United States: Update On Indiana's Abortion Bill

Update on Indiana's Abortion Bill

One week into the Indiana General Assembly's 2022 Special Session, the Senate passed SB 1 on Saturday, July 30. SB 1 would restrict most abortions in the state of Indiana and would impose criminal penalties on individuals who knowingly or intentionally perform a prohibited abortion. The Indiana House takes up the bill for debate this week. This bill, if enacted into law, will have important legal ramifications for women, health care providers, employers, and others.

The Indiana General Assembly's 2022 Special Session began on July 25, and the Senate's Committee on Rules and Legislative Procedure immediately took up SB 1. Current Indiana state law generally allows for abortions up to 20 weeks postfertilization, with no proof of special circumstances required. After 20 weeks, a woman may seek an abortion only when it is necessary to prevent a substantial permanent impairment of the life or physical health of the pregnant woman.

As originally drafted, SB 1 would have prohibited abortions except in the limited circumstances of rape, incest, or if a physician determined, based on reasonable medical judgment, that an abortion would be necessary to prevent a substantial permanent impairment of the life of the pregnant woman. After stopping public comments on the bill, the Committee amended SB 1 to add time restrictions for abortions in the case of rape and incest to eight weeks postfertilization for women aged 16 and over, and 12 weeks postfertilization for girls less than age 16, while keeping the exception for abortions necessary to prevent substantial permanent impairment of the life of the pregnant woman throughout the term of pregnancy. It also imposed criminal penalties on individuals who perform an illegal abortion. The Committee voted to report the bill to the full Senate on July 26.

Following are the key provisions of SB 1 as it moves to the Indiana House of Representatives for consideration:

• Abortions in the State would be limited to situations involving rape and incest or when a physician determines, based on reasonable medical judgment, that an abortion is necessary to prevent a substantial permanent impairment of the life of the pregnant woman. In addition, the termination of a pregnancy would also be allowed where the fetus suffers from an irremediable medical condition that would be incompatible with sustained life outside the womb.

• Abortions in the case of rape and incest would be allowed only if the postfertilization age of the fetus is less than eight weeks in the case of a woman aged 16 and over, and 12 weeks postfertilization for girls less than age 16. In both cases, the woman seeking the abortion must present the physician with a notarized affidavit, signed under the penalties of perjury, attesting to the rape or incest. The physician performing the abortion must place the affidavit in the woman's permanent health record.

• Abortion clinics would no longer be allowed to perform surgical abortions. Surgical abortions would be limited to hospitals and ambulatory surgical centers owned by hospitals.

• Drugs for medication abortions could be dispensed by physicians only in person and the pregnant woman would have to consume the drug in the presence of the physician. Several other procedural requirements would have to be observed. As a result, medication abortions would not be allowed through telehealth.

• Parental consent requirements for a minor less than 18 years of age would be waived when the minor provides an affidavit (as described above) attesting that the pregnancy is the result of rape or incest by a parent, legal guardian, or custodian.

• An individual who knowingly or intentionally performs an illegal abortion would be subject to a Level 5 felony criminal charge. Criminal penalties would not apply to the pregnant woman.

• The Indiana State Attorney General would be given new broad authority to prosecute any violation of a criminal law if the prosecuting attorney of a county categorically refuses to enforce a law. This provision is in response to statements made by some county prosecutors that they would not prosecute violations of SB 1. We note that this new authority appears to apply to any criminal law and is not limited to the subject to SB 1.

• Health insurance policies sold on the health insurance exchange created by the Affordable Care Act, health maintenance organizations, and insurance policies sold in the private market to individuals and employers could only cover abortions in situations involving rape and incest or when a physician determines, based on reasonable medical judgment, that an abortion is necessary to prevent a substantial permanent impairment of the life of the pregnant woman.

SB 1, if passed in its current form, will have important legal implications. For example, health care providers will be faced with criminal penalties and the possibility of county prosecutors or the Indiana Attorney General second-guessing their judgment regarding whether an abortion is necessary "to prevent a substantial permanent impairment of the life of a pregnant woman." In addition, the bill imposes new procedural and recordkeeping requirements mandating, among other things, that physicians obtain and permanently keep affidavits from pregnant women seeking abortions in the case of rape or incest.

Indiana employers, too, will be affected by the bill in a number of ways:

• Employers that offer group health plan coverage through an insurance policy or an HMO written in Indiana will not be able to cover abortions except in the case of rape or incest, or to prevent a substantial permanent impairment of the life of the pregnant woman. This would mean that an employer with an Indiana health insurance policy could not cover elective abortions that could be legally provided in another state.

• Indiana employers that self-insure their group health plans (i.e., those that pay for health claims out of their general assets or a trust) would seemingly have more flexibility to cover out-of-state elective abortions under SB 1; however, there will likely be litigation over whether such plans can cover abortion-inducing drugs that are provided by a mail-order pharmacy to Indiana residents.

• Employers may also have to wrestle with whether and how to communicate their position on SB 1 and the Supreme Court's decision to overturn Roe v. Wade in general. Each employer's culture will dictate whether or not to issue a communication to employees and, if so, the content and tone of that communication. Employers may also have to consider whether SB 1 will affect their ability to attract and retain employees in Indiana.

Our earlier e-alert focused on issues faced by employers and their employee benefit plans.It can be found here.

Ice Miller attorneys focusing on health care, employee benefits, employment issues, and litigation are closely monitoring SB 1 and legislation in other states in the wake of the Supreme Court decision. We are here to guide clients through the myriad of issues that they must confront in a post-Roe United States. If you have questions about the issues that affect you, your practice, or your business, please reach out to us. In the meantime, we will keep you updated on new developments in this quickly changing area

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.