Room for individual, narrower legal action on abortion ban, legal experts say
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A split ruling from the Indiana Supreme Court late last month has left the door open to both individual future challenges and further restrictions to the state’s near-total abortion ban.
Now, some legal experts are warning that Hoosiers could directly petition the courts for abortion access. That’s because the justices found women have a right to an abortion in life-threatening circumstances or if pregnancy risks serious health problems – but didn’t define those risks.
Justice Christopher Goff, in a dissenting opinion, urged lawmakers to adopt a constitutional amendment and put the issue before voters. But Indiana’s prohibitively lengthy process is complicated and requires legislative approval from two separately elected General Assemblies.
Legislators could also be emboldened to take out exceptions currently in the law.
And with the prohibition – which also strips abortion clinics of their state licenses – going into effect as soon as next month, it’s unclear how hospitals will handle the demand.
In the case, a group of Indiana abortion providers argued that the ban would infringe on liberty rights that they said the state’s Constitution guaranteed. A Republican judge in September issued a preliminary injunction based on the complaint, putting the ban on hold.
But Indiana’s Supreme Court overturned that injunction when it largely upheld the ban in a 4-1 decision on June 30. Plaintiffs have 30 days to seek a rehearing before the decision is certified, meaning the ban won’t be effective until at least Aug. 1. Rehearings are rarely granted.
Try again?
Several sections of the decision — written by Justice Derek Molter, the court’s newest member — seemed to encourage plaintiffs to file a new, narrower challenge, said Jody Madeira, a professor at Indiana University’s Maurer School of Law.
Future lawsuits could seek clarity from judges on an individual basis, like if doctors have conflicting views about whether the pregnancy endangers the mother’s life, what counts as a “serious health risk,” and more.
Rick Garnett, a professor at the University of Notre Dame’s law school, said he expects litigation to continue.
“It would be pretty standard, just like with all kinds of regulatory statutes, that the Legislature uses a particular term. Parties can argue about, ‘Well, does this particular circumstance come within the meaning of that term?’” said Garnett, who specializes in constitutional and religious freedom law.
But more legal action — especially if only on an individual basis — could have consequences.
“This makes it harder for the issue to be addressed in a timely manner and addressed in a manner in which it would apply to the vast majority of all procedures in the state,” Madeira said.
The American Civil Liberties Union of Indiana – which filed the suit on behalf of the plaintiffs – said it would likely ask the trial court for a narrower preliminary injunction.
“We’re still thinking about how to proceed, but we certainly believe that – within this notion of severe medical need – there are medical needs that are broader than the very narrow exception in the statute, which is permanent impairment of a major bodily function,” ACLU Indiana Legal Director Ken Falk said.
The exceptions, for example, don’t include psychiatric conditions.
More restrictions on the way?
Molter’s opinion made clear that the state’s Constitution guarantees exemptions to save an individual life or to prevent severe health consequences.
But other exceptions currently in the law – for rape and fatal fetal anomalies – don’t have the same constitutional protections. Because of that, the Indiana General Assembly could potentially feel emboldened to further restrict abortion access by eliminating those exceptions.
“I think we’re going to see some further changes; it’s hard to imagine them making the law more restrictive but I think they can,” Madeira said.
LaGrange Sen. Sue Glick, the Republican who authored last summer’s abortion ban, acknowledged that her fellow lawmakers would likely attempt to ditch those exemptions.
“Some people are unhappy that there’s any exceptions; there’s a lot of people who were upset because … they wanted it to be open-ended,” Glick said. “We’ve reached a compromise, if you will, and that’s not satisfactory to a lot of people on both sides. So maybe it was the right or correct ruling.”
A coalition of moderate Republicans and the entire Democratic caucus voted to include exemptions for rape victims up to 10 weeks and fatal fetal anomalies up to 20 weeks. But margins were close enough in both chambers that changes to a handful of votes would eliminate the exceptions, making it likely they’ll return for consideration in the 2024 legislative session.
Can hospitals fill the gap?
The ban strikes licenses for abortion clinics from law, meaning that only hospitals can provide abortions moving forward. Hospitals performed less than 1.5% of all abortions in 2022, according to state data.
The health systems contacted by the Indiana Capital Chronicle either declined or didn’t respond to interview requests. They didn’t specifically outline their elective abortion policies or their plans to meet a potential increase in demand for abortions at their facilities.
The state’s largest hospital abortion provider, the Sidney & Lois Eskenazi Hospital in Indianapolis, didn’t provide an interview but sent a statement Monday.
“Eskenazi Health has a long history of caring for our community, especially vulnerable populations,” the health system said.
“As new regulations may impact how we can counsel, treat and care for pregnant patients across our health system, we have established a consult team made up of medical and administrative leaders to provide support for our physicians, advance practice providers and other clinicians, across multiple disciplines, in providing evidence-based, patient-centered care within the confines of the law,” Eskenazi Health continued.
The system performed 60, or 43%, of the state’s 140 hospital abortions in 2022.
Indiana University Health re-sent a statement reacting to the Supreme Court’s decision but didn’t provide answers to specific questions. Four of the entity’s Indianapolis-area hospitals provided 75, or 53%, of the state’s 140 abortions at hospitals in 2022.
Deaconess Hospital in Evansville, one of the few listed hospitals outside central Indiana, did one procedure in 2022. A spokesperson said no one was available to answer questions.
Deaconess Women’s Hospital Chief Medical Officer C. Brennan Fitzpatrick said the system “will fully comply with all elements of the existing statute” in a written statement to the Capital Chronicle.
Parkview Health, in Northeast Indiana, said it didn’t perform “elective abortions” but added in a written statement that it would “continue to ensure our patients get the care they need, especially in an emergency.”
Asked how Parkview defined “elective” and “emergency,” spokeswoman Tami Brigle referred the Capital Chronicle to the Indiana Department of Health. She added, “While medical decisions are complex and based on individual situations, we are providing care within the scope of the law.”
Parkview’s Randallia and Regional facilities performed two abortions in 2022.
The ACLU of Indiana’s Falk didn’t rule out further, individual legal action if plaintiffs were unable to access abortions from hospitals.
The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.