A recent ruling against expanding abortion access and defining the exceptions in Indiana’s near-total abortion ban is yet another legal roadblock for Hoosiers attempting to restore reproductive rights in Indiana.
Owen County Judge Kelsey Blake Hanlon ruled last week against abortion providers who are seeking to broaden access to the procedure under the near-total ban state lawmakers passed after the U.S. Supreme Court ended federal protections in June 2022.
The providers – including the regional Planned Parenthood affiliate – had sought a permanent injunction to expand the near-total ban’s medical exemptions and to block its requirement that abortions can only be performed at hospitals.
Hanlon, who conducted a three-day bench trial in late May, denied the providers’ request for the permanent injunction against both elements of the state’s law, known as S.B. 1.
“Significant and compelling evidence regarding the policy implications of S.B. 1 and its effect on medical professionals in particular was presented. However, the court cannot substitute its own policy preferences for that of the Indiana General Assembly,” wrote Hanlon, who was appointed as a special judge in the case when Monroe County judges recused themselves.
Indiana passed first ban after Roe was overturned
Indiana became the first state to enact tighter restrictions after the U.S. Supreme Court ended federal abortion protections by overturning Roe v. Wade. Rare exceptions to the near-total ban include when the health or life of the mother is at risk as well as in cases of rape, incest and lethal fetal anomalies in limited circumstances.
Julie Storbeck, Indiana National Organization for Women president, said the organization will continue its efforts to fight the fallacies around reproductive health care and promote the “fundamental right to self-determination and sovereignty in our own bodies.”
“Once again, Indiana’s courts have ignored the voices of medical professionals and the medical needs of pregnant patients to promote dangerous lies about reproductive health care,” Storbeck, of Valparaiso, said.
Indiana Right to Life said in a statement the ruling “strongly affirms Indiana’s right to limit abortions.”
Deborah Chubb, executive director of the Indiana Women’s Action Movement, said it is seemingly impossible to get past the Indiana Supreme Court’s upholding of the state’s near-total ban on abortion.
“I would hope it ends with the court deciding that women can make their own decisions about their bodies,” Chubb, of Michigan City, said.
Planned Parenthood, ACLU of Indiana, All-Options and the Lawyering Project issued a joint statement which said the ruling ensured that Hoosiers “will continue to be endangered by Indiana’s abortion ban.”
“Already, Hoosiers with serious health complications have been forced to endure unjustifiable suffering due to miscarriages, ectopic pregnancies, and other pregnancy-related issues or leave the state to access appropriate care. Hoosiers deserve better, and the Indiana Constitution demands better,” according to the statement.
Case history in Indiana
The Indiana Supreme Court upheld the state’s ban in June 2023, ending a broader legal challenge brought by the same plaintiffs, but said the state’s constitution protects a woman’s right to an abortion when her life or health is at risk.
Indiana’s clinics stopped providing abortions ahead of the ban officially taking effect in August 2023. Only 17 abortions occurred after the ban went into effect, which led the Indiana Department of Health to decide to no longer release individual terminated pregnancy reports as it had concerns about violating patient confidentiality by releasing full individual records. A Marion County judge recently upheld the agency’s decision.
Hanlon ultimately said the abortion ban doesn’t unconstitutionally limit access to abortion because of the exceptions, said Jody Madeira, professor of law at Indiana University Maurer School of Law. Further, Hanlon said the plaintiffs did not present instances in which abortion would fall outside of the exceptions and that there’s no evidence that abortion is needed for mental and emotional conditions, Madeira said.
The plaintiffs also argued that the requirement that all abortions be performed at hospitals is burdensome on patients, Madeira said. But the judge ruled that it isn’t burdensome, though acknowledged that it may require extra time and travel expenses, she said.
Given that 40% of counties either don’t have hospitals or the hospital within the county doesn’t have the trained medical professionals to perform abortions, Storbeck said Hanlon’s ruling will endanger lives.
While some states — like neighboring Ohio and Kentucky — have been able to restore abortion rights via ballot measures, Indiana voters don’t have that option.
Hoosier Jews for Choice, who are challenging the law under the Religious Freedom Restoration Act, had their suit upheld by the Indiana Court of Appeals in April. They argue that Indiana’s ban violates Jewish teaching that “a fetus attains the status of a living person only at birth.”
Vague language is limiting doctors’ ability to intervene
The majority of the lawsuit, as with similar cases in states with abortion bans, focuses on seeking guidance on what constitutes a serious health risk or a risk to the life of the mother, Madeira said. Without clear guidance, doctors will “have to consistently guess what was in the mind of legislators,” she said.
“That means that women have to suffer because they might be miscarrying, they might have an ectopic pregnancy, they might have another pregnancy-related issue, but everything is going to be hung up because doctors, in many cases, are still going to be unsure as to whether this meets the legislative definition of a serious health risk,” Madeira said. “Doctors want to know in medical language, or medical terms, what they’re looking for.”
An Associated Press analysis of federal hospital investigations since mid-2022 shows that more than 100 pregnant women in medical distress who sought help from emergency rooms were turned away or negligently treated, leading some to miscarry in public restrooms, require a blood transfusion, and even go into septic shock.
Language like “serious health risk” and “health of the mother” is incredibly vague, Madeira said, and legislators should define it further. If the Indiana legislature wants to enact an abortion ban, Madeira said she’d like to see it revisit the law to explain the exceptions.
Hanlon agreed with the state’s argument that the health and life exemption constitutionally protects pregnant patients with “serious health risks,” but acknowledged the ill-defined standard has been challenging for physicians in a “politically charged environment” and under the threat of criminal liability. However, she said physicians do not have to wait until a woman is “clinically unstable to provide care.”
Madeira said Indiana doctors continue to provide abortions to the best of their ability under the law within a politically charged environment.
Indiana Attorney General Todd Rokita has filed lawsuits against doctors who have performed abortions since the ban was enacted, she said.
“Everybody is sort of waiting for doctors to trip up. Here, those trip-ups are not intentional. They could be because these statutes are incredibly vague,” Madeira said. “It’s happening in Indiana and across all the United States, doctors are saying, ‘what does this mean?’ because they risk their license, and if their license is taken away they can’t help anybody.”
