The Indiana Senate passed an abortion medication ban bill Tuesday, largely along party lines, with one Republican joining all Democrats present to vote against the bill.
Senate Bill 236, authored by State Sen. Tyler Johnson, R-Leo, that states a person who manufactures, distributes, mails, transports, delivers, prescribes or provides an abortion inducing drug is jointly and severally liable for the wrongful death of an unborn child or pregnant woman from using the drug and personal injury of an unborn child or pregnant woman from the use of the abortion inducing drug.
The bill also redefines abortion to be the “act of using or prescribing an instrument, a drug, a medicine, or any other substance, device or means with the intent to cause the death of an unborn child of a woman. The term does not include birth control devices or contraceptives. An act is not an abortion if the act is done with the intent to save the life or preserve the health of an unborn child; remove a dead, unborn child whose death was caused by miscarriage or stillbirth or remove an ectopic pregnancy.”
The bill would allow the mother or father of an unborn child to bring a wrongful death action for the wrongful death of the unborn child from the use of abortion inducing drugs.
Further, the bill allows for qui tam actions, which means someone who suspects a woman received abortion pills could file a lawsuit on behalf of the state. The bill states the person who brings the case could receive at least $100,000 for bringing the case and their legal fees covered by the defendant.
Medication abortions accounted for more than 60% of abortions nationwide in 2023, the most recent year that data was available, according to the Guttmacher Institute. Patients in states with abortion bans can obtain medication — most commonly mifepristone and misoprostol — through shield law providers, who prescribe and mail them via a telehealth consultation. Bans on the mailing of drugs used to terminate a pregnancy are already in effect in Arizona, Florida, Oklahoma and Texas.
On second reading Monday, Johnson filed an amendment to remove the portion of the bill that required Terminated Pregnancy Reports, including additional information about providers, to go to the Department of Health and the Attorney General’s Office.
Johnson said the bill will bring accountability to those who want to harm an unborn child. The qui tam portion of the bill “creates a private right of action … allowing any person to sue those who manufacture, distribute, mail, transport, prescribe, or provide abortion inducing drugs,” Johnson said.
“This is not a punishment for its own sake. It’s to protect the most vulnerable among us, the unborn, and give families a voice when their children are harmed or their loved ones are harmed,” Johnson said.
State Sen. Shelli Yoder, D-Bloomington, said she opposed the bill because the bill “is written in a way that is extreme, legally reckless and structurally designed to inflame conflict rather than to produce careful governance.”
“Whatever your underlying views are on abortion, this is not how we should write Indiana laws,” Yoder said. “You can be pro-life and still say, ‘Indiana should not create a privatized bounty system.’”
State Sen. Greg Taylor, D-Indianapolis, said when the bill was heard in committee obstetricians and gynecologists who came to testify argued that if the law is implemented it will “have a chilling effect on women seeking the abortion inducing drug.”
If an Indiana doctor prescribes the abortion pill, then he or she would have to fill out a terminated pregnancy report, as required by state law, Taylor said. If someone received a copy of that report, that person could file a case against the doctor, he said.
Johnson said the bill exempts physicians from civil liability.
“You might think this is pro-life. You might think you’re saving potentially women getting these abortion inducing drugs,” Taylor said. “(OBGYNs) said you are going to create more OBGYN deserts. The unintended consequences of that is that women who need OBGYN care for their child that they’re going to have may not have access to it because there’s no one around to help them.”
State Sen. Liz Brown, D-Fort Wayne, said Indiana is “passionately pro-life and are concerned about that unborn baby.”
“They are mailing in these pills. Babies are dying, and sometimes women are dying, because of the serious complications,” Brown said.
The Indiana Reproductive Health and Access Coalition issued a statement opposing the bill because it establishes a Texas-style “bounty hunter” legal environment and allows the Indiana Attorney General to sue on behalf of the fetus.
“This is pregnancy policing at its most extreme,” said Haley Bougher, Planned Parenthood Alliance Advocates in the statement. “SB 236 replaces trust in medical care with fear, surveillance, and punishment. It will deter people from seeking care and force health care clinicians to practice under constant threat.”
By intensifying civil liability tied to handling, shipping and distributing medication abortion “creates a dangerous slippery slope” that could threaten pregnancy care like contraception, IVF, miscarriage care, and medical privacy, according to the statement.
“This is a thinly veiled attempt to scare people away from accessing health care by deputizing and financially incentivizing private citizens to police their own communities. We see right through it. Hoosiers deserve better, and this bill will cause real harm to pregnant people and the people who care for them,” Danielle Drake, with the ACLU of Indiana said in the statement. “We urge Indiana lawmakers to reject this bill and protect the dignity, safety and health of Hoosiers.”
The bill passed 35-10, with State Sen. Kyle Walker, R-Lawrence, voting with all Democrats voting against the bill. The bill moves forward for consideration by the House.
