Indiana’s near-total abortion ban was set to take effect Aug. 1. Here’s what you need to know
Indiana lawmakers passed a near-total abortion ban on Aug. 5, 2022, which Gov. Eric Holcomb signed into law quickly after. Two lawsuits temporarily halted the ban shortly after it took effect, until the Indiana Supreme Court ruled the ban did not violate the state’s constitution.
However, a last-ditch effort by Indiana abortion providers to halt the state’s near-total abortion ban is creating uncertainty about when that ban might take effect.
We asked members of the Indiana Two-Way for their questions about the ban. To join the Indiana Two-Way text “Indiana” to 73224.
What does the law do?
The law bans abortion in Indiana, with a few, narrow exceptions.
Abortions would only be allowed if the pregnant person’s serious health or life is at risk; if there’s a lethal fetal anomaly up to 20 weeks post-fertilization; and in cases of rape or incest, but only up to 10 weeks.
It also limits abortion to only hospitals and surgical centers owned by hospitals – and specifically bans abortion clinics.
What happened to the lawsuits challenging the ban?
The lawsuit brought by Indiana abortion care providers specifically challenged a provision of the law that banned abortion clinics outright, limiting the procedures to hospitals and ambulatory surgical centers owned by hospitals. However, that issue was not part of the appeal heard by the Indiana Supreme Court, and it sent the case back to the trial court to flesh out that challenge.
And that particular lawsuit did not give the Indiana Supreme Court the opportunity to more clearly define the circumstances when a pregnancy endangers someone's life or health – which could be the subject of future lawsuits.
There is also another lawsuit challenging the abortion ban. That suit argues that the ban violates the state's Religious Freedom Restoration Act by infringing on the rights of those whose religions accept and even encourage abortions in certain circumstances.
A Marion County judge temporarily halted the law from taking effect in that case, but only as it applies to the small handful of people who brought the suit. The judge later expanded the lawsuit to cover anyone whose religious beliefs clash with the abortion ban, but it's unclear how that now applies to enforcement of the ban.
Indiana’s near-total abortion ban is set to take effect Tuesday after the state Supreme Court OK'd its constitutionality in a recent ruling.
A law professor says that same ruling opened the door for more lawsuits around the ban.
The Supreme Court’s decision said the abortion ban doesn’t violate the state constitution’s guarantee of liberty. But Indiana University law professor Jody Madeira said the ruling almost explicitly invites other challenges to the ban.
“The court just felt that this challenge was too broad," Madeira said. "So, the court might be quite willing to entertain other litigation.”
Madeira said one of the few exceptions to the ban that the court said was constitutionally guaranteed was in cases where the life or serious health of the pregnant person is at risk.
A lot of Hoosiers wanted to know why there’s not a public question about abortion on the ballot this November – especially after a high-profile Kansas referendum in early August 2022.
Ballot questions (other than school funding referendums) are fairly rare in Indiana. There is no legal avenue for what’s known as a “citizen-led” initiative – for instance, gathering enough signatures to put a question on the ballot.
Still, there’s nothing in state law stopping legislators from creating one on abortion. But House and Senate Republicans rejected efforts from Democrats to do so.
Senate President Pro Tem Rodric Bray (R-Martinsville) said that crafting such a question is difficult.
“Could you say – should abortion be legal? Should it be legal for the first trimester?” Bray said. “Should abortion be illegal with exception of the life of the mother, or the life and health of the mother, or the life and health of the mother and rape and incest? And if you say rape and incest or life of the mother, how do you define life of the mother?”
Ohio voters will decide on two constitutional amendments in the next few months. One in August, which would raise the threshold for constitutional amendments to pass. And the second in November, which would codify a right to abortion care in the Ohio constitution.
During testimony on the measure, Sen. Sue Glick (R-LaGrange) emphasized contraceptives and emergency contraceptives like Plan B would not be banned by this bill.
However, the legislation signed into law leaves much of this promise up in the air, said Jennifer Drobac, an Indiana University law professor.
She said that language in the law could “conceivably” outlaw certain forms of birth control, including IUDs, that can interfere with the implantation process.
“The problem with all of this is, how is a normal human being, person who's pregnant, supposed to know whether or not they're taking a medication or using a contraception that is actually prohibited – because they honestly think that what they're doing is OK, and, under the law, is not prohibited,” she said.
