MERRILLVILLE, Indiana — As Republican senators held a press conference Wednesday to announced an abortion bill, Jody Madeira, professor of law at the Maurer School of Law at Indiana University Bloomington, said her first reaction was confusion.
The press conference — led by Senate President Pro Tempore Rodric Bray, R-Martinsville, and Senator Sue Glick, R-LaGrange — started with what seemed like a celebration “almost as if there’s relief about this bill,” because they highlighted that the bill doesn’t criminalize doctors and women, exempts ectopic pregnancies and nonviable pregnancies, and that reproductive technologies like in vitro fertilization won’t be impacted, Madeira said.
But, it didn’t take long for Madeira to realize that the bill is “actually terribly restrictive,” because it does not list a gestational cut off for abortion. The legislature will meet Monday to begin discussing the bill during a special session, which could last through mid-August.
“As I was listening to the press conference, I kept on waiting to hear that information,” Madeira said. “Finally, one member of the press asked ‘What is the gestational cut off?’ and it was then that I think people started to get it.”
Without listing a gestational cut off, the bill becomes a total ban on abortion, Madeira said, and more restrictive than she had thought the bill would be. Initially, Madeira said she thought the legislature would ban abortion after six weeks.
The bill defines a fetus as developing from implantation until birth, but implantation isn’t detectable, Madeira said. An ultrasound can tell how far along a pregnancy is, but it does not state when implantation occurred, she said.
“It’s uncertain, and so how does one even know one’s pregnant? Implantation occurs before you would even have pregnancy hormones generated,” Madeira said.
While the bill states abortion is allowed if a patient faces “substantial permanent impairment,” it’s not clear what that means, Madeira said.
“It’s unclear how close a woman has to come to death. Is this a death that will be certain in two months? Does that count? What about one month? What about a week? Does she have to be dying in that moment?” Madeira said. “Can we abort at eight weeks if we feel like it’s very likely this impairment will come about? How certain does this impairment need to be?”
While the bill makes an exception for incest, it lists biological family relations but does not include step family members, Madeira said. A better way to encompass a situation of incest is stating “members of the household” or “relation by marriage,” she said.
But, what is more concerning about the rape and incest provision of the bill, is that a woman has to file an affidavit stating that fact, Madeira said. While it states the affidavit would be confidential, it’s unclear if it would become part of her health record or protected under HIPPA.
“I think that’s going to deter women from reporting. It’s certainly going to deter women from coming to a medical provider because they’re going to have to name their attacker,” Madeira said, adding that a woman would likely not name an ex-husband who pays child support because she needs that income to support her children.
Dr. Caitlin Bernard, the Indiana physician who Attorney General Todd Rokita falsely accused of not filing the proper paperwork after performing an abortion on a 10-year-old girl from Ohio, took to Twitter to share her dismay with the bill. If passed, “this bill will hurt my patients and all Hoosiers.”
“While an exception is included for survivors of rape, medicine is not about a list of ‘exceptions’ for every situation imaginable. It is about getting the care you need when you need it,” Bernard tweeted.
While Bray and Glick stated Wednesday that the bill does not propose new criminal penalties for doctors, the language of the bill suggests otherwise, Madeira said.
At one point in the bill, it states that a doctor won’t be prosecuted for feticide, but another section of the bill states there is an affirmative defense — when a defendant presents evidence to get out of charges filed against his or her — for a woman who harms a fetus to intentionally terminate a pregnancy and for a physician who harms a fetus, Madeira said.
“For doctors to raise affirmative defense, for a woman to raise affirmative defense, there would have to be a criminal charge,” Madeira said.
Under this bill, a physician would face a class A misdemeanor charge for performing an abortion on a minor without consent from a parent or guardian, Madeira said. Under current abortion law, a physician faces more than a misdemeanor charge if charged with this offense, she said, which makes her wonder if they misquoted a section of the bill.
“I think this bill is out there. It seems like it was hastily drafted when one reads through it. It’s not very clear in places,” Madeira said. “One wonders what they were doing for these two weeks where they pushed the session back because the bill seems to have been hastily drafted.”
The bill also opens the possibility for doctors to lose their license if an abortion is performed, Madeira said, which while not a criminal proceeding impacts his or her career.
Even still, the bill is being criticized by anti-abortion groups for a lack of enforcement provisions, Madeira said. Indiana Right to Life President and Chief Executive Officer Mike Fichter said the bill “falls woefully short.”
“I think it’s wonderful that it lacks enforcement provisions,” Madeira said. “But I do think that if my beliefs were different then that would be a concern I had with the bill because it doesn’t have a civil bounty provision (like Texas), it has very limited, if any, criminal liability for physicians (and) it doesn’t criminalize women going across state boarders to obtain a procedure.”
Legislators should clarify what crimes a physician could be charged with and under which circumstances — if that’s their goal, Madeira said, pointing to the confusion about affirmative defense.
Then, Madeira said the legislators should more clearly define what a non-viable pregnancy means: Does it include conditions where the fetus is developing without vital organs? Does it include conditions where the baby would die within two years of birth?
Finally, Madeira said she would like the bill to include a gestational period instead of implantation, stating “it’s a standard that often confuses morals with law.”
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