Originalism and Indiana's abortion law
Recently, the Indiana Supreme Court issued a ruling regarding Indiana’s newly enacted abortion statute. In the most recent legislative session, following the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade, the Indiana General Assembly passed a statute banning abortion except in circumstances where the mother’s serious health or life is at risk, or in cases of rape or incest. Planned Parenthood sued Indiana over the abortion law and won a preliminary injunction preventing the law from taking effect. The injunction decision was appealed, ultimately making its way to the Indiana Supreme Court.
In a mixed opinion, the Indiana Supreme Court lifted the injunction, allowing the abortion restrictions to take effect.
In the case, entitled Members of the Medical Licensing Board of Indiana, et. al. v. Planned Parenthood, Planned Parenthood argued that the Indiana Constitution includes the right to abortion. It is indisputable that the Indiana Constitution does not specifically mention abortion, so Planned Parenthood asserted that Article 1, Section 1 of the Indiana Constitution applies. Article 1, Section 1 states that Hoosiers have certain “unalienable rights,” and that “among these are life, liberty and the pursuit of happiness.” Planned Parenthood argued that the right to “liberty” in the Indiana Constitution includes the inherent and unrestricted right to an abortion.
Whether the word “liberty” in the Indiana Constitution includes the right to unrestricted abortion is an analysis that is influenced by judicial philosophy. Originalists would hold that abortion rights are included in “liberty” only if the original public meaning of the term at the time the Constitution was drafted was understood to include abortion rights. Non-originalist jurists, sometimes referred to as living constitutionalists or pragmatists, would hold that “liberty” includes whatever the current court says it includes. The Members of the Medical Licensing Board Indiana Supreme Court opinion contains examples of both.
The Court’s majority opinion is written by the Supreme Court’s newest member, Justice Derek Molter. Justice Molter’s opinion is an excellent example of originalist analysis. In the opinion, Justice Molter writes:
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.
Dissenting from the majority opinion, Justice Chris Goff argues for a more pragmatic approach:
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. 31 Ante, 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 9 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 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.
This case is far from over. The issue addressed at this point was just whether the injunction should remain in place. Having reversed the injunction, the law is currently in effect. Now, the substantive issue of whether and to what extent Indiana’s Constitution includes abortion rights must be resolved. Judex will continue to follow this, and, to the extent that the rulings highlight conservative judicial thought, will continue to bring insights to you.