Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc.

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.

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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.

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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).

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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)).

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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

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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”).

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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.”).

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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

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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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