic for Women, Inc.,
796 N.E.2d 247, 248–49 (Ind. 2003); A Woman’s Choice-E. Side Women's
Clinic v. Newman, 671 N.E.2d 104, 106–07 (Ind. 1996); Cheaney v. State, 259
Ind. 138, 285 N.E.2d 265, 266 (1972).4
Secure in our jurisdiction, we turn to whether Article 1, Section 1
includes judicially enforceable rights and, if so, whether Plaintiffs have
shown a reasonable likelihood of success on the merits of their claim that
there are no circumstances in which the State can enforce Senate Bill 1
4Because we find that the abortion providers have standing, we do not consider the standing
of the remaining plaintiffs. Penn-Harris-Madison Sch. Corp. v. Joy, 768 N.E.2d 940, 945 n.4 (Ind.
Ct. App. 2002).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 10 of 43
consistent with the Indiana Constitution.
II. Article 1, Section 1 is judicially enforceable.
The State argues Plaintiffs’ Article 1, Section 1 claim fails because,
unlike the other provisions in Indiana’s Bill of Rights, Section 1 is not
judicially enforceable. All Section 1 does, the State says, is merely express
“a basic philosophy of government and the relationship between the
individual and the State, but it does not include specific protections
against governmental overreach.” Appellants’ Br. at 35. We disagree. Our
review of Section 1’s text, history, structure, and purpose, as well as the
case law interpreting it, leads us to conclude (A) Section 1 is a Lockean
Natural Rights Guarantee securing fundamental rights and limiting
governmental authority to the police power, and (B) the provision is
judicially enforceable.
A. Section 1 is a Lockean Natural Rights Guarantee.
Interpreting Article 1, Section 1 requires us to uncover “the common
understanding of both those who framed” our Constitution “and those
who ratified it.” Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269,
1272–73 (Ind. 2014) (quotations omitted). We find that common
understanding by examining “the language of the text in the context of the
history surrounding its drafting and ratification, the purpose and
structure of our constitution, and case law interpreting the specific
provisions.” Id. at 1273 (quotations omitted). As with every provision in
the Constitution, we treat Section 1 with “particular deference, as though
every word had been hammered into place.” Meredith v. Pence, 984 N.E.2d
1213, 1218 (Ind. 2013) (quotations omitted).
Article 1, Section 1 states in full:
WE DECLARE, That all people are created equal; that they are
endowed by their CREATOR with certain inalienable rights; that
among these are life, liberty, and the pursuit of happiness; that
all power is inherent in the people; and that all free governments
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are, and of right ought to be, founded on their authority, and
instituted for their peace, safety, and well-being. For the
advancement of these ends, the people have, at all times, an
indefeasible right to alter and reform their government.
Ind. Const. art. 1, § 1.
The first state constitutional document to include this set of guarantees
was the Virginia Declaration of Rights in 1776, which was the first bill of
rights adopted through a popularly elected convention. Steven G.
Calabresi & Sofía M. Vickery, On Liberty and the Fourteenth Amendment: The
Original Understanding of the Lockean Natural Rights Guarantees, 93 Tex. L.
Rev. 1299, 1313–14 (2015). A month after Virginia adopted its Declaration
of Rights, Pennsylvania adopted a similar provision in its constitution. Id.
at 1317–18. Around the same time, Thomas Jefferson used the Virginia
provision as a model for expressing these same ideas in the Declaration of
Independence. Id. at 1318–19.
These provisions, known as “Lockean Natural Rights Guarantees,”
quickly became standard in state constitutions, and they are generally
understood as constitutionalizing the social contract theory of the English
political philosopher John Locke. Id. at 1303–04. Locke believed that before
forming a civil society we were in a state of nature where we all had equal
freedom to do as we pleased so long as we did not “take away or impair
the life, or what tends to the preservation of life, the liberty, health, limb,
or goods of another.” John Locke, Two Treatises of Government and A Letter
Concerning Toleration 102 (Ian Shapiro ed., Yale Univ. Press 2003) (1690).
That freedom included natural rights: “every [person] has a property in
[their] own person,” the “labour of [their] body,” and “the work of [their]
hands.” Id. at 111. But we left the state of nature and entered a civil
society, giving up some of our natural rights in exchange for better
protection of the remaining natural rights and for the enjoyment of new
positive rights (e.g., the right to a jury trial). See generally Michael W.
McConnell, Natural Rights and the Ninth Amendment: How Does Lockean
Legal Theory Assist in Interpretation?, 5 N.Y.U. J.L. & Liberty 1, 11 (2010); see
also Price v. State, 622 N.E.2d 954, 959 (Ind. 1993) (“Under [the natural
rights] theory, individuals are deemed to have ceded a quantum of their
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‘natural’ rights in exchange for ‘receiving the advantages of mutual
commerce.’” (footnote omitted) (quoting Sir William Blackstone,
Commentaries on the Laws of England I:125 (Thomas M. Cooley ed., 3d ed.
1884))).
The only reason for giving up some natural rights is to better secure the
remainder, so citizens do not relinquish natural rights beyond what is
reasonably necessary to secure the natural rights of the broader
community. Locke, supra, at 156–57; see also Whittington v. State, 669 N.E.2d
1363, 1368 (Ind. 1996) (“The purpose of state power, then, is to foster an
atmosphere in which individuals can fully enjoy that measure of freedom
they have not delegated to government.”). For that reason, civil laws can
“be directed to no other end but the peace, safety, and public good of the
people,” Locke, supra, at 157,5 or what we call the “police power.” As
George Mason, the author of the first Lockean Natural Rights Guarantee,
explained:
To protect the weaker from the injuries and insults of the
stronger were societies first formed; when men entered into
compacts to give up some of their natural rights, that by union
and mutual assistance they might secure the rest; but they gave
up no more than the nature of the thing required. Every society,
all government, and every kind of civil compact therefore, is or
ought to be, calculated for the general good and safety of the
community. Every power, every authority vested in particular
men is, or ought to be, ultimately directed to this sole end; and
whenever any power or authority whatever extends further, or
is of longer duration than is in its nature necessary for these
5 See also Price v. State, 622 N.E.2d 954, 959 (Ind. 1993) (“This right of the majority to define and
effect salubrious conditions is sometimes viewed as being at odds with the ability of
individuals to pursue their personal ends. Our founders, however, perceived no dichotomy
between individual rights and communal needs. Instead, they viewed the needs which gave
rise to state powers as impediments to the full enjoyment of rights. State powers were thus
intended to perform an ameliorative function and were considered liberty-enhancing when
exercised by a properly structured republican government.” (citations omitted)).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 13 of 43
purposes, it may be called government, but it is in fact
oppression.
Calabresi & Vickery, supra, at 1314 (quoting George Mason, Remarks on
Annual Elections for the Fairfax Independent Company (Apr. 17–26,
1775), in 1 Papers of George Mason 229–30 (Rutland ed., 1970)).
Article 1, Section 1 implements this theory for our State, and it protects
Hoosiers’ rights in at least two key respects.
First, it guarantees certain fundamental rights. Those of course include
rights listed throughout our Constitution, including Indiana’s Bill of
Rights. Price, 622 N.E.2d at 959 n.4. But the “individual guarantees in our
Bill of Rights merely help to highlight some of the particular contours of
the state power as it has generally been delegated.” Whittington, 669
N.E.2d at 1369 n.6. They “describe with greater particularity some of the
personal freedoms the restriction of which would not, in the framers’
view, tend to advance those permissible state goals.” Zoeller v. Sweeney, 19
N.E.3d 749, 753 (Ind. 2014) (emphasis omitted) (quotations omitted) (also
explaining that the guarantees throughout the rest of the Bill of Rights
“are but concrete manifestations” of fundamental rights).
Article 1, Section 1’s fundamental rights also include unenumerated
rights under the umbrella of “life, liberty, and the pursuit of happiness.”
Ind. Const. art. 1, § 1; see Price, 622 N.E.2d at 959 n.4 (explaining that
fundamental rights include “those which have their origin in the express
terms of the constitution or which are necessarily to be implied from those
terms” (emphasis added) (quotations omitted)). Those rights protect any
interest “of such a quality that the founding generation would have
considered it fundamental or ‘natural’”—in other words, beyond the reach
of government. Price, 622 N.E.2d at 959 n.4. It is impossible to catalogue
Section 1’s implicit fundamental rights, but a few examples include
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 14 of 43
having and raising children,6 pursuing a vocation that does not harm
others,7 and patient self-determination.8
Of course, the precise contours of all rights, including unenumerated
rights, must be established through individual cases in which each right is
described with the appropriate level of particularity to consider whether
the founding generation would have considered the right fundamental.
And “[a]s a matter of state constitutional law, Indiana courts have used a
number of different standards of review, depending upon the particular
constitutional right alleged to be infringed and the magnitude of it.” Clinic
for Women, Inc. v. Brizzi, 837 N.E.2d 973, 982 (Ind. 2005).
Second, Article 1, Section 1 limits governmental authority to the police
power. Unlike the Federal Constitution, our Indiana Constitution does not
“establish a system of expressly enumerated powers.” Whittington, 669
N.E.2d at 1369 n.6. Instead, “power is generally vested in the legislature,
and the outer boundary of that general power is marked by the
requirement that it be exercised to advance ‘peace, safety, and well-
being.’” Id. (cleaned up).9
6See State v. Alcorn, 638 N.E.2d 1242, 1245 (Ind. 1994) (recognizing a fundamental right to
“procreation”); In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (recognizing that “a parent’s interest
in the care, custody, and control of his or her children is perhaps the oldest of the
fundamental liberty interests” (cleaned up)).
7Kirtley v. State, 227 Ind. 175, 84 N.E.2d 712, 714 (1949) (“However, the personal liberty clause,
Art. 1, § 1 of the Constitution of Indiana, or the right to pursue any proper vocation, is
regarded as an unalienable right and a privilege not to be restricted except perhaps by a
proper exercise of the police power of the state.”); In re Leach, 134 Ind. 665, 34 N.E. 641, 642
(1893) (“Before the law this right to a choice of avocations cannot be said to be denied, or
intended to be abridged, on account of sex. Certainly the framers of our constitution intended
no such result, and surely the legislature entertained no such purpose. Instead of such results
having been intended in this state, we find the constitution declaring that such rights are
inalienable.” (citing Ind. Const. art. 1, § 1)).
8See In re Lawrance, 579 N.E.2d 32, 39 (Ind. 1991) (“Like the common law and our constitution,
Indiana’s statutes reflect a commitment to patient self-determination.”).
9See generally Monrad Paulsen, “Natural Rights”-- A Constitutional Doctrine in Indiana, 25 Ind.
L.J. 123, 143 (1950) (explaining that “[t]he guarantee of natural rights, curtailed only to the
extent which the promotion of the public peace, safety, health or welfare requires, has become
the basic doctrine of Indiana constitutional law”).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 15 of 43
When evaluating whether state action is an appropriate exercise of the
police power, we “confine [ourselves] to the question, not of legislative
policy, but of legislative power.” Dep’t of Fin. Insts. v. Holt, 231 Ind. 293,
108 N.E.2d 629, 634 (1952). To fall within the police power, a “law must
not be arbitrary, unreasonable or patently beyond the necessities of the
case.” Id. “If the law prohibits that which is harmless in itself, or if it is
unreasonable and purely arbitrary, or requires that to be done which does
not tend to promote” the police power, “it is an unauthorized exercise of
power.” Id. So, for example, we have held the General Assembly cannot
prohibit people from advertising their lawful business, Needham v. Proffitt,
220 Ind. 265, 41 N.E.2d 606, 608 (1942), or require insurance agents to
work on commission rather than salary, Dep’t of Ins. v. Schoonover, 225 Ind.
187, 72 N.E.2d 747, 750 (1947), because those restrictions were not
rationally related to protecting the public’s peace, safety, and well-being.
In contrast, the General Assembly may impose professional licensure
requirements when they are rationally related to protecting consumers
even though such laws may limit someone’s ability to profit off their
labor. See Ice v. State ex rel. Ind. State Bd. of Dental Exam’rs, 240 Ind. 82, 161
N.E.2d 171, 173–75 (1959).
There is symmetry here. While the State worries judicial enforcement of
unenumerated rights may overreach, most of the State’s police powers are
unenumerated too, so there should be equal concern that the State might
view its own powers too generously. After all, our Constitution’s
language in delegating authority to the State for promoting the “peace,
safety, and well-being” of Hoosiers is no less capacious than its language
guaranteeing Hoosiers’ rights to “life, liberty, and the pursuit of
happiness.” Ind. Const. art. 1, § 1. So, Article 1, Section 1 strikes a balance:
it allows the State broad authority to promote the peace, safety, and well-
being of Hoosiers, but that authority goes no farther than reasonably
necessary to advance the police power, and not at the expense of
alienating what Hoosiers have commonly understood to be certain
fundamental rights.
