A Citizen's Guide to Indiana

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After Kansas: Indiana General Assembly Bans Abortion as Fast as Possible

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The Indiana General Assembly has taken us backward.

The vote on abortion in Kansas on Tuesday showed us all how deeply unpopular abortion bans are, even in a deep red state. Indiana Republicans were already too far along. There was no turning back. So, damn the torpedoes and full speed ahead. They turned what had been a somewhat deliberative process into a sprint:

Aug 3 – news of the resounding defeat of the Kansas abortion amendment hits; then:

Aug 4 – Indiana House flies through 86 second reading amendments;

Aug 5 – Indiana House passes legislation on third reading;

Aug 5 – Indiana Senate concurs in House amendments;

August 5th, a Friday night in the middle of summer at 11 p.m. at night, Gov. Holcomb enacts the abortion ban.

Abortion clinics are to be outlawed. First trimester abortions, both surgical and via medication, will be illegal except in rare circumstances involving rape, incest, or where necessary to prevent “a serious risk of substantial and irreversible physical impairment of a major bodily function.” If they miss the 10 week window, the state government will require the raped woman to carry their rapist’s fetus. Performing an unlawful abortion requires revocation of a doctor’s license and would likely make him or her a felon, so most probably won’t take the chance if the woman might recover somewhat some day. And serious psychological or emotional impairments don’t count under Indiana law.

This is good news for people who believe that developing life is ensouled upon fertilization; and for those who believe that women engaging in sexual activity for its own sake is unseemly or immoral and should come with life changing and potentially life threatening consequences. For those who were comfortable with the status quo of reproductive rights where 99% of abortions were conducted during the first trimester and, therefore, protected by Roe, this is a massive sea change and likely to be deeply unpopular. According to the Indiana Pregnancy Termination Report, between 7,000 and 8,000 Hoosier women receive abortions each year. This is as compared to something like 80,000 births. That means, while reproductive rights were protected, something like 8-9% of pregnancies were terminated by the mother. Some number of these were rapes, incest, or necessary to prevent death or serious physical impairment, and a greater number will have the resources to travel to Chicago. But a great number of poor and/or unlucky Hoosier women will be denied the first trimester pregnancy abortion they would have otherwise chosen and will suffer as a result. Women will die because of this.

Additionally, this will likely have a significant economic impact. As unpopular as government criminalization of reproductive freedom is among the rank and file of a place like Kansas, one suspects it is an order of magnitude more unpopular among the types of people who choose where to locate major business operations — particularly ones featuring the good managerial jobs where they and their families might have to live. It identifies the state as one where the government does not fully respect a woman’s autonomy and holds retrograde attitudes about gender and sexuality. Certainly, this sort of thing will make my kids less likely to settle down here. After the community and the state have expended considerable resources on their education, they — or at least many like them — will take the fruits of that education to a more forward looking state. Plenty of people who sneer at the value of education as compared to “common sense” will no doubt say “good riddance.” But, this is another step back for Indiana.

As I noted in my bicentennial series, at the time of its first centennial, Indiana was a powerhouse: “By the time of its centennial in 1916, Indiana was understandably proud of its accomplishments.  In many ways, the ambitions of those first Hoosiers had been realized. Indiana had carved its way out of the wilderness and risen to prominence as an important part of what was becoming the most powerful nation on the planet.” We were producing world-renowned authors, booming business concerns, and politicians of national prominence. As of our recent bicentennial, our star had faded. Anecdotally, in recent years, I’ve felt like there were signs of renewed vigor; but this will undoubtedly knock us back on our heels. Particularly if those theocrats in the General Assembly who feel like this bill does not go far enough in restricting reproductive rights are permitted to go further with additional abortion restrictions, more restrictions on birth control, backtracking on same sex marriage, and stoking panic over the presence of transgender Hoosiers. I feel like this sort of thing is not popular among most Hoosiers. Maybe I’m wrong. Maybe this is their state, and I just live in it. But, I’ve raised 6th generation Hoosiers, so I feel like I have a big stake in this place. As Mr. Cockburn sang, “you gotta kick at the darkness ’til it bleeds daylight,” and as Joe Hill said, “don’t mourn, organize.”

So, here we are. Where are we going to go now?

