Indiana’s near-total abortion ban will begin Aug. 1.
Here’s everything you need to know:
How did we get here?
Abortion is currently legal in Indiana up to 22 weeks.
Lawmakers, though, passed Senate Bill 1 last August to prohibit all abortions except in the cases of rape, incest, fetal abnormalities or when the mother’s life is at risk.
The ACLU of Indiana sued to block the law in two different cases. In both cases, a county court granted a preliminary injunction, which is a temporary block on the new law until the court cases could be decided.
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The first and most sweeping lawsuit, filed on behalf of Planned Parenthood and others, argued the ban is entirely unconstitutional. On June 30, the state Supreme Court sided with the state. As soon as that opinion is certified, likely on or just after Aug. 1, the ban will go into effect.
A second lawsuit, filed on behalf Hoosier Jews for Choice, argues the ban violates their rights under Indiana’s Religious Freedom Restoration Act because it conflicts with their deeply held religious beliefs. That case is ongoing, and its outcome would apply to the plaintiffs as well as potentially the class of people they represent ― people whose religious beliefs “direct them to obtain abortions in situations” that violate the ban.
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What happens when the ban goes into effect?
For instances of rape or incest, abortion will only be allowed up to ten weeks. Fetal anomaly abortions are only permitted up to 20 weeks.
In addition, a person who has a religious objection to not being able to receive an abortion would still likely be able to receive an abortion because of the Hoosier Jews for Choice court case that has yet to be decided.
Who can claim the religious exemption?
This one is a bit unclear as the court case progresses.
The injunction was granted in December, and the claim was certified as a class-action lawsuit last month, meaning it pertains to all those who have sincerely-held religious beliefs, not just those in the suit.
It’s the ACLU’s position that the injunction therefore applies to the class, rather than just the plaintiffs, but the organization filed a motion with the Marion Superior Court on Monday to seek clarification.
Exemptions to certain laws and mandates are not uncharted territory for courts, but how an exemption, if one is issued at all, will be handed out and approved is yet to be understood for abortions in Indiana.
If the court upholds the current injunction, Ken Falk, legal director of the ACLU of Indiana and representative for the plaintiffs in both suits, said the process for obtaining an abortion due to a religious exemption may be through a certification process.
These will most likely attempt to assess sincerity of belief. But IU law professor Jody Madeira argues that is impossible.
Assessing sincerity becomes difficult as it can fall into evaluating the inherent religious claim itself, which is unconstitutional. Therefore, the process becomes murky.
“It’s a swamp of First Amendment issues,” Madeira said.
The closest parallel of a religious exemption is the one offered for the COVID-19 vaccine mandates, but Madeira said people just had to generally trust the religious beliefs were sincere. Therefore, pregnant people may be able to claim they hold certain religious beliefs in an effort to obtain an abortion, if this injunction is to be upheld, Madeira said.
“In a way, it says, pregnancy is akin to compelled speech,” Madeira said about the argument made by the plaintiffs.
The RFRA case is scheduled for oral argument in front of the Indiana Court of Appeals in September.
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What life-threatening exceptions would permit an abortion?
A life-threatening condition, according to SB 1, requires substantial and permanent impairment to a major bodily function of the pregnant person.
But that’s it. Physicians don’t have any clear specifics about what health exceptions would warrant abortion which could have a chilling effect on performing the procedure.
Exceptions are vague, and pregnancies are complicated, Deborah Nucatola, Chief Medical Officer at regional Planned Parenthood locations said. Several major health risks related to pregnancy act on a continuum, and the question is where to draw the line. For example, she said, if a pregnant person’s amniotic membrane ruptures early into pregnancy, do doctors need to wait until a person becomes infected to abort the pregnancy? Or until the person develops sepsis and organ failure?
“At what point do we determine that the risk to their life is high enough to warrant abortion?” Nucatola said. “Do they have to have a 50% chance of dying? Do they have to have a 70% chance of dying? A 99% chance? How remote does that risk of death have to be?”
Patients will be at higher risk for harm if physicians face possible penalties for providing care, she said. Indiana already has the nation’s 3rd highest maternal mortality rate.
Madeira said doctors will become very cautious when it comes to providing abortion care, as they might fear legal repercussions. Hospital ethics committees most likely will promote this idea of ‘wait and see,’ up until the moment the risk becomes dangerous, Madeira said.
How will hospitals handle abortions?
It’s currently unclear what most hospitals in Indiana will do, but each provider will have to develop their own framework for certification or determining how to treat individual health risks to the pregnant person.
IU Health, the state’s largest healthcare provider, for example, is still working through this, public relations manager Lisa Tellus said.
She said the hospital’s legal team is working to craft an abortion protocol to protect both patients and doctors by the time Aug. 1 arrives.
In an emailed statement, IU Health said it’s disappointed in the court’s decision and opposes legislation that interferes with the relationship between patients and physicians.
“The restrictions on a physician’s ability to do what is medically proven and appropriate for the health and life of a pregnant patient, plus the threat of criminalization, impact our ability to provide safe and effective patient care,” IU Health said.
Planned Parenthood is fully booked
All Planned Parenthood providers in the state of Indiana are fully booked for abortion services for the next three weeks, right until the state’s abortion ban is certified, likely on Aug 1.
Regional Planned Parenthood Chief Medical Officer Deborah Nucatola stressed that Indiana locations are still open and able to provide other reproductive health care services, including pregnancy consultations, STD testing and cancer screenings. Abortion services, however, have met their maximum scheduling capacity. Patients who do not already have an abortion appointment scheduled will not be able to book one.
Why the door is open for other legal challenges
Although the ACLU’s first challenge failed, the court’s majority opinion suggested the door may be open for other legal challenges brought forward with more narrowed scopes centered around the health of the pregnant person.
Madeira said more narrow claims, which focus on certain aspects of SB 1 rather than the entire law, have a higher chance of success in court. She said the justices in the majority opinion may consider other narrower claims, such as trying to argue for more exceptions that aren’t currently spelled out in the law, as an alternative route to challenging this legislation.
“It’s the only way forward,” Madeira said.
Call IndyStar reporter Nic Napier at 317-879-6885 or email him at nnapier@gannett.com. Call IndyStar reporter Tory Basile at 317-935-8742 or email her at vbasile@gannett.com.