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B. Section 1 is judicially enforceable.
Roughly forty state constitutions now contain Lockean Natural Rights
Guarantees, and courts in most of those states have concluded the clauses
are judicially enforceable. Joseph R. Grodin, Rediscovering the State
Constitutional Right to Happiness and Safety, 25 Hastings Const. L.Q. 1, 1, 22
(1997). Several state supreme courts have recently analyzed their
analogous provisions in addressing claims like the one before us today,
and they all concluded those provisions are judicially enforceable. Okla.
Call for Reprod. Just., 526 P.3d 1123, 1130 (Okla. 2023); Wrigley v. Romanick,
988 N.W.2d 231, 240 (N.D. 2023); Planned Parenthood Great Nw. v. State, 522
P.3d 1132, 1167–95 (Idaho 2023); Hodes & Nauser, MDs, P.A. v. Schmidt, 440
P.3d 461, 471 (Kan. 2019). We reach the same conclusion based on our
review of Section’s 1 text, “illuminated by history and by the purpose and
structure of our constitution and the case law surrounding it.” Price, 622
N.E.2d at 957.
1. Text
We start with the text. Section 1 says Hoosiers “declare” they have
retained certain inalienable rights related to life, liberty, and the pursuit of
happiness and that the government is restrained to pursuing only their
peace, safety, and well-being. Ind. Const. art. 1, § 1. The State reads the
word “declare” as a clue that the framers did not mean to give the courts a
role in enforcing Section 1 because the remaining provisions of the Bill of
Rights (and many other constitutional provisions, for that matter) use the
word “shall” instead of “declare” when conveying specific and mandatory
direction. Because Section 1 does not use the word “shall,” the State reads
what Section 1 “declare[s]” as mere “sweeping declarations of
fundamental truths,” not enforceable limits on government power.
Appellants’ Br. at 37. We read the text differently.
While the framers typically used the word “shall” for specific,
mandatory direction, there are other times outside Section 1 when they
used the word “declare.” They required that “[e]very statute shall be a
public law[]” unless “otherwise declared in the statute itself.” Ind. Const.
art. 4, § 27. Additionally, legislative acts can take effect before publication
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in the counties if an emergency is “declared” in the statute’s preamble. Id.
§ 28. And just as Section 1 declares the legal boundaries of government
power, Article 14 “declare[s]” the State’s geographic boundaries. Ind.
Const. art. 14, § 1.
In any event, even when constitutions “declare” fundamental truths
about the government, that does not mean the declarations cannot be
judicially enforced. One example is separation-of-powers provisions.
James Madison referred to those provisions as identifying “dogmatic
maxims with respect to the construction of the Government; declaring that
the legislative, executive, and judicial branches shall be kept separate and
distinct.” 1 Annals of Cong. 454 (1789) (Joseph Gales ed., 1834). He placed
less faith in these dogmatic maxims than he did in a constitutional
architecture that incorporated “checks” to “prevent the encroachment
of . . . one [branch of government] upon the other.” Id.
But the fact that Madison placed more faith in the separate branches
jealously guarding their powers than he did in constitutional separation-
of-powers provisions does not mean those provisions had no teeth. To the
contrary, even though our own Constitution’s separation-of-powers
provision conveys the typical dogmatic maxim relating to the structure of
government, Ind. Const. art. 3, § 1, we routinely enforce the provision, see,
e.g., Holcomb v. Bray, 187 N.E.3d 1268, 1276 (Ind. 2022). Thus, the fact that
Section 1 “declares” inalienable rights does not render the provision
unenforceable.
2. Changes from the 1816 Constitution to the 1851
Constitution
The history and evolution of Article 1, Section 1 reveal it has always
been understood to be enforceable. The 1816 Constitution had an analog
to Section 1, but it was spread over two sections:
Sect. 1st. That the general, great and essential principles of
liberty and free Government may be recognized and unalterably
established; WE declare, That all men are born equally free and
independent, and have certain natural, inherent, and
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unalienable rights; among which are the enjoying and defending
life and liberty, and of acquiring, possessing, and protecting
property, and pursuing and obtaining happiness and safety.
Sect. 2. That all power is inherent in the people; and all free
Governments are founded on their authority, and instituted for
their peace, safety and happiness. For the advancement of these
ends, they have at all times an unalienable and indefeasible right
to alter or reform their Government in such manner as they may
think proper.
Ind. Const. of 1816 art. I, §§ 1–2.
During the 1850–51 Constitutional Convention, the framers ultimately
combined these two provisions into one—but not before fervent debate.
Delegate Owen, for example, questioned whether, given the Declaration
of Independence, an inalienable-rights provision was necessary, noting
that “in the constitutions of several of the States it is wholly omitted.” 1
Report of the Debates and Proceedings of the Convention for the Revision of the
Constitution of the State of Indiana 958 (1850). Though he was not alone in
this view, id. at 966–67, 970–71, other delegates vehemently disagreed.
Delegate Kinley, for example, implored that an inalienable-rights clause
“should occupy a prominent place in the Constitution of a free people.” Id.
at 964. He presciently recognized that “this grave political idea that all
men possess the same inherent rights, is a truth too far in advance of the
age, a truth which time will appreciate, a truth which, in practice as well
as in theory, the world will ultimately adopt.” Id. (emphasis omitted).
Delegate Howe similarly expressed, “[I]t is a great fundamental truth, that
lies at the foundation of all human governments, that men possess these
inherent and inalienable rights.” Id. at 972. And he later stated, “There is
no means by which you can have a government of true liberty, unless you
can restrict the sovereign power.” Id. at 974. Delegate Dunn likewise
believed that “the very object of a Constitution is to protect the minority in
the enjoyment of their rights—to put a restraint upon the hot blood and
the strong arm of the majority. And unless this restraint is employed in
[the Constitution], you leave unrestricted a power which history proves is
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peculiarly liable to abuse.” Id. at 956. He thus wanted to “give . . . this
sentiment the first place in our bill of rights, that our children and our
children’s children may early learn it, and cherish it in their hearts as one
of the fundamental principles of our government.” Id. at 957.
Ultimately, these voices won the day, and the provision was referred to
the committee on revision, arrangement, and phraseology. Id. at 974. The
finalized, ratified version combined Sections 1 and 2 of the 1816
Constitution into Article 1, Section 1. But combining the two sections was
not intended to change the meaning or enforceability of the Lockean
Natural Rights Guarantee. See Monrad Paulsen, “Natural Rights” -- A
Constitutional Doctrine in Indiana, 25 Ind. L.J. 123, 128 (1950) (explaining
that the rewording in the 1851 provision was not meant to change the
meaning); John D. Barnhart & Donald F. Carmony, Indiana’s Century Old
Constitution 12 (1951) (“The sections which define and protect the
fundamental liberties and rights of the citizens were rearranged and
restated in the new document, but there was little that was significantly
different.”). It thus makes no difference that Section 1 in our current
Constitution retains the word “declare” rather than omitting that word as
the second section in the 1816 Constitution did. Combining the two
sections also aligned with the Madisonian view that protecting
fundamental rights and limiting government power were two sides of the
same coin. See Letter from James Madison to George Washington (Dec. 5,
1789), in 4 Papers of George Washington: Presidential Series 367–69 (D.
Twohig ed., 1993); see also Randy E. Barnett, The Proper Scope of the Police
Power, 79 Notre Dame L. Rev. 429, 483 (2004) (“In this way, Lockean
theory provides both a powerful rationale for and an important limit upon
the powers of government that is reflected in the police power doctrine.
The police power is the legitimate authority of states to regulate rightful
and prohibit wrongful acts.”).
Indiana’s decision to retain its Lockean Natural Rights Guarantee
adhered to the approach of all the other states which had those provisions
at the time. See Calabresi & Vickery, supra, at 1323 (“We are not aware of
any instance of a state convention permanently removing a Lockean
Natural Rights Guarantee from its constitutional text between the
Founding and 1868.”). And the above history reflects that our framers and
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ratifiers likewise understood that Article 1, Section 1 would be judicially
enforceable.
3. Structure and Purpose
Our understanding that Section 1 is judicially enforceable also aligns
with our Constitution’s structure and purpose. Our Constitution has a
preamble, but its framers—more than one-third of whom had legal
training10—did not include the Lockean Natural Rights Guarantee there.
Instead, and unlike the Federal Constitution, they made it the first section
in our Bill of Rights. Placing the Guarantee in the Bill of Rights rather than
a preamble suggests the framers and ratifiers intended to make the
provision judicially enforceable along with the rest of the Bill of Rights.
And considering that the “principal task” of the Constitution is to
constitutionalize the Lockean theory of government, Price, 622 N.E.2d at
959, it is no surprise that this is the first provision providing context for
those that follow. See Barnhart & Carmony, supra, at 12.
The State, however, worries that reading Section 1 as judicially
enforceable will “wreak havoc on the constitutional structure” because it
“would permit litigants to circumvent the framers’ deliberate choices
about which rights to include in Article 1 and how to frame them,”
allowing litigants to evade the limits of other provisions in the Bill of
Rights by simply invoking Section 1’s “capacious reference to ‘life, liberty,
and the pursuit of happiness.’” Appellants’ Br. at 37. But the State has
things backwards.
The more particular guarantees of liberty throughout the Bill of Rights
“are but concrete manifestations” of Article 1’s more general limiting
principle that state power is limited to the police power and that Hoosiers
have retained certain fundamental rights. Zoeller, 19 N.E.3d at 753
(quotations omitted). Contrary to the State’s framing, the “Indiana
10Hon. Brent E. Dickson, Thomas A. John, & Katherine A. Wyman, Lawyers and Judges as
Framers of Indiana’s 1851 Constitution, 30 Ind. L. Rev. 397, 397 (1997).
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Constitution does not grant government an absolute, limitless state power
and then withdraw discrete portions of it by specific excision.”
Whittington, 669 N.E.2d at 1369 n.6. So the structure and purpose of our
Constitution bolster our conclusion that Article 1, Section 1 is judicially
enforceable.
4. Case law
A review of our case law applying Article 1, Section 1 leads to the same
conclusion. We first relied on the 1816 version of Section 1 to hold that the
Constitution prohibited slavery even in situations not contemplated in the
more specific anti-slavery provisions provided elsewhere in the
document, such as when Polly Strong, a woman enslaved before the State
existed, had to be freed. State v. Lasselle, 1 Blackf. 60, 62 (1820). After
considering “elaborate research into the origin of our rights and
privileges, and their progress until the formation of our State government,
in 1816,” we revealed no hesitation in relying on Section 1 to free Strong.
Id. at 61; see also Hon. Loretta H. Rush & Marie Forney Miller, Cultivating
State Constitutional Law to Form a More Perfect Union--Indiana’s Story, 33
Notre Dame J.L. Ethics & Pub. Pol’y 377, 382 (2019) (explaining that
Section 1 “contributed to the Indiana Supreme Court’s holding in Polly
Strong’s case that the state constitution prohibits slavery in Indiana”);
Calabresi & Vickery, supra, at 1338 (explaining that our Court identified
Section 1 as “critical textual support for holding that slavery was
unconstitutional even where the slave had been purchased prior to the
existence of the state”).
Then, starting just a few years after Section 1 was folded into the 1851
Constitution—and continuing in the following decades—we invalidated
many statutes based on the provision. Those statutes included a liquor
control act, Herman v. State, 8 Ind. 545, 556–58 (1855); Beebe v. State, 6 Ind.
501, 510, 522 (1855), overruled on other grounds by Schmitt v. F. W. Cook
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 22 of 43
Brewing Co., 187 Ind. 623, 120 N.E. 19, 21 (1918);11 a statute requiring the
weekly payment of wages, Republic Iron & Steel Co. v. State, 160 Ind. 379, 66
N.E. 1005, 1009 (1903); a minimum wage law, Street v. Varney Elec. Supply
Co., 160 Ind. 338, 66 N.E. 895, 896 (1903); a statute calling for a
constitutional convention, Bennett v. Jackson, 186 Ind. 533, 116 N.E. 921, 923
(1917); a statute prohibiting a licensed funeral director and embalmer from
advertising his services to the public in newspapers, Needham, 41 N.E.2d at
607; a statute fixing a county’s minimum prices that barbers could charge
for their services and the barbers’ hours of operation, State Bd. of Barber
Exam’rs v. Cloud, 220 Ind. 552, 44 N.E.2d 972, 980–81 (1942); a statute
allowing only insurance agents who work on commission to sell fire and
casualty insurance, Schoonover, 72 N.E.2d at 750; a statute prohibiting
ticket scalping, Kirtley v. State, 227 Ind. 175, 84 N.E.2d 712, 715 (1949); an
automobile dealer price-fixing statute, Holt, 108 N.E.2d at 633–37; and a
statute permitting the Insurance Commissioner to refuse insurance
licenses to those in the automobile business, Dep’t of Ins. v. Motors Ins.