Kansas overwhelmingly votes to support protection of reproductive rights as Indiana General Assembly proceeds to take them away

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Votes are still being counted, but what’s looking like a margin of almost 20%, Kansans voted to keep abortion legal in their state. As I understand it, the Kansas constitution protects a woman’s reproductive rights, so an amendment to the Kansas state constitution which would have removed that protection was put on the ballot. Kansans overwhelmingly rejected it. This is Kansas. One of our blood red states where President Biden lost by almost 15% of the vote in 2020.

Meanwhile, in Indiana…

SB 1 moved to the Indiana House of Representatives where it was sent to the Committee on Courts and Criminal Code rather than the Committee on Public Health. Normally committee assignments are routine business and not challenged. Apparently there was a procedural move to vote on sending it to the the Committee on Public Health which failed on a mostly party line vote, 27-65. The committee amended the bill to reduce the time during which raped kids can get an abortion from 12 weeks to 10, added an exception to allow abortions where necessary to prevent a substantial permanent impairment of the physical health of the woman, deleted the notarized affidavit requirement, and eliminated abortion clinics as places where the procedure can be performed. The bill passed out of committee, as amended, on an 8-5 vote.

Once again, nobody likes this thing. The pro-choice camp obviously doesn’t have a lot of patience with state legislators moonlighting as gynecologists while the pro-life advocates with unnuanced “abortion = murder” beliefs are frustrated over any exceptions at all. Indiana legislators should probably take note of the Kansas vote to get an idea of how Hoosiers will react if they proceed down this path.

 

Summary of All 62 Proposed Second Reading Amendments to SB 1 – Abortion (Updated with results)

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I’m doing this on the fly and with work deadlines, so this is going to be a little slapdash – mistakes are likely, but let’s look at some of the proposed amendments to SB 1.

(Updated 7/29/2022 – I corrected at least one error I made in the descriptions and updated the amendments to reflect the votes. Bold means the amendment passed, italics mean the amendment failed, and plain text means the amendment wasn’t called.)

1. Glick – mandates hospitals offer long term subdural birth control to a woman after having birth unless the hospital has a religious objection.

2. Bohachek – adds preservation of physical and/or mental health as grounds for abortion. Failed by voice vote.

3. Freeman – gives attorney general jurisdiction to prosecute crimes (including abortion) if prosecuting attorney categorically refuses. Passed by voice vote.

4. Freeman – gives prosecutor in adjacent county jurisdiction to prosecute crimes if local prosecutor categorically refuses.

5. Freeman – gives anyone aggrieved standing to petition for a special prosecutor if local prosecutor categorically refuses.

6. Glick – longish amendment promoting use and insurance coverage for hormonal contraception, both via patch and oral.

7. Charbonneau – limits time for rape or incest abortions to 15 weeks.

8. Glick – creates a pregnancy termination review panel to review complaints that physicians aren’t properly reporting abortions. Limits the AG’s authority to take action against a physician without the recommendation of the review panel.

9. K. Walker – makes health of a woman a grounds for abortion, sets a rape/incest time limit of 20 weeks, and decriminalizes abortions performed prior to 15 weeks.

10. K. Walker – sets a 20 week time limit on rape/incest abortions.

11. Boehnlein – gives AG authority to prosecute unlawful abortions if the local prosecutor categorically refuses.

12. Bohacek – requires FSSA to collect data on neighboring states’ Medicaid reimbursement rates for prenatal, labor, post-natal, and pediatric wellness care.

13. Yoder – adds nontrivial threat to the health of the pregnant woman as grounds for an abortion. After viability or 20 weeks, substantial permanent impairment to the life of the woman would be the standard.

14. Yoder – lists the facilities who can provide medical advice or ultrasound services to pregnant women. I believe this is intended to exclude crisis pregnancy centers. Failed by voice vote.

15. Yoder – removes amendment to definition of “abortion.” Removes additional rule making concerning abortion clinics. Allows abortion clinics to perform surgical abortions. Failed 11-36.

16. Yoder – adds physical health as a permissible reason for an abortion. After 20 weeks, only an abortion necessary to prevent a substantial permanent impairment to the life or physical health of the woman is permissible.

17. Yoder – permits abortion inducing drug to be prescribed via telemedicine. Failed 10-37.

18. Griffin – Specifies that ectopic pregnancy and placental abruptions constitute a condition incompatible with sustained life outside the womb (and therefore, the termination of pregnancy would not be an “abortion.”) Failed 18-33.

