Health officials, legal experts wait to see how far Indiana legislature will go after Roe v. Wade struck down

Across the state, health officials and legal experts are waiting to see what abortion restrictions will be introduced in Indiana after the U.S. Supreme Court struck down Roe v. Wade.

Advocates and health care providers warn that the specific language of a law could have wide-ranging impacts on both reproductive healthcare and prosecution in Indiana.

What could an abortion law mean for health care?

Nationally, organizations like the Association of Women’s Health, Obstetric and Neonatal Nurses, and the American College of Obstetricians and Gynecologists have expressed their opposition to the decision, underlining that it would “put the lives and health of pregnant people at risk.”

In Indiana, IU Health Arnett and the Indiana Hospital Association both released statements indicating they plan to work with the legislature to ensure they can continue to provide quality care.

Franciscan Health in Lafayette praised the high court's decision – noting that, as a Catholic hospital, their model of care for pregnant patients would not change.

Tippecanoe County Health Officer Dr. Greg Loomis said an abortion ban in the state will have clear, negative impacts on health care. A retired neurosurgeon, Loomis said even if the legislature allows exceptions to abortion bans to protect the life of a mother – there will be complications.

“It would be like, in my sub-specialty, having some law that you can’t operate on a human brain until they are about ready to die,” he said. “That’s tying the doctor’s hands. That’s taking medical decision-making and taking it out of doctors’, nurses’, and pharmacists' hands and tying them up because of a political ideology.”

Loomis said the decision is likely to increase fetal infant mortality, and he worries about the gray area around exceptions that allow abortions only when it protects the life of the mother.

“What are we supposed to do? You’re getting some doctors who are already talking about possibly waiting until a woman gets sicker before they operate for fear that they could lose their license,” he said.

Other health experts in the state have warned that health care decisions are often nuanced – and without clear designations about what is and is not allowable, doctors may halt care due to legal concerns.

In states with abortion trigger laws that went into effect following the end of Roe, issues around this ambiguity have already cropped up. In Missouri, a hospital system stopped – and then resumed – offering emergency contraceptives to patients, citing an abundance of caution.

All of this, Loomis said, will exacerbate existing health disparities in the county and state.

“Again it’s about women’s health,” he said. “It’s going to create a problem for the victims of our society which are going to be the Black, Hispanic, and nonwhite populations. The ones that can’t afford to travel to another state to get an abortion, the ones that can’t afford to raise children.”

Loomis called on Indiana’s legislature to take a moderate approach to any restrictions it places on abortion procedures.

“I’d love to see Indiana lawmakers, regardless of their political ideology, do something like, ‘you know we’re not going to push this like Texas is doing or Mississippi is doing - we’re going to be pro-life but we’ll do it moderately,’” he said.

'Model law' offers insight into how legislature may approach restrictions

State Republicans have not yet indicated what kinds of abortion restrictions they will pursue during the special session slated for later this month, but Gov. Eric Holcomb has said he doesn’t have “any red lines” when it comes to abortion measures.

Shortly before Roe was overturned, the National Right to Life Committee, one of the oldest anti-abortion groups in the country, put out a proposed “post-Roe model abortion law” for states to adopt.

The model law includes recommendations for an exception to abortion bans to protect the life of a mother, as well as ensuring that no civil or criminal penalties will be imposed on pregnant people.

Terre Haute-based James Bopp Jr., general counsel to the NRLC, said not criminalizing the person seeking the abortion is an important aspect of the model law.

“There’s a lot of reasons for that. One of them is the reality that women are facing a crisis pregnancy situation, those who would consider abortion, and they do not have a criminal intent to kill the child,” Bopp said. “They are trying to solve a difficult dilemma in their life.”

But Bopp takes issue with medical professionals like Loomis who see abortion restrictions as government interference in the decision-making process between doctor and patient.

“Traditionally physicians were guided by the Hippocratic oath, which says ‘do no harm.’ Do no harm means not to kill your patient. The unborn is a human life and a patient of a physician in a pregnancy,” he said. “But they want to kill them or be allowed to kill them when they think it’s right. That violates the Hippocratic oath.”

The model law does not recommend exceptions for rape or incest, but does include language for those exceptions for the “certain states” where it may be necessary “to have additional exceptions.”

The law would subject a person who performs an abortion to a level 2 felony if the child dies, and a level 3 felony if the child survives.

It would also punish people who aid and abet a person in getting an abortion. That includes giving instructions over the internet or telephone about how to obtain an abortion, providing referrals to an abortion provider, or maintaining a website that encourages efforts to undergo an abortion.

When asked about concerns raised by health care experts that exceptions for the life of the mother might put them in a medical gray area, Bopp said to wait until a law was finally proposed before raising those complaints.

“I understand that laws cannot be vague,” Bopp said. “We are endeavoring that we make sure that whatever laws are proposed are not vague and provide sufficient detail for professionals, because this is a question for a physician or professionals that they will know how to conform their conduct.”

In the memo outlining their approach, attorneys for the NRLC noted the importance of working around “radical Democrat prosecutors” who would refuse to enforce anti-abortion laws post-Roe.

“There are several ways to get around these lawless, radical Democrat prosecutors,” Bopp said. “One is to give the attorney general criminal law enforcement of the abortion law – which we would propose. Also having civil and criminal remedies that can be brought for injunction, or damages that can be brought by the father of the child or the parents of the pregnant woman.”

Some prosecutors across the country have already indicated they won’t enforce a ban on abortions. In Marion County, Prosecutor Ryan Mears announced that his office had “no plans” to pursue charges against women or doctors over abortions.

'The question becomes: how bad will it get?'

Jennifer Drobac is a professor with the IU McKinney School of Law. She said that if the Indiana legislature makes abortions akin to homicide, prosecutors can’t promise people won’t be charged in the future.

“Indiana currently has no statute of limitations on murder,” she said. “If something is classified as murder, the prosecutor’s office can charge it at any time in the future.”

Some states, like Louisiana, have pursued legislation to classify abortion as a homicide.

And in 2018, Indiana passed a law allowing for a person to be charged with murder or feticide for killing a fetus at any stage of development. That law did include an exception for both legal abortion and a woman who terminates her own pregnancy.

But Drobac said opening abortion providers up to prosecution will have a chilling effect on healthcare even with exceptions for the life of the mother.

“If you outlaw abortion even up to the circumstance where they are allowed to perform an abortion to save the life of a mother, physicians and medical assistants will be at risk,” she said. “What happens when prosecutors and the judiciary start practicing medicine? It’s not a happy situation.”

Drobac said that it’s not clear how close to death a person would have to be before doctors could intervene without worrying about some kind of prosecution.

“What if she’s just seriously ill but not at risk of death yet? Medical personnel are going to be at risk and it’s going to have a huge chilling effect on the practice of medicine,” she said. “...we should not have people who are not licensed to practice medicine second-guessing doctors.”

One way to protect abortion providers, according to Drobac, would be an exception for both the life and health of a mother.

“That gives the physician a little more wiggle room because arguably, even if someone were to second guess…and determine the mother’s life wasn’t threatened, then, well if her health was, if it was clear she was suffering or losing a lot of blood…the doctor would be protected,” she said. “But not with this NLRC model law.”

More broadly, Drobac said the Supreme Court’s decision allows for an intrusion into the personal lives of individuals.

“This is about women’s liberty, bodily integrity, autonomy,” she said. “To fail to acknowledge that in the majority opinion leaves women and families vulnerable to the types of new legislation that could go into effect in Indiana.”

“The question becomes: how bad will it get,” Drobac added. “And it could get very bad.”