Indiana Abortion Ban Preliminarily Enjoined

In Planned Parenthood Northwest, Hawaii, Alaska, Indiana, Kentucky, Inc. v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., Sept. 22, 2022), an Indiana state trial court judge yesterday issued a preliminary injunction barring enforcement of Indiana's recently enacted restrictive abortion ban. The court said in part:

Regardless of whether the right is framed as a privacy right, a right to bodily autonomy, a right of self-determination, a bundle of liberty rights, or by some other appellation, there is a reasonable likelihood that decisions about family planning, including decisions about whether to carry a pregnancy to term-- are included in [Indiana Constitution] Article I, §1's protections....

Because of these considerations, and the history of Indiana's constitution being interpreted to provide greater protection to individual citizens that its federal counterpart, there is a reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana Constitution and the Plaintiffs will prevail on the merits as to their claim that S.B. 1 violates Article I, Section 1 of the Indiana Constitution.

The case was decided by a Special Judge after two other judges recused themselves (Background). ACLU Indiana issued a press release announcing the decision. ABC News reports that the state plans to file an appeal of the decision, and that abortion clinics in the state are preparing to reopen.

Appropriation To Christian School Challenged Under South Carolina Constitution

Suit was filed yesterday in a South Carolina state trial court contending that a state budget appropriation of $1.5 million to  Christian Learning Centers of Greenville County violates the provision in South Carolina's constitution that bars the use of public funds "for the direct benefit of any religious or other private educational institution." The complaint (full text) in Parker v. McMaster, (SC Com. Pl., filed 9/20/2022) asserts that the appropriation also contravenes the state constitution's Establishment Clause. The appropriation is aimed at partially funding a $14 million residential school for disadvantaged and at-risk youth. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Suit Contends Indiana Abortion Restrictions Violate State Constitution

Suit was filed Tuesday in an Indiana state trial court challenging the state's recently-enacted law that bans abortions, with exceptions during early pregnancy to protect the life or to prevent serious health risk to the mother, in cases if lethal fetal anomaly, and in cases of rape or incest. Also all abortions are required to be performed in hospitals or hospital-owned outpatient surgical centers. The complaint (full text) in Planned Parenthood Great Northwest v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., filed 8/3-/2022), contends in part:

S.B. 1’s total abortion ban strips away the fundamental rights of people seeking abortion care in Indiana in violation of the State Constitution. It will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and violate the Constitution’s due course of law clause through its unconstitutionally vague language.

Courthouse News Service reports on the lawsuit.

Preliminary Relief Denied In Challenge To Georgia Anti-Abortion Law

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Aug. 15, 2022), a Georgia state trial court refused to grant a preliminary injunction to prevent enforcement of Georgia's LIFE Act while its constitutionality is being litigated. The Act, with limited exceptions, bars abortions once a heartbeat is detectable. The court held that Georgia's constitutional provision that waives sovereign immunity for an injunction after the award of declaratory relief does not waive sovereign immunity for a preliminary injunction before declaratory relief has been granted. The Georgia ACLU issued a press release discussing the decision.

Idaho Supreme Court Refuses To Stop Effectiveness Of Abortion Bans

In Planned Parenthood Great Northwest v. State of Idaho,(ID Sup. Ct., Aug. 12, 2022), the Idaho Supreme Court, in a 3-2 decision, refused to issue a preliminary injunction to prevent enforcement while litigation is pending of a statute triggered by the overruling of Roe v. Wade imposing a near-total abortion ban, as well as of a six-week abortion ban. The court also vacated a preliminary stay it had previously issued barring enforcement of a law that creates civil liability in suits against persons performing abortions after a fetal heartbeat is detectable. Plaintiffs contend that the statutes violate various provisions of the Idaho constitution. The majority concluded that petitioners had not shown a substantial likelihood of success or violation of a clear legal right as to either of the statutes.

Justice Stegner, joined by Justice Zahn, dissented contending that it is sufficient that petitioners showed irreparable harm if a stay in not granted; they do not need to also show a likelihood of success. The dissent said in part:

The State and the Legislature’s only argument that irreparable harm will not result is that the Idaho Constitution does not protect the right to an abortion. This argument fails because it is premised on a decision we have not yet made.

Fox News reports on the decision.

Georgia Abortion Law Challenged Under State Constitution

After the U.S. 11th Circuit Court of Appeals last week upheld Georgia's abortion laws against federal constitutional challenges, suit was filed Monday in a Georgia state trial court challenging Georgia's 6-week abortion ban under Georgia's state constitution. The complaint (full text) in Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., filed 7/26/2022) alleges in part:

91. Because federal constitutional law clearly prohibited pre-viability abortion bans when the Six-Week Ban was enacted in 2019, the Act is void ab initio and unenforceable....

