At their request, Indiana Solicitor General James Barta — who defended the state’s abortion ban — takes a photo of plaintiffs in the case Friday,May 31, outside the Marion County Courthouse. Photo by Mia Hilkowitz for Indiana Capital Chronicle.

By Mia Hilkowitz
Indiana Capital Chronicle

INDIANA — Abortion providers asserted during closing arguments Friday, May 31, that narrow medical exemptions and a hospital requirement under the state’s near-total abortion ban deprive Hoosiers of their constitutional right to get the procedure when necessary to protect their health.

“Many pregnant Hoosiers have suffered and continue to suffer due to the health or life exception,” said Allyson Slater, an attorney for Wilmer Culter Pickering Hale & Dorr, representing the providers.

Slater, along with Indiana Solicitor General James Barta — who represented the defense — delivered closing arguments to conclude a three-day bench trial in which abortion providers are seeking to widen medical exemptions under 2022’s Senate Enrolled Act 1 and remove a requirement that stripped abortion clinics of their licenses to perform the procedure.

“This doesn’t interfere with doctors’ ability to provide good care,” Barta told reporters after the trial. “What doctors do when they can’t provide abortions, is they treat the woman in front of them.”

Owen County Special Judge Kelsey Blake Hanlon, a Republican, will issue a ruling in the case in the coming weeks or months.

Final Words

Slater called abortion “safe, effective health care.”

She described the health or life exception — which allows a woman to receive an abortion only if the procedure is necessary to prevent death or a “serious health risk” — as unclear and misaligned with medical ethics.

Slater argued that abortion isn’t the only treatment for physical and mental health conditions but is one option. However, she said expectant management, where a physician closely monitors a patient but does not give treatment unless symptoms appear or change, is not an appropriate option for some patients.

She also argued that the law’s hospital requirement poses “overwhelming and sometimes insurmountable burdens” even on Hoosiers who qualify for an abortion. Some Indiana hospitals don’t provide abortions, so women may travel to other states.

“Abortion bans harm patients, they make pregnancy less safe and all people, including all Hoosiers, deserve access to the full spectrum of health care,” Melissa Shube, an attorney for the Planned Parenthood Federation of America, said following closing arguments.

The plaintiffs also argued the law will have a chilling effect on doctors who fear prosecution for delivering care.

“The doctors were clear that the conditions may not require abortion for all patients and it’s the flexibility of the doctor to reach the right outcome and the right treatment for patient that we’re seeking to vindicate,” Lori Martin, another attorney for Wilmer Culter Pickering Hale & Dorr, said following closing arguments.

But Barta argued the case should ultimately focus on what the Indiana Constitution and Indiana Supreme Court ruling say.

He asserted the Indiana Supreme Court set a “high bar” for challenges to the law when it upheld the ban in June 2023. The court ruled that the state constitution protects a woman’s right to an abortion if it is “necessary” to protect her life or from a serious health risk, but it does not protect a fundamental right to the procedure in all circumstances.

“The court was very clear that if you want to challenge the health or life exception, you need to have a specific person, or specific scenario that the courts can actually evaluate,” he said following closing arguments. “That’s not what we have here.”

Barta said said the law provides physicians with enough leeway to exercise reasonable medical judgment and decide if they need to terminate a pregnancy.

As for the hospital requirement, Barta said the state does not guarantee a right to have an abortion outside a hospital. While it may be cheaper or easier for some patients to access care in an abortion clinic, he said it is not necessary.

Final Witness

Earlier in the day, the Indiana Attorney General’s Office — representing the defendants — called its final witness, Dr. Monique Wubbenhorst, an OB-GYN at St. Joseph’s Regional Medical Center in Mishawaka.

In her testimony, Wubbenhorst said she thinks the law’s text is “easily understandable,” refuting plaintiff witness claims that the “health or life” exception is too vague.

Wubbenhorst said she believed nothing in Senate Enrolled Act 1 prevents doctors from exercising their own reasonable medical judgment in determining treatment for their patients. She described herself as “pro-life” during cross examination. She said human life begins at conception and was personally opposed to abortion, even in cases of rape or incest.

Although Wubbenhorst has been an OB-GYN for more than 30 years, she acknowledged during cross examination that she does not have any certification in maternal fetal medicine. She also said she has never referred a patient for an abortion and has declined to perform an abortion in her medical residency.

But Wubbenhorst said her personal views don’t impact her ability to treat patients, noting complications associated with receiving an abortion were underreported.

She also stated she did not think abortion should be referred to as health care.

“Because (embryos and fetuses) are human beings, no procedure that kills human beings is health care,” Wubbenhorst said.

Prominent medical groups — including the American College of Obstetricians and Gynecologists, American Medical Association and World Health Organization — recognize abortion as health care, however.