Indiana has become the first state after the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization to pass a nearly total ban on abortion. On Friday, August 5, Governor Eric Holcomb signed Senate Bill 1 ("SB 1"), which bans all abortions in Indiana with narrow exceptions for the life and health of the mother, lethal fetal anomalies, rape, and incest. The new law is effective September 15, 2022. It will have wide-ranging legal effects on women, health care providers, employers, and others.
The Indiana General Assembly went into Special Session on July 25. The Senate immediately took up SB 1 and, within a week, passed the bill by a vote of 26-21. Our August 1 e-alert detailed the bill's progress through the Senate. It can be found here.
As SB 1 moved to the House, it was assigned to the House's
Committee on Courts and Criminal Code. An amendment in the
Committee made several changes to the Senate version. For example,
it removed criminal penalties for physicians assisting in an
abortion, but it made mandatory the removal of a physician's
license if a physician performs an illegal abortion. The amendment
also increased the amount of time a victim of rape or incest may
seek an abortion if the victim is under age 16; however, it reduced
the amount of time for a victim who is age 16 or older. The House
Committee amendment removed the requirement that a victim of rape
or incest execute a notarized affidavit attesting to the fact of
rape or incest. Instead, the physician who performs the abortion
must certify to the hospital or ambulatory surgery center in which
the abortion is performed that the abortion is being performed at
the woman's request because the pregnancy is the result of rape
or incest, along with the facts and reasons supporting the
certification. Other changes to the Senate's version of SB 1
included allowing a woman's health to be considered when
determining whether an abortion is appropriate and removing the
right of Indiana's Attorney General to intervene in counties in
which a local prosecutor refuses to enforce the law.
Following Committee testimony and debate in the full House, SB 1, as amended, was passed by the House in the afternoon of Friday August 6. Within hours, the Senate voted to concur in the House's amended version of SB 1. The Governor signed SB 1 into law within an hour after the Senate's concurrence. The new law provides for the following as of September 15, 2022:<
- Abortions in the State of Indiana are limited to situations involving rape and incest or when a physician determines, based on reasonable medical judgment, that performing the abortion is necessary to prevent any serious health risk to the pregnant woman or to save the pregnant woman's life.
- The termination of a pregnancy would also be allowed where the fetus is diagnosed with a lethal fetal anomaly. A lethal fetal anomaly is a condition diagnosed before birth that, if the pregnancy results in a live birth, will with reasonable certainty result in the death of the child not more than three months after the child's birth.
- Abortions in the case of rape and incest would be allowed only if the postfertilization age of the fetus is less than 10 weeks. The physician performing the abortion must certify to the hospital or ambulatory surgery center in which it is performed that, after proper examination, the abortion is being performed at the woman's request because the pregnancy is the result of rape or incest. All of the facts and reasons supporting the certification must be set forth by the physician in writing and attached to the certificate. A woman seeking an abortion for these reasons is not required to submit a notarized affidavit attesting to the rape or incest for her permanent medical record as was required under the original Senate version of SB1.
- Abortions in the case of a lethal fetal anomaly are restricted to the earlier of 20 weeks postfertilization age for the fetus or the viability of the fetus.
- Abortions that are necessary to prevent any serious health risk to the pregnant woman or to save the pregnant woman's life may be performed before or after 20 weeks postfertilization age of the fetus (or before or after viability), but those performed after 20 weeks or viability may only take place in a hospital.
- The restrictions in Indiana's abortion statute do not apply to in vitro fertilization.
- Abortion clinics are no longer permitted. Abortions (including medication abortions) may only be performed in a hospital or in an ambulatory outpatient surgical center that has a majority ownership by a hospital.
- Drugs for medication abortions may be dispensed by physicians only in person and the pregnant woman must consume the drug in the presence of the physician. Several other procedural requirements must be observed. As a result, medication abortions are not allowed through telehealth. They must take place in a hospital or an ambulatory outpatient surgery center.
- Parental consent requirements are waived for a minor under 18 years of age who is pregnant as a 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. However, it is a defense to any crime involving the death of or injury to a fetus that the mother of the fetus requested that the defendant terminate her pregnancy, although this defense is not available in all cases. The law also provides a defense for pregnant women against feticide and also for a physician if the physician performs a medical procedure to terminate a woman's pregnancy upon her request.
- The Medical Licensing Board is required to revoke a physician's license if the Indiana Attorney General proves by a preponderance of the evidence that a physician intended to perform an illegal abortion.
- The final version of the statute removed the broad authority given to the Indiana State Attorney General in the Senate's version of SB 1 to step in to prosecute any violation of a criminal law when the local county prosecutor categorically refused to enforce the law. Instead, the law sets up a task force to study the circumstances in which a county prosecutor makes a blanket refusal to enforce a specific statute or constitutional provision and to consider appropriate methods of enforcing the statute or provision. The task force must make its recommendations to the General Assembly before December 1, 2022.
- 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 may only cover those abortions permitted under the narrow exceptions contained in the statute.
Putting aside how the new restrictions affect the rights of women in Indiana to have an abortion, SB 1 raises legal and other issues for a number of groups. For example, employers that offer group health plan coverage through an insurance policy or an HMO written in Indiana will not be able to cover most abortions—even abortions that could be legally provided in another state. SB 1 does not on its face attempt to limit employers with self-funded health plans from covering abortions in other states, nor does it attempt to prohibit employers from paying travel expenses for employees who seek an abortion in another state. However, employers who establish travel policies need to be aware of other states' laws and whether assisting out-of-state employees to obtain an abortion in another state will give rise to criminal liability in other jurisdictions.
Employers may also need to consider whether and how to communicate their position on SB 1 and the impact of Dobbs on their employees and potential recruits. 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 the State of Indiana. Indeed, Eli Lilly and Company—one of Indiana's largest and oldest employers—issued a statement after SB 1 was signed that it "may be forced to plan for more employment growth outside of our home state."
Our earlier e-alert focused on issues faced by employers and their employee benefit plans. It can be found here.
Health care providers are obviously affected by SB 1. Before September 15, hospitals and ambulatory outpatient surgery centers must create new protocols to ensure that Indiana's new abortion law is enforced throughout their facilities. New processes for certifications in the case of rape and incest must be created and careful documentation regarding the reasons for abortions must be maintained, among other things. Abortion clinics must stop providing abortions entirely. Physicians must make decisions under often very difficult circumstances about whether an abortion is necessary to prevent a serious health risk to the pregnant woman or to save the pregnant woman's life. They must also carefully make decisions about whether a lethal fetal anomaly exists. These decisions are likely to be under close scrutiny by county prosecutors enforcing Indian's new abortion ban.
Ice Miller attorneys focusing on health care, employee benefits, employment issues, and litigation are closely monitoring state and national developments in the wake of the Dobbs 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.
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