Indiana health department may start fining hospitals that don't comply with abortion law
That could include two of the state's health systems that perform the bulk of abortions, IU Health and Eskenazi Health, which recently refused to hand over Terminated Pregnancy Reports following abortions performed there, as mandated by state law.
Among one of Braun's first executive orders as governor was one directing the state health department to examine how it's ensuring compliance with the state's abortion laws. That included not only the new provisions enacted in 2022, which ban abortion except in the case of rape, incest, fatal fetal anomaly or threats to the mother's life, but also the part of state law that requires hospitals and ambulatory surgical centers to report details about abortions they perform to the state health department.
"Indiana is a state that supports Life, and the people's representatives have enshrined those protections for the unborn into state law," Braun said in a statement July 2. "We are taking the necessary steps to make sure those laws are properly implemented."
State law has long required facilities that perform abortions, whether surgical or drug-induced, to provide the health department with detailed Terminated Pregnancy Reports.
But IU Health and Eskenazi have refused to give these to the health department since the President Joe Biden administration enacted the HIPAA Reproductive Health Privacy Rule in mid 2024, which set limits on the disclosure of reproductive health information. An Indianapolis doctor is currently suing the state department in federal court over the submission of these reports, making this argument.
However, a Texas federal judge in mid-June vacated the Biden Administration rule. The health department in its report says it is consulting with the two health systems and the attorney general's office on how to proceed in light of this court order.
Eskenazi officials said the hospital is waiting for the result of the federal lawsuit to "clarify its responsibilities under the law," since the lawsuit "seeks to resolve what may be a significant conflict between the State's TPR statute and federal patient privacy laws," said Todd Harper, director of public affairs and communications.
A spokesperson for IU Health declined to comment, saying "I don't have any information to share."
In the meantime, the state health department is creating other tools to force compliance. Officials said the health department has begun to craft "new rules enabling the agency to issue fines" against providers that don't comply with state law.
"This regulatory tool adds a layer of enforcement that does not rely solely on licensure action or criminal referral, allowing IDOH to address noncompliance swiftly and proportionately," the report states.
A spokesperson for the agency said the agency hasn't yet finalized how steep the fines will be, but noted it will depend on "several factors" and that those fines cannot exceed $10,000 per state law.
Another matter is whether the public can see individual Terminated Pregnancy Reports if the hospitals do provide them to the state.
Immediately following Braun's order, IDOH had pledged to reverse its previous policy and start releasing individual TPRs for public disclosure under the Access to Public Records Act, but a new court case is blocking that from happening for now.
Indiana's near-total abortion ban in 2022 not only sharply curtailed the number of abortions reported in Indiana, but required more personal information be added to these reports, such as demographics and medical history. After seeking an opinion from the Public Access Counselor in 2023, the state health department decided out of privacy concerns to withhold these individual reports from public disclosure.
The anti-abortion group Voices For Life challenged that decision in court. After Braun's executive order, the state health department agreed to settle this lawsuit.
However, a lawsuit blocking the records' release immediately followed, this one filed by two OBGYNs, Dr. Caitlin Bernard ― whose anecdote of treating a 10-year-old rape victim made national news ― and Dr. Caroline Rouse. The health department can't release any individual TPRs while this case is pending, but it continues to provide quarterly reports that aggregate abortion data.
The health department's report also outlines steps it already takes to enforce abortion laws:
It inspects and audits hospitals or ambulatory surgical centers, now the only medical facilities allowed to perform any abortions, to make sure they're following regulations and distributing the required "informed consent" paperwork.
It checks the "reasons" given for the abortions on the Terminated Pregnancy Reports to ensure the procedures align with the exemptions in state law.
It refers any criminal violations of the law, like unreported abortions, to prosecutors, and any professional issues to the appropriate licensing agency.
The July 1 report also says the department has ramped up its coordination with the attorney general's office and elevated all abortion-related matters to the purview of the top levels of the agency.
Contact IndyStar state government and politics reporter Kayla Dwyer at kdwyer@indystar.com or follow her on Twitter @kayla_dwyer17.
This article originally appeared on Indianapolis Star: Indiana health department may fine hospitals for violating abortion law
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