Restrictions

Following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization,^[1]Dobbs v. Jackson Women’s Health Org., 597 U.S (June 24, 2022), rev’d Dobbs v. Jackson Women’s Health Org., 945 F.3d 265, 274 (5th Cir. 2019). Indiana enacted a new law prohibiting abortion with very limited exceptions.^[2]S.B. 1, 122nd Leg., 1st Spec. Sess. (Ind. 2022). While originally enjoined^[3]Planned Parenthood N.W. Haw., Alaska, Ind., Ky. v. Members of the Med. Licensing Bd. of Ind., No. 53C06-2208-PL-001756 (Monroe Cnty. Cir. Ct., Sep. 22, 2022)., the Indiana Supreme Court vacated the injunction on June 30, 2023.^[4] Members of the Med. Licensing Bd. of Ind. v. Planned Parenthood N.W. Haw., Alaska, Ind., Ky., No. 22S-PL-338 (Ind. Sup. Ct., Jun, 30, 2023). In another case, the total ban is being challenged by Indianans who “have sincere religious beliefs that direct them to obtain an abortion under circumstances prohibited” by the ban and believe it violated the state’s Religious Freedom Restoration Act.^[5]Anonymous Plaintiffs 1-5 v. Individual Members of the Medical Licensing Board, et al., 49D01-2209-PL-031056, 22A-PL-02938 (Marion Cnty. Sup. Ct, filed Sep. 8, 2022). The trial court issued a preliminary injunction, blocking the state from enforcing the abortion law against the plaintiffs in the case,^[6]Anonymous Plaintiff 1, et al. v. Individual Members of the Medical Licensing Board, et al. 49D01-2209-PL-031056 (Marion Cnty. Sup. Ct. Dec. 2, 2022). and certifying the case as a class action including “[a]ll persons in Indiana whose religious beliefs direct them to obtain abortions”.^[7]Anonymous Plaintiff 1, et al. v. Individual Members of the Medical Licensing Board, et al. 49D01-2209-PL-031056 (Marion Cnty. Sup. Ct. Jun. 6, 2023). The state Supreme Court has allowed the injunction and the class action to stand while the case goes through trial.^[8]Individual Members of the Medical Licensing Board of Indiana, et al. v. Anonymous Plaintiff 1, et al., 22A-PL-2938 (Ind. Dec. 10, 2024).

Indiana has not repealed other laws related to abortion. Indiana law continues to prohibit abortion at “the earlier of viability . . . or twenty weeks post-fertilization”^[9]IND. CODE ANN. § 16-34-2-1(a)(2). but with additional requirements that the abortion is necessary to “prevent a substantial permanent impairment of the life or physical health of the pregnant woman; or the fetus is diagnosed with a lethal fetal anomaly.”^[10]Id. State law prohibits D&X^[11]Id. § 16-34-2-1(b). and D&E procedures although the D&E ban is preliminarily enjoined,^[12]Id. § 16-18-2-96.4; see Bernard v. Individual Members of Indiana Med. Licensing Bd., 392 F. Supp. 3d 935 (S.D. Ind. 2019). and abortions sought for reasons of sex, disability, race, color, national origin, or ancestry of the fetus, though the reason bans are also enjoined.^[13]IND. CODE ANN. §§ 16-34-2-1.1(a)(1)(K), 16-34-4-4, 16-34-4-5, 16-34-4-6, 16-34-4-7, 16-34-4-8; see Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1782 (2019). Indiana law continues to include requirements that pregnant people must undergo an ultrasound and 18-hour mandatory waiting period^[14]Id. § 16-34-2-1.1; see Box v. Planned Parenthood of Indiana & Kentucky, Inc., 141 S. Ct. 184, 207 L. Ed. 2d 1112 (2020) (injunction on the requirement for a waiting period after ultrasound was … Continue reading; biased counseling^[15]Ind. Code Ann. § 16-34-2-1(a)(1)(C).; and prohibitions on public funding, and private insurance coverage.^[16]405 IND. ADMIN. CODE 5-28-7; IND. CODE ANN. §§ 16-34-1-8; 27-8-13.4-2; 27-13-7-7.5. Indiana continues to require that a parent, legal guardian,^[17]IND. CODE ANN. § 16-34-2-4 (a); § 16-18-2-267. or judge^[18]Id. § 16-34-2-4(d). See Planned Parenthood of Indiana & Kentucky, Inc. v. Box, 991 F.3d 740, 752 (7th Cir. 2021), petition for cert. filed, (U.S. Marc. 29, 2021) (No. 20-1375). consent to a minor’s abortion.^[19]Ind. Code Ann. § 16-34-2-4(a).

Indiana retains targeted regulation of abortion providers (TRAP) laws relating to facilities,^[20]Id. § 16-21-2-10; id. § 16-18-2-1.5; id. § 16-34-5; S.B. 1, 122nd Leg., 1st Spec. Sess. (Ind. 2022). admitting privileges,^[21]IND. CODE ANN. § 16-34-2-4.5. and reporting.^[22]Id. § 16-34-2-5; id. § 16-34-2-1.1(d). Indiana law continues to restrict the provision of abortion care to licensed physicians^[23]Id. § 16-34-2-4.5; id. § 16-34-2-1; see Whole Women’s Health Alliance v. Rokita, 13 F.4th 595 (7th Cir. 2021) (staying the lower court’s injunction that enjoined the physicians only … Continue readingand still restricts providers from using telemedicine for the provision of abortion care.^[24]IND. CODE ANN. § 16-34-2-1(a)(1); id. § 16-34-2-1(d). Providers who violate Indiana’s abortion restrictions may face civil and criminal penalties.^[25]See, e.g., id. § 16-21-3-1(6); id.§ 16-34-2-1. S.B. 1, 122nd Leg., 1st Spec. Sess. (Ind. 2022).

State Protections

Indiana law does not include express statutory protections for abortion. In June 2023, the Indiana Supreme Court held that the constitution protects abortion in situations when there is risk to a pregnant person’s life or a “serious health risk.”^[26]Members of the Med. Licensing Bd. of Ind. v. Planned Parenthood N.W. Haw., Alaska, Ind., Ky., No. 22S-PL-338 (Ind. Sup. Ct., Jun, 30, 2023).

Post-Roe Prohibitions

In 2022, Indiana enacted a total ban on abortion.^[27]S.B. 1, 122nd Leg., 1st Spec. Sess. (Ind. 2022). The state expressly repealed two pre-Roe bans in 1977.^[28]Id. §§ 35-1-58-1, 35-1-58-2 repealed by 1977 Ind. Acts 1524; see also Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973, 989 n.2 (Ind. 2005) (Dickson, J., concurring) (providing history of … Continue reading

Conclusion

Now that the Supreme Court has overturned Roe, Indiana has enacted a new total ban on abortion, which took effect on June 30, 2023, after the state supreme court vacated the injunction blocking the law.