INDIANAPOLIS — Senate Bill 1 would greatly limit abortions and where they can be done.
In its original form, it would allow abortion in the first 20 weeks in cases of rape, incest and if the pregnancy risks "substantial permanent impairment of the life of the mother."
At the time it was introduced, the bill's author, Senate Assistant President Pro Tempore Sue Glick, R-LaGrange, said the bill "does not criminalize women seeking an abortion."
She said the bill also does not do the following:
- Does not affect access to the morning-after pill or any other method of birth control
- Does not affect treatment of miscarriages
- Does not affect treatment of ectopic pregnancies
- Does not affect in vitro fertilization procedures
- Does not prohibit ending a pregnancy when the unborn child would not be able to survive due to a fatal fetal anomaly
- Does not criminalize women seeking an abortion
- Does not create any new penalties for doctors who perform abortions – the existing penalty that allows a doctor to have his or her license revoked if he or she performs an illegal abortion will remain in place.
Watch Saturday's session in the video player.
But in the Senate debate, more than 60 amendments were proposed. Here are a handful of the most notable as written by Dr. Jody Lyneé Madeira, a professor at the IU School of Law:
One of the most important amendments is Sen. Freeman’s Amendment 3, which would allow Attorney General Rokita to have concurrent jurisdiction with a local prosecutor who categorically refuses to enforce any crime in the Indiana Criminal Code. This is a very expansive bill that goes beyond the abortion issue and could reach into substance use prosecutions and many other matters. Significantly, “categorical refusal” means a blanket or total refusal, one not based on a case-by-case factual determination.
What is notable about this amendment is that the legislature has seen it before, and rejected it. As Sen. Taylor pointed out in his testimony last night, this bill was brought in the Spring 2022 legislative session and failed due to a lack of support from state prosecutors’ associations, but was passed through last night in a special session, which upends the legislative process. Attorney General Rokita has already demonstrated that he is willing to be extremely visible and vocal with abortion-related investigations, and so this sets an uncomfortable precedent if this measure is added to SB 1 and signed into law.
Another notable SB 1 amendment is Sen. Brown’s Amendment 20, which requires the affidavit that a victim of rape or incest submits to her physician to be notarized. This makes the affidavit—an already-onerous burden—even more difficult and raises important privacy concerns; for instance, the notary could see the contents of the affidavit while notarizing it. Before, women already had to complete the affidavits under penalty of perjury. SB1 states that these affidavits are confidential, but several individuals who testified—and the Attorney General’s representative—urged the legislature to prosecute the individuals named in the affidavits. Women would have to pay a notary if one were not available in their physician’s office, and may have difficulty finding one. For instance, it seems absurd to require women to take an affidavit stating that they had been raped to a bank to have it notarized before giving it to their physician. This decreases the already-diminished chances that women (and children!) will report rape and incest, depriving them of necessary abortions in extremely traumatic circumstances.
Sen. Taylor’s Amendment 37 would exempt children who were raped by parents or legal guardians, and who attest to this fact in an affidavit from the gestational age requirements that otherwise apply. This is a significant amendment because it demonstrates that legislators have a strong soft spot for children who become pregnant through rape and incest, and are willing to bend constraints for them.
Sen. Breaux’s Amendment 49 requires the statewide maternal mortality committee to study how changes in Indiana’s abortion law affect maternal mortality. This amendment is important because it will reveal important data that can show how these new abortion restrictions are affecting maternal mortality.
Although it did not pass, Sen. Young’s Amendment 58 would have removed the rape and incest exceptions for abortion, keeping only the exception for the woman’s life. This also would have applied to children who became pregnant because it contained no minimum age, although Sen. Young did promise to file another amendment that would provide rape and incest exemptions for those under 16. This amendment inspired almost two hours of impassioned testimony on both sides, with Sen. Young stating that exceptions meant death, to other Democratic senators discussing the compounded trauma of being forced to carry a rapist’s child. This issue certainly revealed the deep levels of dissention in the Senate—even in the Republican caucus—on the abortion issue.
Amendment 58 is important because we are likely to see efforts in the House to curtail or entirely eliminate the abortion exceptions—but there, this attempt might succeed.
Looking to the House debate
It is also important to be aware of the breadth of other amendments, simply to be aware of measures that may resurface in the House. There were attempts to criminalize providing abortion medication, assisting pregnant women to travel to other states to obtain a surgical or chemical abortion procedure, stating that physicians could lose their license for performing an unlawful abortion under a very low “preponderance of the evidence” standard, to redefine “child” as a fetus in any state of development, and to allow those allegedly aggrieved by an unlawful abortion (Attorney General, father or prospective adoptive father, local prosecutor, grandparent, mother, parent of a pregnant minor) to sue for the consequences of the procedure, including loss of a relationship with the child that may have been born.
NOTE: The analysis and opinions on the amendments are those of Dr. Madeira.