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By Marilyn Odendahl

The Indiana Citizen

November 10, 2023

Declaring the fight for abortion rights “isn’t over in Indiana,” Planned Parenthood, Women’s Med Group Professional Corp. and other abortion providers have returned to court seeking to expand the medical exception in Indiana’s near-total abortion ban to include mental health conditions and to block the requirement that abortions can only be performed in a hospital.

In an amended complaint filed in Monroe County Circuit Court on Thursday, the plaintiffs assert the state’s narrow health or life exception and hospital requirement violate Article 1, Section 1 of the Indiana Constitution.

The plaintiffs are basing their claim on the Indiana Supreme Court’s ruling issued earlier this year, which upheld the state’s new abortion law. However, the plaintiffs contend that in the opinion, the majority of the justices found the Indiana Constitution “protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk.”

While the Supreme Court allowed the abortion ban to take effect, the justices left the door open, saying a more focused challenge to the new law might be more successful. The plaintiffs have followed that suggestion and are now asking for preliminary and permanent injunctions to stop the state from enforcing certain provisions in the abortion law.

Specifically, the plaintiffs want the trial court to block the state from enforcing the “serious health risk provision” so that physicians could provide abortion care to women who have physical medical conditions or mental health illnesses currently not included in Indiana’s abortion law.

Also, they want the court to prevent the state from enforcing the hospital requirement, which mandates that abortions be performed in hospitals, or ambulatory outpatient surgical centers owned by hospitals, so that clinics like Planned Parenthood and Women’s Med could provide abortions in the “limited circumstances in which abortions are legal in Indiana.”

Leaders from the Planned Parenthood Federation of America, Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky; ACLU of Indiana; All Options; the Lawyering Project; and Women’s Med Group released a joint statement when the lawsuit was filed.

“The fight isn’t over in Indiana. Today, we are asking the trial court to protect Hoosiers’ health and limit the scope of the state’s unconstitutional abortion ban,” the leader said in a press release. “We are hopeful that the court will grant our request, ensuring that Hoosiers in the most vulnerable circumstances can still access care in their state.”

The lawsuit was filed by Planned Parenthood Federation of America, the Lawyering Project, the ACLU of Indiana, and WilmerHale on behalf of Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky, Women’s Med Group Professional Corp, All-Options, Inc. and Dr. Amy Caldwell.

The defendants include the members of the Medical Licensing Board of Indiana and the prosecutors in Hendricks, Lake, Marion, Monroe, Tippecanoe, and Warrick counties.

‘Chilling effect’

Under Senate Enrolled Act 1, passed by the Indiana General Assembly and signed into law in August 2022, abortion is prohibited unless terminating the pregnancy is necessary to prevent the mother’s death or a “substantial and irreversible” physical health impairment. An abortion may also be performed when the fetus has a lethal anomaly or the pregnancy is the result of rape or incest.

The plaintiffs note that the law comes with criminal penalties. Physicians performing abortions not covered by the exceptions could be charged with a Level 5 felony punishable by one to six years in prison, a fine up to $10,000 and loss of their medical license.

The plaintiffs assert the narrow exceptions and the penalties are impeding patient care. “(SEA 1’s) unconstitutionally narrow Health or Life Exception coupled with its severe criminal and licensure penalties, chills and prevents doctors practicing in hospitals from providing the care that Hoosiers are entitled to under the Indiana Constitution,” they state in their amended complaint.

Also, the plaintiffs highlight Indiana Attorney General Todd Rokita’s medical licensing complaint against Dr. Caitlin Bernard as an example of how the “chilling effect is all the more acute due to Indiana’s history of targeting abortion providers.”

Bernard, an OB/GYN at IU Health, attracted media attention after she provided abortion care to a 10-year-old Ohio rape victim. Rokita publicly stated Bernard had a history of failing to file abortion reports as required by state law and that his office was investigating her.

For his actions, Rokita faced a disciplinary complaint. A split Indiana Supreme Court found the state’s top lawyer had violated two rules of professional conduct and issued a public reprimand. However, Chief Justice Loretta Rush and Justice Goff dissented, saying Rokita’s punishment was “too lenient” based on his “position as attorney general and the scope and breadth” of his misconduct.

Still, the plaintiffs maintain that physicians’ fear of criminal charges may impact patient care.

“Even patients whose pregnancies should qualify for “(SEA 1’s) Health or Life Exception may still be unable to obtain an abortion because physicians will credibly fear that they will be prosecuted for the exercise of their professional medical judgment if government officials disagree with their assessment of a patient’s condition,” the plaintiffs argue.

Expanding the health or life exception

The plaintiffs assert the exception for the health and life of the mother is too narrow and does not allow an abortion for all the physical medical problems that can be caused or exacerbated by a pregnancy.

“Hoosiers experiencing or at risk of pregnancy complications that may seriously and permanently impair their health – but that may not meet the limited exception for serious health risks set out in (SEA 1) – will be forced to remain pregnant and to suffer serious and potentially life-long harms to their health,” the plaintiffs argue.

Some of the conditions, they said, may worsen during the pregnancy and eventually become life-threatening or may impair a woman’s future health. Also, some women might have to modify or stop treatment, including medication, for a health condition because not doing so could endanger the fetus.

Moreover, the plaintiffs assert that not allowing an abortion for patients suffering from psychological and psychiatric conditions “is both inconsistent with best medical practices and will harm pregnant Hoosiers.” A patient’s mental illness might be aggravated by biological changes caused by the pregnancy or a patient may need to stop taking her medications to avoid harming the fetus, the plaintiffs state.

“The consequences of aggravating an existing mental health condition or relapsing after a mental health condition is stable can be dire for pregnant patients and their families,” the plaintiffs argue. “Patients may require psychiatric hospitalization, may lose their jobs, and may be unable to care for their new babies or other dependents. If suffering from particularly several mental illness, patients may also engage in self-harm (including attempting suicide) or may harm their infant.”

Overturning the hospital requirement

The plaintiffs argue the requirement that abortions only be performed in hospitals will make the procedure “nearly impossible to access” – even for patients who qualify under the law’s exceptions.

They assert out-of-pocket expenses can be much higher for patients receiving abortion care at hospitals, compared to care provided in clinics. “This higher cost will make obtaining abortion care in a hospital setting impossible for many Hoosiers,” the plaintiffs argue.

Pointing to data from the Indiana State Department of Health, the plaintiffs also contend 98% of the abortions in 2021 in Indiana were performed at abortion clinics now prohibited from performing abortions under SEA 1. Moreover, the hospitals that provide abortions are limited mostly to Indianapolis, placing additional barriers to women who live a distance away from the state capital.

“Forcing patients to seek abortions at hospitals does not improve patient health and safety, and instead only serves to harm those who are eligible for abortion care under Indiana law by limiting their options for access to care without medical justification,” the plaintiffs assert. “These harms will be borne most heavily by patients who are lower income, have trouble getting off work and/or securing childcare to seek a hospital-based procedure, or who live in rural areas far from hospitals that offer abortion care.”

The case is Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc.; Women’s Med Group Professional Corporation; et al. v. Members of the Medical Licensing Board of Indiana; et al., 53C06-2208-PL-001756.

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.

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