Molter, J.
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 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.
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I. Plaintiffs have standing.
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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…
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 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.
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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…
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 having and raising children, pursuing a vocation that does not harm others, and patient self-determination. [Footnotes omitted]
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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 wellbeing 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.
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…. 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
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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.
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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…
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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 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 training—did not include the Lockean Natural Rights Guarantee there. [Footnote omitted.] 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…
4. Case law
A review of our case law applying Article 1, Section 1 leads to the same conclusion…
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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.
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). [Footnote omitted.]
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” 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.
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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 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. [Footnote omitted.]
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 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.
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2. The 1984 amendment revising the Constitution to use gender neutral terms did not create a fundamental right to abortion.
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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.
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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 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.
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.
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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.” [Footnote omitted.] 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 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.
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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. [Footnote omitted.] 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 question for the legislature.”[Footnote omitted.] 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.”[Footnote omitted] 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….
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.
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A. Plaintiffs’ unsuccessful facial challenge should not preclude consideration of the issues as applied to them.
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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.
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2. The history of abortion in Indiana is not as straightforward as the Court suggests.
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C. There is likely a qualified right to bodily autonomy under Article 1, Section 1.
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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.