- Elaine Benken
With Governor Pence's signature on Thursday, March 24, HEA 1337 became law in Indiana. The wide-sweeping bill has been called the strictest abortion law in the nation.
Over the next five days, NUVO will roll out comprehensive reporting on the controversial abortion bill.
HEA 1337 outlaws abortion entirely for a variety of reasons, adds additional barriers to obtaining an abortion, and requires each aborted or miscarried fetus be buried or cremated.
Our editorial stance is that HEA 1337 does not protect the interests of pro-choice or anti-choice women. It does not, in fact, protect women and children at all. HEA 1337 violates Roe vs. Wade and, in many cases, could endanger the lives of mothers across the state. It is a piece of legislation that was rushed through the Statehouse, and a bill that many self-identified pro-life legislators voted against.
RELATED: See how every legislator voted on HEA 1337
Simply put, HEA 1337 makes Indiana the most hostile state for women’s rights in the nation.
We've examined the impact of HEA 1337 on Hoosier women from a variety of different angles. In the next few days, we'll publish reports featuring experts in disability rights, SES, intersectionality and undocumented populations, in addition to comments from Planned Parenthood and the ACLU. HEA 1337 leaves many questions unanswered, and we’ll publish those, too.
RELATED: Read HEA 1337 in its entirety
Perhaps most importantly, we collected personal stories from women who chose abortion or experienced miscarriage. We asked them to describe their experience, including the emotional, mental, physical and financial burden, then asked them to envision what their experience would have been like if they had suffered a miscarriage or chosen abortion under HEA 1337. We asked them to consider a few questions, including: What would the impact be if they knew their fetus would be buried or cremated? If they had their choice to abort disallowed because their reason was no longer lawful? If they had to explain their reason for making their choice?
- Elaine Benken
House Enrolled Act 1337 was passed this year by the Indiana General Assembly. Known as the abortion bill, there are many aspects to the bill that are at the very least confusing and at the very most extremely damaging to women’s rights in our state. Here is a breakdown of what is the legislation and what it means for women and healthcare providers.
- Healthcare facilities having possession of a miscarried fetus will provide for final disposition, which must be cremated or interred. Prior to this bill, women who had abortions could decide if they wanted the fetal remains from their pregnancy for personal burial or cremation. If that option wasn’t taken, then facilities could dispose of the remains as medical waste. This new legislation now requires facilities to have fetal remains interred or cremated if women don’t opt to do it. The burden of responsibility — both financial and regulatory — falls on the provider. However, the financial responsibility could very easily be passed on to patients through an increase in fees for services rendered.
- Indiana does not allow a fetus to be aborted solely because of the fetus's race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability. This provision was also added under the auspices of civil rights — but it makes abortion illegal at any stage of pregnancy based on a woman’s intent. The new provision defines “potential diagnosis” as “the presence of some risk factors that indicate that a health problem may occur.” As an example, a woman’s age (over 35) has been medically proven to increase the risk of Down syndrome and several other defects and disabilities in a pregnancy. The new law does make an exception for a “lethal fetal anomaly," which the law defines as a fetal condition determined before birth that will result in the death of the child no more than three months after the child’s birth.
- The physician or healthcare provider performing the abortion is the individual at risk for violating the previous statute. The new law prohibiting an abortion for the reasons listed above seeks to penalize the healthcare provider and not the pregnant woman. Violations of that law could result in the healthcare provider’s license being suspended or revoked; the provider could receive a letter of reprimand from the licensing board; or the provider could censured or put on probation for a period of time. The provider could be fine $1,000 for each violation and be subject to civil liability for wrongful death (although the law doesn’t specify who would have the right to file a civil suit).
- The identity of a physician or healthcare provider performing or supporting an abortion is made more publicly available. Indiana law previously required providers to have admitting privileges to an hospital in the county where abortions were performed or in a contiguous county; or to have a written agreement with a physician with admitting privileges. The new law requires those written agreements to be renewed annually and submitted to the state health department. The health department then distributes a list of those admitting privileges and written agreements to all of the hospitals in the county where the admitting hospital is located along with all of the hospitals in the counties contiguous to the admitting hospital. (Example: if Eskenazi Health grants admitting privileges to a doctor that performs abortions or has a written agreement with Planned Parenthood — IU Health, St. Francis, St. Vincent and all Community Hospitals would receive that notification along with all hospitals in Hendricks, Boone, Hamilton, Hancock and Johnson counties.) And that notification takes place every year.
