INDIANAPOLIS, IN – JULY 25: Anti-abortion and abortion rights activists protest on multiple floors within the Indiana State Capitol rotunda on July 25, 2022 in Indianapolis, Indiana. (Photo by Jon Cherry/Getty Images)
Indiana’s near-total ban on abortions officially takes effect Thursday.
The state is the first in the nation to approve abortion-restricting legislation since the U.S. Supreme Court ruling that overturned Roe v. Wade.
Indiana’s Republican-dominated Legislature approved the ban in August during a special legislative session that saw nearly two weeks of long days and heated debate in both chambers of the General Assembly.
The West Virginia Legislature on Tuesday passed a similar bill prohibiting nearly all abortions after the 15th week of pregnancy, except to save a pregnant person’s life and in certain cases that involve rape or incest.
Here’s what you need to know as the new law takes effect:
What is and is not allowed under the law?
The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. One part of the law says these exceptions are up to 20 weeks post-fertilization, but another part says they can be used anytime. Lawmakers will likely revise that language in the 2023 session, which begins in January. They suggested during the special session that their intent was to permit abortions at any point in a pregnancy when the long-term health and life of the mother are at risk.
A lethal fetal anomaly is defined in state law as a condition “diagnosed before birth that, if the pregnancy results in a live birth, will with reasonable certainty result in the death of the child not more than three months after the child’s birth.”
In the new law, a “serious health risk” to a mother is qualified as a condition that “has complicated the mother’s medical condition and necessitates an abortion to prevent death or a serious risk of substantial and irreversible physical impairment of a major bodily function. The term does not include psychological or emotional conditions.”
Rape survivors can get an abortion up to 10 weeks post-fertilization. Although lawmakers originally sought to require victims to sign a notarized affidavit attesting to an attack, the final version of the ban deleted that stipulation. Parental consent requirements are waived for a minor under the age of 18 who is pregnant as a result of rape or incest by a parent, legal guardian, or custodian.
The restrictions in Indiana’s abortion statute do not apply to in vitro fertilization, miscarriages or ectopic pregnancies. Access to contraceptives and emergency contraceptives like Plan B also remain unaffected.
Where in Indiana can someone receive a legal abortion?
Under the law, surgical abortions can only be done in hospitals or standalone ambulatory surgical centers owned by a hospital.
Physicians must refer eligible patients out, unless they have admitting privileges at particular hospitals; then, physicians and patients will travel to qualifying facilities for the procedures.
Drugs for medication abortions can only be dispensed in-person by physicians. The pregnant woman must consume the drug in the presence of the doctor. That additionally means medication abortions are not allowed through telehealth.
What does this mean for abortion clinics? Will Planned Parenthood clinics close or consolidate?
The ban strips abortion clinics of their state medical licenses, effective Thursday. As a result, abortion providers across the state say they will not be able to offer the procedure in most situations.
Representatives at Planned Parenthood said they plan to keep their four Indiana clinics that offer abortions open. Those locations will continue to provide contraception, sexually transmitted disease testing and treatment, and cancer screenings.
Whole Woman’s Health Alliance of South Bend said it would also continue operating its clinic there to provide “support to all who seek abortion services, and to continue its activism and organizing to roll back cruel, unjust anti-abortion laws.”
The group noted that affiliates in other several other states, including Illinois, will continue to offer legal medication abortion pills, by mail or otherwise, for up to 11 weeks of pregnancy. To receive the pills through the alliance’s Virtual Care program, patients must be physically in one of five eligible states (Illinois, Minnesota, Maryland, New Mexico and Virginia) at the time of their telehealth appointment. Deliveries will also have to be shipped to an address in one of those states.
Indiana’s Catholic-sponsored hospitals — of which there are 30 across the state — almost never perform abortions.
Indiana University Health, the state’s largest hospital system, said it will continue to provide legal abortions. IU Health officials said they also plan to launch a 24/7 Rapid Response Team composed of clinicians, ethicists and attorneys to provide clarification to any doctor needing a second opinion, something other states have implemented following their abortion bans.
In 2021, Indiana hospitals performed only 133 of the state’s 8,414 documented abortions, according to the Indiana Department of Health. Nearly all other recorded abortions, 98%, were performed at clinics.
Planned Parenthood’s facilities alone accounted for 51% of pregnancy terminations last year.
What are the criminal penalties for women and providers who receive or perform unlawful abortions?
Existing Indiana law makes it a felony for a doctor to perform an illegal abortion, and under the newly-enacted legislation, most abortions will be illegal.
Doctors who perform abortions outside of an approved setting could face a Level 5 felony criminal charge — punishable by one to six years in prison and a fine of up to $10,000.
A person who helps a mother receive an abortion has a valid legal defense in most criminal proceedings, as long as the mother requested the abortion. The law also provides a defense for pregnant women against feticide, as well as for physicians who perform a medical procedure to end a woman’s pregnancy upon her request.
There are no criminal penalties for women who receive abortions, even if they undergo the procedure illegally.
What happens if a local prosecutor doesn’t charge a doctor violating the law?
Lawmakers scrapped a provision in the abortion ban bill that would allow the state attorney general to take over prosecution of abortion-related cases if a local prosecutor refuses to.
Still, the new ban tightens previous Indiana law that said a doctor “may” lose their license for performing an illegal abortion or failing to file required reports. The new ban says the state Medical Licensing Board “shall” strip physicians of their medical license if the state attorney general’s office proves the case with a “preponderance of evidence” rather than “beyond a reasonable doubt.”
What about court challenges? Could the ban be thrown out by a judge?
Reproductive rights groups including the American Civil Liberties Union (ACLU) of Indiana, Planned Parenthood, and others are challenging the abortion law in state court.
The first legal challenge filed by the ACLU of Indiana argues that the abortion ban blocks patients from exercising a “fundamental right to privacy,” which the state constitution protects as an individual liberty. The Supreme Court of the United States in June ruled that the U.S. Constitution does not guarantee abortion rights.
Arguments are scheduled to be heard Monday afternoon in Monroe County. The judge could decide at that time whether or not to issue a preliminary injunction, which would temporarily stop the ban from being enforced. A later decision in the case could strike down the ban altogether.
A second lawsuit, also led by the ACLU of Indiana, seeks to strike down the ban on the basis that it violates Indiana’s Religious Freedom Restoration Act. An initial hearing in the case has been set for Oct. 14.
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