19. L. Brown – Allows the attorney general to complain to the licensing board and have a medical provider’s license revoked if he shows the provider performed an unlawful abortion.

20. L. Brown – replaces the rape/incest affidavit requirement with a notarized statement. Update: I made a significant mistake on this one. It requires the affidavit to be notarized. Passed 24-23.

21. Bohacek – removes the affidavit requirement for abortions made necessary by rape or incest.

22. Bohacek – expands the window for rape/incest abortions from 12 weeks to 16 for under 16 year olds and from 8 weeks to 12 for those who are older.

23. Becker – adds a non-binding access to reproductive health, including abortion, referendum question to the ballot.

24. Donato – replaces irremediable medical condition incompatible with sustained life with ectopic pregnancy only as a permissible “non-abortion” termination of pregnancy.

25. Sandlin – gives AG authority to prosecute unlawful abortions if the local prosecutor categorically refuses.

26. JD Ford – creates a pregnancy termination review panel to review complaints that physicians aren’t properly reporting abortions. Limits the AG’s authority to take action against a physician without the recommendation of the review panel. Failed 13-32.

27. JD Ford – removes the affidavit requirement for abortions made necessary by rape or incest. Failed 18-28.

28. JD Ford – returns bill to introduced language concerning felonies where the felony penalty would apply only to partial birth and abortions involving dismemberment, not to other abortions. Failed 14-32.

29. Pol – expands Indiana housing first housing assistance to women who are pregnant or post-partum and people experience a housing crisis. Failed 10-36.

30. Pol – limits incarceration of pregnant inmates and arrestees to those charged with or convicted of a serious violent felony. Failed 10-36.

31. Pol – expands an employer’s duty to accommodate a pregnant employee. Failed 11-35

32. Pol – authorizes a civil suit against the state, and removes the state’s protection under the Indiana Tort Claims Act, for damages incurred by a woman who is unable to obtain a medically necessary abortion because of the state’s laws. Failed 11-35.

33. Qaddoura – requires FSSA to determine whether every woman in every county has sufficient access to maternal health and mental health professionals. Failed 12-35

34. Qaddoura – calls for a study and strategic plan evaluating the needs of unborn and born children and resources available in each county. Failed 10-37

35. Lanane – removes affidavit requirement, allows surgical abortions at abortion clinics, adds physical health of the mother as a permissible reason for an abortion, and permits abortion (regardless of reason) up to 20 weeks. Failed 13-33.

36. Lanane – removes affidavit requirement, allows surgical abortions at abortion clinics, adds physical health of the mother as a permissible reason for an abortion, and permits abortion (regardless of reason) up to 15 weeks. Failed 13-33.

37. Lanane – removes the parental consent requirement where the unemancipated minor is pregnant because of rape or incest by the parent or guardian. Passed 47-0

38. Melton – repeals provision allowing attorney general to seek revocation of physician license for failure to report an abortion. Failed 12-33.

39. Melton – defines as a religious burden a prohibition on abortion where a person’s system of religious belief holds that a human life does not begin until a certain point in fetal development; prohibits government from imposing a substantial burden on the person’s religion in that fashion. Failed 12-33.

40. Niezgodski – creates a child support assistance fund to make up the gap in child support arrearage, provides for collection of arrears, and requires rapists whose parental rights are terminated to continue child support payments. Failed 12-33.

41. Lanane – defines reproductive coercion and adds reproductive coercion as a permissible reason for abortion in addition to rape and incest.

42. Lanane – repeals the death penalty.

43. G. Taylor – defines sexual intercourse with a minor under the age of 16 as rape for the purposes of permitting abortion in the case of rape. Failed 13-33.

44. G. Taylor – directs LSA to prepare legislation that updates statutes concerning obligations and benefits owed to children, including life insurance, child support, and child tax deductions to make those obligations and benefits applicable to a fetus at any age of development. Failed 10-36.

45. G. Taylor – requires insurance plans to cover contraceptive products and services. Failed 12-34.

46. G. Taylor – expands the rape or incest abortion window to 20 weeks. Failed 17-29.

47. G. Taylor – modifies provisions having to do with feticide. Failed by voice vote.

48. G. Taylor – adds a nonbinding referendum question to the ballot asking whether abortion shall remain legal in Indiana. Failed 13-33.

49. Breaux – charges the statewide mortality review committee to study how changes in the state’s abortion laws affect maternal mortality in Indiana. Passed 45-2.