Corp., 236 Ind. 1, 138 N.E.2d 157, 165 (1956).
As the State points out, we later overruled or narrowed some of these
precedents, see, e.g., Schmitt, 120 N.E. at 21 (overruling our precedents
invalidating liquor control acts), but only because we embraced a more
expansive view of the police power, not because we concluded Section 1
11While Judge Perkins (members of our Court held the title “judge” rather than “justice” at
the time) wrote the lead opinions in Herman and Beebe, he did not achieve a majority for his
opinions in either case. Paulsen, supra, at 133. In 1858, after Beebe dissenters Judges Stuart and
Gookins were replaced by Judges Worden and Hanna, the Court unanimously invalidated the
liquor control act, although the new judges did not convey whether they agreed with Judge
Perkins’ constitutional analysis. Id.; see also Howe v. State, 10 Ind. 423, 423 (1858) (explaining
that it was “the unanimous opinion of the Court” that the liquor law of 1855 was
“unconstitutional and void”); Ingersoll v. State, 11 Ind. 464, 465 (1859) (“This law went into
operation, was acted under, and was not judicially annulled till about three years had elapsed
from the time of its going into force. It was not annulled by the decision in Beebe v. State, 6 Ind.
501. The Court, in that case, was equally divided upon the portion of the law inhibiting the
retail of liquors, and left that portion of it in force, by the application of the same principle
that had continued in operation the act of 1853, as above stated. The law was not annulled till
the new Court came upon the bench, when, in the case of Howe v. State, 10 Ind. 423, decided
on the 19th of June, 1858, the Court unanimously pronounced the law void.”).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 23 of 43
was unenforceable. And even when we have declined to invalidate
statutes, we have often reviewed them for their compliance with Article 1,
Section 1. See, e.g., Madison & Indianapolis R.R. Co. v. Whiteneck, 8 Ind. 217,
227, 236 (1856); Int’l Text-Book Co. v. Weissinger, 160 Ind. 349, 65 N.E. 521,
522 (1902); Cleveland, C., C. & St. L. Ry. Co. v. Marshall, 182 Ind. 280, 105
N.E. 570, 571–72 (1914); Weisenberger v. State, 202 Ind. 424, 175 N.E. 238,
240–41 (1931); Walgreen Co. v. Gross Income Tax Div., 225 Ind. 418, 75
N.E.2d 784, 788 (1947); Johnson v. Burke, 238 Ind. 1, 148 N.E.2d 413, 418
(1958); State ex rel. Ind. Real Est. Comm’n v. Meier, 244 Ind. 12, 190 N.E.2d
191, 195 (1963); Bd. of Commr’s of Howard Cnty. v. Kokomo City Plan Comm’n,
263 Ind. 282, 330 N.E.2d 92, 100 (1975); Whittington, 669 N.E.2d at 1369;
Moore v. State, 949 N.E.2d 343, 345 (Ind. 2011); see also Brizzi, 837 N.E.2d at
998 (Boehm, J., dissenting) (recognizing that our appellate courts have
sustained legislation under Section 1 “on the ground that the law reflects a
legitimate exercise of the ‘police power’ of the state, and not on the
ground that there is no justiciable issue or that the right to life, liberty, and
the pursuit of happiness has no content”).
Granted, we have often evaluated a law’s compliance with Article 1,
Section 1 alongside claims under other provisions of our Bill of Rights. But
not always. On at least four occasions throughout the twentieth century,
we held that Section 1 was an independent basis for declaring a statute
unconstitutional. Bennett, 116 N.E. at 923; Schoonover, 72 N.E.2d at 750;
Holt, 108 N.E.2d at 633–37; Ind. Dep’t of Env’t Mgmt. v. Chem. Waste Mgmt.,
Inc., 643 N.E.2d 331, 341 (Ind. 1994). Thus, our precedent has consistently
recognized that Section 1 is judicially enforceable.
In sum, a review of Article 1, Section 1’s text, changes made in the 1851
Constitution, our Constitution’s structure and purpose, and case law
applying the provision leads us to continue recognizing Section 1 as
judicially enforceable. We now turn to the scope of Article 1, Section 1’s
protections as they relate to Senate Bill 1.
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III. Plaintiffs do not have a reasonable likelihood of
success for their claim that Senate Bill 1 is
facially invalid.
“A statute challenged under the Indiana Constitution stands before this
Court clothed with the presumption of constitutionality until clearly
overcome by a contrary showing.” Paul Stieler Enters., Inc. v. City of
Evansville, 2 N.E.3d 1269, 1273 (Ind. 2014) (quotations omitted). Plaintiffs
challenge the constitutionality of Senate Bill 1 on its face rather than as
applied to any particular set of facts, which means to obtain a preliminary
injunction they needed to show they are reasonably likely to prove there
are no circumstances in which Senate Bill 1 could ever be enforced
consistent with Article 1, Section 1. Baldwin v. Reagan, 715 N.E.2d 332, 337
(Ind. 1999). A facial challenge to a statute is “the most difficult challenge
to mount successfully,” United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct.
2095, 95 L. Ed. 2d 697 (1987), because if there is “at least one circumstance
under which the statute can be constitutionally applied,” the challenge
fails, Zoeller v. Sweeney, 19 N.E.3d 749, 754 (Ind. 2014) (Rucker, J.,
concurring) (cleaned up).12
Evaluating Plaintiffs’ claim requires us first to determine the common
understanding of Section 1’s protections among those who framed and
ratified it in 1851, and then to determine the common understanding of
the legislators and voters who agreed in 1984 to change the reference in
Section 1 from “men” to “people.” Paul Stieler Enters., Inc., 2 N.E.3d at
1273. We conclude that while Section 1 precludes the General Assembly
from prohibiting an abortion that is necessary to protect a woman’s life or
to protect her from a serious health risk, Section 1’s protection of “liberty”
12A statute that is constitutional on its face may be unconstitutional when applied to a
particular plaintiff. Humphreys v. Clinic for Women, Inc., 796 N.E.2d 247, 257 (Ind. 2003).
“[U]nlike the higher burden faced by those making a facial constitutional challenge,” those
challenging the statute as applied “need only show the statute is unconstitutional on the facts
of the particular case.” State v. S.T., 82 N.E.3d 257, 259 (Ind. 2017) (quotations omitted).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 25 of 43
generally permits the General Assembly to prohibit abortions that do not
fall within one of those categories. Plaintiffs therefore cannot demonstrate
a reasonable likelihood of success on their facial challenge to Senate Bill 1,
and the preliminary injunction must be vacated.
A. 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.
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.
See generally Eugene Volokh, State Constitutional Rights of Self-Defense and
Defense of Property, 11 Tex. Rev. L. & Pol. 399, 401–07 (2007). That right to
protect one’s own life extends beyond just protecting against imminent
death, and it includes protecting against “great bodily harm.” Larkin v.
State, 173 N.E.3d 662, 670 (Ind. 2021). 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. Oral
Argument at 17:22–17:37.
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
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woman’s life or to protect her from a serious health risk. See, e.g., Dobbs v.
Jackson Women’s Health Org., 597 U.S. ----, 142 S. Ct. 2228, 2305 n.2, 213 L.
Ed. 2d 545 (2022) (Kavanaugh, J., concurring) (“Abortion statutes
traditionally and currently provide for an exception when an abortion is
necessary to protect the life of the mother.”); see generally Eugene Volokh,
Medical Self-Defense, Prohibited Experimental Therapies, and Payment for
Organs, 120 Harv. L. Rev. 1813, 1825 (2007) (demonstrating that, and
explaining why, “the abortion-as-self-defense right is largely
uncontroversial”).
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. Even when the General Assembly revised the abortion laws in
response to Roe and made clear it was not agreeing there is “a constitutional
right to abortion on demand” or that it “approves of abortion,” it also made
clear that it continued to conclude that abortion should remain available “to
save the life of the mother.” Pub. L. No. 322, § 1, 1973 Ind. Acts 1740, 1740.
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.” Ind. Code § 16-34-2-1(a)(1)(A)(i); see also id.
§ -1(a)(3)(A).
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. Cf. Gonzales v. Carhart, 550 U.S. 124, 167, 127 S. Ct. 1610, 167 L.
Ed. 2d 480 (2007) (“In an as-applied challenge the nature of the medical
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 27 of 43
risk can be better quantified and balanced than in a facial attack.”). 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.13
To enjoin the statute as a whole in all circumstances, then, Plaintiffs had
to show that Article 1, Section 1’s protection of “liberty” establishes a
woman’s right to terminate a pregnancy in all circumstances, precluding
the General Assembly from prohibiting any abortion. As we explain next,
Article 1, Section 1, does not foreclose that legislative discretion.
B. The General Assembly retains legislative discretion to
prohibit abortions that are unnecessary to protect a
woman’s life or to protect her from a serious health risk.
Article 1, Section 1 protects a fundamental right to “liberty.” Plaintiffs
contend this covers “a bundle of liberty rights”—including unenumerated
rights to privacy, bodily autonomy, and self-determination—which
coalesce to protect a fundamental right to abortion up to the point in a
pregnancy when a fetus would be viable outside the womb (around 23 or
24 weeks). Appellees’ Br. at 31. In other words, Plaintiffs’ claim depends
on the Indiana Constitution protecting the same abortion right the United
States Supreme Court recognized in Roe and Casey before recently
overruling those decisions in Dobbs. We conclude that was not how Article
1, Section 1’s framers and ratifiers understood the provision, and the 1984
amendment changing references throughout the Constitution to gender
13The dissent believes that by acknowledging the General Assembly cannot prohibit abortions
that are necessary to protect a woman’s life or to protect her from a serious health risk, we are
“effectively inviting the legislature to repeal” the statutory exceptions for lethal fetal
anomalies and pregnancies resulting from rape and incest. Post, at 16 (opinion of Goff, J.). We
convey no such invitation, and we do not urge the General Assembly to pursue or decline any
particular public policy approach. Plaintiffs invoked a woman’s right to protect her own life
and health as a basis for enjoining the law on its face. The statutory exceptions unrelated to a
pregnant woman’s life or health are not at issue for Plaintiffs’ facial challenge, and the parties
have not addressed whether our Constitution compels those exceptions, so we do not address
those distinct questions.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 28 of 43
neutral terms did not create a constitutionally protected abortion right
either.
1. The framers and ratifiers understood Article 1,
Section 1 as generally leaving abortion within the
General Assembly’s broad legislative discretion.
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.’” Price v. State, 622
N.E.2d 954, 959 n.4 (Ind. 1993). 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
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 29 of 43
at all stages of the pregnancy to the extent the federal courts interpreting
the Federal Constitution permitted. Supra, at 3–6. Since shortly after the
ratification of the 1851 Constitution, many appellate decisions have
evaluated the propriety of indictments and convictions under the abortion
statutes in effect, “and none of the resulting opinions even hinted at any
concern that the statute violated Section 1 or any other provision in the
Indiana Constitution.” Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973, 990
(Ind. 2005) (Dickson, J., concurring) (collecting authority).
Our Court did not confront a claim that there was a fundamental right
to abortion until 1972, and that claim related only to the Federal
Constitution. Cheaney v. State, 259 Ind. 138, 285 N.E.2d 265, 266 (1972). Our
predecessors in that case rejected the argument, explaining that courts had
for centuries “recognized the property rights of an unborn child without
regard to the state of gestation” and that an “infant” in “the mother’s
womb[] is supposed in law to be born for many purposes.” Id. at 267
(quotations omitted). After acknowledging that English common law only
criminalized abortion after quickening, the Court explained the distinction
was no longer significant because quickening was just “a short-hand
method for the common law to establish the point in time when the
unborn child first became a living being.” Id. at 268. “[T]he first time the
mother felt movement” reflected “the first manifestations of life separate
and distinct from the mother.” Id. But “medical science has made great
strides since that time and quickening can no longer be considered the
point at which independent life begins.” Id.
