CHAPTER 2. REQUIREMENTS FOR PERFORMANCE OF ABORTION; CRIMINAL PENALTIES
IC 16-34-2
Chapter 2. Requirements for Performance of Abortion; Criminal
Penalties
IC 16-34-2-1
Required circumstances of legal abortion
Sec. 1. (a) Abortion shall in all instances be a criminal act, except
when performed under the following circumstances:
(1) During the first trimester of pregnancy for reasons based
upon the professional, medical judgment of the pregnant
woman's physician if:
(A) the abortion is performed by the physician;
(B) the woman submitting to the abortion has filed her
consent with her physician. However, if in the judgment of
the physician the abortion is necessary to preserve the life of
the woman, her consent is not required; and
(C) the woman submitting to the abortion has filed with her
physician the written consent of her parent or legal guardian
if required under section 4 of this chapter.
(2) After the first trimester of pregnancy and before viability,
for reasons based upon the professional, medical judgment of
the pregnant woman's physician if:
(A) all the circumstances and provisions required for legal
abortion during the first trimester are present and adhered to;
and
(B) the abortion is performed in a hospital or ambulatory
outpatient surgical center (as defined in IC 16-18-2-14).
(3) Except as provided in subsection (b), after viability of the
fetus for reasons based upon the professional, medical judgment
of the pregnant woman's physician if:
(A) all the circumstances and provisions required for legal
abortion before viability are present and adhered to;
(B) the abortion is performed in compliance with section 3
of this chapter; and
(C) before the abortion the attending physician shall certify
in writing to the hospital in which the abortion is to be
performed, that in the attending physician's professional,
medical judgment, after proper examination and review of
the woman's history, the abortion is necessary to prevent a
substantial permanent impairment of the life or physical
health of the pregnant woman. All facts and reasons
supporting the certification shall be set forth by the
physician in writing and attached to the certificate.
(b) A person may not knowingly or intentionally perform a partial
birth abortion unless a physician reasonably believes that:
(1) performing the partial birth abortion is necessary to save the
mother's life; and
(2) no other medical procedure is sufficient to save the mother's
life.
As added by P.L.2-1993, SEC.17. Amended by P.L.145-1997, SEC.2.
IC 16-34-2-1.1
Voluntary and informed consent required; viewing of fetal
ultrasound
Sec. 1.1. (a) An abortion shall not be performed except with the
voluntary and informed consent of the pregnant woman upon whom
the abortion is to be performed. Except in the case of a medical
emergency, consent to an abortion is voluntary and informed only if
the following conditions are met:
(1) At least eighteen (18) hours before the abortion and in the
presence of the pregnant woman, the physician who is to
perform the abortion, the referring physician or a physician
assistant (as defined in IC 25-27.5-2-10), an advanced practice
nurse (as defined in IC 25-23-1-1(b)), or a midwife (as defined
in IC 34-18-2-19) to whom the responsibility has been delegated
by the physician who is to perform the abortion or the referring
physician has orally informed the pregnant woman of the
following:
(A) The name of the physician performing the abortion.
(B) The nature of the proposed procedure or treatment.
(C) The risks of and alternatives to the procedure or
treatment.
(D) The probable gestational age of the fetus, including an
offer to provide:
(i) a picture or drawing of a fetus;
(ii) the dimensions of a fetus; and
(iii) relevant information on the potential survival of an
unborn fetus;
at this stage of development.
(E) The medical risks associated with carrying the fetus to
term.
(F) The availability of fetal ultrasound imaging and
auscultation of fetal heart tone services to enable the
pregnant woman to view the image and hear the heartbeat of
the fetus and how to obtain access to these services.
(2) At least eighteen (18) hours before the abortion, the
pregnant woman will be orally informed of the following:
(A) That medical assistance benefits may be available for
prenatal care, childbirth, and neonatal care from the county
office of the division of family resources.
(B) That the father of the unborn fetus is legally required to
assist in the support of the child. In the case of rape, the
information required under this clause may be omitted.
(C) That adoption alternatives are available and that
adoptive parents may legally pay the costs of prenatal care,
childbirth, and neonatal care.