50. Breaux – expands or adds coverage for doula services. Failed 12-35.

51. Breaux – protects Plan B. Specifically, the law can’t be construed to restrict prescription of FDA approved birth control and contraceptives, including emergency contraceptives. Failed 12-35.

52. M. Young – replaces affidavit requirement with a notarized statement requires rape/incest affidavit to be notarized.

53. M. Young – removes rape and incest exceptions.

54. M. Young – gives AG authority to prosecute unlawful abortions if the local prosecutor categorically refuses.

55. M. Young – Makes it a Class B misdemeanor for a health provider to fail to inform parents of rights to dispose of the fetus after a miscarriage or abortion. Makes it a murder if a person kills a woman while attempting to perform an unlawful abortion. Creates the felony of “trafficking in an abortion drug.” Creates the felony of “unlawful abortion trafficking of a minor”

56. M. Young – Allows the attorney general to complain to the licensing board and have a medical provider’s license revoked if he shows the provider performed an unlawful abortion.

57. M. Young – gives anyone aggrieved standing to petition for a special prosecutor if local prosecutor categorically refuses.

58. M. Young – removes rape and incest exceptions. Makes abortion legal only where necessary to save the life of the woman. Failed 18 – 28.

59. M. Young – creates a civil cause of action permitting the woman receiving the abortion, the father of a fetus, and/or the parents of a minor to bring a lawsuit against the person who provided an unlawful abortion and collect actual damages, punitive damages, and attorney fees. A rapist is not entitled to bring an action. It’s not clear to me whether this applies to out of state abortion providers. Failed 16-29.

60. M. Young – this is 50 pages long so my analysis here is not at all thorough, but it seems to change “fetus” to “unborn child” and prohibit abortion more or less across the board and prohibit birth control that works after fertilization but before implantation. Abortion seems to be permitted where two physicians agree it’s necessary to prevent the woman’s death.

61. M. Young – gives AG authority to prosecute unlawful abortions if the local prosecutor categorically refuses.

62. M. Young – gives AG authority to prosecute any criminal law if the local prosecutor categorically refuses.

 

Terminate SB 1

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Updated 7/28/2022 to reflect the Senate Committee Report

In a comment to my previous post, a commenter (who I’m happy to credit but won’t single out by name since he didn’t ask to become part of a main post) said:

I have little doubt that most states will end up legalizing abortion during the first trimester (during which 90-93% of abortions take place) and banning it after that, with the three exceptions included [rape, incest, health of the mother]. That’s where the vast majority of Americans are. That is also the approach most industrialized nations have taken.

I do not think that’s the approach Indiana will take. The introduced version of SB 1 certainly does not take a permissive attitude toward terminating pregnancies in the first trimester. And the testimony I’ve heard from the pro-life crowd indicates that they want it to be even more restrictive and punitive. Before passing it out of committee, I have read that the committee made amendments that made the bill more punitive. (More on that below at the update) (I’m not seeing the text of the amendment on the LSA website yet.)

Peaceably assembling and petitioning the Government for a redress of grievances

My wife and son went to the protest during the first day of the General Assembly’s special session. I am proud of them.They went because they believe, among other things, that abortion is healthcare and that government should not be mandating reproductive decisions for women.

Governor Holcomb called for a special session, ostensibly to issue refunds from the tax money that Indiana has accumulated. But that was a fig leaf. He knew the Supreme Court decision eliminating the Constitutional right to privacy was coming down the pike and that the members of the General Assembly would be eager to impose regulations on reproductive health. It would not have been politically difficult to take up such legislation in the normal course of business. Certainly it would have been less costly.

I shouldn’t dwell too much on the timing, however. Candidly, I would not have been any happier if this legislation was pushed through in January. Like I’ve said before, I personally don’t think that a fertilized egg is the moral equivalent of a baby. And I think many people in the pro-life camp, on some level, also don’t think a fertilized egg is the moral equivalent of a baby. If there was a business slaughtering babies down the street, nine to five, Monday through Friday, for the past 50 years; I’d like to think none of us would be content with writing sternly worded letters to the editor or patiently waiting for decades to elect enough anti-baby-slaughter candidates to close the business down. I think that the pro-life side’s willingness to, by and large, observe the legal niceties while debating the issue reflected that they also recognized a difference. That’s also why most people are willing to countenance abortions in the case of rape or incest. (However, note, there are plenty of people who are – at least rhetorically willing to say that a fertilized egg is exactly the same as a baby and endorse legislation that criminalizes abortions even in cases of rape, incest, and impaired health of the woman.)

