Legislation that would let anyone sue over the illegal use of abortion-inducing drugs in Indiana — with the potential to earn at least $100,000 a pop — cleared the Senate on Tuesday in a 35-10 vote, largely along party lines.
One Republican, Indianapolis Sen. Kyle Walker, joined all Democrats present in opposition.
“The minimum damages award is paid directly by the defendant — the manufacturer, the distributor, the provider or aider and abettor — not by pregnant women, taxpayers or the state,” said Republican Sen. Tyler Johnson, a physician from Leo.
“It is the violator who bears the cost, creating a powerful deterrent against illegal trafficking of these life-ending drugs,” he told colleagues on the Senate floor.
His Senate Bill 236 would prohibit manufacturing, distributing, mailing, prescribing or possessing abortion-inducing drugs in Indiana — with exceptions for a pregnant woman’s own actions, the drugs’ other uses, the U.S. Constitution and federal law.
Anyone except the state and local governments could enforce the ban through two types of civil lawsuits. Those are explicitly barred from taking or threatening “direct or indirect enforcement.”
Offenses would carry a 20-year statute of limitations for lawsuits.
“Twenty years — that is not certainty; that is a long-tail liability regime,” said Senate Minority Leader Shelli Yoder, who added that would tempt “gotcha lawsuits years after the fact.”
One option afforded to private individuals and groups is qui tam, or suing on behalf of the government. They’d be assignees of the state’s claim for relief, with the state retaining none.
The bill would require courts to award successful qui tam plaintiffs at least $100,000 per violation and attorney’s fees.
“It is an invitation for speculative lawsuits, pressured settlements and cottage-industry litigation,” Yoder, of Bloomington, said.
The second option given is a wrongful death action. If a claimant couldn’t identify the manufacturer of the drug that caused the fatality or injury, liability would be split between all manufacturers, in proportion with their share of the national market at the time.
In both lawsuit types, the legislation largely prohibits courts from awarding legal costs to successful defendants.
Yoder summed the bill as “extreme, legally reckless and structurally designed to inflame conflict rather than to produce careful governance.”
“Whatever your underlying views are on abortion, this is not how we should write Indiana laws,” she said. “Writing statute that tr(ies) to handcuff the judiciary, narrow defenses and structurally favor one side of litigation with mandatory awards and limited fee-shifting is not the way.”
Supporters asserted the topic was worth creative enforcement.
“I have always been an advocate for tort reform in this state, but that’s not what we’re talking about here today,” said Sen. Liz Brown, R-Fort Wayne, during floor discussion on Monday. “We’re talking about saving the life of the unborn, and we’re talking about the most egregious business practices that have invaded the state. … So, yeah, I’m okay with suing them.”
Senate Bill 236 would separately authorize the state’s attorney general to sue — on behalf of the fetuses of Indiana residents — anyone who violates federal abortion drug mail laws.
Another provision redefines “abortion” in state code to any means intended to “cause the death of an unborn child,” with some exceptions.
But medical professionals repeatedly said the new wording doesn’t account for other dangerous conditions, like often pre-cancerous molar pregnancies. They feared more doctors would be responsible for filing terminated pregnancy reports than under current law and warned that life-saving care could be delayed as providers worry over the legalities of that care.
Democrats on Monday offered amendments to delete the qui tam provisions, undo the proposed definition change and more, but all failed in voice votes.
Johnson initially sought to put more abortion reporting requirements into law, but amended those proposed additions out of the bill Monday.
Senate Bill 236 next heads to the House for consideration.
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