It was almost 200 years after Indiana achieved statehood that our Court
first had a case presenting the question whether Article 1, Section 1
protected a fundamental right to abortion, and we did not decide the
question because it was unnecessary for resolving the appeal. Brizzi, 837
N.E.2d at 978. The lone dissent in that case concluded Section 1 protects a
fundamental right to abortion, but that opinion acknowledged “it is fair to
assume that no delegate to the Convention believed that, by adopting
Section 1, the framers were creating a right in pregnant women to choose
to terminate their pregnancies.” Id. at 999 (Boehm, J., dissenting).
Dobbs exhaustively surveyed common law authorities leading up to the
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 30 of 43
time of Indiana’s founding, and those authorities also confirm there was
no common understanding of a fundamental right to abortion. 142 S. Ct.
at 2249–51.
Until the latter part of the 20th century, there was no support in
American law for a constitutional right to obtain an abortion. No
state constitutional provision had recognized such a right. Until
a few years before Roe was handed down, no federal or state
court had recognized such a right. Nor had any scholarly treatise
of which we are aware. And although law review articles are not
reticent about advocating new rights, the earliest article
proposing a constitutional right to abortion that has come to our
attention was published only a few years before Roe.
Id. at 2248 (footnote omitted).
The dissent believes we misunderstand or oversimplify this history in
four respects, but the critiques confirm rather than refute our conclusion.
Post, at 11–14 (opinion of Goff, J.). We set aside for a moment our differing
view of the historical record and assume each of the dissent’s historical
descriptions are correct: (1) Indiana first criminalized abortion 188 years
ago rather than 215 years ago; (2) one motivation for earlier abortion laws
was that abortion was unsafe for women; (3) early Indiana law recognized
the unborn as a person with rights separate from the pregnant woman
only after she first felt a fetal movement (“quickening”); and (4) a failed
legislative effort in 1967 to legalize abortion demonstrates that legislative
views of abortion have shifted over time. Id. All those points illustrate that
for as long as the 1851 Constitution has been in force, Indiana has always
delegated to the General Assembly the responsibility for determining
whether and what degree to limit abortion, and Indiana has not treated
abortion as a fundamental right.
For their part, Plaintiffs acknowledge Indiana’s history of prohibiting
abortion, but they urge us to view that history, along with the term
“liberty,” through a lens focused on women’s equality, mindful that
constitutions must be applied in evolving times of social progress. With
that much, we agree. There is no question that, in 1851, women were not
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 31 of 43
treated as equal participants in Indiana’s civic and political society. And
since 1851, women in Indiana have encountered substantial obstacles in
progressing toward equality in legal, political, civic, and other societal
arenas. Equally true, only women endure pregnancy’s greatest burdens,
which are undeniably varied.
We do not diminish a woman’s interest in terminating a pregnancy
because, for starters, it is a privately held interest—informed by privately
held considerations. Moreover, we recognize that many women view the
ability to obtain an abortion as an exercise of their bodily autonomy. Yet,
and however compelling that interest is, it does not follow that it is
constitutionally protected in all circumstances.
In determining whether our Constitution protects a woman’s interest in
obtaining an abortion when not necessary to protect her life or health,
Plaintiffs concede a legitimate, competing interest: the State’s interest in
protecting prenatal life. This interest reflects a legislative view that legal
protections inherent in personhood commence before birth. And the State
points to biological markers consistent with this conclusion—including
fetal brain development, a heartbeat, and breathing—which lead the State
to emphasize that “unborn children, being human beings, have all the
characteristics of a human being,” and many of those characteristics are
“acquired in the earliest stages of pregnancy.” Appellants’ Br. at 57
(emphasis omitted). Considerations like those have led to a broad legal
consensus—which Plaintiffs join—that there is at least some point in the
pregnancy before birth when the State may generally prohibit abortions
(with life and health exceptions), notwithstanding a woman’s interest in
terminating that pregnancy.
State governments around the country and governments around the
world take varied approaches to balancing a woman’s interest in
terminating a pregnancy against the government’s interest in protecting
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 32 of 43
the prenatal life that abortion would terminate.14 Many take Indiana’s
approach, generally prohibiting abortions with exceptions. Many others
take the approach Plaintiffs propose, banning abortions only after 23 or 24
weeks, when the fetus would be viable outside the womb. Others take an
approach in between, banning abortions at various gestational limits—
including 6 weeks, 15 weeks, 18 weeks, 20 weeks, or 22 weeks—based on
considerations like the detection of a fetal heartbeat, fetal brain
development, and when they conclude a fetus can feel pain. Some add yet
another layer of variation with exceptions related to health, social, or
economic considerations.
Plaintiffs’ acknowledgment that constitutional recognition of women’s
equality does not preclude the General Assembly from prohibiting
abortion (at least at some point in the pregnancy) reflects that their facial
challenge to Senate Bill 1 does not present a question about how to apply
an old constitutional provision to unforeseen circumstances; a question
about how to treat men and women equally; or a question about how to
ensure women have sufficient influence in lawmaking. The question is
whether our Constitution entrusts to the General Assembly or to our
Court the policymaking discretion to decide which of these varied
approaches best balances the irreconcilable interests of a woman wishing
to terminate a pregnancy against the interest in the prenatal life that
abortion would terminate.
The answer, in short, is that our history and traditions reflect that
Hoosiers have generally delegated this responsibility to the General
Assembly, which—as a legislative body with representatives in both
14For surveys of the laws discussed in this paragraph, see Allison McCann et al., Tracking the
States Where Abortion is Now Banned, N.Y. Times,
www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html
[https://perma.cc/X9Z3-DDPZ] (June 5, 2022, 11:00 AM); State Bans on Abortion Throughout
Pregnancy, Guttmacher Inst. (June 1, 2023), https://www.guttmacher.org/state-
policy/explore/state-policies-later-abortions [https://perma.cc/XUT4-7DYC]; and The World’s
Abortion Laws, Ctr. for Reprod. Rts., https://reproductiverights.org/maps/worlds-abortion-
laws/ [https://perma.cc/7CC8-CNJT] (last visited June 29, 2023).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 33 of 43
chambers constantly answerable to their constituents throughout the State
in recurring elections—should continually recalibrate this interest-
balancing to reflect society’s contemporary views. To be sure, abortion
legislation must still comply with the constitutional limits that apply to all
legislation. That includes limiting governmental authority to a proper
exercise of the police power, Ind. Const. art. 1, § 1, and forbidding the
General Assembly from granting “to any citizen, or class of citizens,
privileges or immunities, which, upon the same terms, shall not equally
belong to all citizens,” id. § 23. But Hoosiers have not delegated this
policymaking responsibility to our five-member, unelected Court, which
does not have the institutional tools to discern Hoosiers’ divergent views
on whether abortion generally should be legal; whether abortion’s legality
should be subject to gestational limits, and if so, what those limits should
be; and whether and which other exceptions should apply to abortion
limits.
Of course, our Constitution leaves space for contemporary attitudes to
shape how questions unanticipated at the founding are resolved. See, e.g.,
In re Leach, 134 Ind. 665, 34 N.E. 641, 642 (1893) (“The fact that the framers
of the constitution, or the legislators, in enacting our statute, did not
anticipate a condition of society when women might desire to enter the
profession of law for a livelihood cannot prevail as against their right to
do so independently of either.”). And our Constitution presumes society
will progress, which is why it includes an amendment process Hoosiers
have repeatedly used (although we express no view on the political
question presented by the dissent’s invitation for Hoosiers to exercise that
right). But we have no commission to revise the Constitution through
judicial interpretation, and Hoosiers’ fundamental rights are more secure
as a result. For “[i]f we can add to the reserved rights of the people, we
can take them away; if we can mend, we can mar; if we can remove the
landmarks which we can find established, we can obliterate them; if we
can change the constitution in any particular, there is nothing but our own
will to prevent us from demolishing it entirely.” Welling v. Merrill, 52 Ind.
350, 353 (1876). The same provision in Indiana’s Bill of Rights that
Plaintiffs ask us to enforce—Section 1—confirms “the people have, at all
times, an indefeasible right to alter and reform their government,” Ind.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 34 of 43
Const. art. 1, § 1, and we cannot disregard the amendment process they
have established for doing so.
In sum, our State’s history and traditions, as reflected in our Court’s
precedents, indicate that the common understanding of Section 1 among
those who framed and ratified it was that it generally left the General
Assembly with broad legislative discretion to limit abortion. And the
common understanding of those who proposed and ratified the 1984
amendment changing Section 1’s reference from “men” to “people” was
that this change did not alter Section 1’s meaning, which we discuss next.
2. The 1984 amendment revising the Constitution to
use gender neutral terms did not create a
fundamental right to abortion.
In 1984, voters ratified an amendment to Article 1, Section 1 changing
its statement that “all men are created equal” to say instead that “all people
are created equal.” Again, we must determine “the common
understanding of the proposers and ratifiers of the constitutional
amendment.” Campbell v. City of Indianapolis, 155 Ind. 186, 57 N.E. 920, 928
(1900). And here again, the historical evidence is clear: the amendment
was a purely stylistic update to the Constitution, and our Court
previously recognized “the General Assembly desired no substantive
change.” Gallagher v. Ind. State Election Bd., 598 N.E.2d 510, 514 n.4 (Ind.
1992). A century before the 1984 amendment, our Court had already held
that our Constitution protects men and women equally. Leach, 34 N.E. at
642. Changing “men” to “people” in the 1984 amendment simply better
reflected that understanding and was further meant to avoid offense.
Context is illuminating here. To amend our Constitution, the General
Assembly must twice approve a proposed amendment by a majority vote
in both chambers in successive legislative sessions, and then a majority of
voters must ratify the amendment. Ind. Const. art. 16, § 1. The 1984 change
to Article 1, Section 1 was one of over thirty changes to the Constitution
proposed by a legislative Committee to Review Obsolete Provisions
Contained in the Indiana Constitution. See Comm. to Rev. Obsolete
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 35 of 43
Provisions Contained in the Ind. Const., Final Report 3–5 (1981).
The General Assembly twice approved these changes through
legislation with bill digests describing the changes as “amend[ing] the
Constitution of the State of Indiana by updating certain antiquated style,
language, or provisions,” and with the legislation then specifically
identifying each of the dozens of revisions. Pub. L. No. 231, 1982 Ind. Acts
1658, 1658; see also Pub. L. No. 383-1983, 1983 Ind. Acts 2206, 2206. The
1982 vote supporting the amendments was 82 to 8 in the House of
Representatives and 42 to 2 in the Senate; the 1983 vote was 95 to 0 in the
House of Representatives and 48 to 1 in the Senate. H. Journal, 102d Gen.
Assemb., 2d Reg. Sess. 475 (Ind. 1982); S. Journal, 102d Gen. Assemb., 2d
Reg. Sess. 377 (Ind. 1982); H. Journal, 103d Gen. Assemb., 1st Reg. Sess.
429 (Ind. 1983); S. Journal, 103d Gen. Assemb., 1st Reg. Sess. 505 (Ind.
1983). Roughly 70% of voters then approved those changes by voting
“yes” to a ballot question phrased similarly to the bill digest, asking
voters: “Shall the Constitution of the State of Indiana be amended by
removing or restating certain antiquated language or provisions to reflect
today’s conditions, practices, or requirements?” Ind. Sec’y of State, Election
Report State of Indiana 77–78 (1984).
For Article 1, Section 1, the Committee’s Final Report explained that the
amendment “[s]trikes the masculine word ‘men’ because it is offensive to
many people as used and substitutes ‘people’, because it refers to both
males and females.” Comm. to Rev. Obsolete Provisions Contained in the
Ind. Const., supra, § 2, at 3. The Committee likewise proposed—and the
General Assembly and voters ultimately agreed—to change nine other
references in similar fashion throughout the Constitution from terms like
“men” or “man” to gender neutral terms like “people” or “person.”15 The
15See Pub. L. No. 231, § 2, 1982 Ind. Acts 1658, 1658 (amending “men” to “people” in Article 1,
Section 1 of the Indiana Constitution); id. § 3, 1982 Ind. Acts at 1658 (similarly amending
Article 1, Section 2); id. § 4, 1982 Ind. Acts at 1658 (amending “man” to “person” in Article 1,
Section 4); id. § 5, 1982 Ind. Acts at 1658 (amending “man” to “person” in Article 1, Section
12); id. § 6, 1982 Ind. Acts at 1659 (amending “man’s” to “person’s” in Article 1, Section 21); id.
