Explaining what’s legal and illegal under Indiana’s abortion law
(MIRROR INDY) — Since it went into effect nearly a year ago, Indiana’s near-total ban on abortion has shuttered clinics and thrown the issue to the courts.
While patients cannot be prosecuted under the ban, the stakes are high for doctors, who could face up to six years in prison and hefty fines. Providers say these legal risks, coupled with fears of political attacks from the state’s top Republicans, has a chilling effect.
I can’t just make a decision as a physician the way I would about any other area of medical care,” said Dr. Caitlin Bernard, an Indianapolis OB-GYN. “It requires close consultation with specialists and the hospital legal team to be sure that we are not opening ourselves up to risks.”
Much remains unclear about how doctors and patients are navigating this new landscape. Here’s what we do know:
What are the legal exceptions for abortion?
Indiana law outlines three narrow exceptions: rape or incest, lethal fetal anomalies, and saving a mother’s life or preventing serious health risks. Doctors must write a report about the patient’s case and include supporting facts or reasoning in their medical record.
Abortions can now only be legally performed in the state’s hospitals or surgical centers owned by hospitals — and the vast majority are happening in Marion County, according to state data.
Rape or incest
A patient has up to 10 weeks post-fertilization, or 12 weeks after their last period, to get a legal abortion in cases of rape or incest.
“The Indiana abortion ban does not require any proof of rape, including a police report or forensic evidence,” Bernard told Mirror Indy. “We know it is important that people are believed.”
Indianapolis hospitals remain tight-lipped about their policies. A spokesperson said Eskenazi Health follows state law, but did not answer questions about whether that includes performing abortions in cases of rape or incest.
IU Health provides abortions to people who need them within the limitations of the law, a spokesperson told Mirror Indy. According to the Indiana Coalition to End Sexual Assault and Human Trafficking, only one IU Health location downtown offers abortions in cases of rape or incest. A nurse navigator can be reached at 317-948-8854.
[If you’re navigating difficulties, here’s a list of resources that might help.]
Not every hospital in the state provides abortions in these cases. Indiana Capital Chronicle has reported that some religiously-affiliated hospitals consider abortions in the case of rape as “elective” and only perform the procedure to save the life of the mother — if at all.
A spokesperson for Franciscan Health said the hospital system does not perform abortions and cited ethical guidelines from the Catholic church. Rape victims may be given emergency birth control, according to a statement sent to Mirror Indy, but only if “there is no evidence that conception has occurred already.”
Ascension St. Vincent echoed this position with a statement from the Catholic Health Association: “Catholic hospitals do not offer elective abortions. This position is consistent with our deep commitment to caring for women and children and is rooted in our reverence for life, from conception to natural death.”
Community Health Network, which has no religious affiliation, also does not perform abortions in cases of rape or incest. “It is not a service we have ever provided in those circumstances,” a spokesperson told Mirror Indy.
Beth White, the president of the Indiana Coalition to End Sexual Assault and Human Trafficking and a candidate running for Indiana Attorney General as a Democrat, took issue with hospitals using the phrase “elective abortions.”
“Victims of rape and incest did not elect to what happened to them,” she said.
Lethal fetal anomalies
Patients with lethal fetal anomalies have up to 20 weeks post-fertilization, or 22 weeks since their last period, to get a legal abortion. Hospitals also are required to let them know about the state’s perinatal hospice services.
Indiana defines a lethal fetal anomaly as a condition diagnosed before birth that is “reasonably certain” to result in the death of a child up to three months after birth. Specific conditions are not outlined in the law, though it is illegal for a physician to perform an abortion if they know a patient is seeking one solely because of a fetus’ disability or potential disability, including Down syndrome.
“There are certainly people with medical conditions that would make a pregnancy very difficult, but unless it’s going to provide permanent or irreversible injury, we can’t take care of them,” Bernard said. She cited rheumatological diseases, neurological conditions, non-fatal anomalies and severe conditions from past pregnancies that could reoccur.
“We’ve had people with fetal anomalies travel out of state, and by the time they get to Illinois they had a stillbirth and come back to us for care,” Bernard said. “It’s incredibly traumatizing.”
Saving the mother’s life
A doctor can perform an abortion with “reasonable medical judgment” that it would save the patient’s life or prevent serious health risks (not including mental and psychological conditions). Physicians have to certify in writing that the procedure is medically necessary.
These decisions could face scrutiny. A local anti-abortion group named Voices for Life has filed hundreds of complaints about abortion providers with the attorney general’s office. Those complaints could be investigated, Bernard said, leading to subpoenaed medical records.
“Doctors are weighing whether it’s worth the risk to do the procedure for someone they may think needs it,” said Jennifer Drobac, a law professor at Indiana University. “And if it’s a close call, what do you decide? You probably don’t want to go to prison.”
Marion County Prosecutor Ryan Mears, a Democrat, said in 2022 that his office would not prosecute abortion-related cases.
“It should not be a priority for the prosecutor’s office or law enforcement to second-guess the decision and choices made by health care professionals,” he said at the time.
However, there are 92 counties in Indiana and it’s unclear what decisions each prosecutor will make in such cases.