(3) The pregnant woman certifies in writing, before the abortion
is performed, that the information required by subdivisions (1)
and (2) has been provided.
(b) Before an abortion is performed, the pregnant woman may,
upon the pregnant woman's request, view the fetal ultrasound
imaging and hear the auscultation of the fetal heart tone if the fetal
heart tone is audible.
As added by P.L.187-1995, SEC.4. Amended by P.L.1-1998,
SEC.118; P.L.36-2005, SEC.1; P.L.146-2008, SEC.444;
P.L.44-2009, SEC.32.
IC 16-34-2-1.2
Physician's duty to inform women in medical emergency of
necessity for abortion
Sec. 1.2. When a medical emergency compels the performance of
an abortion, the physician who will perform the abortion shall inform
the woman, before the abortion if possible, of the medical indications
supporting the physician's judgment that an abortion is necessary to
avert:
(1) the woman's death; or
(2) a substantial and irreversible impairment of a major bodily
function.
As added by P.L.187-1995, SEC.5.
IC 16-34-2-2
Responsibilities of attending physician
Sec. 2. It shall be the responsibility of the attending physician to
do the following:
(1) Determine in accordance with accepted medical standards
which trimester the pregnant woman receiving the abortion is
in.
(2) Determine whether the fetus is viable.
(3) Certify that determination as part of any written reports
required of the attending physician by the state department or
the facility in which the abortion is performed.
As added by P.L.2-1993, SEC.17.
IC 16-34-2-3
Viable fetus; requirements; preservation of life and health of viable
unborn child; certificates of birth and death; offense of failure to
preserve life; ward status of child
Sec. 3. (a) All abortions performed after a fetus is viable shall be:
(1) governed by section 1(a)(3) and 1(b) of this chapter;
(2) performed in a hospital having premature birth intensive
care units, unless compliance with this requirement would result
in an increased risk to the life or health of the mother; and
(3) performed in the presence of a second physician as provided
in subsection (b).
(b) An abortion may be performed after a fetus is viable only if
there is in attendance a physician, other than the physician
performing the abortion, who shall take control of and provide
immediate care for a child born alive as a result of the abortion.
During the performance of the abortion, the physician performing the
abortion, and after the abortion, the physician required by this
subsection to be in attendance, shall take all reasonable steps in
keeping with good medical practice, consistent with the procedure
used, to preserve the life and health of the viable unborn child.
However, this subsection does not apply if compliance would result
in an increased risk to the life or health of the mother.
(c) Any fetus born alive shall be treated as a person under the law,
and a birth certificate shall be issued certifying the child's birth even
though the child may subsequently die, in which event a death
certificate shall be issued. Failure to take all reasonable steps, in
keeping with good medical practice, to preserve the life and health
of the live born person shall subject the responsible persons to
Indiana laws governing homicide, manslaughter, and civil liability
for wrongful death and medical malpractice.
(d) If, before the abortion, the mother, and if married, her
husband, has or have stated in writing that she does or they do not
wish to keep the child in the event that the abortion results in a live
birth, and this writing is not retracted before the abortion, the child,
if born alive, shall immediately upon birth become a ward of the
department of child services.
As added by P.L.2-1993, SEC.17. Amended by P.L.4-1993, SEC.243;
P.L.5-1993, SEC.256; P.L.145-1997, SEC.3; P.L.146-2008,
SEC.445.
IC 16-34-2-4
Written consent of parent or guardian of unemancipated pregnant
woman under 18 years of age; conditions of waiver; representation
by attorney; appeal; confidential records; emergency abortions
Sec. 4. (a) No physician shall perform an abortion on an
unemancipated pregnant woman less than eighteen (18) years of age
without first having obtained the written consent of one (1) of the
parents or the legal guardian of the minor pregnant woman.
(b) A minor:
(1) who objects to having to obtain the written consent of her
parent or legal guardian under this section; or
(2) whose parent or legal guardian refuses to consent to an
abortion;
may petition, on her own behalf or by next friend, the juvenile court
for a waiver of the parental consent requirement under subsection
(a).