§ 19, 1982 Ind. Acts at 1662 (amending “[h]e” to “[t]he Governor” in Article 5, Section 13); id. §
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 36 of 43
amendments also removed other offensive references to race and
disability throughout the Constitution. Id. §§ 7, 30, 32, at 3, 5.
As for the ballot question’s reference to changes reflecting “today’s
conditions, practices, or requirements,” both the Committee and the
General Assembly were specific about what they were changing. For
example, they eliminated former Article 2, Section 7, which prohibited
those who had engaged in a duel from holding office, and the Committee
explained they were making the change because the provision was
“antiquated.” Id. § 10, at 3. The proposed amendments changed the
legislative bill reading requirements “to conform to the long-standing
practice of reading bills by title instead of by sections.” Id. § 18, at 4. And
they struck “a phrase that has been obsolete for many years protecting the
state from liability for events that occurred prior to 1851.” Id. § 20, at 4.
Plaintiffs argue, and the dissenting opinion agrees, that changing the
reference in Article 1, Section 1 from “men” to “people” reflects a common
understanding between both the General Assembly and a majority of
voters in 1984 that our Constitution should protect a fundamental right to
abortion. They infer from the ballot question’s reference to “today’s
conditions, practices, or requirements” that legislators and voters were
contemplating Roe’s recognition of a fundamental right to abortion. But
that is not a fair inference for a few reasons.
Most importantly, there is no need to resort to inference at all. The
legislation proposing the amendments specifically identified each of the
conditions, practices, or requirements the General Assembly believed
obsolete—provisions related to practices like dueling or to concerns like
liability for events which occurred before 1851—and none of the changes
had anything at all to do with abortion. Indeed, none of the changes dealt
with anything controversial, which is why the vote to approve the
20, 1982 Ind. Acts at 1662 (similarly amending Article 5, Section 16); id. § 21, 1982 Ind. Acts at
1662–63 (similarly amending Article 5, Section 17); id. § 23, 1982 Ind. Acts at 1663 (similarly
amending Article 5, Section 20); see also Pub. L. No. 383-1983, §§ 2–6, 19–21, 23, 1983 Ind. Acts
2206, 2206–07, 2210–11.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 37 of 43
changes was nearly unanimous in the General Assembly. Of course, near
unanimity would not be expected if legislators were under the impression
they were addressing an issue that was hotly contested among their
constituents, such as whether there should be a constitutional right to
abortion.
Moreover, when the General Assembly revised its statutes to conform
to Roe, it made clear it disagreed with Roe, including in its statutory
revisions a statement that it was revising the laws only to comply with
“recent Supreme Court decisions,” Pub. L. No. 322, § 1, 1973 Ind. Acts
1740, 1741, and disclaiming any “constitutional right to abortion on
demand” or approval of “abortion, except to save the life of the mother,”
id. at 1740. Given how contentious the abortion issue has long been, it is
unlikely that between 1973 and 1984 the General Assembly not only
swung from explicitly disclaiming a constitutional abortion right to
implicitly establishing a constitutional abortion right, but it did so with
near unanimous support and without even mentioning abortion.
And if Hoosiers in 1984 were amending their Constitution to protect a
fundamental right to abortion, it is likely someone would have mentioned
it before now. Yet Plaintiffs do not point to any historical evidence—no
public statements, newspaper articles, or law review articles—suggesting
that either the General Assembly or voters, let alone both, understood that
by changing “men” to “people” they were establishing a fundamental
right to abortion under the Indiana Constitution.
Tellingly, a group of historians and state constitutional law scholars
submitted an amicus brief supporting Plaintiffs’ position that the
injunction should be affirmed, and their brief does not mention the 1984
amendment at all. The plaintiffs in Brizzi never mentioned the 1984
amendment in their briefing to our Court either. And while the dissenting
opinion in Brizzi concluded that our Constitution should protect an
abortion right, the dissent did not look to the 1984 amendment to support
that conclusion. Just the opposite, the dissent only mentioned the
amendment in a footnote explaining that the amendment made no
substantive change and that it had always been understood that the term
“men” in Section 1 “was used ‘in its general sense’ and included women.”
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 38 of 43
Brizzi, 837 N.E.2d at 995 n.2.
Finally, while we sometimes look to federal case law as persuasive
authority when we interpret state law provisions that are analogous to
federal provisions, we have not understood Hoosiers as directing us to
adhere to United States Supreme Court opinions interpreting the Federal
Constitution when we are tasked with interpreting our own Constitution.
We often say just the opposite. See, e.g., Price, 622 N.E.2d at 958 (“[W]e find
no persuasive precedent for the proposition that federal ‘overbreadth
analysis’ has taken root in the jurisprudence of the Indiana
Constitution.”). But even if Hoosiers had directed through the 1984
amendment that our Court should simply proceed in lockstep with the
United States Supreme Court’s opinions about the scope of liberty, that
Court has now held there is no fundamental right to abortion under the
Federal Constitution.
In short, Plaintiffs have not identified any compelling evidence
suggesting the framers and ratifiers who amended Section 1 in 1984 had a
common understanding that by changing “men” to “people” they were
creating a fundamental right to abortion, and there is overwhelming
evidence to the contrary.
C. Senate Bill 1 can be enforced consistent with Section 1’s
limitation of governmental authority to advance the
public’s health, welfare, and safety.
Even though Article 1, Section 1’s “liberty” protection does not cover
the broad abortion right Plaintiffs claim, the provision still restrains the
General Assembly to legislating only to advance the police power. And
when advancing the police power, the General Assembly may not pass
laws which are “arbitrary” or “patently beyond the necessities of the
case.” Dep’t of Fin. Insts. v. Holt, 231 Ind. 293, 108 N.E.2d 629, 634 (1952). In
other words, “the means used by the General Assembly . . . must have
some reasonable relation to the accomplishment of the end in view.”
Hanley v. State, 234 Ind. 326, 123 N.E.2d 452, 455 (1954). When we
undertake that review, we evaluate only the boundaries of legislative
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 39 of 43
power, not the wisdom of legislative policy. Holt, 108 N.E.2d at 634.
Our precedents have long recognized that protecting prenatal life is an
appropriate exercise of the police power, which Plaintiffs acknowledge.
See Humphreys v. Clinic for Women, Inc., 796 N.E.2d 247, 257 (Ind. 2003)
(holding that the State has a legitimate “interest in protecting fetal life”).
And Plaintiffs do not argue that Senate Bill 1’s general ban on abortions
with limited exceptions has no reasonable relation to protecting prenatal
life. That is reason enough not to affirm the injunction on the basis that the
law is unconstitutionally arbitrary.
None of this is to comment on whether the General Assembly’s
approach has been wise or unwise, just or unjust, moral or immoral. We
simply recognize that enjoining Senate Bill 1 as a facially arbitrary law
would not be an appropriate exercise of our judicial review power.
Because there are circumstances in which Senate Bill 1 can be enforced as a
proper exercise of the State’s police power, Plaintiffs cannot show a
reasonable likelihood of success on the merits of their facial challenge.
IV. Vacating the injunction does not preclude future
facial or as-applied challenges.
We are mindful that today’s decision does not end the litigation on
Plaintiffs’ remaining claim that Senate Bill 1’s hospital requirements for
performing abortions discriminate against abortion providers in violation
of Article 1, Section 23’s Equal Privileges and Immunities Clause, which is
not part of this appeal. And the decision will not foreclose future abortion
litigation in Indiana more broadly. By saying Senate Bill 1 is not
unconstitutional in its entirety in all circumstances, we do not say the
opposite either—that every single part of the law can be applied
consistent with our Constitution in every conceivable set of circumstances.
We do not prejudge those questions.
So, while Plaintiffs’ facial challenge to the entire statute fails, that does
not preclude plaintiffs with standing from pursuing a facial challenge to a
particular part of the statute, or an as-applied challenge to the State
enforcing the law in a particular set of circumstances. See League of Women
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 40 of 43
Voters of Ind., Inc. v. Rokita, 929 N.E.2d 758, 760 (Ind. 2010) (“Determining
that this case presents only facial challenges to the constitutionality of the
Voter ID Law, we now affirm the trial court’s dismissal of the complaint,
but without prejudice to future as-applied challenges by any voter
unlawfully prevented from exercising the right to vote.”).
Conclusion
Plaintiffs, which are mostly abortion providers, have standing to
challenge Senate Bill 1 because the law criminalizes their work and the
injunction they seek would protect them from the law’s criminal and
regulatory penalties. Additionally, Article 1, Section 1, which is judicially
enforceable, protects a woman’s right to an abortion that is necessary to
protect her life or to protect her from a serious health risk. But Section 1
generally permits the General Assembly to prohibit abortions which are
unnecessary to protect a woman’s life or health, so long as the legislation
complies with the constitutional limits that apply to all legislation, such as
those limiting legislation to a proper exercise of the police power and
providing privileges and immunities equally. Because the State can
enforce Senate Bill 1 within those constitutional parameters, Plaintiffs
have failed to show a reasonable likelihood of success on the merits of
their facial challenge. We thus vacate the preliminary injunction and
remand for proceedings consistent with this opinion.
Rush, C.J., and Massa, J., concur.
Slaughter, J., concurs in the judgment with separate opinion.
Goff, J., concurs in part and dissents in part with separate opinion.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 41 of 43
ATTORNEYS FOR APPELLANTS
Theodore E. Rokita
Attorney General of Indiana
Thomas M. Fisher
Solicitor General
James A. Barta
Deputy Solicitor General
Melinda R. Holmes
Deputy Attorney General
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES
Kenneth J. Falk
Gavin M. Rose
Stevie J. Pactor
ACLU of Indiana
Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE THE AMERICAN COLLEGE OF
OBSTETRICIANS AND GYNECOLOGISTS, THE AMERICAN
MEDICAL ASSOCIATION, AND THE SOCIETY FOR MATERNAL‐
FETAL MEDICINE
Mark W. Sniderman
Findling Park Conyers Woody & Sniderman, P.C.
Indianapolis, Indiana
Nicole A. Saharsky
Mayer Brown LLP
Washington, D.C.
ATTORNEY FOR AMICUS CURIAE ERIC RASMUSEN
Eric B. Rasmusen
Pro Se
Bloomington, Indiana
Indiana Supreme Court | Case No. 22S‐PL‐338 | June 30, 2023 Page 42 of 43
ATTORNEYS FOR AMICI CURIAE FREDERICK DOUGLASS
FOUNDATION AND NATIONAL HISPANIC CHRISTIAN
LEADERSHIP CONFERENCE
Jared M. Schneider
Schneider Law, P.C.
Bloomington, Indiana
Mathew D. Staver
Liberty Counsel
Orlando, Florida
ATTORNEY FOR AMICI CURIAE HISTORIANS AND STATE
CONSTITUTIONAL LAW SCHOLARS
Lauren Robel
Val Nolan Professor of Law Emerita
Indiana University Maurer School of Law
Bloomington, Indiana
ATTORNEY FOR AMICUS CURIAE INDIANA FAMILY INSTITUTE
Zechariah D. Yoder
Adler Attorneys
Noblesville, Indiana
ATTORNEYS FOR AMICUS CURIAE THE THOMAS MORE SOCIETY
Carlos Federico Lam
Lam Law Office
Indianapolis, Indiana
Paul Benjamin Linton
Northbrook, Illinois
Indiana Supreme Court | Case No. 22S‐PL‐338 | June 30, 2023 Page 43 of 43
Slaughter, J., concurring in the judgment.
For the first time in our state’s history, the Court holds that the Indiana
Constitution protects a woman’s right to terminate her pregnancy. The
Court’s unprecedented conclusion is both momentous and unnecessary on
this record. The only issue before us is the propriety of the trial court’s
preliminary injunction. That narrow issue can, and thus should, be
resolved without reaching any of the constitutional questions upon which
the Court opines gratuitously.
Also without precedent is the Court’s ruling that Plaintiffs have
standing—the right to seek judicial relief for their alleged injury. The
problem is not that Plaintiffs lack sufficient prospective injury to
themselves to confer standing. The problem is that the claim at issue in
this appeal—that Senate Bill 1 violates a constitutionally protected
abortion right under article 1, section 1—is not “their” claim. Plaintiffs do
not allege that Senate Bill 1 violates their own rights but the rights of
pregnant women. Until today, we have never held that standing exists
under Indiana law to permit an aggrieved claimant to seek judicial redress
for itself by asserting a claim belonging to someone else. In fact, we have
held the opposite.
Despite our differences, I ultimately agree with the Court that the
disputed injunction must be vacated, and so I concur in its judgment. But
unlike the Court, I would reach that result based on the lack of standing
and not on the merits.
