Abortion Ban

AFTER 12 WEEKS 

Indiana's unconstitutional and unenforceable criminal ban outlaws abortions performed as early as twelve weeks.  Indiana's ban is unconstitutional according to the U.S. Supreme Court's decision in Stenberg v. Carhart.  530 U.S. 914 (2000).  In Stenberg, the Court held that a similar ban, which lacked an exception to protect a woman's health and was written so broadly as to ban more than one procedure, placed an undue burden on a woman's right to choose.  Indiana's unconstitutional and unenforceable ban makes the performance of any abortion procedure that falls within a broad definition a felony unless a physician reasonably believes that the procedure is necessary to preserve the woman's life and no other medical procedure will suffice.  Ind. Code Ann. §§ 16-18-2-267.5 (Enacted 1997), 16-34-2-1(b) (Original Statute Enacted 1973; Recodified 1993; Relevant Provision Enacted 1997), 16-34-2-7 (Original Statute Enacted 1973; Recodified 1993; Relevant Provision Enacted 1997). 

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

A woman may not obtain an abortion until at least 18 hours after the attending or referring physician, or a physician's assistant, advanced practice nurse, or midwife tells her, orally and in person:  (1) the nature of the proposed procedure; (2) the risks of and alternatives to the procedure; (3) the probable gestational age of the fetus, including an offer to provide a picture or drawing of a fetus, the dimensions of a fetus, and relevant information on the potential survival of a fetus at that stage of development; (4) the risks associated with carrying the pregnancy to term; (5) the name of the physician who will provide the abortion; and (6) the availability of ultrasounds and fetal-heart-tone services.

In addition, at least 18 hours prior to an abortion, the woman must receive a state-mandated lecture that includes:  (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support; and (3) that adoption alternatives are available and that the adoptive parents may legally pay the costs of prenatal care, childbirth, and neonatal care.

Ind. Code Ann. § 16-18-2-69 (Enacted 1995); § 16-34-2-1 (Enacted 1973; Recodified 1993; Last Amended 1997); § 16-34-2-1.1 (Enacted 1995; Last Amended 2005).

Both federal and state courts held that the "in person" requirement, which in effect requires two office visits, is constitutional.  A Woman's Choice-E. Side Women's Clinic v. Newman, 305 F.3d 684 (7th Cir. 2002), cert. denied, 537 U.S. 1192 (2003); Clinic for Women v. Brizzi, 837 N.E.2d 973 (Ind. 2005).

Counseling Ban/Gag Rule

The director or employees of the Indiana Office of Women's Health may not advocate for, promote, or refer to abortion.  The Office of Women's Health was established to educate the public, to establish priorities for programs, services, and resources, and to serve as a clearinghouse for information about data, services, and programs addressing women's health issues.  Ind. Code Ann. §§
 16-19-13-1, -2, -4, -5 (Enacted 1999), § 16-19-13-3 (Enacted 1999; Last Amended 2003).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Indiana allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply?  Hospitals, physicians, or hospital or facility employees or staff members.

What does the refusal clause allow?  No physician or hospital or facility employee or staff member, who objects on ethical, moral, or religious grounds, may be required to participate in medical procedures that result in abortion.  No person may be required to participate as a condition of training, employment, pay, promotion, or privileges.  A person's moral beliefs about abortion may not be a basis for discrimination or discipline.  A person may bring a civil action for damages and reinstatement for violation of these provisions.  No private or denominational hospital may be required to permit its facilities to be utilized for the performance of abortion.

Does the law require the refusing entity to notify the persons affected?  No.

Are there circumstances under which a refusal clause may not be exercised?  No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services?  No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause?  No.

Ind. Code Ann. §§ 16-34-1-3 to -7 (Enacted 1973; Recodified 1993).

Restrictions on Low-Income Women's Access to Abortion

Indiana prohibits public funding for abortion for women eligible for state medical assistance for general health care unless necessary to preserve the life of the woman, where rape or incest caused the pregnancy, or if the pregnancy creates a serious risk of substantial and irreversible impairment of a major bodily function.  Ind. Admin. Code tit. 405, r. 5-28-7; Ind. Health Coverage Programs, Ind. Health Coverage Programs Provider Manual, § 8-317 (March 2005) at http://www.indianamedicaid.com/ihcp/Manuals/Provider/chapter08_part4.pdf; Humphreys v. Clinic for Women, Inc., 796 N.E.2d 247 (Ind. 2003).

In Humphreys, the Indiana Supreme Court expanded state medical assistance for abortion by holding that the Medicaid program violated the Indiana Constitution to the extent that it denied assistance for abortion to pregnant women at serious risk of substantial and irreversible impairment of a major bodily function.  Humphreys v. Clinic for Women, Inc., 796 N.E.2d 247 (Ind. 2003).  The court found unconstitutional and unenforceable several statutes and regulations that did not include such assistance.  Ind. Code Ann. § 12-15-5-1(17) (Enacted 1990; Recodified 1992), Ind. Code Ann. § 16-34-1-2 (Enacted 1979; Recodified 1993), Ind. Admin. Code tit. 405, r. 5-28-7.

Restrictions on Young Women's Access to Abortion

Indiana law restricts young women's access to abortion.

Is the law enforceable?  Yes.

Who is considered a minor?  A young woman under the age of 18 who is not emancipated.

What is required - parental consent or parental notice?  Consent.

Who must provide consent?  One parent.

Are there other trusted adults who may provide consent instead?  No.

What is the process for obtaining consent?  A young woman may not obtain an abortion unless the attending physician secures written consent of one parent.

May the parental mandate be waived if a young woman is a victim of rape or incest?  No.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  Yes, but only if the attending physician certifies in writing that there is "an emergency need for a medical procedure to be performed such that continuation of the pregnancy provides an immediate threat and grave risk to the life or health of the pregnant woman."

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating either that she is mature enough to make her own decision or that an abortion is in her best interests.

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  No.

Other information about the law:  The attending physician may also petition the court for a waiver on behalf of the pregnant young woman, if he feels that compliance with the parental consent requirement would have an adverse effect on her welfare.

Targeted Regulation of Abortion Providers (TRAP)

Indiana law subjects abortion providers to burdensome restrictions not applied to other medical professionals, including:

Restrictions on Where Abortions May Be Performed

Indiana places medically unnecessary restrictions on where abortions may be performed.

In 2005, Indiana enacted a law giving state officials the ability to create extensive new restrictions on abortion providers.  This allows the state department of health to enact additional TRAP laws without further legislative approval.  Ind. Code Ann. § 16-21-2-2.5 (Enacted 2005).

Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which require doctors to obtain medically unnecessary additional licenses, needlessly convert their practices to mini-hospitals at great expense, or perform abortions only in hospitals, an impossibility in many parts of the country.

Indiana requires that all second trimester abortions be performed in a hospital or an ambulatory outpatient surgical center.  Ind. Code Ann. §16-34-2-1(a)(2) (Enacted 1973; Recodified 1993; Last Amended 1997).

Restrictions on Who May Perform Abortions

Indiana prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed to practice medicine in the state may perform an abortion.  Ind. Code Ann. § 16-18-2-202 (Enacted 1959; Recodified 1993; Last Amended 1993), Ind. Code Ann. § 16-18-2-282 (Enacted 1949; Recodified 1993; Last Amended 1993), Ind. Code Ann. § 16-34-2-1 (Enacted 1973; Recodified 1993; Last Amended 1997).

A court has upheld Indiana's pre-Roe abortion statutes as applied to non-physicians.  Rhim v. State, 348 N.E.2d 620 (Ind. 1976).