By Mia Hilkowitz
Indiana Capital Chronicle
INDIANA — Attorneys in a lawsuit against Indiana’s near-total abortion ban jumped right into testimony Wednesday, beginning a trial in which plaintiffs are seeking to widen medical exemptions and strike down a requirement that stripped abortion clinics of their licenses to perform the procedure.
The lawsuit comes almost a year after the state Supreme Court upheld the ban but left the door open for Hoosiers to sue over specific parts of the law.
In the first session of the three-day bench trial in Monroe County, lawyers for the ACLU of Indiana and Indiana Attorney General’s Office questioned three witnesses for the plaintiffs; IU Health OB-GYN Dr. Amy Caldwell, D.C. based OB-GYN Dr. Steven Ralston, and All-Options Executive Director Jennifer Parker Dockray.
Prior to Senate Bill 1’s enactment, Caldwell performed abortions at the Planned Parenthood clinics in Indianapolis and Bloomington. She still performs abortions at IU Health hospitals.
The ACLU of Indiana — which filed the complaint on behalf of Caldwell, Indiana’s Planned Parenthood, Women’s Med Group and All-Options Pregnancy Resource Center — is seeking three preliminary injunctions which would prevent the state from enforcing the law using clauses that they argue are “unconstitutionally narrow” and “needlessly restrictive.”
The defendants are the Indiana Medical Licensing Board and six county prosecutors, who are represented by the Attorney General’s Office.
Owen County Special Judge Kelsey Blake Hanlon, a Republican, is overseeing the proceedings. Hanlon previously issued the preliminary injunction to halt the state’s abortion ban in September 2022. But the Indiana Supreme Court ultimately ruled in June 2023 that the law was constitutional, though women have a right to an abortion when their life or health is at risk.
Health Or Life Exception
The first clause at the center of the lawsuit, which attorneys called the “Health or Life Exception,” allows a person to receive an abortion only if the procedure is necessary to prevent death or a “serious health risk” to the pregnant person’s life. Since the law went into effect, Caldwell said she has performed 12-15 abortions pursuant to this exception.
Caldwell said in her testimony the law’s definition of serious health risk is “vague and incredibly unclear.” She also said some of the terms used in the law — including “major bodily function” — are not terms used in the medical field. Due to this vagueness, she said she has been unable to provide abortions for patients who she believes have health risks, but is unsure if their conditions meet the exception.
The plaintiffs argue this exception prevents people with conditions that could become life threatening over the course of their pregnancy from receiving abortions. In her testimony, Caldwell said the only way to resolve conditions such as hyperemesis gravidarum, placental abruption and placenta previa is by terminating the pregnancy.
Caldwell also said the exception would not cover patients with conditions requiring treatment that would harm a fetus, such as cancer patients who require abortions before starting chemotherapy. The health or life exception also does not extend to patients with mental health conditions “who require abortions either to protect their own mental health or continue taking necessary medications,” the complaint alleges.
The OB-GYN said she does not see abortion as the sole treatment for mental health, but rather as a therapeutic treatment. However, she said in certain situations where patients present a serious mental health concern — such as self-harm or suicidal ideation — abortion may be a reasonable response.
Hospital Requirement
The law also terminated licenses for abortion clinics and only allows the procedure to occur in a hospital or ambulatory surgical centers, a clause attorneys called the “Hospital Requirement.” According to the Indiana Department of Health 2022 terminated pregnancy report, 98.5% of abortion in Indiana were performed in abortion clinics.
Caldwell said she is one of two physicians in Indiana still performing procedural abortions under the law’s exceptions. However, she said patients must go to an IU Health or Eskenazi Health hospital — located in Indianapolis — to access this care.
About 30 of Indiana’s 170 hospitals are Catholic-sponsored and follow directives by the United States Conference of Catholic Bishops, which bar providers from performing abortions unless the purpose is the “cure of a proportionately serious pathological condition of a pregnant woman.”
The ACLU argues the hospital requirement restricts residents from accessing care because many hospitals providing abortions under the ban’s exemptions are concentrated in and around Indianapolis. Of the 10 Indiana hospitals that reported performing abortions in 2022, five were located in Marion County, according to the state’s terminated pregnancy report. The remaining five hospitals were located in Allen, St. Joseph and Warrick counties.
During the state’s questioning, Caldwell acknowledged there are some situations where abortions should be performed in a hospital setting, such as when there are risks of serious complications. However, she emphasized that complications during abortions are rare.
During her testimony, the defense asked Caldwell about a patient who she performed an abortion on and died after the procedure. She pushed back on the assumption the patient died due to the procedure, stating the patient had pulmonary hypertension, which led to her having a cardiac event in the operating room. Caldwell performed this procedure in a hospital setting, and said the patient passed away even after being admitted to the ICU.
Effect Of Ban
In his testimony, Dr. Steven Ralston, an expert witness who performs abortions at George Washington University Hospital in D.C. and a women’s clinic in Baltimore, said he has regularly seen patients coming from other states where abortions are banned. He said this has led to busier clinics and longer wait times for patients seeking the procedure.
Ralston also said he believes Senate Enrolled Act 1 does not offer enough protection for doctors. He said even if a doctor can perform an abortion under the law’s exception, they will likely delay care to get further clarification and this delay could allow patients to get sicker.
All-Options Executive Director Jennifer Parker Dockray, who also testified Wednesday, said since the new law went into effect, All-Options — which operates the Hoosier Abortion Fund to help fund costs related to obtaining an abortion — has only been able to fund one person to receive an abortion in Indiana.
She said all other clients have had to go to Illinois, Ohio or Michigan to receive an abortion, which costs All-Options more to fund. On average, Dockray said, the Hoosier Abortion Fund spent around $225 per patient before the law went into effect. Now, the organization spends around $450 per patient.
The litigants return to the courthouse Thursday for further testimony.