A
As the Court notes, ante, at 9, standing is derived from our state
constitution’s separation-of-powers mandate, Ind. Const. art. 3, § 1, and is
jurisdictional in that it limits courts to exercising only judicial power, id.
art. 7, § 1 (assigning the “judicial power”). “The standing requirement is a
limit on the court’s jurisdiction which restrains the judiciary to resolving
real controversies in which the complaining party has a demonstrable
injury.” Pence v. State, 652 N.E.2d 486, 488 (Ind. 1995) (quoting Schloss v.
City of Indianapolis, 553 N.E.2d 1204, 1206 (Ind. 1990)). Because it is
jurisdictional, standing is a “threshold” issue antecedent to any discussion
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 1 of 6
of a case’s merits. Horner v. Curry, 125 N.E.3d 584, 592 (Ind. 2019)
(recognizing standing as a “threshold matter”); Pence, 652 N.E.2d at 487
(providing that “threshold question of standing” precedes merits
discussion).
To ensure courts act within our proper sphere, we must raise any lack-
of-standing concerns ourselves, even if the parties do not. Last year in
Solarize Indiana, Inc. v. Southern Indiana Gas & Electric Co., 182 N.E.3d 212
(Ind. 2022), we dismissed one of the litigants for lack of standing, although
no party had objected to standing below. Id. at 216. Because standing is
jurisdictional, the importance of a claim’s merits does not give us license
to ignore constitutional limits on our exercise of judicial power.
To prove standing, Plaintiffs claim they face some combination of
criminal liability and professional sanction if Senate Bill 1 is enforced
against them. They claim their threatened injury is attributable to the
actions of the named defendants, which consist of state medical-licensing
officials and prosecuting attorneys in the counties where they do business.
And they claim any harm they may face would be remedied by a
favorable judicial decree. These allegations, they believe, entitle them to
proceed with a state constitutional claim under article 1, section 1.
Plaintiffs are correct that these three elements—injury, causation,
redressability—are necessary to establish standing, but they are not
sufficient. Implicit in all three requirements is the further requirement that
Plaintiffs are seeking recourse for their own claim. We said as much in
State v. Clark:
In other words, one may attack the constitutionality of a statute
only when and as far as it is being, or is about to be, applied to
his disadvantage; and to raise the question he must show that
the alleged unconstitutional feature of the statute injures him
and so operates as to deprive him of a constitutional right, and,
of course, it is prerequisite that he establish in himself the
claimed right which is alleged to be infringed.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 2 of 6
247 Ind. 490, 494, 217 N.E.2d 588, 590 (1966) (emphasis added) (quoting 16
C.J.S. Constitutional Law § 76 (1956)). A “prerequisite” to standing, in other
words, is that a plaintiff must show not only that she is injured but that
the right she is asserting is her own.
Since our decision in Clark, we have reaffirmed this “own-right”
standing prerequisite. See Gross v. State, 506 N.E.2d 17, 21 (Ind. 1987)
(holding that defendant lacked standing to argue the habitual-offender
statute violated equal protection because his “rights were not affected in
any way” by the allegedly unconstitutional statute); see also Terrel v. State,
170 Ind. App. 422, 427, 353 N.E.2d 553, 556 (1976) (holding that defendant
lacked standing to challenge constitutionality of the criminal statute
because his “due process rights will not have been impaired” by the
allegedly unconstitutional portion of the statute). Indeed, the Indiana Law
Encyclopedia acknowledges this aspect of our state’s standing law in the
very same section the Court cites for its contrary view: “To have standing
to challenge the constitutionality of a statute, the appellant must establish
that his or her rights were adversely affected by operation of both the
statute and the particular section he or she is attacking.” 5 Indiana Law
Encyc. Constitutional Law § 22 (2017) (emphasis added); ante, at 10. Here,
the abortion right Plaintiffs seek to vindicate under article 1, section 1
belongs not to themselves but to their pregnant patients.
Despite these authorities, the Court observes we have “repeatedly
reviewed the constitutionality of abortion laws based on abortion
providers’ claims that the laws are unconstitutional because they violate
their patients’ rights.” Ante, at 10. But the four cases the Court cites for this
proposition do not establish Plaintiffs’ standing under Indiana law. Three
of the cases relied on federal standing principles, though federal
precedents finding third-party standing for abortion providers are no
longer on firm ground after Dobbs v. Jackson Women’s Health Organization,
142 S. Ct. 2228 (2022) (noting that prior abortion-provider cases “ignored
the Court’s third-party standing doctrine”). Humphreys v. Clinic for Women,
Inc., 796 N.E.2d 247 (Ind. 2003) (not addressing standing after trial court
relied on federal law to find standing when provider-plaintiffs alleged
state constitutional claims); A Woman’s Choice-E. Side Women’s Clinic v.
Newman, 671 N.E.2d 104 (Ind. 1996) (answering certified question from
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 3 of 6
federal court on the meaning of Indiana’s abortion law in case raising
federal constitutional challenge); Cheaney v. State, 259 Ind. 138, 140, 285
N.E.2d 265, 266 (1972) (alleging Indiana abortion law violates Ninth
Amendment to federal constitution). The fourth case, Clinic for Women, Inc.
v. Brizzi, 837 N.E.2d 973 (Ind. 2005), did not address standing at all and
rejected the plaintiffs’ merits claim that the challenged abortion law was
unconstitutional under article 1, section 1.
Our reliance on federal standing principles has been inconsistent and
selective. We have embraced federal law to the extent it permits claimants
to assert the rights of third parties. See Humphreys, 796 N.E.2d 247; A
Woman’s Choice, 671 N.E.2d at 106–07; Cheaney, 285 N.E.2d at 266. But we
have ignored federal law to the extent it insists “a plaintiff must
demonstrate standing for each claim he seeks to press”, DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 352 (2006) (citing Allen v. Wright, 468 U.S. 737,
752 (1984)). See Brizzi, 837 N.E.2d 973 (not addressing standing). As noted,
Plaintiffs here do not assert their own claims under article 1, section 1. Yet
the Court proceeds to reach the merits of their claim. Indiana law does not
support Plaintiffs’ standing as to this claim.
B
As noted, the Court sees things differently. It finds standing here and
proceeds to the injunction’s merits. Even assuming for argument’s sake
that it is proper for the Court to reach the merits here, the Court says more
than it needs to in deciding this appeal.
As Plaintiffs acknowledge, they bring a facial challenge to Senate Bill 1.
Yet they concede there are permissible, meaning lawful, applications of
Senate Bill 1. That means their facial challenge to this legislation must fail,
and the injunction banning enforcement of all its applications must be
vacated. If the Court is going to address the merits, that is the entirety of
what it needs to say about the trial court’s entry—and all it should say.
The Court, instead, says much more. Its statements today recognize an
abortion right and define its minimum contours as protecting a woman’s
right to terminate a pregnancy to protect her life or to protect her from a
serious health risk. Ante, at 8. This conclusion is premature both because
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 4 of 6
of this appeal’s procedural posture and because Senate Bill 1 already
contains exceptions to its abortion ban, including exceptions for a
pregnant woman’s life and health. We engage in judicial overreach—and
flout our doctrine of constitutional avoidance—when we proclaim the
existence and scope of an unenumerated constitutional right without first
addressing whether Senate Bill 1’s exceptions protecting a pregnant
woman’s life and health allow the procedure. Ind. Code § 16-34-2-1(a)(1),
(3). We should refrain from taking such a giant jurisprudential leap until
we are presented with an appeal that squarely presents these
constitutional questions. This appeal does not.
It has been nearly twenty years since we issued our last major abortion
ruling in Brizzi, 837 N.E.2d 973. There, we considered the constitutionality
of a statute requiring a woman seeking an abortion to give her informed
consent to the procedure and, except in case of medical emergency,
requiring a medical professional to advise her in person of certain
information about the procedure at least eighteen hours before
undergoing it. Id. at 976–77. On the merits, we rejected the plaintiffs’ facial
challenge under article 1, section 1 because they failed to show the
challenged statute was unconstitutional in all its applications. Id. at 981.
And we held that any as-applied challenge would fail because the law did
not impose a material burden on any constitutional right that may exist
under article 1, section 1. Id. at 982. Thus, we affirmed the trial court’s
dismissal of the plaintiffs’ complaint, and we specifically avoided
deciding whether an abortion right exists under that provision. Id. at 978.
In other words, we decided no more than was necessary to resolve the
issue before us, and we expressly avoided constitutional questions not
essential to our holding.
In stark contrast, the Court today dives into the constitutional scrum,
pronouncing its views of myriad issues not squarely before us and not
necessary to today’s disposition. I would limit our decision today to
Plaintiff’s lack of standing. But given the Court’s resolve to reach the
merits of the preliminary injunction, it should, consistent with our modest
approach in Brizzi, avoid deciding unnecessary constitutional questions.
Thus, it should confine its ruling to Plaintiffs’ admission that Senate Bill 1
has some lawful applications. That means the injunction, which was
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 5 of 6
premised on the trial court’s view of a likely successful facial challenge,
must be vacated.
* * *
For these reasons, I concur in the Court’s judgment but do not join its
opinion.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 6 of 6
Goff, J., concurring in part and dissenting in part.
The issue directly before this Court today is whether Indiana’s
constitution protects a woman’s qualified right to an abortion. But the
ramifications, I submit, are much broader than a simple dichotomy
between “a woman’s interest in ending a pregnancy” and the State’s
competing “interest in protecting the life that abortion would end.”1 Many
of the liberties Hoosiers take for granted—the right to vote, to travel, to
marry, to educate one’s children as one sees fit, or to refuse medical
treatment—stand on federal precedents that are also now vulnerable to
reversal. Within this “bundle of liberty rights” stands the fundamental
“right to be let alone.”2 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.
Here, the Plaintiffs sought an injunction after the General Assembly
enacted—in just eleven days—Senate Bill 1, making abortion unlawful
from the moment of conception, except in a few narrow circumstances. I
1 Ante, at 2.
2Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973, 1001, 1002 (Ind. 2005) (Boehm, J., dissenting)
(quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 1 of 17
agree with the Court’s conclusion that the Plaintiffs have standing to seek
injunctive relief. I also agree that Article 1, Section 1 of the Indiana
Constitution is judicially enforceable and that it prohibits the government
from compelling a woman to continue a pregnancy that would kill or
endanger her. But I part ways with my colleagues’ decision to terminate
the trial court’s injunction in its entirety. 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.
I. The status of a recently erased liberty right is a
constitutional question for the people, not one
solely for the legislative or judicial branches.
For the last five decades, our federal constitution—as interpreted under
one theory by a temporary majority of the United States Supreme Court—
guaranteed a qualified right to abortion in all fifty states.3 But last year,
our federal constitution—as interpreted under a different theory by a
newly configured, temporary majority of the Supreme Court—lost that
guarantee completely.4 A federal right, ingrained in our society for nearly
half a century, evaporated overnight.
When Dobbs was handed down, Indiana had neither state-level
constitutional protection for the right to choose nor a trigger law to put an
3See Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.
833 (1992).
4 See Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 2 of 17
abortion ban into effect, depriving Hoosiers of any notice that a significant
change in the law would follow if the federal barrier were ever lifted.
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.”6 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.”7
The divisive nature of the abortion debate makes the question in this
case especially difficult. But Dobbs compels us to try, because we may yet
have to grapple with other divisive issues once thought to have been
settled. Granted, the Dobbs Court took pains to “emphasize that [its]
decision concerns the constitutional right to abortion and no other right.”8
But Justice Thomas, concurring in the Court’s opinion, called for
reconsideration of all the Supreme Court’s due process precedents,
including those protecting rights to contraception, private sexual activity,
and gay marriage.9 And, as the dissent by Justices Breyer, Sotomayor, and
Kagan explained, these rights are “all part of the same constitutional
fabric, protecting autonomous decisionmaking over the most personal of
life decisions.”10 Dobbs thus places in doubt the protection of any rights
5 S. Journal, 122nd Gen. Assemb., 1st Spec. Sess. 1006, 1058 (2022).
6 Dobbs, 142 S.Ct. at 2284.
7Hon. Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 Ind. L. Rev. 575, 586
(1989).
8 Dobbs, 142 S.Ct. at 2277.
9 Id. at 2301.
10 Id. at 2319.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 3 of 17
not expressly enumerated in the United States Constitution. Such rights,
beyond those mentioned by Justice Thomas, could include the right to
vote, travel, marry, live with extended family, educate one’s children as
one sees fit, or to refuse sterilization or surgery.11 If the United States
Supreme Court reversed itself on any of these rights, Hoosiers’ only
source of legal protection against an overreaching state government
would be their own constitution.
