A Citizen's Guide to Indiana

The vote on abortion in Kansas on Tuesday showed us all how deeply unpopular abortion bans are, even in a deep red state. Indiana Republicans were already too far along. There was no turning back. So, damn the torpedoes and full speed ahead. They turned what had been a somewhat deliberative process into a sprint:

Aug 3 – news of the resounding defeat of the Kansas abortion amendment hits; then:

Aug 4 – Indiana House flies through 86 second reading amendments;

Aug 5 – Indiana House passes legislation on third reading;

Aug 5 – Indiana Senate concurs in House amendments;

August 5th, a Friday night in the middle of summer at 11 p.m. at night, Gov. Holcomb enacts the abortion ban.

Abortion clinics are to be outlawed. First trimester abortions, both surgical and via medication, will be illegal except in rare circumstances involving rape, incest, or where necessary to prevent “a serious risk of substantial and irreversible physical impairment of a major bodily function.” If they miss the 10 week window, the state government will require the raped woman to carry their rapist’s fetus. Performing an unlawful abortion requires revocation of a doctor’s license and would likely make him or her a felon, so most probably won’t take the chance if the woman might recover somewhat some day. And serious psychological or emotional impairments don’t count under Indiana law.

This is good news for people who believe that developing life is ensouled upon fertilization; and for those who believe that women engaging in sexual activity for its own sake is unseemly or immoral and should come with life changing and potentially life threatening consequences. For those who were comfortable with the status quo of reproductive rights where 99% of abortions were conducted during the first trimester and, therefore, protected by Roe, this is a massive sea change and likely to be deeply unpopular. According to the Indiana Pregnancy Termination Report, between 7,000 and 8,000 Hoosier women receive abortions each year. This is as compared to something like 80,000 births. That means, while reproductive rights were protected, something like 8-9% of pregnancies were terminated by the mother. Some number of these were rapes, incest, or necessary to prevent death or serious physical impairment, and a greater number will have the resources to travel to Chicago. But a great number of poor and/or unlucky Hoosier women will be denied the first trimester pregnancy abortion they would have otherwise chosen and will suffer as a result. Women will die because of this.

Additionally, this will likely have a significant economic impact. As unpopular as government criminalization of reproductive freedom is among the rank and file of a place like Kansas, one suspects it is an order of magnitude more unpopular among the types of people who choose where to locate major business operations — particularly ones featuring the good managerial jobs where they and their families might have to live. It identifies the state as one where the government does not fully respect a woman’s autonomy and holds retrograde attitudes about gender and sexuality. Certainly, this sort of thing will make my kids less likely to settle down here. After the community and the state have expended considerable resources on their education, they — or at least many like them — will take the fruits of that education to a more forward looking state. Plenty of people who sneer at the value of education as compared to “common sense” will no doubt say “good riddance.” But, this is another step back for Indiana.

As I noted in my bicentennial series, at the time of its first centennial, Indiana was a powerhouse: “By the time of its centennial in 1916, Indiana was understandably proud of its accomplishments.  In many ways, the ambitions of those first Hoosiers had been realized. Indiana had carved its way out of the wilderness and risen to prominence as an important part of what was becoming the most powerful nation on the planet.” We were producing world-renowned authors, booming business concerns, and politicians of national prominence. As of our recent bicentennial, our star had faded. Anecdotally, in recent years, I’ve felt like there were signs of renewed vigor; but this will undoubtedly knock us back on our heels. Particularly if those theocrats in the General Assembly who feel like this bill does not go far enough in restricting reproductive rights are permitted to go further with additional abortion restrictions, more restrictions on birth control, backtracking on same sex marriage, and stoking panic over the presence of transgender Hoosiers. I feel like this sort of thing is not popular among most Hoosiers. Maybe I’m wrong. Maybe this is their state, and I just live in it. But, I’ve raised 6th generation Hoosiers, so I feel like I have a big stake in this place. As Mr. Cockburn sang, “you gotta kick at the darkness ’til it bleeds daylight,” and as Joe Hill said, “don’t mourn, organize.”

So, here we are. Where are we going to go now?

