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New ban makes at-home abortions illegal in Indiana, but not always criminal

Pro-abortion rights groups expect more pregnant people will turn to at-home medication abortions now that Indiana’s abortion ban has taken effect.

INDIANAPOLIS — Pro-abortion rights groups expect more pregnant people will turn to at-home medication abortions now that Indiana’s abortion ban is effect.

The new law makes self-managed medication abortions illegal, but not always criminal.

13 Investigates reached out to more than 20 legal experts, prosecutors, doctors, anti-abortion groups and pro-abortion access groups to get clarity over how self-managed abortions will be addressed.

The attorney general’s office, as well as most prosecutor's offices, refused to answer our questions on the subject.

The Indiana Prosecuting Attorneys Council did email 13News that, “SEA 1 does not criminalize women who seek or obtain an abortion, so there would be no penalty for a pregnant mother using medication to end a pregnancy, which is consistent with Indiana’s laws prior to SEA 1. However, also consistent with prior law, there are potential penalties for anyone else who helps to facilitate an unlawful abortion.”

For anti-abortion groups, that means self-managed abortions are banned.

“That would be my understanding,” said Dr. Andrew Mullally out of Fort Wayne.

Sara Ainsworth with If/When/How said the current law makes it a “legal grey area.”

RELATED: 'Historic day': Indiana's abortion ban takes effect

Indiana University law professor Jennifer Drobac said mifepristone and misoprostol are both FDA approved for abortion and other uses. It also started allowing them to be delivered by mail in 2020.

"So, just having the drugs, ordering the drugs, possessing the drugs, that's not illegal,” said Drobac. “What Indiana has made illegal is the abortion itself and the use of the drugs for the abortion itself under particular circumstances."

Drobac said that’s her personal interpretation of the law, telling 13News her opinions do not represent the views of the university and do not amount to legal advice.

Indiana Prosecuting Attorneys Council said that’s true for some, but not everyone, telling 13News, "Indiana law requires a person to have a valid prescription” for the drugs and possessing them without a valid prescription is a Level 6 felony.

And using these drugs for an abortion is illegal, even if lawmakers provided a defense for pregnant women.

“So I think women will not be prosecuted in most situations, but I can't guarantee that," Drobac said.

She and others argue this law is just one part of Indiana's code and think a creative prosecutor may charge a pregnant person with an abortion-related crime. Even though the major groups on both ends of the abortion spectrum say they’re against criminalizing women.

RELATED: Indiana's abortion ban takes effect with few exceptions

Since the law is not clear, Drobac said, "this is just bad law.”

Carol Tobias, president of National Right to Life, disagrees and said that this is good law. She doesn’t want women prosecuted for managing the end of their pregnancy.

“But certainly, I think whoever provided that pill should have to face the consequences for bypassing a state law,” Tobias said. “Trying to get around, go around the law, that’s usually not accepted in other cases as well and we’re looking at an individual human life here."

She wants Indiana prosecutors to go after family members, friends and medical staff that aid an illegal abortion. The new law and others make it clear people who assist in an illegal abortion may face criminal penalties, including felonies with prison time. Doctors face losing their medical license, as well as jail time.

But there’s not much lawmakers can do if pregnant people go online to buy abortion pills and get advice about how to conduct the medication abortion on their own.

“I think the provider of the pills basically is the abortionist,” Tobias said. “So, if it's possible, they should be penalized in some way for helping to kill an innocent human being.

“We've got a lot of organizations trying to push the abortion pill on women, and I think they should be shut down,” she said.

RELATED: ACLU files lawsuit claiming new abortion restrictions violate Indiana's Religious Freedom Restoration Act

But that may be more of a wish than reality. Most of the abortion pill websites are based out of state or abroad. Doctors on the sites sometimes are international providers. Some of the sites use international pharmacies in countries like India to send the pills.

“It’s not illegal to have a website or to access a website.” Drobac said. “Probably the website isn’t in Indiana. So Indiana cannot control with its laws, typically, what’s going on in other states or in other parts of the world.”

She does worry that some pregnant people may fall victim to sites acting in bad faith or with bad drugs. While pro-abortion access advocates say some sights are reputable, with factual information, that’s not the case for all of them. Which leads to concern some pregnant people won’t get all the facts about medication abortion, including when it’s dangerous.

For example, abortion pills are dangerous for those with an ectopic pregnancy and people with other medical conditions.

"Someone who would be at risk of bleeding too much would not be a good candidate for a medication abortion,” Dr. Katie McHugh an OB-GYN abortion provider said.” Someone who's too far along in pregnancy would not necessarily be a good candidate for medication abortion, simply because it wouldn't work."

RELATED: Many health care experts in Indiana unsure of answers to patients' abortion questions

Mullally believes abortion access advocates minimize the risks and oversimplify the procedure.

"There's risk of bleeding, risk of infection, retained products,” Mullally said. “This is not a simple procedure. And even when it goes perfectly, it's a very, very dramatic procedure to hear the women talk about it. It's something where you really are inducing a very severe miscarriage."

He’s never overseen a medication abortion.

“No, I don't do abortions, I'm pro-life,” he said. “I think abortions are never the answer to any medical problem. However, I've cared for people who have undergone this."

McHugh, however, has monitored hundreds.

"It is well-studied, it's safe and we know that it's effective,” she said.

Effective, but also illegal, if not always criminal.

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