- There must be at least 18 hours between when a woman is educated about her options and when an abortion procedure takes place. Indiana law already dictated that abortion providers give a woman information about services, programs and other assistance available to her if she were to maintain the pregnancy. All written materials had to be received at least 18 hours prior to a procedure and an ultrasound and fetal heart tones had to be provided prior to the procedure. Now, the ultrasound and fetal heart tones must be provided 18 hours prior to the procedure as well. This requires a woman to make an additional trip to her provider. The “18-hour education” rule also applies to women carrying a child diagnosed with a “lethal fetal anomaly” that are considering terminating their pregnancy. In those cases, healthcare providers have to present the woman with information about perinatal hospice, which is defined as comprehensive, supportive care to a pregnant woman and her family beginning with the diagnosis of a lethal fetal anomaly and continuing through the live birth and death of the woman's child as a result of the lethal fetal anomaly. The law requires a provider to inform the woman of her perinatal hospice options live and in person.
RELATED: Planned Parenthood responds to HEA 1337
- Elaine Benken
We collected personal stories from women who chose abortion or experienced miscarriage and asked them how HEA 1337 would have impacted their experience. All stories with names attached are published with explicit permission. We want to thank the women who submitted their stories. In the next few days, we'll publish those stories. If you'd like, you can submit your own at awakeforwomensrights.tumblr.com or email it to NUVO's editors at firstname.lastname@example.org.
This is Victoria Barrett's story.
In the fall of 2013, I was pregnant with a baby I very much wanted to keep. But she was afflicted with a fatal trisomy 13 chromosomal anomaly that prevented her survival. My husband and I learned in the 13th week of my pregnancy that she could not survive, and had this information confirmed, via ultrasound and amniocentesis, a week later. We could have waited for her to die on her own, but the later it came, the more likely it would have been that her inevitable death would have been excruciating, so we chose to abort.
The termination procedure was a four-day affair. The first day was state-mandated counseling. The final requirement on the list was that the doctor, whom we’d never met, list the potential side effects of the procedure, one of which was a slim but existent likelihood of my death. He added an aside: “You’re more likely to die if you don’t terminate than if you do.”
During the following three days, excruciating physical pain compounded my grief, so that my daughter could die with a lessened possibility of suffering. (We do not know, scientifically, when the capacity for suffering develops in a fetus, but science has established with some certainty that, whenever it happens, it’s well after the 15th week of gestation.)
And then she was gone.
RELATED: Read Pence's statement on HEA 1337 here
Three months later, I became pregnant with my son, Finn, who is already extraordinarily gentle, generous and loving. In May, I will give birth to his little brother.
But with this law in place, and with the increased statistical likelihood of a repeat anomaly, I will not risk another pregnancy. I will never be mother to a living girl.
Last year, when the state Senate Health and Provider Services committee voted on an earlier iteration of this bill, which focused on the sex and disability prohibitions, I testified before the committee, telling my daughter’s story. I told them, too, that if I hadn’t been able to terminate that pregnancy, if I’d been forced to carry my daughter to her spontaneous death, to deliver her destroyed body, I would never have allowed myself to become pregnant again. I would never have had my Finn. That’s still true, and it’s true for his soon-to-be-born brother, as well.
I can also say that the provision requiring perinatal hospice counseling would have destroyed us. We sat in a darkened room watching a large screen as an ultrasound technician pointed out our daughter’s essential parts: head, spine, arms, legs. Then again, with a maternal fetal specialist, all the developmental disasters that would kill her: severe hydrocephaly, abdominal malformation, missing heart chamber. Had that process been followed by state-mandated ‘counseling’ of the kind required by HEA 1337, we would have been done for.
This year, I submitted written testimony, because I did not feel strong enough to appear in person. Shortly after, the lethal fetal anomaly exception to the disability prohibition was added via amendment. But the reason I won’t risk another pregnancy isn’t that I won’t be able to abort another hopelessly malformed baby. It’s because I can no longer trust that my health care providers will be free to offer me the kind, loving, supportive care I received when I lost my daughter. Their hands will be tied by legislative bindings that make any future pregnancy the business not of me and my family and my doctors, but of strangers in the statehouse who we will never meet, who don’t care at all about our well-being, and who can’t be bothered to consider our life or our needs.
