Abortion Ban’s Hospitals Requirement Will Further Curtail Access

By Leslie Bonilla Muñiz

Indiana’s new abortion-limiting law, set to go into effect on September 15, has been dubbed a near-total ban for its succinct list of narrow exceptions — but its requirement that legal abortions be done in hospitals will further flatten access, experts and abortion rights advocates say.

The ban, set out in Senate Enrolled Act 1, delicenses Indiana’s abortion clinics, literally crossing the facility type out of Indiana Code. Seven of them performed 98.4% of the state’s 8,414 abortions in 2021, according to a report from the Indiana Department of Health.

Instead, the ban requires that exempted abortions — for rape, incest, lethal fetal anomalies and the life of the mother — be performed in state-licensed hospitals or in ambulatory surgical centers that are majority-owned by hospitals.

Physicians must refer eligible patients out, unless they have admitting privileges at particular hospitals; then, physicians and patients will travel to qualifying facilities for the procedures.

Outpatient surgical centers, under Indiana law, must operate under at least one licensed physician or hospital governing board, with more requirements on anesthesia, laboratory exams, and transfers to hospitals for patients who develop complications.

But experts say the measure is better at narrowing location options than it is at ensuring safety.

“The wide concurrence among the scientific community is that these requirement are … basically harassment measures to make it more difficult for these facilities to provide abortions,” said Jodi Madeira, an Indiana University Maurer School of Law professor.

“They’ve been very effective in cutting down the number of facilities that can provide abortions,” Madeira added. She’s the school’s foremost expert on law and medicine.

Hospital access inequitable in Indiana

Planned Parenthood of the Great Northwest, Hawaiʻi, Alaska, Indiana and Kentucky says the hospital location requirement will disadvantage those who already struggle to reach hospitals. Particularly for people in rural locations – but also for those with disabilities or those who are immigrants.

“Even if a patient is legally entitled to abortion care under an exemption, they may practically be unable to find a provider as a consequence of abortion providers no longer being licensed or because of the ambulatory surgical requirement,” said spokeswoman Nicole Erwin.

“Reducing the number of locations in the state where patients can access care in a life-threatening emergency — one of the few exceptions provided under this outright ban — will force patients to travel farther distances and potentially wait longer to get the care they need,” Erwin added.

Planned Parenthood’s facilities alone accounted for 51% of last year’s Indiana abortions.

Directed to say no

Some hospitals, however, almost never perform abortions.

Catholic hospitals, for example, follow directives by the United States Conference of Catholic Bishops.

About 30 of Indiana’s 170 hospitals are Catholic-sponsored, according to Indiana Hospital Association spokeswoman Natalie Russell. More, she wrote, “maintain close, historic affiliations with various faith groups even though they are not technically part of a religious order.”

About 3,500, or nearly 25%, of Indiana’s hospital beds were in Catholic hospitals in 2016, according to an American Civil Liberties Union report. That included just 22 Catholic hospitals.

The directives, last updated in 2018, bar Catholic health providers from performing abortions unless the “direct purpose” is the “cure of a proportionately serious pathological condition of a pregnant woman” that can’t be safely postponed until fetal viability. Another directive notes no exception for rape.

“Catholic health care organizations are not permitted to engage in immediate material cooperation in actions that are intrinsically immoral, such as abortion, euthanasia, assisted suicide, and direct sterilization,” the conference adds.

The conference notes that Catholic health care providers should be worried about the “danger of scandal in any association with abortion providers.”

A Franciscan Health spokesperson said the organization doesn’t perform abortions because it is “a Catholic health care system.”

“We believe the gift of life is so valued that each person should be cared for with joy, respect, dignity, fairness, and compassion that he or she is consciously aware of being loved,” the spokesperson wrote. “We are grateful for the Supreme Court’s recent ruling because we always celebrate life and protect it at every stage.”

Still, according to I.U. Maurer’s Madeira, the directives aren’t “hard and fast.”

“They do have some wiggle room. There are ethics committees that meet in the hospital,” Madeira said. “… The law allows them to refuse to provide care that does not comport with their beliefs. They just have to transfer the patient.”

And for those cases in which the patient’s death without an abortion is clear, inaction constitutes medical malpractice, she said.

But not every case is that clear-cut.

Chilling effect

Indiana hospitals, which last year performed just 1.4% of the state’s procedures, have just a month left to adjust to the law — which mandates the revocation of a doctor’s license who performs an abortion determined unlawful.

Typically, the Indiana Attorney General’s Office investigates consumer complaints against doctors, and can file formal charges in cases it finds credible. The seven-member state Medical Licensing Board acts as the judge hears the cases.

But under SEA 1, the board “shall” revoke licenses if the AG’s office proves the case with a “preponderance of evidence” rather than “beyond a reasonable doubt.”

Hospitals are hard at work on policy and procedure updates, according to Indiana Hospital Association President Brian Tabor.

“As providers implement this new framework, IHA remains committed to ensuring that elected officials, at every level, understand the importance of supporting medical professionals and protecting them from liability and other repercussions when working in good faith to comply with the new law while providing lifesaving care to Hoosier moms and babies,” Tabor said in a statement.

The Indiana State Medical Association and others expressed similar concerns for medical professionals earlier this month, before SEA 1’s passage.

“Indiana cannot have an effective health care system if the training and expertise of physicians is not respected and they are under constant threat of political interference for practicing medicine and assisting their patients,” executive vice president Julie Reed said then.

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