She added this vague language leaves room for interpretation. Drobac said the law does not go far enough in detailing what is acceptable, leaving contraceptive users potentially vulnerable to accidentally doing something illegal.
“So that's the problem with the Indiana law, is it's dealing in an area of science that is sophisticated, with law that is not sophisticated,” Drobac said.
The Food and Drug Administration expanded access of abortion pills to more pharmacies, including large chains, mail-order companies and online pharmacies. But how this would affect Indiana’s ban is complicated and unclear.
Jennifer Drobac is a law professor at Indiana University. Drobac said this ruling could make it easier for pregnant people to get an abortion – as they would not have to do an in-person visit to get this prescription. However, Indiana’s abortion law requires abortion patients to be in the presence of a doctor.
She said if Indiana’s abortion law is put back into effect, this FDA ruling could make abortions more accessible for pregnant Hoosiers.
“If a woman wants to avoid the law, it's easier for her to do so because she can get an electronic prescription,” Drobac said. “And she can get the medication through the mail. That doesn't make it legal, but it makes it easier.”
Drobac said Indiana’s current abortion law only permits the prosecution of the doctors providing abortions, not for the pregnant people receiving them.
Jody Madeira is a law professor at Indiana University Bloomington. She said this new law may affect access to these medications.
“Pharmacists have to honor all prescriptions, but they are immune from criminal prosecution or civil liability if they refuse to honor prescriptions because in their professional judgment, it would be contrary to the law or a patient's health and safety are against the patient's best interests,” she said.
She said in some states, women have been refused medication treating conditions like arthritis.
In Indiana, pharmacists are typically expected to prescribe as the doctor ordered. But a 2019 law expanded protections for medical professionals who object to abortion on “ethical, moral, or religious grounds” to refuse to participate in abortions, to include pharmacists who refuse to dispense abortion-inducing drugs.
“There's nowhere in the abortion bill where it addresses pharmacists, refusals. Nor does it necessarily give pharmacists leave explicitly in the bill to sign off on prescriptions for abortion medication,” she said.
Dr. David Ingram is IU’s Health chief medical officer. He said IU Health, Indiana’s largest health care system, has spent the past few months deciding how to best provide support for health care providers.
“All of our sites are prepared for that and we’re determining what’s the best access point, based on a number of factors for our patients seeking care,” Ingram said.
Ingram said the cost of abortion in Indiana will increase due to the ban.
Maternal-fetal medicine specialist Dr. Caroline Rouse said IU Health has also created a 24-7 rapid response team that’s prepared to answer provider questions about what they are allowed to do under the ban.
“So, in the event that a health care provider has an urgent legal question related to provision of abortion services, the rapid response team can be called for an opinion and advice,” Rouse said.
The hospital will continue to provide legal abortion care through this response team, and by monitoring the impact of the abortion ban on infant and maternal mortality rates in the country.
Laura Wilson is a University of Indianapolis associate professor of political science. She said getting an answer on abortion from polling is difficult as there’s often a disconnect between opinion and action when it comes to polling.
“Many people will say generally speaking, they support something," Wilson said. "Will they vote on the basis of that? Will they write their legislator on the basis of that? Will they go to protest on the basis of that?”
On abortion polling specifically, Wilson said it’s a particularly tricky issue to gauge public opinion on.
“Because there’s a lot of parameters and a lot of exceptions, explanations, context that you can add to it," Wilson said. "It’s not as simple as we often make it feel, where you’re either in support of it or against it.”
What little Indiana public polling about abortion there is available suggests a large majority of Hoosiers support at least some legal access to abortion – but exactly how much access is harder to gauge.
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The morning after Governor Holcomb signed a near-total abortion ban into law, one of the state’s largest employers said the new restrictions will hinder its ability to attract talent.
“Given this new law, we will be forced to plan for more employment growth outside our home state,” pharmaceutical company Eli Lilly, which is headquartered in Indianapolis, said in a statement.
The statement was the first comment Eli Lilly, which employs more than 10,400 people in Indianapolis, has made on the legislation.
Cummins spoke out the same day Eli Lilly issued its statement to oppose the ban. Both companies said the ban will make it hard to attract talent, and they will consider growth in other states.
“For Cummins to be successful it is critical that we have a safe and welcoming workplace, and communities where we embrace our differences and enable all employees to thrive,” the Cummins statement said. “As we continue to grow our footprint with a focus on selecting communities that align with our values and business goals, this law will be considered in our decision-making process.”