- Elaine Benken
A timeline of HEA 1337's movement through the statehouse
January 12: HB 1337 Authored by Representative Casey Cox (R-Fort Wayne)
The original bill solely addressed the final disposition of fetal remains. The goal was to humanize the disposal of fetal remains by requiring cremation or interment instead of allowing remains to be disposed of as medical waste.
“I supported the bill the first time around. I assumed that was the bill we were considering this session and we would be done,” says Representative Sean Eberhart (R-Shelbyville), who voted no to HB 1337 in the final vote. Many Republican legislators supported the bill in its initial form, but did not support it when amended.
January 12: 1st reading by Committee on Public Policy. Passed.
February 1: Second House reading: 1st Amendment prevailed
The amendment to the bill simply clarified language of when the bill would be effective if passed, which would render it effective as of July 1, 2016.
February 2: Third House reading passed
The bill passed the House with 23 out of 29 Democrats voting against it.
February 3: Referred to Senate
February 8: First Senate reading by Committee on Health and Provider Services
Language from SB 313 was added to HB 1337 in a Senate committee. The additions dealt with the provision illegalizing abortion if its intent is on based on race, gender or a disability diagnosis of the fetus. SB 331 passed the Senate on a party-line vote but was killed in a House committee.
February 29: Second Senate reading (for proposed amendments by the full Senate)
Amendments 3, 4, 6, 7, 8, 9, 10, 11 failed.
Sen. Mark Stoops (D-Bloomington) attempted to amend the bill to remove language from the bill that would protect the identities of women and lessen the intent restrictions. Sen. Jean Breaux (D-Indianapolis) tried to provide funding for disability services, provide a certificate of fetal remains instead of a death certificate, eliminate the intent clause for gestational age of fetuses under 20 weeks, and help lower to cost of burial or cremation for facilities responsible for the final disposition of fetal remains. All of the proposed amendments were defeated.
March 1: Third Senate reading passed
The amended bill passed out of the Senate with all 10 Democrats and three Republicans voting against it.
Senator Phil Boots (R-Crawfordsville) voted no from the start. “I’ve consistently voted no on pro-life legislation trying to end abortion. HB 1337 is not a truly anti-abortion bill, it just puts a lot of restrictions on women. Simply, I think that abortion is a woman’s choice. I think that if a woman wants to make the decision [to get an abortion], they should. The way I vote, I vote my consciousness as opposed to what my Republican colleagues would like to see,” says Boots.
Senator Vaneta Becker (R-Evansville) voted no on HEA 1337. “We as Republicans always talk about ‘less regulation, less regulation, less regulation.’ EXCEPT when it deals with the most personal decisions of somebody’s life. We ought to stay out of it. This bill doesn’t value life, as the authors make you to believe. It values birth. It does nothing to give the mother of the child the promise of support and services to appropriately deal with life,” she says.
March 2: Bill returned to House with Amendments
Representative Cindy Ziemke (R-Batesville) said of HEA 1337, “I supported HB 1337 as it left this chamber, and even as this bill was returned to us from the Senate I agreed with several of its aspects. However, this bill has one provision that I can’t support. It prohibits parents of severely disabled fetuses from choosing to terminate a pregnancy; grieving parents who must face a decision that is heartbreaking. Instead of showing compassion in this bill, we are choosing to say that the state of Indiana knows what is best for their family in this tragic situation.”
March 9: Motion to concur filed
Typically when a bill is returned to its originating chamber with major changes to it, the bill is hashed out on a conference committee with any additional changes voted on by both chambers. With the end-of-session date moved from March 14 to March 10, Rep. Cox filed a motion to concur asking the House to vote on the Senate-changed bill without any discussion or conference.
Many Republican legislators who voted no against the bill did so because they felt the bill wasn’t given a proper chance to be vetted. Representative Holli Sullivan (R-Evansville) said, “51 percent of Indiana’s population are women. More specifically for me, I represent 34,226 women. None of these women got a chance to weigh in on this bill. I feel my constituents are worthy of their input on this bill. Females in the House are at 18 percent. These women, they also didn’t get a chance to vet, amend, and make this Senate addition to the bill better.”