I’m doing this on the fly and with work deadlines, so this is going to be a little slapdash – mistakes are likely, but let’s look at some of the proposed amendments to SB 1.

(Updated 7/29/2022 – I corrected at least one error I made in the descriptions and updated the amendments to reflect the votes. Bold means the amendment passed, italics mean the amendment failed, and plain text means the amendment wasn’t called.)

1. Glick – mandates hospitals offer long term subdural birth control to a woman after having birth unless the hospital has a religious objection.

2. Bohachek – adds preservation of physical and/or mental health as grounds for abortion. Failed by voice vote.

3. Freeman – gives attorney general jurisdiction to prosecute crimes (including abortion) if prosecuting attorney categorically refuses. Passed by voice vote.

4. Freeman – gives prosecutor in adjacent county jurisdiction to prosecute crimes if local prosecutor categorically refuses.

5. Freeman – gives anyone aggrieved standing to petition for a special prosecutor if local prosecutor categorically refuses.

6. Glick – longish amendment promoting use and insurance coverage for hormonal contraception, both via patch and oral.

7. Charbonneau – limits time for rape or incest abortions to 15 weeks.

8. Glick – creates a pregnancy termination review panel to review complaints that physicians aren’t properly reporting abortions. Limits the AG’s authority to take action against a physician without the recommendation of the review panel.

9. K. Walker – makes health of a woman a grounds for abortion, sets a rape/incest time limit of 20 weeks, and decriminalizes abortions performed prior to 15 weeks.

10. K. Walker – sets a 20 week time limit on rape/incest abortions.

11. Boehnlein – gives AG authority to prosecute unlawful abortions if the local prosecutor categorically refuses.

12. Bohacek – requires FSSA to collect data on neighboring states’ Medicaid reimbursement rates for prenatal, labor, post-natal, and pediatric wellness care.

13. Yoder – adds nontrivial threat to the health of the pregnant woman as grounds for an abortion. After viability or 20 weeks, substantial permanent impairment to the life of the woman would be the standard.

14. Yoder – lists the facilities who can provide medical advice or ultrasound services to pregnant women. I believe this is intended to exclude crisis pregnancy centers. Failed by voice vote.

15. Yoder – removes amendment to definition of “abortion.” Removes additional rule making concerning abortion clinics. Allows abortion clinics to perform surgical abortions. Failed 11-36.

16. Yoder – adds physical health as a permissible reason for an abortion. After 20 weeks, only an abortion necessary to prevent a substantial permanent impairment to the life or physical health of the woman is permissible.

17. Yoder – permits abortion inducing drug to be prescribed via telemedicine. Failed 10-37.

18. Griffin – Specifies that ectopic pregnancy and placental abruptions constitute a condition incompatible with sustained life outside the womb (and therefore, the termination of pregnancy would not be an “abortion.”) Failed 18-33.

19. L. Brown – Allows the attorney general to complain to the licensing board and have a medical provider’s license revoked if he shows the provider performed an unlawful abortion.

20. L. Brown – replaces the rape/incest affidavit requirement with a notarized statement. Update: I made a significant mistake on this one. It requires the affidavit to be notarized. Passed 24-23.

21. Bohacek – removes the affidavit requirement for abortions made necessary by rape or incest.

22. Bohacek – expands the window for rape/incest abortions from 12 weeks to 16 for under 16 year olds and from 8 weeks to 12 for those who are older.

23. Becker – adds a non-binding access to reproductive health, including abortion, referendum question to the ballot.

24. Donato – replaces irremediable medical condition incompatible with sustained life with ectopic pregnancy only as a permissible “non-abortion” termination of pregnancy.

25. Sandlin – gives AG authority to prosecute unlawful abortions if the local prosecutor categorically refuses.

26. JD Ford – creates a pregnancy termination review panel to review complaints that physicians aren’t properly reporting abortions. Limits the AG’s authority to take action against a physician without the recommendation of the review panel. Failed 13-32.

27. JD Ford – removes the affidavit requirement for abortions made necessary by rape or incest. Failed 18-28.

28. JD Ford – returns bill to introduced language concerning felonies where the felony penalty would apply only to partial birth and abortions involving dismemberment, not to other abortions. Failed 14-32.