So, if there’s a moral difference between a fertilized egg and a baby, we have some line drawing problems. What’s the difference, when does it take place, who should be involved in making that determination, and what should the legal consequences be? The rhetoric surrounding this issue does not lend itself to thoughtful consideration of these questions. And it often confuses more than it illuminates. A woman who decides not to continue a pregnancy that’s barely more than a fertilized egg is not a “baby murderer.” What makes the discussion even more challenging, for a lot of people the fetus and the pregnancy are more or less stand-ins for other cultural issues. Even if we could come to some kind of agreement about the moral value of the fetus relative to the moral value of the health and well-being of the mother, we might not even be addressing the central, but unstated, issues dividing us.

Many of those who characterize themselves as “pro-life,” don’t seem to be notably encouraging toward life in any other contexts. When you hear rhetoric about “consequence free sex” coupled with a reluctance to make birth control widely available or ensure adolescents get sound sex education, it suggests that sex is the real issue — particularly women having the freedom to have sex out of wedlock and without becoming mothers or at least enduring pregnancy. Where concerns over unsanctioned sex is the real issue, you’ll see calls for very invasive and thorough documentation of rape, incest, and/or health risks. Otherwise these promiscuous ladies might cheat the consequences of their bad behavior. If they aren’t subjected to pregnancy itself, they should at least be subjected to something negative, the reasoning goes. Otherwise, presumably, women of such low moral character might be tempted to lie.

There are other groups (overlapping the moral scolds), for whom the liberty and equality of women is a real downer. We’ll call these folks the patriarchs. Seen at the State House on Monday were some masked dudes flying a Russian flag with the face of Jesus emblazoned on it. The “alt-right” is a toxic stew that features, among other things, pro-Russia, Putin loving, Trump conspiracy embracing, mostly white dudes who oppose reproductive rights. It’s all a toxic stew that seems to revolve in large part around hating women. The “manosphere” is a melange of incels, “pick up artists,” mens rights activists, “men going their own way,” and “father’s rights activists,” who – for all of their purported concern for men, spend a lot of time focused on the failings of women. It overlaps with alt-right and white supremacist groups and generally stands for the proposition that modern society has been corrupted by feminism. The ability of women to control their own sexuality and reproduction is a source of a great deal of consternation in these circles. What if they choose poorly? What if they corrupt the blood? What if a man wants to have sex with them and they don’t want that?

It’s these overlapping and often unstated interests that result in criticism that goes beyond Roe.  You also see opposition to Obergefell (2015 – same sex marriages) and Griswold (1965 – birth control), sometimes even Loving (1967 – interracial marriage) and Lawrence (2003 – sodomy laws).  All of this is to say that, if unsanctioned sex or proper gender roles are the real issue, discussions about fetal development are going to be unhelpful because “life” isn’t the actual, or at least not the sole, complaint. Striking an appropriate balance between the life of the developing fetus on the one hand and the health and well-being of the woman on the other hand isn’t going to be acceptable in those circles if it does not limit and punish out-of-wedlock sex and reinforce traditional gender roles.

I expect the Republicans that dominate the legislature will, by and large, cave to the interests that want unflinching criminal penalties for abortion, regardless of context. Legislators won’t be rewarded by anybody for taking a nuanced approach to the moral value of a developing fetus when the real argument is over who should be having sex with whom and under what circumstances or over how relationships between genders ought to be structured and reinforced through government policy. If we get legislation that permits abortion freely during the first trimester, I will be shocked.

Update 7/28/2022 – LSA has posted the Senate Rules Committee report (as well as a minority committee report which did not pass.)  The majority report amended the bill to add a line to the definition of “abortion” which says that, even though termination of a pregnancy isn’t an “abortion” where the fetus suffers from a medical condition that is incompatible with life outside the womb, such a termination still has to be reported under IC 16-34-2-5. (I’ll go ahead and quibble with that drafting choice. You shouldn’t be requiring or prohibiting actions within a definition section.)  The report also amended the bill to limit the provisions allowing abortion in cases of rape or incest. If a girl or woman is more than 15 years old and more than 8 weeks pass from the egg being fertilized through rape or incest, she has to carry the fetus to term. If a girl is 15 years old or less and more than 12 weeks pass from the egg being fertilized by the child being raped, the child will be required by the State of Indiana to carry the fetus to term. Additionally, it increases the penalty for all unlawful abortions to be a Level 5 felony. As I read the original draft, partial birth abortions and abortions by dismemberment were already a felony and would remain that way. I don’t think the original bill draft actually had a penalty for performing other kinds of abortions unlawfully.