Unlike many smaller companies in Indiana, both Cummins and Eli Lilly were publicly silent until after the decision was passed.
ButHolcomb largely dismissed any impact Indiana’s near-total abortion ban will have on attracting and retaining businesses and talent to the state.
The governor insisted the state is well-positioned to continue adding jobs and investments.
“It’s because of access to talent,” Holcomb said. “And we have that access to talent – we had it yesterday, we have it today and we’ll have it tomorrow.”
During the special session last year, lawmakers also passed a measure to put more money toward adoption and family supports. Is that still there?
The package included more than $70 million to help address services and programs for pregnant Hoosiers, families and children. That includes increasing the state adoption tax credit to $2,500 per child (up from $1,000) and ensuring Hoosiers no longer have to pay sales tax on children's diapers.
One study through the Indiana University Richard Fairbanks School of Public Health titled “Ask the Women” included people in zip codes with high infant mortality rates in an effort to understand where they experienced gaps in care.
Erin Macy is a senior researcher for the Grassroots and Maternal Child Health Initiative, which oversaw the study. She said a vast majority of the participants in the study worked over the course of their pregnancy. Roughly half of the participants experienced “significant interruptions” in their ability to do work.
“Many of our participants were pushed out of work,” she said. “Either because they couldn’t receive really basic accommodations and have bathroom breaks or go to prenatal visits.”
Sen. Ryan Mishler (R-Bremen) called the bill “bridge funding” meant to help the state get through the next several months until lawmakers write a new state budget in 2023. The majority of that money went to the Hoosier Families First Fund.
The two-year budget passed by lawmakers does not appear to have any funding for the Hoosier Families First Fund – however, there is a line item in the state budget under the Indiana Department of Health for Maternal and Child Health Initiatives. In the previous two-year budget, it was allotted about $500,000 over two years. In the new budget, it’s getting nearly $16.5 million.
Most of the line items that received funding in the special session measure got boosts in the new two-year budget, including the Safety PIN Grant Fund and the Nurse Family Partnership Program. A widely criticized anti-abortion organization from Pennsylvania – Real Alternatives – also saw a significant increase in state funding. In the previous two-year budget, it received $500,000 over two years. In the new budget, it is getting $7 million.
Meg Sterchi is the executive director of Adoptions of Indiana, a nonprofit offering various education and support services for birth parents and adoptive families.
“I think that it's good that Indiana is increasing services, well, money, to provide more services to women who are pregnant. But I think we're just scratching the top of what is needed if we really want to help women who are pregnant,” she said.
One of the bill’s major changes was raising the adoption tax credit from $1,000 to $2,500.
Sterchi said this price change will “not make a big difference.” She said she feels the scope of this legislation should’ve gone further to support pregnant people.
Shannon Schumacher is the president and CEO of the Villages of Indiana, the state’s largest not-for-profit child and family services agency.
While she is hopeful that adoption tax credits could encourage others to adopt, she said other issues can arise post-adoption, including limited attention on the well-being of birth mothers.
“Oftentimes, with the birth mother, there's lots of attention on her during her pregnancy,” she said. “But once the child is adopted, we know that oftentimes the support for the birth mother wanes at that point. So to make sure that there's continued support for those birth mothers after the baby is adopted [is important].”
How will the ban affect doctors hoping to train or work in Indiana?
Indiana, like many Republican-led states, has a shortage of providers. A 2018 report from the March of Dimes found 27 percent of Indiana counties are considered maternal care deserts, with no or limited access to maternity care. The state has one of the highest maternal mortality rates in the country.
Dr. Wendy Tian, a third year resident, said lately she is scared and worried about her safety. Tian grew up and went to school in Chicago and chose to come to Indiana for residency because the program has a strong family planning focus. She was also open to practicing in Indiana once she completes her training.
“I always thought I wanted to do family planning. I'm now thinking about doing something else,” she said. “I know I still want to incorporate it. But I, for sure, don't know if I would be able to stay in Indiana postgraduation with what's going on.”
Still, she feels “guilty for giving up” on some of the most vulnerable patients in Indiana.
Even before the Supreme Court overturned Roe v. Wade, Tian said the medical climate in Indiana could be hostile and frustrating. Indiana, like other states with abortion restrictions, allows nearly all health care providers to opt-out of providing care for abortion patients.
Indiana Public Broadcasting's Brandon Smith contributed to this story.
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