Mindful of this broader context, we are tasked today with determining
whether Senate Bill 1 violates the Indiana Constitution. Critical to this task
is the recognition that neither we, nor our predecessors on the Indiana
Supreme Court, have ever before decided whether Article 1, Section 1
includes a qualified right to bodily autonomy. In Clinic for Women, Inc. v.
Brizzi, three members of this Court declined to answer the question while
one said there was a right and one said there was not.12 Our predecessors,
naturally, had no pressing need to answer the question because the United
States Supreme Court had already answered it for all of us. But that has
since changed, and we’re now left to fill the constitutional vacuum that
Dobbs created.
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
11In fact, this Court has held that a trial court has inherent authority to order the sterilization
of an incompetent child where “clear and convincing evidence” shows “that the medical
procedure was in the best interest of the child.” P.S. by Harbin v. W.S., 452 N.E.2d 969, 976
(Ind. 1983).
12837 N.E.2d at 978; id. at 988 (Dickson, J., concurring in result); id. at 1005 (Boehm, J.,
dissenting).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 4 of 17
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.”14 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.”15 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 for the reasons I
expand on below.
II. Senate Bill 1 is likely unconstitutional as applied
because it lacks any means of balancing a
woman’s right to liberty against the State’s
interest in regulating abortion.
I depart from the Court’s opinion on procedural grounds and on
substantive grounds. Procedurally, I reject the idea that an unsuccessful
facial challenge precludes further consideration of the Plaintiffs’
13Chaffin v. Nicosia, 261 Ind. 698, 701, 310 N.E.2d 867, 869 (1974) (addressing a claim that
legislation violated the equal privileges or immunities clause under Article 1, Section 23 of the
Indiana Constitution).
14 Price v. State, 622 N.E.2d 954, 960 (Ind. 1993).
15 Dobbs, 142 S.Ct. at 2243 (citation and quotation marks omitted).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 5 of 17
constitutional claim. Substantively, I take a different view of how we
should interpret Article 1, Section 1 to resolve the issue before us.
A. Plaintiffs’ unsuccessful facial challenge should not
preclude consideration of the issues as applied to them.
Our Court assesses the constitutionality of a statute either “on its face”
or “as applied in a particular case.”16 A plaintiff bringing a facial
challenge must show that “there are no set of circumstances under which
the statute can be constitutionally applied.”17 Courts often view facial
challenges with skepticism—and rightly so—because they “require courts
to consider hypothetical scenarios involving parties not before the court
and to decipher the full meaning of a statute without a chance for its
meaning to be developed on a case-by-case basis.”18
An as-applied challenge, by contrast, alleges that the statute is
unconstitutional in the specific circumstances before the court.19 As-
applied challenges are “the basic building blocks of constitutional
adjudication.”20 They call upon a court to exercise its limited jurisdictional
power to “adjudge the legal rights of litigants in actual controversies.”21
Here, Plaintiffs concede to making a facial challenge and they accept
that the State may, subject to exceptions, enforce an abortion ban after
some point in a woman’s pregnancy.22 For this reason, I agree with the
Court that the Plaintiffs’ facial challenge must fail. This conclusion,
16 Brizzi, 837 N.E.2d at 975.
17 Id. at 980 (quoting Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999)).
Jill Hamers, Note, Reeling in the Outlier: Gonzales v. Carhart and the End of Facial Challenges to
18
Abortion Statutes, 89 B.U. L. Rev. 1069, 1070 (2009).
William E. Thro, Respecting the Democratic Process: The Roberts Court and Limits on Facial
19
Challenges, 9 Engage: J. Federalist Soc'y Prac. Groups 54, 54 (Oct. 2008).
Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L.
20
Rev. 1321, 1328 (2000).
21 United States v. Raines, 362 U.S. 17, 21 (1960).
22 Oral Argument at 47:55–48:40.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 6 of 17
however, should not prevent us from considering the issues as applied to
the Plaintiffs and their circumstances. All constitutional challenges to a
statute, whether we deem them facial or as-applied, begin with a plaintiff
who contends that the Constitution prohibits enforcement of that statute
against her.23 Thus, virtually “all challenges are as-applied challenges.”24
In accord with this principle, this Court—including in Brizzi—has
routinely addressed a party’s as-applied challenge while declining to
address the facial challenge.25
Here, the Plaintiffs claim that, but for Senate Bill 1, they would continue
to provide or facilitate abortions “consistent with current law.”26 The
providers have been performing abortions up to “13 weeks 6 days” since a
woman’s last menstrual period.27 This activity was, until recently,
federally protected under Planned Parenthood of Southeastern Pennsylvania
v. Casey.28 And, at oral argument, counsel explained that the Plaintiffs
object to Senate Bill 1 only to the extent it prohibits abortions that were
previously protected.29 Thus, what’s at stake in this case is whether the
State may “shut down” the Plaintiffs’ operations that previously enjoyed
23 Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges, 99 Calif. L. Rev. 915, 923 (2011).
24Id. (emphasis added). In a sense, an as-applied challenge is to a facial challenge what a
lesser-included offense is to a greater offense.
25In Brizzi, there was “no claim” that the challenged abortion statute was “unconstitutional as
applied to any particular plaintiff.” 837 N.E.2d at 979. But, while concluding that the
“plaintiffs’ facial challenge must fail,” the Court “nevertheless proceed[ed] to analyze
whether, if presented with a challenge to the statute as applied, there could be an issue for
trial.” Id. at 981, 982. The Court ultimately “h[e]ld that there could not be because” the
challenged statute did “not impose a material burden upon any fundamental right of privacy
that includes protection of a woman’s right to terminate her pregnancy that might exist under
Article I, Section I.” Id. at 982. See also Price, 622 N.E.2d at 958 (passing over an overbreadth
challenge and addressing the issue on an as-applied basis); Martin v. Richey, 711 N.E.2d 1273,
1279 (Ind. 1999) (same).
26 Appellant’s App. Vol. II, p. 48.
27 Id. at 47.
28 505 U.S. at 846.
29 Oral Argument at 48:35–49:22.
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 7 of 17
federal protection.30 Regardless of the “facial challenge” label, I find it
appropriate for this Court to provide meaningful review of the parties’
rights under these existing circumstances.
B. The current version of Article 1, Section 1 likely protects
a woman’s qualified right to bodily autonomy.
Turning to the substantive discussion of the constitutional claim before
us, 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.
1. The 1984 amendment to Article 1, Section 1 (rather than
the 1851 framing) should mark the starting point for our
constitutional analysis.
The critical question before us is whether the trial court abused its
discretion in finding a reasonable likelihood that Article 1 Section 1’s
guarantee of “liberty” for “all people” includes a qualified right to bodily
autonomy. To answer that question, my colleagues attempt to discern
how our constitutional framers in 1851 understood the text of Article 1,
Section 1. Under that interpretive framework, the Court’s job is to uncover
the “‘common understanding of both those who framed’” Article 1,
Section 1 “‘and those who ratified it.’”31 The language of this
constitutional provision must be treated with “‘particular deference, as
though every word had been hammered into place.’”32
30 Appellant’s App. Vol. II, p. 111.
31Ante, at 11 (quoting Paul Stieler Enterprises, Inc. v. City of Evansville, 2 N.E.3d 1269, 1272–73
(Ind. 2014)).
32 Id. (quoting Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013)).
Indiana Supreme Court | Case No. 22S-PL-338 | June 30, 2023 Page 8 of 17
I appreciate the importance of this interpretive approach. Our founders,
engaged in the highest form of representative government, created “the
fundamental agreement” between “the citizens who comprise a state.”33
We revere their words not because they are old, but because of the
deliberative process that made them part of our organic law. It is no easy
task for a word or phrase to find its way into our constitution. And for
good reason—the process elevates our constitution beyond the political
vagaries of ordinary legislation.
But returning to the 1851 context to discern the rights of twenty-first
century women poses undeniable difficulties. In the nineteenth century,
Hoosier women enjoyed no right to vote, no right to enact laws, and no
right to decide lawsuits, let alone participate in framing our state’s organic
law.34 Instead, the prevailing wisdom of the day largely confined women
to the domestic sphere, to seek “the retirement of the social hearth,” while
men gloried in “the path of statesmanship” and “years of honest labor.”35
Women’s “natural employment” in the home, it was said, “necessarily
limit[ed] their knowledge in matters of civil government.”36 Were a
woman to participate “in the affairs of State,” the theory went, “she would
then cease to be a woman.”37 Reliance on the history made by men holding
these views, prevalent at the time of our constitutional drafting, is simply
inadequate for charting the liberty of women today. We cannot draw
constitutional law on the particular matter of women’s rights from the
doings of exclusively male institutions in times when women were
excluded and marginalized from public discussion.
Hon. Randall T. Shepard, The Renaissance in State Constitutional Law: There Are A Few
33
Dangers, But What’s The Alternative?, 61 Alb. L. Rev. 1529, 1553 (1998).
34See generally Virginia Dill McCarty, From Petticoat Slavery to Equality, in The History of Indiana
Law 177–84 (David J. Bodenhamer & Hon. Randall T. Shepard eds., 2006).
351 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the
State of Indiana 503 (1850).
36 Id. at 469.
37 Id. at 472–73.
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Still, while the present issue points to obvious problems with
unbending fidelity to “originalism,” discerning our framers’ intent plays
an important role in anchoring judicial interpretation. Our constitution,
after all, is not an “elastic instrument” that “stretches” by judicial fiat “to
meet the demands of the moment.”38 But today we need not stretch the
original constitution to accommodate our modern sensibilities. The people
themselves have updated it. In 1984, Hoosiers approved a constitutional
amendment substituting “all people” in Article 1, Section 1 for “all men.”
Hammering these new words into place first required majority approval
by two consecutive iterations of our General Assembly.39 With that hurdle
overcome, Hoosier voters then considered at the ballot box whether the
constitution should be “amended by removing or restating certain
antiquated language or provisions to reflect today’s conditions, practices,
or requirements.”40 When a majority of voters answered “yes” to that
question, the people of Indiana “respoke” into our organic law the
protections embodied in Article 1, Section 1.41 By amending our Bill of
Rights, the people corrected an existing democratic deficit in our
constitution, securing the liberty of all Hoosiers, not just the men
enfranchised in 1851. The words were changed, respoken, and hammered
into place against a historical backdrop that was far different from the one
that existed during the mid-nineteenth century. And it is that generation
of 1984 whose understanding should provide the starting point for our
interpretation.
In 1984, every woman in the United States was guaranteed a qualified
right to bodily autonomy by the federal constitution. It didn’t matter
whether she resided in Orange County, California or Orange County,
Indiana. Wherever she lived, the decision to carry a pregnancy to term
38 Finney v. Johnson, 242 Ind. 465, 472–73, 179 N.E.2d 718, 721 (1962).
39 See Ind. Const. art. 16, § 1.
40 Pub. L. No. 218-1984, § 1, 1984 Ind. Acts 1587, 1587 (emphases added).
41See Kurt Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation, 97 Ind. L.J. 1439,
1444 (2022) (explaining that amending an original constitution may “invest those words with
new meaning or clarify their proper interpretation”).
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belonged, at least during the early parts of her pregnancy, to her and her
alone. The government had to respect, at least for a time, her ultimate
right to control her own body. That qualified right to bodily autonomy
was not secured easily. It was the product of a centuries-long struggle for
gender equality. And that qualified right to bodily autonomy, as applied
to women who enjoyed full legal citizenship, should inform our
understanding of “liberty” as it appears in the current version of Article 1,
Section 1.
I make no claim that the 1984 amendment conclusively establishes that
Hoosiers sought to enshrine the fundamental right to abortion in our
organic law. But isn’t it likely that many of those who voted to amend
Article 1, Section 1, to conform with “today’s conditions, practices, or
requirements” might have contemplated that a qualified right to
reproductive freedom was in fact the law of the land? And isn’t it likely
that even those who opposed abortion in 1984 still recognized—albeit
grudgingly—that Roe established a national right to choose and, thus,
expanded our definition of liberty to incorporate that right? Such an
inference, in my view, is equally if not more feasible than that reached by
the Court.
2. The history of abortion in Indiana is not as
straightforward as the Court suggests.
