For the First Time, Indiana Court of Appeals Recognizes the Right to Abortion is Protected Under State Constitution

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Court Clears Way for Challenge Against Indiana's "Two-Trip" Law
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Indianapolis

Today, the Indiana Court of Appeals cleared the way for the Center for Reproductive Rights and Indiana Civil Liberties Union (ICLU) to further challenge Indiana's mandatory delay abortion law in trial court, by reversing a trial court's dismissal of an earlier challenge. The judges also recognized explicitly, for the first time, that the Indiana Constitution protects privacy "as a core constitutional value." The court noted that this right of privacy extends to women seeking an abortion.

The "two-trip law" requires women to receive state-mandated information in person 18 hours before an abortion. This means women must make two separate trips to their physician's office. In December 2003, the Center and ICLU appealed a trial court's decision to dismiss the case, arguing that the law violates a woman's basic right to an abortion, by placing burdensome obstacles in her path.

The appellate court held that the plaintiffs "should be allowed an opportunity to present evidence on the nature and severity of the burden imposed by the statute's waiting period and in-person counseling requirements."

In sending the case back to the trial court for presentation of more evidence, the court also noted, "Evidence presented in cases in which waiting periods are struck down reveals that there are myriad practical difficulties and health risks associated with mandatory delays, conversely, there appears to be scant evidence that an externally-imposed waiting period actually leads to further reflection or soul-searching on the part of the woman seeking to obtain an abortion."

The two-trip requirement is particularly burdensome for women seeking second-trimester abortions. There is only one clinic in Indiana, located in Indianapolis, which performs abortions after the first trimester. As a result, many women living outside of Indianapolis would have been forced to travel great distances, take off from work and make arrangements for their children - all on two separate occasions - in order to comply with the law.

"The court has now recognized that the Indiana Constitution protects women's right to an abortion. Now, there should be no question that the two-trip requirement is harmful to women and a violation of their rights," said Simon Heller, an attorney at the Center for Reproductive Rights. "Medical experts have testified that these laws serve no actual health purpose. They only serve to prevent women from obtaining abortions altogether."

"The Court has explicitly recognized what was previously implicit in Indiana decisions, that the right to privacy is a core constitutional value and that it extends to all citizens, including women seeking an abortion," said Ken Falk, attorney at the Indiana Civil Liberties Union, who argued the case before the appellate court.

The law was passed in 1995. The Center for Reproductive Rights filed suit against the law that same year through the federal court system. In 2002, the U.S. Court of Appeals for the Seventh Circuit found that the law did not place an undue burden on a woman's right to choose, reversing a U.S. District Court ruling. Shortly thereafter, the Supreme Court refused to hear the case. Last year, the Center and the ICLU filed a suit challenging the law in state court on the grounds that it violates the Indiana state constitution.

Mandatory delay laws are part of a trend by the anti-choice movement to further limit women's access to abortion and strong-arm women into carrying their pregnancies to term.

Plaintiffs in this case include Clinic for Women, Inc., Women's Medical Professional Corporation - both in Indianapolis, the Fort Wayne Women's Health Organization, Inc., Women's Pavilion, Inc. in South Bend, Planned Parenthood of Central and Southern Indiana, Inc., Friendship Family Planning Clinic of Indiana in Gary, and Dr. Ulrich G. Klopfer. They are represented by Simon Heller and Janet Crepps from the Center for Reproductive Rights, and Ken Falk of the Indiana Civil Liberties Union.