Several Significant Indiana Abortion Laws Struck Down In Federal Court

Several major Indiana abortion laws were struck down in federal court Tuesday. If that ruling stands, it will change how people access abortions in the state. 

The decision came in a lawsuit brought by, among others, health care provider Whole Woman’s Health Alliance, which challenged most of the state’s abortion regulations.

The crux of federal Judge Sarah Evans Barker’s ruling comes down to this: several of Indiana’s abortion laws make it difficult – and in some cases, nearly impossible – to access constitutionally-guaranteed abortion care. That comes in the form of higher costs, less availability and greater travel and burdens on transportation. And it’s particularly true, she wrote, when the majority of people who seek abortion in Indiana are low-income – and nearly a quarter of them are likely to experience violence at the hands of an intimate partner.

And Barker said the state’s arguments aren’t good enough to overcome those burdens.

For example, Indiana bans the use of telemedicine for abortion care. But Barker’s ruling said the state offered “little to no justification” for that law. She said advancements in technology mean health care providers can provide the same quality of care via telemedicine as in-person visits. And she noted that Indiana encourages the use of telemedicine to provide other care, such as dispensing medications that come with greater risk than abortion-inducing drugs.

At the same time, the obstacles created by the telemedicine ban are significant. Barker wrote that allowing telemedicine will “dramatically expand the availability of appointments and reduce delays in care.”

Under the judge’s ruling, abortion providers could now offer medication abortions via telemedicine. And doctors could provide their patients with the necessary informed consent via virtual care.

A similar law that the Reagan-appointee struck down requires that the person seeking a medication abortion have a physical examination beforehand.

“The In-Person Examination Requirement does not offer any benefits necessary to ensure the safe provision of medication abortion services,” Barker said.

There’s also the law that says only physicians can provide medication abortions. Barker wrote the state offered, “at best, a weak justification” for a law she said is “out of sync with contemporary medical practice standards and views as well as required safety requirements.”

Eliminating that law, she said, will dramatically increase access.

“Abortion clinics in Indiana would expand to provide services five days a week, which … would reduce wait times and allow women to access care at an earlier point in their pregnancies and with greater convenience, reduced anxieties, and ameliorated risks that result when women are delayed in receiving abortion services,” Barker said.

Rather than only doctors, Barker’s ruling would allow what are called “advanced practice clinicians” to also dispense abortion-inducing drugs. APCs include physician assistants and nurse practitioners. And the judge noted that APCs are already allowed to dispense one of those drugs when it’s used for miscarriage care.

She also chided the state in her decision.

“The State's experts … drew on no medical literature in preparing for their testimony as the basis for their opinions offered during this portion of the case, crafting their opinions instead from their personal medical experiences and beliefs, which do not include any provision of medication abortion care by them,” Barker said.

Then, there are provisions in state law that determine what kind of abortions can be provided at certain facilities. 

For instance, one regulation limits second trimester abortions to hospitals and ambulatory surgical centers. There are no surgical centers in Indiana that perform such abortions, and only four hospitals, all in the Indianapolis area. On top of that, those hospitals will only perform the procedures when the health of the patient is in question.

Essentially, Barker wrote, “the evidence reflects that it is not uncommon for women in Indiana to need second-trimester care but be unable to access it.” And the cost is significantly greater in a hospital setting than in a clinic that provides abortions.

But that requirement, the state argued, ensures patients have necessary care if there are any complications from second trimester abortions.

Barker was unmoved by that argument. She said the state provided no evidence that limiting second trimester abortions to hospitals or surgical centers ensures maternal health – and that the requirement “substantially curtails the constitutional right to an abortion.”

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Another example: there are room size and hallway width requirements for any clinic that offers what are called “aspiration abortions,” which can be performed in the first trimester. Barker said the state’s witnesses provided no compelling evidence why such requirements are necessary.

And then, there are facility standards imposed on clinics that offer medication abortions, including having a housekeeping room with its own sink and storage space. Again, Barker wrote that the state offered “virtually no evidence” to the benefits of that provision.

If the judge’s ruling holds up on appeal, doctors will no longer have to tell patients seeking abortion certain information the state previously required. That includes a brochure that tells people fetuses can feel pain at 20 weeks, that life begins at conception and that people who give birth experience quicker mental health recovery than those who get abortions.

Barker wrote that scientific evidence doesn’t back up those claims – and the state can’t force a doctor to provide information that isn’t truthful or that’s misleading.

Still, many of Indiana’s abortion regulations survived judicial scrutiny.

That includes a requirement that only doctors can perform surgical abortions. Barker said those procedures are more complex than medication abortions and benefit from physicians, who have higher skill sets than physician assistants or nurse practitioners. Additionally, the judge said the health care providers suing to strike down that law showed “little proof” that requirement was preventing them from providing adequate access to abortion.

The judge also found that Indiana’s law requiring an ultrasound before an abortion is constitutional. She noted that the medical community agrees that ultrasounds are the best way to determine the age of the fetus, which is vital before performing an abortion.

Similarly, Barker upheld a state statute that requires only doctors or advanced practice clinicians to provide patients with the required informed consent before an abortion.

“As all the experts testifying at trial agreed, obtaining informed consent is an essential aspect of good medical care, and critical to the process of securing the patient's informed consent is ensuring that the patient understands what the procedure entails and is given the opportunity to ask and have answered any questions or concerns,” Barker said. “We do not believe it is controversial to acknowledge that an APC or physician is best-suited to perform this function.”

The judge also OK'd all the criminal penalties imposed on anyone who violates Indiana’s abortion laws. She said the groups that brought the lawsuit did not show any real threat of prosecution that would prevent a health care professional from providing abortion care.

Also surviving Barker’s ruling: 

• A law requiring doctors who provide abortions to have admitting privileges at a local hospitals or an agreement with a physician who does

• A statute requiring Hoosiers under age 18 to get parental consent for an abortion

• Provisions covering the dosage and administration of abortion-inducing drugs

• Laws that govern how and when abortion clinics are inspected and

• Facility requirements for clinics that provide aspiration abortions, such as equipment sterilization, laundry and housekeeping.

An appeal in this case is all but guaranteed.

Contact reporter Brandon at bsmith@ipbs.org or follow him on Twitter at @brandonjsmith5.