In support of its conclusion that the founding generation would not
have considered abortion as a fundamental right, the Court invokes
“Indiana’s long history of generally prohibiting abortion as a criminal
act.”42 The Court also relies on the protest language used in the 1973
amendments to Indiana’s abortion law (adopted in response to Roe) as
evidence that Hoosiers, in amending our constitution in 1984, had no
intention of expanding the definition of “liberty” to incorporate the right
42 Ante, at 29.
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to choose.43 But that narrative, in my view, is either flawed or paints too
simple a picture.
To begin with, the Court submits that, even before statehood, the
Indiana Territorial government enacted a receiving statute adopting
English law, “which criminalized abortion after ‘quickening.’”44 The
Court, however, cites no English law to support this assertion. To be sure,
the British Parliament adopted legislation in 1803 making abortion a crime
at all stages of pregnancy.45 But Indiana’s reception statute adopted only
the “Common Law of England, all statutes or acts of the British
Parliament, made in aid of the Common Law, prior to” 1607 (reflecting
the significance attributed to the English settlement at Jamestown). 46
Because the English Act of 1803 came nearly two-hundred years after the
cut-off date for receiving English laws, Indiana did not in fact receive it as
part of its own law.
Second, while each of the Indiana statutes enacted during the
nineteenth century unquestionably criminalized abortion, the historical
record—and the text of the statutes themselves—suggest a legislative
design “not to prevent the procuring of abortions, so much as to guard the
health and life of the mother against the consequences of such attempts.”47
Commercial vendors in the 1850s openly advertised their abortion drugs
in newspapers like the Indianapolis Daily State Sentinel, promising to “bring
on Miscarriage,” remove “all obstructions,” and restore “the monthly
period with regularity.”48 In what was likely a response to this market of
43 Id. at 38.
44 Id. at 3–4.
45 Lord Ellenborough’s Act, 43 Geo. 3, c. 58, § 2 (1803).
Act of Sept. 17, 1807, ch. XXIV, 1807 Ind. Acts 323, 323. See Ray F. Bowman, III, English
46
Common Law and Indiana Jurisprudence, 30 Ind. L. Rev. 409, 413–14 n.25 (1997).
47See State v. Murphy, 27 N.J.L. 112, 114 (1858). See also State v. Herring, 21 Ind. App. 157, 163–
64, 48 N.E. 598, 600 (1897) (“Miscarriage or death of the woman must result as a consequence
of the unlawful antecedent act or acts done or perpetrated by the accused with the intent to
procure the abortion, or no crime under the statute is committed.”) (emphasis added).
48 Indianapolis Daily State Sentinel, Jan. 5, 1856, at 2 col. 6.
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potentially unsafe treatments, the abortion statute in effect in 1851
(embedded in the poisoning section of the Indiana criminal code),
prohibited the willful administration of “any medicine, drug, substance,”
or other thing to a pregnant woman with the intent to “procure [a]
miscarriage,” unless to preserve her life.49 Had abortion been as safe then
as it is today, we simply do not know what the framers of 1851 would
have done.
Moreover, caselaw from other jurisdictions indicates that, at the time of
the Indiana Constitution’s drafting, our framers recognized quickening—
rather than conception—as the beginning of pregnancy.50 Contemporary
legal treatises, to which our framers certainly had access, likewise
characterized a child in the womb as “not possessing an individual
existence” and thus unable to be “the subject of murder.”51 To be sure, in
Cheaney v. State (a pre-Roe case finding no fundamental right to abortion
under the federal constitution), this Court concluded that, unlike some
other states, Indiana “followed” precedent recognizing the common-law
“rights of an unborn child without regard to the state of gestation.”52 But
the cases on which the Cheaney Court relied in fact support the contrary
conclusion. In Biggs v. McCarty, for example, this Court held that, because
the “testator died after the quickening of the second child, and at a time
when it was legally capable of taking the estate jointly,” the property
49 Act of Feb. 7, 1835, ch. XLVII, 1835 Ind. Acts 66, 66.
50See Smith v. State, 33 Me. 48, 48 (1851) (“To procure an abortion, as to a female, pregnant but
not quick with child, was not, at the common law, an offence, if done with her consent.”);
Abrams v. Foshee, 3 Iowa 274, 279 (1856) (concluding that to “cause or procure an abortion,
before the child is quick, is not a criminal offence at common law, whatever it may be after the
child is quick”).
51Henry Roscoe, et al., A Digest of the Law of Evidence in Criminal Cases 694 (3d ed. 1846).
See Ind. Supreme Court, A Catalogue of Law Books Contained in the Supreme Court Library
89 (1872) (listing Roscoe’s treatise).
52 259 Ind. 138, 142–43, 285 N.E.2d 265, 267 (1972) (emphasis added).
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vested in the daughter as well as “the child with which she was then
pregnant as tenants in common.”53
Finally, the 1973 amendments to Indiana’s abortion law, adopted in
response to Roe v. Wade, should not, in my view, be taken to suggest that
most Hoosiers—by their representatives in the General Assembly—
opposed a woman’s qualified right to terminate a pregnancy. In passing
that bill, the legislature simply declined to acknowledge “a constitutional
right to abortion on demand or to indicate that it approves of abortion,
except to save the life of the mother.”54 Even one of the legislators who
introduced that measure recognized the practical need to legalize abortion
to avoid “contributing to the extinction of more lives” than without the
law.55 What’s more, the historical record reveals a shifting set of views on
the issue among our legislators, not a fixed opposition to abortion over
time. Just six years prior to the 1973 amendment, both houses of the
General Assembly voted to approve a Republican-authored bill to legalize
abortion in the state—a measure that failed to become law only because
the Democratic governor vetoed it.56 And a 1995 amendment to Indiana’s
abortion law, adopted in response to Casey, contained no protest language
akin to that in the 1973 measure.57
5386 Ind. 352, 363 (1882) (emphases added). In King v. Rea, the other case on which Cheaney
relied, this Court held that a child who “was in ventre sa mere [in the mother’s womb] when
the deed was made,” was “a person in being, and therefore could take.” 56 Ind. 1, 15 (1877).
But in reaching this conclusion, the Court pointed out that the child was born four months
after the deed was executed. Id. (noting that the “date of the deed is in April, 1855” and the
child “was born in August, 1855”). In other words, when the deed was executed, the unborn
child had quickened, and “therefore could take.” Id.
54 Pub. L. No. 322-1973, § 1, 1973 Ind. Acts 1740, 1740–41.
55Justin Walsh, The Centennial History of the Indiana General Assembly, 1816–1978, at 624
(1987) (quoting Sen. Gubbins); S. Journal, 98th Gen. Assemb., 1st Reg. Sess. 39 (1973).
56 Walsh, Centennial History at 584.
57 See Pub. L. No. 187-1995, 1995 Ind. Acts 3327, 3327–29.
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In short, the history of abortion in Indiana—its practice and regulation
by the state—is much more complex and nuanced than the Court’s
characterization allows.
C. There is likely a qualified right to bodily autonomy
under Article 1, Section 1.
In weighing the issue before us, it’s worth emphasizing what this Court
recognized over thirty years ago—that “those who wrote [our]
constitution believed that liberty included the opportunity to manage
one’s own life except in those areas yielded up to the body politic.”58
While our decision in Lawrance upheld a patient’s right of self-
determination to intelligently accept or reject life-sustaining medical
treatment, the choice to carry a pregnancy to term involves just as
important a private decision for a person “to determine what shall be
done with [her] own body.”59 Indeed, pregnancy involves such deeply
personal consequences for a woman’s body, health, family, and course of
life that the right to choose may well comprise an inalienable, core liberty
value.60 If liberty means being “let alone” to “manage one’s own life,” then
some scope for reproductive choice seems essential.61 It cannot be that,
“upon becoming pregnant, women relinquish virtually all rights of
personal sovereignty in favor of the Legislature's determination of what is
in the common good.”62
To be sure, Senate Bill 1 itself recognizes a woman’s liberty interest, if
only in part, by allowing time-limited exceptions for victims of rape and
58 Matter of Lawrance, 579 N.E.2d 32, 39 (Ind. 1991).
59 See id. (quoting Schloendorff v. Soc’y of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914)).
60See Price, 622 N.E.2d at 960 (observing that “there is within each provision of our Bill of
Rights a cluster of essential values which the legislature may qualify but not alienate”).
61Brizzi, 837 N.E.2d at 1002 (Boehm, J., dissenting) (quoting Matter of Lawrance, 579 N.E.2d at
39).
62See Hodes & Nauser, MDs, P.A. v. Schmidt, 440 P.3d 461, 486 (Kan. 2019) (finding a state-
constitutional right to abortion).
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incest and pregnancies involving a lethal fetal anomaly.63 But by holding
that the legislature retains the discretion “to prohibit abortions which are
unnecessary to protect a woman’s life or health,”64 the Court puts these
exceptions at risk, effectively inviting the legislature to repeal even the
most basic protections to a woman’s liberty.
Beyond severe health emergencies and the exceptions mentioned,
Senate Bill 1 fails to account for the myriad ways in which denial of
abortion access restricts a woman’s liberty. It permits the government’s
invasion of bodily autonomy from the moment of conception and offers
no freedom of choice whatsoever in circumstances beyond the statutory
exceptions. It seems to me that reproductive liberty is too personal and too
important for the General Assembly to set at naught when weighed in the
balance against the protection of fetal life. Because Senate Bill 1 fails to
recognize a liberty right to reproductive choice or provide any means to
balance bodily autonomy against the state’s legitimate interest in
regulating abortion, there is, in my view, a reasonable likelihood that it is
unconstitutional, at least as applied to plaintiffs who, according to the
limited record before us, have long provided abortion services safely and
are now prohibited from performing even those services that remain legal
under Senate Bill 1.
The trial court here recognized this, and our abuse-of-discretion
standard of review compels deference to its decision from this Court.65
Arguably, a trial court abuses its discretion if it misinterprets the
constitution.66 And the “meaning of our [c]onstitution” is generally “a
question of law” that “we review de novo.”67 But the trial court needed
63 Ind. Code §§ 16-34-2-1(a)(1)(A)(ii), (a)(2) (2022).
64 Ante, at 41.
65See Indiana Family & Soc. Servs. Admin. v. Walgreen Co., 769 N.E.2d 158, 161 (Ind. 2002)
(reiterating that the “grant or denial of a preliminary injunction rests within the sound
discretion of the trial court, and our review is limited to whether there was a clear abuse of
that discretion”).
66 See Hayworth v. Schilli Leasing, Inc., 669 N.E.2d 165, 167 (Ind. 1996).
67 State v. Neff, 117 N.E.3d 1263, 1267 (Ind. 2019).
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only to find a reasonable probability that the Plaintiffs would ultimately
prevail. When the “state constitutional issues have never been addressed
by this Court,”68 and when the “underlying constitutional question is
close,” I find it especially appropriate to “uphold the injunction and
remand for trial on the merits.”69 The trial court entered only a temporary
injunction, based on a limited, preliminary exchange of briefs and
affidavits. The complex constitutional issue here deserves full-scale
argumentation on an application for a permanent injunction before a
definitive ruling can be made.70
I also find no abuse of discretion by the trial court on the remaining
preliminary injunction factors. Enforcement of Senate Bill 1 would
irreparably harm pregnant women who seek to exercise the choice not to
carry a pregnancy to term. As to the balance of the equities and the public
interest, I cannot find an abuse of discretion in the trial court maintaining
the fifty-year status quo that was mandated by the United States Supreme
Court in an effort to balance a woman’s liberty against society’s interest in
fetal life.71 I would therefore affirm the trial court’s temporary injunction
to the extent it enjoins enforcement of Senate Bill 1 against Plaintiffs’
previously protected abortion activities. I would further remand these
proceedings to the trial court for full development of the parties’ evidence
and arguments on the constitutionality of the statute, or any parts of it, as
applied to the Plaintiffs. In the meantime, of course, our colleagues in the
General Assembly would be free to consider amending the legislation to
account for a woman’s qualified right to bodily autonomy or to begin the
process of a constitutional referendum.
68 Doe v. O’Connor, 781 N.E.2d 672, 674 (Ind. 2003).
69 See Ashcroft v. ACLU, 542 U.S. 656, 664–65 (2004).
70For example, the affidavits provided to the trial court by both parties contain little
discussion of the impact of the right to abortion on a woman’s course of life and, thus, how
central that right may or may not be to liberty.
71See Roe, 410 U.S. at 162–63 (holding that a state’s interest in protecting fetal life becomes
“compelling” and supports a ban on abortion at the point of viability); Casey, 505 U.S. at 861
(describing Roe’s viability rule as marking “the point at which the balance of interests tips”).
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