The minority report, which the Republicans on the committee voted against, would have amended the bill to allow abortions where a physician determined that abortion is necessary to prevent a substantial permanent impairment of the woman’s physical health. It would have limited abortions performed after viability or 20 weeks to just those necessary to prevent a substantial permanent impairment of the life or physical health of the pregnant woman. It added language to the state’s religious freedom act, stating that, if a person’s system of religious belief holds that human life doesn’t begin until a particular stage of fetal development, then a statute prohibiting abortion before that stage constitutes a substantial burden on the exercise of religion and can’t be used to prohibit the person from getting an abortion.

Steve Buyer charged with insider trading

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You might remember Indiana Fourth District Congressman, Steve Buyer of Monticello, from the Frontier Foundation campaign finance scandal. It was a foundation that shared a mailing address with Buyer’s campaign office and employed his daughter but with which he said he had no special connection. Ostensibly a scholarship organization, the foundation took money from the likes of AmGen and didn’t give out much in the way of scholarships. It paid staff and organized fundraising trips at high end golf courses. Buyer retired shortly after that scandal under a cloud.

He’s back in the news with a filing from the Security and Exchange Commission. According to the SEC press release, after Congress, Buyer went to work as a lobbyist. He obtained inside information that T-Mobile planned to acquire Sprint. In 2018, he bought a bunch of Sprint stock and spread it around “his own personal accounts, a joint account with his cousin, and an acquaintance’s account.” When the news became public, he sold and netted $107,000. Similarly, in 2019, he obtained inside information that Navigant Consulting would be acquired by Guidehouse LLP, bought a bunch of Navigant stock and spread it around “his own accounts, joint accounts with his wife and son, his wife’s personal account, and the same acquaintance’s account involved in the Sprint trading.” When the news became public, he sold and netted $227,000.

Again, this is per an SEC press release. I don’t pretend to have any particular knowledge. If true, I guess it beats working for a living.

SB 1: Abortion

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Senator Glick has introduced SB 1 which would ban abortion in Indiana, subject to limited exceptions.

Indiana: government small enough to fit in your uterus.

In the context of this legislation, “abortion” does not include termination of a pregnancy intended to produce a live birth, intended to remove a dead fetus, or “intended to terminate a fetus where the fetus suffers from an irremediable medical condition that is incompatible with sustained life outside of the womb, regardless of when the child is born.”

“Fetus” is defined as an “unborn child” throughout all stages of the fetus’s development in a pregnant woman’s uterus from implantation until birth. (Bit of a drafting faux pas there, using the word in the definition of the word.) In any event, it’s clear enough that the legislation is intended to apply to a fertilized egg once it has implanted in the uterus until the birth of the child. As I understand it, implantation is going to be something like a week after fertilization and after the zygote has become a blastocyst. The definition of “pregnancy” in this legislation also hinges on implantation.

“Abortion,” then, is the termination of a human “pregnancy” where pregnancy is defined as having a living fetus implanted in the woman’s uterus. Abortion is made “unlawful” unless it’s performed by a physician either surgically or through a drug. If surgical, the abortion must be performed in a hospital or an ambulatory outpatient center. If drug-induced, the abortion must be after an in-person examination and be consumed in the presence of the physician. The pregnant woman must file a consent with the physician and, if a minor, the consent of her parent or guardian. Furthermore, an abortion is “unlawful” unless either: 1) the abortion is (in the reasonable medical judgment of the physician) necessary to prevent a permanent impairment of the life of the pregnant woman; or 2) the pregnancy is the result of rape or incest and the woman signs an affidavit under penalties for perjury “attesting to the rape or incest.” Abortions performed after 20 weeks are required to have a second physician present who will “take all reasonable steps in keeping with good medical practice” to preserve the life and health of the “viable unborn child.”

