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Indiana judge declines request to block state's abortion ban

The lawsuit argues that the ban violates the Indiana Constitution by infringing on the right to privacy and the guarantee of equal privileges.

INDIANAPOLIS — An Indiana judge turned down on Thursday a request to block enforcement of the state’s abortion ban just hours after it took effect.

The ruling came in a lawsuit filed by abortion clinic operators who argue that the state constitution protects access to the procedure.

Special Judge Kelsey Hanlon didn’t give any explanation for her decision with the order denying a temporary injunction sought by the American Civil Liberties Union of Indiana, which is representing the clinics, but cited a court hearing set for Monday on the lawsuit.

The ACLU said in a court filing that allowing the law to take effect would “prohibit the overwhelming majority of abortions in Indiana and, as such, will have a devastating and irreparable impact on the plaintiffs and, more importantly, their patients and clients.” 

Indiana University Maurer School of Law Professor Dr. Jody Lynee Madeira says the lawsuit argues that the ban violates article 1, section 1 of the Indiana Constitution by infringing on the right to privacy and the guarantee of equal privileges.

RELATED: 'It is a dangerous path but it is so important'; Indiana doctor will continue performing abortions

She said another argument falls under what's called privileges and immunities. 

"[It's] basically unfair treatment for the licensing of abortion clinics, on the grounds that abortion has been provided safely for decades in abortion clinics, and it may not take place just in hospitals or ambulatory surgical centers," Madeira said.

The second lawsuit filed by the ACLU is on behalf of Hoosier Jews for Choice and five women, who claim their religious beliefs mean they must be allowed to obtain an abortion under circumstances prohibited by the new state restrictions. 

The 2015 Religious Freedom Restoration Act prohibits government action that interferes with a person’s religious exercise, unless the government can prove it has a compelling reason for doing so that is the least restrictive alternative available. 

"This lawsuit claims that Indiana's law states that fertilization marks the beginning of life, and not all religions have that same principle. They believe life begins later," Madeira said. "And indeed, they believe that abortion should be provided at times when Indiana law prohibits it. So their argument is that the Indiana abortion law burdens their exercise of religion."

Indiana’s Republican-dominated Legislature approved the abortion ban during a two-week special legislative session that ended Aug. 5, making it the first state to do so since the U.S. Supreme Court eliminated federal abortion protections by overturning Roe v. Wade in June.

The Indiana ban includes exceptions allowing abortions in cases of rape and incest before the 10th week of pregnancy; to protect the mother’s life and physical health; and if the fetus is diagnosed with a lethal anomaly.

Under the new law, abortions can be performed only in hospitals or outpatient centers owned by hospitals, with the state's seven abortion clinics losing their licenses for the procedure. Any doctors found to have performed an illegal abortion would be stripped of their medical license and could face felony charges punishable by up to six years in prison.

RELATED: Indiana's abortion ban takes effect with few exceptions

Republican Gov. Eric Holcomb, who signed the ban into law within about an hour of its passage last month, said Wednesday he expected the court challenges but showed no second thoughts about supporting the ban.

“I think we made progress and we’ll figure out if it holds up in both, the two different lawsuits,” Holcomb said. “We’ll see where they land ultimately.”

WHAS11's sister station in Indianapolis, WTHR, reached out to Attorney General Todd Rokita about the Religious Freedom Restoration Act claims in the lawsuit. He did not address those questions, but issued the following statement:

"The Indiana Constitution says nothing about securing the right to abortion, which the state outlawed before, during, and after the time of constitutional adoption. The text, history, and structure of our Constitution excludes any serious argument that abortion is a fundamental right in our state. Our legislators voted to stop these inhumane practices, and it’s why my office is dedicated to defending this life-saving law. Defending validly passed laws, including those intended to protect the unborn is a core mission of the Attorney General."

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