92. By banning abortion from the earliest weeks of pregnancy and thus forcing pregnancy and childbirth upon countless Georgians, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy guaranteed by various provisions of the Georgia Constitution ... and (b) equal protection....

93. By specifically excluding pregnant Georgians experiencing an acute psychiatric emergency from H.B. 481’s “medical emergency” exception, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy....

94. By requiring Georgians pregnant as a result of rape/incest to disclose their assault to law enforcement as a condition of ending the pregnancy, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy ... and (b) equal protection....

95. By allowing district attorneys to access abortion patients’ personal medical records without due process protections, the Records Access Provision violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy...

ACLU issued a press release announcing the filing of the lawsuit.

Suit Challenges Wyoming's Abortion Ban [UPDATED]

On Monday, suit was filed in a Wyoming state trial court seeking a temporary restraining order as well as preliminary and permanent injunctions against enforcement of the recently enacted Wyoming Criminal Abortion Ban. The Complaint (full text) and supporting Memorandum (full text) in Johnson v. State of Wyoming, (WY Dist. Ct., filed 7/25/2022), contends that the ban violates plaintiffs' fundamental rights protected by the Wyoming Constitution, saying in part:

Plaintiff's fundamental rights which make up the right to be left alone by the government absent a compelling need narrowly drawn include, but are not limited to, their rights to equality, due process, uniform operation of the laws, family composition, privacy and bodily integrity, conscience, and access to health care.

One of the six plaintiffs alleges:

She is a reproductive age woman with immediate plans to marry and have children. Ms. Dow is a life-long practicing conservative Jew who intends to continue practicing her faith, including raising her children in her faith, which requires her to consider abortion as an available health care alternative in the event of pregnancy conditions which threaten her health.

WyoFile reports that a district judge has found good cause exists for an emergency hearing and has set a hearing for today.

UPDATE: The Casper Star Tribune reports that the court issued a 14-day temporary restraining order against enforcement of the law on July 27, the day the law was to go into effect.

Minnesota Abortion Restrictions Struck Down Under State Constitution

In Doe v. State of Minnesota, (MN Dist. Ct., July 11, 2022), a Minnesota state trial court judge in a 140-page opinion held that a series of state abortion restrictions violate various provisions in the Minnesota state Constitution. The court summarized its conclusions:

[T]his court concludes that Minnesota abortion laws relating to mandated physician care, hospitalization, criminalization, parental notification, and informed consent are unconstitutional. 

These abortion laws violate the right to privacy because they infringe upon the fundamental right under the Minnesota Constitution to access abortion care and do not withstand strict scrutiny. The parental notification law violates the guarantee of equal protection for the same reasons. The informed consent law also violates the right to free speech under the Minnesota Constitution, because it is misleading and confusing, and does not withstand intermediate scrutiny. Accordingly, this court is declaring those laws unconstitutional and permanently enjoining their enforcement.

Courthouse News Service reports on the decision.

Florida Judge Says 15-Week Abortion Ban Violates State Constitution

Palm Beach Post and Florida ACLU report that yesterday, a Florida state circuit court judge ruled from the bench that Florida's ban on abortions after 15 weeks of pregnancy violates the Florida Constitution's protection of the right of privacy. However the judge has not yet issued a formal written opinion or entered a preliminary injunction, so the 15 week ban will go into effect today until an injunction actually issues.

Suit Seeks To Block Ohio's Heartbeat Abortion Law

 An original action seeking a writ of mandamus was filed in the Ohio Supreme Court this week by several abortion providers seeking to block enforcement of Ohio's 6-week Heartbeat abortion law and reinstate the state's former 20-week provision.  The complaint (full text) in State ex rel Preterm- Cleveland v. Yost, (Ohio Sup. Ct., filed 6/28/2022), contends various provisions in the Ohio Constitution  protect abortion rights:

12. The Ohio Constitution’s Due Course of Law Clause, when read together with other distinctive provisions, including Article I, Sections 1, 16, and 21, establishes an independent right to abortion under the Ohio Constitution. That right is infringed by S.B. 23.

13. Captured within the substantive due process rights protected by the Due Course of Law Clause are the rights to reproductive autonomy and bodily integrity....

14. Likewise, Ohio’s Equal Protection and Benefit Clause provides broader protections than its federal analogue.

Ohio Capital Journal reports on the lawsuit.

Survey Reveals References To God or The Divine In Every State Constitution

In a study posted yesterday, Pew Research Center finds that "God or the divine is mentioned at least once in each of the 50 state constitutions and nearly 200 times overall."  The researchers add:

Of the 116 times the word [God] appears in state constitutions, eight are in the Massachusetts constitution, and New Hampshire and Vermont have six references each. Perhaps surprisingly, all three of these states are among the least religious in the country, according to a 2016 Pew Research Center analysis.