Indiana legislators are considering two bills related to distributing or taking abortion pills, which Indiana University professor of law says amounts to overkill because abortion is already illegal in Indiana.
Jennifer Drobac, a professor of law emerita at the Indiana University Robert H. McKinney School of Law, said these bills prove the legislators don’t understand the uses of Mifepristone or Misoprostol, which is a regimen of pills used to end a pregnancy. The bills also would cause harm to the low income, marginalized women who can’t afford to travel out of state to get an abortion, she said.
“When you throw a pebble into a still pond, it will have a ripple effect. The ripple effect is what we’re worried about there,” Drobac said. “What you’re doing is you are punishing and singling out poor women, women who can’t afford more children, and that also tends to disproportionately affect women of color.”
Mifepristone and misoprostol pills are provided at a Carafem clinic for medication abortions in Skokie. (Erin Hooley / Chicago Tribune)
Sen. Michael Young, R-Indianapolis, authored Senate Bill 171 which would prohibit someone from knowingly or intentionally prescribing or possessing an abortion-inducing drug or sending an abortion-inducing drug to a person who lives in Indiana. The bill would make both actions a Class A misdemeanor and a Level 6 felony for further offenses.
Sen. Tyler Johnson, R-Leo, who is an emergency room physician, and Sen. Liz Brown, R-Fort Wayne, authored Senate Bill 245, which would make it a Level 5 felony if someone intentionally gives a pregnant woman Mifepristone or Misoprostol without her consent.
Senate Bill 245 would also prohibit the possession of or sending Mifepristone or Misoprostol, making it a Class A misdemeanor and a Level 6 felony for further offenses. Finally, the bill would add mifepristone and misoprostol to the list of schedule IV drugs, putting them in the same category as the opioid tramadol and other substances that can be addictive.
The authors of the bills did not respond to requests for comment.
The bills are similar to a law that went into effect in September in Louisiana, which categorized the pills “controlled dangerous substances.” In combination, the drugs manage miscarriages, while misoprostol can treat post-delivery hemorrhages. Doctors are concerned that more red tape in accessing the medications during an emergency can impact patient outcomes, according to the Associated Press.
The legislators are trying to block the possession and distribution of abortion pills, which are used in the majority of abortions and can be sent through the mail, Drobac said. In 2023, nearly two-thirds of all abortions in the U.S. were medication abortions, according to the Guttmacher Institute.
But, because Indiana already has a near-total ban on abortions with limited exceptions, the bills aren’t necessary, Drobac said. Additionally, Drobac said there are multiple problems with the bills.
Mifepristone can be used to control high blood sugar or for people with Cushing’s syndrome, which causes low blood sugar, Drobac said. The pills are also used in the event that a natural miscarriage doesn’t completely flush out of the body, she said. Misoprostol is also used to prevent stomach ulcers in people who take certain pain medicines.
“This legislation is quite frankly not necessary because it’s already illegal. It’s also particularly punitive to the people who need these drugs. It’s designed to make sure that people can’t get access to these drugs in order to get around the anti-abortion law already in effect in Indiana,” Drobac said.
It would be difficult to tell if someone was using the drugs for an abortion or for other conditions, Drobac said.
“But, what this is indicating to us, is that the legislators themselves feel that they are qualified to play doctor in all of this,” Drobac said.
The Supreme Court recently upheld the Food and Drug Administration’s rules on the use of mifepristone and misoprostol in the case of FDA vs. Alliance for Hippocratic Medicine, Drobac said.
The justices ruled that Alliance for Hippocratic Medicine didn’t have a case because those involved in the case hadn’t been harmed by the medications, Drobac said. With the ruling, the Supreme Court did leave open the possibility of other cases being filed against the FDA’s rules on abortion pills, she said.
But, Drobac said, the Supreme Court ruling does raise questions on Indiana’s ability to ban abortion pills that have been approved by the FDA.
“Can the State of Indiana make possession of a drug approved by the FDA illegal? That is really an undecided issue. Indiana can make abortion illegal, but it’s trying to go further in restricting these particular drugs,” Drobac said.
The bills also raise questions about how a state could control the U.S. Postal Service, which the federal government oversees, to monitor what is inside packages, Drobac said.
The sending and distribution portions of the bills don’t address how that would be enforced, Drobac said. For example, would someone have to report if their roommate or family member received the abortion pills in the mail, Drobac asked.
“The worry would be that somebody would be caught with it or caught distributing it,” Drobac said. “Let’s say a woman or a man travels to Illinois to get the drugs and brings it across the border — that would be problematic for that person because they would then be carrying contraband.”
Hoosiers, along with the majority of the country, favor safe and legal abortions, Drobac said, and these bills would make it even more difficult for people to access abortion care.
With a Republican supermajority in the state, Drobac said it’s likely the bills will pass. But, what could thwart the passage of the bills would be if enough people campaigned against them, she said.
If the bills became law, Drobac said the law could be challenged. But, in the event the case went to the U.S. Supreme Court, Drobac said it’s unclear if the justices would block the law in the wake of the overturning of Roe v. Wade.
As the legislature takes more and more extreme measures to ban abortion, Drobac said people won’t want to come to Indiana to work or for school.
“With most people in America favoring safe, legal abortion they’re not going to want to come to a place that is ultra extreme and radical in banning it,” Drobac said. “That hurts the economy. It hurts education. It has a ripple effect that these lawmakers aren’t anticipating.”
The Associated Press contributed.