Representative Cindy Kirchhofer (R-Beech Grove) voted no on HEA 1337 because “This Senate bill was not heard in committee for testimony. I wasn’t able to take it to my district to discuss it. I feel this is government overreaching. We haven’t had a process to vet this.”
Representative Wendy McNamara (R-Evansville) said that “This bill did not go through the correct process. If the end goal [of this bill] was to end abortion, then let’s do that. I feel this bill singles out individuals and I don’t think the additions to this will end abortion.”
March 9: Bill passed in House
The final bill passes out of the House 60-40. All 29 Democrats and 11 Republicans voted against the measure.
Representative Tom Saunders (R-Lewisville) says of the bill’s initial form, “I voted in favor of the House’s version of the bill, which dealt with the humane disposal of fetal remains. When the bill came back to us from the Senate it had been amended considerably, and I didn’t agree with what the bill would look like in its final form.”
Representative Ed Clere (R-New Albany) voted no to HEA 1337 in its final form. “This bill is another example of how the conversation around reducing the number of abortions in Indiana has taken a very divisive and non-productive turn. The best way for us to reduce the number of abortions in Indiana is to empower girls and women. The best way to do that is through education and access to services and support, while also working long-term to empower and improve the status of girls and women in Indiana. That’s where our policy focus should be. If we focused more on that, we’d see a reduction in the number of abortions and it would be so much more constructive. That’s something folks on both sides of the isle can support. I lament that the conversation has, once again, gone in this direction when it’s not the conversation and debate we should be having.”
RELATED: The intersectional impact of HEA 1337
- Elaine Benken
This is Mandi Lynn McKeen's story.
When I was around 19 weeks along, I received a ‘positive’ result on a routine screening test (called a quad screen) that indicated our baby had an increased likelihood of having Trisomy 21, or Down Syndrome. My husband and I spent about three weeks around the holidays trying not to be overwhelmed with stress and anxiety. Doing research, trying to learn more about the test itself, its rate of false positives, what I would have to do next to get a more definitive answer, etc. Eventually, after seeing a Maternal Fetal Medicine Specialist, genetic counselor, having a detailed ‘Level 2’ ultrasound, and taking a more specific (but not diagnostic) blood test, we were reassured that the risk to our baby for having Down Syndrome was in fact within ‘normal’ limits.
This is not to say that having a baby with Down Syndrome is a reason that women would want to terminate. But it very well could be. There are also many other genetic disorders that could occur during the course of one’s pregnancy that render the potential child unable to ever experience any semblance of a happy, healthy life. I refrain from using the word ‘normal’ to describe a person – because what is that? But I do consider the ability to have autonomy over one’s bodily functions an important qualifier for quality of life. And if I had to face the potential of bringing a child into the world that would never walk, talk, breath, or function independently, I know, personally, I would not want to. Particularly if that meant the child itself could face a short life full of pain and suffering. Some of these disorders cause the baby to die either in utero, or shortly after birth.
Will this law force a woman to carry a deceased fetus until her body expels it? Will this law force families to provide medical care for these babies that will never survive? Who will cover these astronomical costs? Who will pay for the days of lost work? The child care for those who already have children they need to provide for? The emotional toll that this will take on the families who so desperately want these babies? We all know women are not aborting fetuses because of the gender, or nationality. What a joke. This bill targets women who are experiencing the most heartbreaking situation imaginable. And it is infuriating. Especially considering that a woman is legally able to have an abortion no literally no reason at all. So what: does that mean we lie to our doctors? Or face the choice of having to decide to terminate a pregnancy without having all the available information for fear of being denied that choice if a doctor doesn’t want to risk the potential of prosecution?
And disposable requirements for aborted and miscarried fetuses?! Are the lawmakers who wrote this legislation going to come remove the miscarriage I had from the toilet and make me bury or cremate it? Would flushing that down the drain make me a felon? Do they know how many women have miscarriages? Or often they happen? And how expensive that would be to try and bury each tiny loss? Or how heartbreaking? I find it interesting that they tout how much ‘each precious life’ means to them, yet they allow for fetal remains to be 'cremated by simultaneous cremation' – which means that they can be cremated ‘en masse,’ so to speak… But, hey, at least the law will not require us to give it a name.
There’s really no way to put it into words that do it justice. This is bill is just wrong. In every way shape and form.”