29. Pol – expands Indiana housing first housing assistance to women who are pregnant or post-partum and people experience a housing crisis. Failed 10-36.

30. Pol – limits incarceration of pregnant inmates and arrestees to those charged with or convicted of a serious violent felony. Failed 10-36.

31. Pol – expands an employer’s duty to accommodate a pregnant employee. Failed 11-35

32. Pol – authorizes a civil suit against the state, and removes the state’s protection under the Indiana Tort Claims Act, for damages incurred by a woman who is unable to obtain a medically necessary abortion because of the state’s laws. Failed 11-35.

33. Qaddoura – requires FSSA to determine whether every woman in every county has sufficient access to maternal health and mental health professionals. Failed 12-35

34. Qaddoura – calls for a study and strategic plan evaluating the needs of unborn and born children and resources available in each county. Failed 10-37

35. Lanane – removes affidavit requirement, allows surgical abortions at abortion clinics, adds physical health of the mother as a permissible reason for an abortion, and permits abortion (regardless of reason) up to 20 weeks. Failed 13-33.

36. Lanane – removes affidavit requirement, allows surgical abortions at abortion clinics, adds physical health of the mother as a permissible reason for an abortion, and permits abortion (regardless of reason) up to 15 weeks. Failed 13-33.

37. Lanane – removes the parental consent requirement where the unemancipated minor is pregnant because of rape or incest by the parent or guardian. Passed 47-0

38. Melton – repeals provision allowing attorney general to seek revocation of physician license for failure to report an abortion. Failed 12-33.

39. Melton – defines as a religious burden a prohibition on abortion where a person’s system of religious belief holds that a human life does not begin until a certain point in fetal development; prohibits government from imposing a substantial burden on the person’s religion in that fashion. Failed 12-33.

40. Niezgodski – creates a child support assistance fund to make up the gap in child support arrearage, provides for collection of arrears, and requires rapists whose parental rights are terminated to continue child support payments. Failed 12-33.

41. Lanane – defines reproductive coercion and adds reproductive coercion as a permissible reason for abortion in addition to rape and incest.

42. Lanane – repeals the death penalty.

43. G. Taylor – defines sexual intercourse with a minor under the age of 16 as rape for the purposes of permitting abortion in the case of rape. Failed 13-33.

44. G. Taylor – directs LSA to prepare legislation that updates statutes concerning obligations and benefits owed to children, including life insurance, child support, and child tax deductions to make those obligations and benefits applicable to a fetus at any age of development. Failed 10-36.

45. G. Taylor – requires insurance plans to cover contraceptive products and services. Failed 12-34.

46. G. Taylor – expands the rape or incest abortion window to 20 weeks. Failed 17-29.

47. G. Taylor – modifies provisions having to do with feticide. Failed by voice vote.

48. G. Taylor – adds a nonbinding referendum question to the ballot asking whether abortion shall remain legal in Indiana. Failed 13-33.

49. Breaux – charges the statewide mortality review committee to study how changes in the state’s abortion laws affect maternal mortality in Indiana. Passed 45-2.

50. Breaux – expands or adds coverage for doula services. Failed 12-35.

51. Breaux – protects Plan B. Specifically, the law can’t be construed to restrict prescription of FDA approved birth control and contraceptives, including emergency contraceptives. Failed 12-35.

52. M. Young – replaces affidavit requirement with a notarized statement requires rape/incest affidavit to be notarized.

53. M. Young – removes rape and incest exceptions.

54. M. Young – gives AG authority to prosecute unlawful abortions if the local prosecutor categorically refuses.

55. M. Young – Makes it a Class B misdemeanor for a health provider to fail to inform parents of rights to dispose of the fetus after a miscarriage or abortion. Makes it a murder if a person kills a woman while attempting to perform an unlawful abortion. Creates the felony of “trafficking in an abortion drug.” Creates the felony of “unlawful abortion trafficking of a minor”

56. M. Young – Allows the attorney general to complain to the licensing board and have a medical provider’s license revoked if he shows the provider performed an unlawful abortion.

57. M. Young – gives anyone aggrieved standing to petition for a special prosecutor if local prosecutor categorically refuses.

