Indiana's Abortion Trigger Law: What You Need To Know

Indiana does not have a trigger law, which would have outlawed abortion immediately after the overturn of Roe v. Wade. However, abortion is now illegal in Indiana, with the exception of cases involving fatal foetal abnormalities, rape or incest up to 10 weeks of pregnancy, or to preserve the life and physical health of the mother. This near-total ban came into effect on August 1, 2023, after the state supreme court vacated the injunction blocking the law.

Abortion is banned in Indiana, but there are exceptions

The exceptions to the ban include rare cases where the health or life of the mother is at risk, as well as cases of rape, incest, and lethal fetal anomalies. In these circumstances, abortions are permitted up to 10 weeks into the pregnancy. The law also allows for abortions in cases of fatal fetal abnormalities and to preserve the physical health of the mother.

The ban also includes additional requirements that must be met for an abortion to be deemed necessary. These include the necessity to "prevent a substantial permanent impairment of the life or physical health of the pregnant woman" or the presence of a "lethal fetal anomaly." The state law also prohibits specific abortion procedures, such as D&X and D&E, although the ban on the latter is currently under a preliminary injunction.

Indiana's abortion ban does not include express statutory protections for abortion. However, in June 2023, the Indiana Supreme Court held that the state's constitution protects abortion when there is a risk to the pregnant person's life or serious health. This means that abortions can be legally performed in Indiana if they meet the criteria outlined by the state's constitution and the Supreme Court's interpretation of it.

The abortion ban in Indiana has faced legal challenges, with abortion providers and the ACLU of Indiana arguing that the ban violates the state's Religious Freedom Restoration Act (RFRA). They claim that the ban infringes on the religious freedom of those who hold sincere religious beliefs directing them to obtain an abortion under certain circumstances prohibited by the ban. The court affirmed this argument, allowing the case to proceed as a class action and applying to all individuals whose religious beliefs would direct them to obtain an abortion banned by the statute.

Indiana does not have a trigger law

The state's abortion ban, known as S.B. 1, was enacted after the U.S. Supreme Court ended federal abortion protections by overturning Roe v. Wade in June 2022. The ban includes rare exceptions, such as when the health or life of the mother is at risk, as well as in cases of rape, incest, and lethal foetal anomalies in limited circumstances.

Before the ban, abortion in Indiana was legal up to 20 weeks. A near-total ban was scheduled to take effect on August 1, 2023, but was placed on hold due to legal challenges. The Indiana Supreme Court upheld the state's ban in June 2023, and the ban officially took effect in August 2023.

The ban has been challenged by the ACLU of Indiana, which argues that it violates the state's Religious Freedom Restoration Act (RFRA). The court affirmed that the case should proceed as a class action, applying to individuals whose religious beliefs would direct them to obtain abortions prohibited by the ban.

Indiana's abortion ban has faced opposition from abortion providers, who sought to broaden access to the procedure. Judge Kelsey Blake Hanlon, however, denied their request for a permanent injunction against the ban, stating that the court could not substitute its policy preferences for those of the Indiana General Assembly.

The ban came into effect on August 1, 2023

Indiana's abortion ban came into effect on August 1, 2023, after the state's Supreme Court vacated the injunction blocking the law. The ban prohibits abortion with very limited exceptions. For instance, abortions are allowed to preserve the life and physical health of the mother, and in cases of rape, incest, or fatal foetal anomalies.

The law also includes requirements that pregnant people must undergo an ultrasound and an 18-hour mandatory waiting period. In addition, Indiana continues to mandate that a parent, legal guardian, or judge consent to a minor's abortion.

The ban came into effect after a lengthy legal battle. On August 5, 2022, Indiana lawmakers voted in favour of a near-total abortion ban, which Governor Eric Holcomb signed into law the same day. This law was initially blocked by Special Judge Kelsey B. Hanlon of the Monroe County Circuit Court on September 22, 2022, allowing the state's previous abortion law to remain in effect. This previous law allowed abortions up to 20 weeks after fertilisation, with exceptions for rape and incest.

