In September 2022, Indiana passed Senate Bill 1, which banned abortion in all circumstances except for rape and incest up to 10 weeks post-fertilization, and serious fetal anomalies or health risks to the mother’s life up to 20 weeks post-fertilization. The bill also eliminates all abortion clinics in the state and requires all abortions to be performed in a licensed hospital. 

After the bill wreaked havoc on Indiana for nearly a week, Marion County Superior Court Judge Heather Welch issued an injunction making the bill ineffective. Welch issued the injunction after Hoosier Jews for Choice, the American Civil Liberties Union, and five other women challenged the abortion ban on grounds of a violation of Indiana’s Religious Freedom Restoration Act. 

Until Indiana’s Supreme Court issues an opinion on SB 1, Indiana’s previous abortion law is currently in effect. It allows abortion in all circumstances up to 20 weeks post-fertilization. As of September 2023, the state will have taken nearly a year to decide whether to pass SB 1. Jennifer Drobac, a law professor at the McKinney School of Law says it’s not uncommon for courts to take large amounts of time to issue an opinion. 

 “But what some courts do is they kind of wait to see what other jurisdictions do with similar legislation. They kind of wait for a matter to percolate. Another thing that can happen, for example, the United States Supreme Court has done this. They'll wait until a low media moment, for example, in the middle of the summer or on a Friday night, and they'll quietly issue an opinion, hoping that whatever is in the opinion, will not make quite such a splash in the media," said Drobac.

Jennifer Drobac pictured in the Robert H. McKinney School of Law at IUPUI.

In drafting their opinion, the court may be considering the structural integrity of SB 1. Drobac says the bill has problematic wording. The bill establishes life at the point of conception which scientists and some religions have disagreed with. By denoting life beginning with conception, the bill indicates the state is establishing a religion, which goes against the Free Exercise Clause. 

 “So that's problematic [wording of the bill], because that's defining when human life begins. And of course, at the moment of conception, you do not have a baby by some interpretations, you have a mass of cells. So defining human life at the moment of fertilization is scientifically problematic. It's also extremely problematic for religious reasons because many religions do not define human life at the moment of conception. Organizations have argued, the ACLU included, that this is an establishment clause, a First Amendment clause violation, in that the state is establishing a religion or is making a religious determination and forcing that perspective on other adherents of different religions and therefore, interfering with the free exercise of alternative religious perspective," said Drobac.

Besides the problematic wording of the bill, SB 1 proposes and adheres to harmful perspectives about women and bodily autonomy. Shelli Yoder, Indiana’s 40th District State Senator says a law such as SB 1 furthers the idea that women are untrustworthy and incapable of making decisions about their bodies. SB 1 says that women may only receive necessary health care if they endure rape or their life is threatened by the pregnancy. This type of language ignores other factors which may cause women to need an abortion. The bill also harms primary care physicians who, because of the bill, are not allowed to administer the care they see fit to women in need. 

 “So the legislature, the Republicans are saying, abortion care is health care and has a place in health care, but we don't trust women or healthcare providers unless a woman is raped or is going to die," said Yoder.

When asked to provide comment on the harmful impact o...