Bernard said there are still fears about publicly discussing how doctors handle exceptions, especially after Indiana Attorney General Todd Rokita accused her of misconduct in the case of a 10-year-old rape victim’s abortion.
Bernard was fined for speaking in general terms to the press about the patient, but did not lose her medical license; the Indiana Supreme Court Disciplinary Commission found that Rokita violated professional conduct with his comments.
[Bernard later received an award from an abortion rights group.]
Religious freedom lawsuit
Indiana could have a fourth exception for legal abortion based on religious beliefs, depending on how litigation plays out.
Four anonymous women and the group Hoosier Jews for Choice challenged the abortion law in 2022, arguing that it violates their religious freedoms.
Indiana’s Religious Freedom Restoration Act was signed by Mike Pence in 2015. It prohibits the state from interfering with a person’s right to practice their religion unless the government can prove it has a compelling reason.
A Marion County trial court granted the plaintiffs a preliminary injunction against the abortion ban, and an appeals court upheld it on April 4. The case was certified as a class action lawsuit, meaning that it includes any Indiana resident with a sincerely held religious belief who needs an abortion.
The ACLU is offering free legal representation to anyone who is part of the protected class. Email intake@aclu-in.org or fill out an online form.
“There are a lot of beliefs around abortion and (Indiana law) seems to apply one specific belief,” said Kenneth Falk, legal director of the ACLU of Indiana, who is representing the plaintiffs. “Judaism traditionally teaches that life does not begin until the first breath outside the womb. That’s different than life begins at the moment of conception.”
The state has 45 days to challenge the case in the Indiana Supreme Court. If the court takes the case, it can either affirm or deny the preliminary injunction. Either way, the case would go back to the trial court to be finalized based on the Indiana Supreme Court’s decision.
“We have now had four judges recognize that the Religious Freedom Restoration Act applies in this context, but the case is not final yet,” Falk said. “We will see what happens.”
How are people getting abortions out of state?
AbortionFinder.org has a directory of abortion providers. The website asks people to enter their location and the first day of their last period to search for nearby clinics and state laws. It gives estimates for how long it takes to get an appointment at a particular clinic and any legal time limits on their services.
For Indianapolis residents, Ohio and Illinois are the closest states where abortion is legal. Abortion laws in Ohio are more restrictive with a ban after 22 weeks and requirements for parental permission for minors, counseling and a 24-hour waiting period. In Illinois, abortion is legal until the period of fetal viability, which is generally 24-26 weeks of pregnancy. Both states have exceptions to save the life and health of a patient, including mental health.
Planned Parenthood’s guide recommends calling your insurance to see if it covers abortion or checking with the health center where you have an appointment. Abortion funds — including nine that are active in Indiana — can cover some medical and travel costs.
What about abortion pills?
Medicated abortion is a safe and effective way to terminate an early pregnancy, according to the American College of Obstetricians and Gynecologists. It usually involves taking two pills, mifepristone and misoprostol.
In Indiana, these pills are illegal after eight weeks post fertilization, or 10 weeks after a person’s last period, and otherwise must be given in person by a physician. It is illegal to use telehealth services to provide an abortion, including writing a prescription that would induce one.
Still, people in Indiana are getting abortion pills in other ways, including through the mail. Six states where abortion is legal have shield laws that allow doctors to use telehealth to prescribe abortion pills to people living in states with bans. Volunteer networks also send free pills in the mail across the country.
Experts say the legal risks are complicated.
“Federal law allows for interstate mail,” said Drobac, the IU law professor. “The government can’t really say you’re not allowed to receive mail, so what you receive in the mail is really your business.”
But, she cautioned, any abortion outside of the exceptions in Indiana is still illegal — though it’s difficult to enforce.
“How would they find out?” Drobac said. “They would have to go through your mail and that is illegal.”
Noran Elzarka is an attorney for If/When/How, a national nonprofit that runs a confidential hotline for people seeking legal advice about abortions. She said the team has seen cases across the country where a person is prosecuted for improper disposal of a fetus, chemical endangerment or helping someone else get an abortion.
“But what the law says and what actually happens in reality can be different,” she said. “We do an individual risk assessment for people about their options.”
Call the Repro Legal Hotline at 844-868-2812 to speak to a lawyer.
Have a story or tip about abortion in Indiana? Contact health reporter Mary Claire Molloy at 317-721-7648 on Signal, an encrypted text service, or via email at maryclaire.molloy@mirrorindy.org. Follow her on X @mcmolloy7.
Mental health resources
- Be Well Indiana
- Indiana Suicide Prevention
- Indiana Department of Child Services’ Children’s Mental Health Initiative
- National Suicide and Crisis Lifeline: 988 or 800-273-8255
- More resources
Help is available for victims of domestic violence. Below is a list of suggested resources on the Domestic Violence Network website:
- Indiana Coalition Against Domestic Violence: 24-hour hotline available at 800-332-7385
- Indiana Coalition to End Sexual Assault and Human Trafficking
- The Julian Center
- Indiana Child Abuse Hotline: 800-800-5556
- National Domestic Violence Hotline: 800-799-7233 or text START to 88788
- National Sexual Assault Hotline: 800-656-4673