58. M. Young – removes rape and incest exceptions. Makes abortion legal only where necessary to save the life of the woman. Failed 18 – 28.

59. M. Young – creates a civil cause of action permitting the woman receiving the abortion, the father of a fetus, and/or the parents of a minor to bring a lawsuit against the person who provided an unlawful abortion and collect actual damages, punitive damages, and attorney fees. A rapist is not entitled to bring an action. It’s not clear to me whether this applies to out of state abortion providers. Failed 16-29.

60. M. Young – this is 50 pages long so my analysis here is not at all thorough, but it seems to change “fetus” to “unborn child” and prohibit abortion more or less across the board and prohibit birth control that works after fertilization but before implantation. Abortion seems to be permitted where two physicians agree it’s necessary to prevent the woman’s death.

61. M. Young – gives AG authority to prosecute unlawful abortions if the local prosecutor categorically refuses.

62. M. Young – gives AG authority to prosecute any criminal law if the local prosecutor categorically refuses.

 

Senator Glick has introduced SB 1 which would ban abortion in Indiana, subject to limited exceptions.

In the context of this legislation, “abortion” does not include termination of a pregnancy intended to produce a live birth, intended to remove a dead fetus, or “intended to terminate a fetus where the fetus suffers from an irremediable medical condition that is incompatible with sustained life outside of the womb, regardless of when the child is born.”

“Fetus” is defined as an “unborn child” throughout all stages of the fetus’s development in a pregnant woman’s uterus from implantation until birth. (Bit of a drafting faux pas there, using the word in the definition of the word.) In any event, it’s clear enough that the legislation is intended to apply to a fertilized egg once it has implanted in the uterus until the birth of the child. As I understand it, implantation is going to be something like a week after fertilization and after the zygote has become a blastocyst. The definition of “pregnancy” in this legislation also hinges on implantation.

“Abortion,” then, is the termination of a human “pregnancy” where pregnancy is defined as having a living fetus implanted in the woman’s uterus. Abortion is made “unlawful” unless it’s performed by a physician either surgically or through a drug. If surgical, the abortion must be performed in a hospital or an ambulatory outpatient center. If drug-induced, the abortion must be after an in-person examination and be consumed in the presence of the physician. The pregnant woman must file a consent with the physician and, if a minor, the consent of her parent or guardian. Furthermore, an abortion is “unlawful” unless either: 1) the abortion is (in the reasonable medical judgment of the physician) necessary to prevent a permanent impairment of the life of the pregnant woman; or 2) the pregnancy is the result of rape or incest and the woman signs an affidavit under penalties for perjury “attesting to the rape or incest.” Abortions performed after 20 weeks are required to have a second physician present who will “take all reasonable steps in keeping with good medical practice” to preserve the life and health of the “viable unborn child.”

I don’t know all the twists and turns in current abortion legislation, so maybe the text of the bill isn’t telling me everything I need to know; but if I’m reading the new IC 35-41-3-12 correctly, a pregnant woman can perform an illegal abortion on herself without it being a crime. “It is a defense to any crime involving the death of or injury to a fetus that the defendant was a pregnant woman who committed the unlawful act with the intent to terminate her pregnancy.” A person who helps her can defend against criminal charges arising out of the death or injury to the fetus except for the criminal charges of unlawful abortion or feticide, a Level 3 felony.

I think this is bad legislation because I believe that a woman’s reproductive rights deserve a great deal more consideration. The fact that rape, incest, and unimplanted eggs are excepted underscore that most people do not believe that a fertilized egg is morally equivalent to a baby. The closer a fetus gets to viability and birth, the greater moral weight people generally assign to it, and the more that weight should be balanced, under the law, against a woman’s reproductive rights. (Even that last bit is a little too easy for me to say, since I don’t have a uterus.)  It’s a line drawing problem and one that Roe sought to address through its trimester system. The first trimester was basically to be unregulated, second trimester could impose “narrowly tailored” restrictions, and the third trimester could basically ban all abortions unless necessary to protect the woman’s health.

These additional curtailments on the reproductive freedom of women in Indiana would be imposed beginning on September 1, 2023.