Update (12:34 p.m. on July 27)

An order was issued Wednesday that an oral argument in the abortion-related case has been rescheduled in the Court of Appeals of Indiana for 10 a.m. Dec. 6. Each side will be allotted 30 minutes, the order states.

Update (10:18 a.m. on July 20)

The Court of Appeals of Indiana made an order in relation to the state of Indiana’s request to appeal the abortion-related preliminary injunction on Wednesday.

According to court documents, the Court of Appeals of Indiana ruled that the oral argument scheduled for Sept. 12 is “postponed and will be rescheduled.”

Original Story:

INDIANAPOLIS — Officials with the state of Indiana and the Indiana Attorney General’s Office are responding to a request for clarity from the plaintiffs in an abortion-related lawsuit after a recent ruling in the Indiana Supreme Court.

According to documents filed Monday in the Marion Superior Court Indiana Attorney General Todd Rokita is claiming that a requested clarification surrounding the preliminary injunction by the plaintiffs in the case, including five anonymous plaintiffs as well as the Hoosier Jews for Choice organization, is effectively an attempt to rewrite the preliminary injunction regarding Senate Enrolled Act 1.

The preliminary injunction, ordered by Judge Heather Welch in December, found that Indiana violated the Religious Freedom Restoration Act through SEA 1, stating that the bill “substantially burdens the religious exercise of the Plaintiffs.”

Indiana Gov. Eric Holcomb signed SEA 1, a near-total abortion ban in the state, in August 2022. The bill prohibited all abortions in the state except for specific circumstances, including:

  • “An abortion may be performed if a physician determines that an ‘abortion is
    necessary 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.'”
  • “An abortion may be performed if a physician determines that the fetus has a ‘lethal
    fetal anomaly,’ before the earlier of viability or twenty (20) weeks of post fertilization age.”
  • “An abortion may be performed ‘during the first ten (10) weeks of post fertilization
    age of the fetus’ if the pregnancy is the result of rape or incest.”

The bill stresses that all other circumstances of abortion would result in criminal penalties for the physicians who violate SEA 1. It could also cause the physicians to have their medical licenses revoked.

Welch’s injunction states that the law violated RFRA because prohibiting abortion would conflict where the plaintiffs’ religion tells them to obtain an abortion in certain circumstances. The injunction enjoined the defendants from using SEA 1 to prevent the plaintiffs and Hoosier Jews for Choice’s members from obtaining abortion “as directed by their sincere religious beliefs.”

“The plaintiffs are currently altering their sexual and/or reproductive behaviors as a direct consequence of SEA 1 and their behaviors would be different but for the operation of the statute and would be different if a preliminary injunction of the statute issued,” the preliminary injunction order read. “The Court finds that SEA 1 substantially burdens the religious exercise of the Plaintiffs and that SEA 1 is not the least restrictive means to achieve a compelling governmental interest.”

After the preliminary injunction ruling, the Indiana Supreme Court ruled in a separate case that there is no constitutional right to abortion on demand in the state. According to previous reports, the court ruled in late June that SEA 1 did not violate the state constitution, overturning a county judge ruling that the bill violates constitutional privacy protections.

The ruling from the Indiana Supreme Court prompted the plaintiffs in the RFRA-related lawsuit to request clarity from the court surrounding the injunction, asking if the order extends to members of the certified class and to providers of abortions who deliver services to those who can receive them under the Court’s injunction order.

In June, the court granted a motion to certify the case as a class action, establishing the class as all people in Indiana whose religious beliefs direct them to obtain abortions in situations prohibited by SEA 1.

“Plaintiffs believe that it would be appropriate for this Court to clarify its injunction to
make this explicit to avoid erroneous denials of otherwise permitted abortions,” the request for clarification reads.

Rokita and the state of Indiana are claiming that the request for clarity is “a request to rewrite the injunction,” which they say does not cover class members or abortion providers, since the injunction was issued prior to the class being certified in June. The defendants also claim that the plaintiffs have not “asserted a religious objection to obtaining abortions at hospitals or ambulatory surgical centers – the only health facilities that can lawfully provide abortions for any reason.”

“The Court should deny Plaintiffs’ request to state that the preliminary injunction covers
class members and abortion providers,” the response read. “By its terms, the injunction does not cover either group. Plaintiffs’ request for ‘clarification’ is a request to rewrite the injunction. This Court, however, lacks jurisdiction to modify the injunction while it is on appeal. If Plaintiffs want a preliminary injunction covering class members or abortion providers, they must obtain a second injunction. But they have not shown that a second, broader injunction would be appropriate.”

According to court documents, the state has appealed the preliminary injunction, which officials said has been fully briefed and set for oral argument before the Indiana Court of Appeals on Sept. 12.