(c) A physician who feels that compliance with the parental
consent requirement in subsection (a) would have an adverse effect
on the welfare of the pregnant minor or on her pregnancy may
petition the juvenile court within twenty-four (24) hours of the
abortion request for a waiver of the parental consent requirement
under subsection (a).
(d) The juvenile court must rule on a petition filed by a pregnant
minor under subsection (b) or by her physician under subsection (c)
within forty-eight (48) hours of the filing of the petition. Before
ruling on the petition, the court shall consider the concerns expressed
by the pregnant minor and her physician. The requirement of parental
consent under this section shall be waived by the juvenile court if the
court finds that the minor is mature enough to make the abortion
decision independently or that an abortion would be in the minor's
best interests.
(e) Unless the juvenile court finds that the pregnant minor is
already represented by an attorney, the juvenile court shall appoint
an attorney to represent the pregnant minor in a waiver proceeding
brought by the minor under subsection (b) and on any appeals. The
cost of legal representation appointed for the minor under this
section shall be paid by the county.
(f) A minor or her physician who desires to appeal an adverse
judgment of the juvenile court in a waiver proceeding under
subsection (b) or (c) is entitled to an expedited appeal, under rules to
be adopted by the supreme court.
(g) All records of the juvenile court and of the supreme court or
the court of appeals that are made as a result of proceedings
conducted under this section are confidential.
(h) A minor who initiates legal proceedings under this section is
exempt from the payment of filing fees.
(i) This section shall not apply where there is an emergency need
for a medical procedure to be performed such that continuation of the
pregnancy provides an immediate threat and grave risk to the life or
health of the pregnant woman and the attending physician so certifies
in writing.
As added by P.L.2-1993, SEC.17.
IC 16-34-2-5
Forms to be completed by physician; offenses
Sec. 5. (a) Every medical facility where abortions may be
performed shall be supplied with forms drafted by the state
department, the purpose and function of which shall be the
improvement of maternal health and life through the compilation of
relevant maternal life and health factors and data, and a further
purpose and function shall be to monitor all abortions performed in
Indiana to assure the abortions are done only under the authorized
provisions of the law. Such forms shall include, among other things,
the following:
(1) The age of the woman who is aborted.
(2) The place where the abortion is performed.
(3) The full name and address of the physicians performing the
abortion.
(4) The name of the father if known.
(5) If after viability, the medical reason for the abortion.
(6) The medical procedure employed to administer the abortion.
(7) The mother's obstetrical history, including dates of other
abortions, if any.
(8) The results of pathological examinations if performed.
(9) Information as to whether the fetus was delivered alive.
(10) Records of all maternal deaths occurring within the health
facility where the abortion was performed.
(b) The form provided for in subsection (a) shall be completed by
the physician performing the abortion and shall be transmitted to the
state department not later than July 30 for each abortion performed
in the first six (6) months of that year and not later than January 30
for each abortion performed for the last six (6) months of the
preceding year. Each failure to file the form on time as required is a
Class B misdemeanor.
As added by P.L.2-1993, SEC.17.
IC 16-34-2-6
Experiments performed on aborted fetus prohibited
Sec. 6. No experiments except pathological examinations may be
conducted on any fetus aborted under this chapter, nor may any fetus
so aborted be transported out of Indiana for experimental purposes.
A person who conducts such an experiment or so transports such a
fetus commits a Class A misdemeanor.
As added by P.L.2-1993, SEC.17.
IC 16-34-2-7
Performance of unlawful abortion; offense
Sec. 7. (a) Except as provided in subsections (b) and (c), a person
who knowingly or intentionally performs an abortion not expressly
provided for in this chapter commits a Class C felony.
(b) A physician who performs an abortion intentionally or
knowingly in violation of section 1(a)(1)(C) or 4 of this chapter
commits a Class A misdemeanor.
(c) A person who knowingly or intentionally performs an abortion
in violation of section 1.1 of this chapter commits a Class A
infraction.
(d) A woman upon whom a partial birth abortion is performed
may not be prosecuted for violating or conspiring to violate section
1(b) of this chapter.
As added by P.L.2-1993, SEC.17. Amended by P.L.187-1995, SEC.6;
P.L.145-1997, SEC.4.