Federal Court Strikes Down Long-Standing Indiana Abortion Restrictions

The ruling expands access to abortion in Indiana by removing medically unnecessary and burdensome restrictions on who may provide abortion health care as well as how and where they can provide these services. 

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An abortion rally in D.C. in January 2020. (Hillel Steinberg / Flickr)

For years, Indiana has been a hotbed for some of the nation’s most oppressive abortion restrictions. On Tuesday, abortion rights advocates won a lawsuit challenging several of these restrictions.

“This is a tremendous victory for abortion rights—just when Hoosiers and this entire country need it most!” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health Alliance, a plaintiff in the legal challenge.

The case, filed in 2018, challenged 25 separate sections of Indiana’s laws restricting abortion.

A federal district court in Indiana conducted two separate trials considering the constitutionality of these restrictions—the first in March 2021 and the second in June 2021. In the court’s 158-page decision Tuesday, Judge Sarah Evans Barker permanently blocked several of these restrictions, including:  

  • a prohibition on qualified advance-practice clinicians providing medication abortion care; 

  • a ban on providing second-trimester abortion care outside of a hospital or ambulatory surgery center; 

  • certain physical plant requirements for abortion clinics (e.g. procedure room size and corridor width; 

  • a law requiring doctors to provide patients information designed to discourage abortion;

  • a ban on using telemedicine to provide medication abortion care; and 

  • restrictions that force patients to make multiple trips to a clinic to receive abortion health care.  

Citing the Supreme Court’s 2016 decision of Whole Woman’s Health v. Hellerstedt, Barker conducted a “holistic, rigorous, and independent judicial examination of the facts of a case” and determined that the burdens these laws imposed on patients outweighed their benefits. 

“Today’s ruling clearly recognizes and acknowledges the burdens Hoosiers face when they need to access abortion care,” said Parker Dockray, executive director of All-Options, an abortion fund. “During trial, our national programs manager was certified as an expert witness and provided powerful testimony about the harms abortion restrictions cause pregnant Indianans, with many being forced to travel out-of-state for basic health care. We are grateful today’s ruling took her testimony into account and look forward to continuing the fight for justice.” 

Despite striking down several abortion restrictions determined to be medically unnecessary and burdensome, the court upheld several other restrictive regulations of abortion, including:

  • an ultrasound requirement;
  • a law barring anyone but a physician from doing aspiration abortions;
  • a requirement that only physicians and advanced practice clinicians can do pre-abortion counseling sessions; and
  • criminal penalties for violations of the abortion restrictions.

Barker also ruled that these restrictions on abortion were not a form of gender discrimination prohibited by the Equal Protection Clause of the 14th Amendment. 

Nevertheless, the ruling promises to significantly expand access to abortion in Indiana by removing medically unnecessary and burdensome restrictions on who may provide abortion health care as well as how and where they can provide these services. 

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A D.C. protester during the Trump-Pence inauguration in January 2017. Mike Pence served as governor of Indiana for four years and signed into law many bills intended to restrict abortion access. (Lorie Shaull / Flickr)

“Today’s ruling is a decisive victory for Indianans’ access to abortion care,” said Rupali Sharma, senior counsel and director at the Lawyering Project, which represented the plaintiffs along with several other attorneys. “Pregnant Hoosiers, particularly those living in poverty, face barrier after barrier to exercise a fundamental right. Today’s ruling is a pivotal step toward a future in which they can get the care they need free from assaults on their dignity.”

Barker specifically noted in her findings that the majority of women impacted most severely by Indiana’s restrictive abortion laws are low-income individuals, living in households at or below 200 percent of the federal poverty line, and that up to 22 percent of those seeking these services are also likely to be experiencing intimate partner violence. She also argued many state residents live hundreds of miles from the nearest abortion clinic in Indiana.

The judge’s decision to strike down Indiana’s ban on telemedicine abortion is likely to increase access and affordability of abortion health care in the state. Barker ruled Indiana did not have the right to ban telemedicine abortion because there no evidence that this would benefit people’s health, especially since telemedicine can improve accessibility.

“The State’s attempt to explain its basis for excluding the far-reaching benefits of telemedicine from this category of patients is feeble at best, especially given the widespread use of telemedicine throughout Indiana as well as the overall safety of medication abortions,” Barker wrote in her ruling.

Before Tuesday’s decision, Indiana was one of 19 states prohibiting telemedicine abortion. It is now the third state, after Iowa and Ohio, to have a telemedicine abortion ban enjoined by court order. Access to telemedicine abortion has increased significantly since the Biden administration lifted FDA in-person distribution requirements on the abortion pill during the COVID public health emergency. In May, President Biden also ordered the FDA to consider permanently removing these restrictions

In light of these developments, Barker’s decision is particularly consequential, although she allowed the state to maintain an ultrasound requirement for medication abortion at an affiliated provider, which means patients will not be able to access this service entirely through telemedicine.

In addition to striking down the telemedicine ban, Barker blocked an Indiana abortion counseling law requiring doctors to tell patients seeking an abortion that a fetus can feel pain before 20 weeks, that life begins at conception, and that abortion causes harms to mental health, finding this information to be untruthful and misleading.

The ruling will also increase the number of providers who can offer abortion health care by expanding the pool of possible providers beyond physicians to include qualified advance practice clinicians. Barker found that limited physician availability at Indiana abortion clinics was due in part to threats and intimidation tactics by protesters, giving the example of the withdrawal of one doctor from providing medical abortion services after her daughter became the subject of kidnapping threats as reported by the FBI.

“Providing abortion care in Indiana has not been easy, and Whole Woman’s Health of South Bend is grateful to the courts for upholding the right to evidence-based abortion care by overturning these unjust and burdensome regulations,” said Miller. “There is still work to be done, and today’s decision paves the way for better access and acceptance of abortion through the state!”

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman Chair of American Studies and a professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.