On January 19, 2023, the Indiana Supreme Court heard oral arguments on whether the state's ban on abortion violated the state constitution. However, the court did not issue a clear timeline for when an opinion would be published. Finally, on June 30, 2023, the Indiana Supreme Court upheld the state's abortion ban, clearing the way for it to come into effect on August 1.

The ACLU of Indiana is fighting the ban

Indiana has effectively banned abortion since August 21, 2023, with only narrow exceptions. This ban has undoubtedly put Hoosiers' lives at risk and forced providers to stop offering most abortions in the state. The ACLU of Indiana is fighting the ban on multiple fronts.

Firstly, in April 2024, the ACLU of Indiana won a preliminary injunction as a result of a lawsuit claiming that Indiana's abortion ban violates the state's Religious Freedom Restoration Act (RFRA). This injunction aims to allow abortion access for Hoosiers who have sincere religious beliefs that they must be able to obtain an abortion. The court affirmed that the case should proceed as a class action, applying to all individuals whose religious beliefs direct them to obtain abortions prohibited by the ban.

Secondly, the ACLU of Indiana has been fighting the ban through legal battles in the courts and the Statehouse. They have filed multiple lawsuits against the state for interfering with Hoosiers' reproductive rights. One such lawsuit challenged HEA 1211, which would have banned the standard Dilation and Evacuation (D&E) procedure used for abortion care in the early weeks of the second trimester. The U.S. District Court for the Southern District of Indiana blocked this ban from taking effect, ruling that it would likely burden a woman's right to access an abortion.

Thirdly, the ACLU of Indiana is encouraging Hoosiers to use their voices and votes to fight for reproductive freedom in the state. They are urging people to register to vote and sign petitions to show their support for access to safe and legal abortion. The organization has also gathered over 800 businesses from across Indiana that support reproductive freedom and is launching an effort to amplify these voices.

The ACLU of Indiana's legal team is committed to protecting abortion access and will continue to fight the ban at every opportunity. They are bringing everything to this fight and are approaching it from every angle to reinstate access to abortion care in the state.

The ban is supported by Indiana Attorney General Todd Rokita

Indiana Attorney General Todd Rokita has been a vocal supporter of the state's abortion ban. In November 2022, Rokita asked the state medical licensing board to discipline Dr. Caitlin Bernard, an Indianapolis doctor who provided an abortion to a 10-year-old rape victim from Ohio. Rokita alleged that Bernard violated state law by not reporting the child abuse to authorities and broke patient privacy laws by speaking to a newspaper reporter about the girl's treatment.

Rokita's investigation into Bernard sparked controversy, with some arguing that he violated professional conduct rules and breached confidentiality requirements. In July 2024, an Indianapolis lawyer filed a disciplinary grievance against Rokita, claiming that he violated his duties as attorney general by calling on the public to sue the Indiana Department of Health to inspect and copy terminated pregnancy reports. Despite the backlash, Rokita has continued his efforts to uphold and defend Indiana's abortion ban.

Rokita's support for the ban aligns with his personal opposition to abortion. He has publicly described Dr. Bernard as an ""abortion activist acting as a doctor" and criticized her for failing to report instances of abuse. In addition to his disciplinary actions against Bernard, Rokita has also faced legal challenges from abortion clinic operators and individuals who argue that the ban violates the state's religious freedom law and the state constitution.

The Indiana abortion ban, which took effect on August 1, 2023, prohibits abortion with very limited exceptions. These exceptions include cases where there is a risk to the pregnant person's life, a serious health risk, or a lethal fetal anomaly, as well as instances of rape or incest. Despite the ban, abortion rights activists and organizations like the ACLU of Indiana continue to fight for the reinstatement of abortion access in the state.

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