I don’t know all the twists and turns in current abortion legislation, so maybe the text of the bill isn’t telling me everything I need to know; but if I’m reading the new IC 35-41-3-12 correctly, a pregnant woman can perform an illegal abortion on herself without it being a crime. “It is a defense to any crime involving the death of or injury to a fetus that the defendant was a pregnant woman who committed the unlawful act with the intent to terminate her pregnancy.” A person who helps her can defend against criminal charges arising out of the death or injury to the fetus except for the criminal charges of unlawful abortion or feticide, a Level 3 felony.

I think this is bad legislation because I believe that a woman’s reproductive rights deserve a great deal more consideration. The fact that rape, incest, and unimplanted eggs are excepted underscore that most people do not believe that a fertilized egg is morally equivalent to a baby. The closer a fetus gets to viability and birth, the greater moral weight people generally assign to it, and the more that weight should be balanced, under the law, against a woman’s reproductive rights. (Even that last bit is a little too easy for me to say, since I don’t have a uterus.)  It’s a line drawing problem and one that Roe sought to address through its trimester system. The first trimester was basically to be unregulated, second trimester could impose “narrowly tailored” restrictions, and the third trimester could basically ban all abortions unless necessary to protect the woman’s health.

These additional curtailments on the reproductive freedom of women in Indiana would be imposed beginning on September 1, 2023.

School Matters: Indiana vouchers cost nearly a quarter billion dollars; Up 44% over the previous year

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Vouchers were sold as a way to give poor kids in failing schools a chance for something better. We got swindled.

Steve Hinnefeld does a very good job of covering education in Indiana. In a post today, he goes over some numbers showing how vast the expansion of Indiana’s voucher program has been and how its advocates no longer even give lip service to the goals they pretended to have when starting the program. In the beginning, school privatization was sold as an opportunity for poor students at failing public schools to seek a better education. Now kids from wealthy families who never had any intent of going to public schools and who live in school districts that are doing well can divert public money to private schools that aren’t providing an education any better than what’s available at the traditional public school.

Steve gives me a nod by noting my assertion that the real goals of Indiana vouchers are to subsidize religious education, punish teacher’s unions, and divert public money to friends and well-wishers of lawmakers who favor school privatization. I really wish that I was getting a mention for how wrong I was because vouchers were proving so successful in providing better educational outcomes for students from poor families. But, of course, that’s not what is happening.

A few of the things Steve notes:

  • Indiana awarded $241.4 million in the 2021-22 school year to pay tuition and fees for students to attend private schools. That’s 44% more than the state spent on vouchers the previous year.
  • Some 20% of voucher households last year had an income of $100,000 or more.
  • In 2021-22, 70% of voucher students had no record of having attended a public school in the state.
  •  [A] family of five making $172,000 can receive vouchers worth over $5,400 on average per child.
  • [T]he number of voucher students exploded: 44,376 students had vouchers in 2021-22, up 24.3% from the previous year.
  • Nearly 60% of voucher students are white, an overrepresentation considering the program is most pervasive in urban areas, where there are many Black and Hispanic students. Only 10.5% of voucher students are Black, compared to 13.5% of Indiana public and charter school students.

And again, the studies that have been done reflect that the education kids are getting at these private schools isn’t any better than at traditional schools and it may be worse. Anyway, I urge you to go read the whole post.

Rights can and will be alienated

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Liberty

You can’t put a price on liberty. Except in Indiana, where it’s $225.

In a fit of irony, I rode Disney’s “Carousel of Progress” the day the Supreme Court decided that women didn’t have the reproductive rights we thought they did for the past few generations. Not to be outdone, Indiana will celebrate the Fourth of July by going into special session in order to alienate the rights of its women. The special session is ostensibly to authorize $225 payments from the money the state decided not to spend on roads, education, child services, and other areas where there are needs. But, I’ll bet that a lot of women in the state would spend $225 to keep their reproductive rights, if even for just six more months when the Indiana General Assembly will return to its regular session. But, Governor Holcomb and the Indiana legislature are in a headlong rush to make Indiana’s government small enough to fit into a uterus. Our legislators will make solemn proclamations about the value of life. But, as they loosen restrictions on gun regulations, tolerate Indiana having one of the worst infant mortality rates in the nation, fail to devote sufficient resources to neonatal care, and otherwise look the other way on quality of life issues across the board, it is evident that “life” isn’t nearly as much of a concern for many lawmakers as is unsanctioned sex.

This turn of events underscores that, despite the happy language of the Declaration of Independence and the musings of John Locke, rights are not unalienable. I assure you that the State House will happily alienate the shit out of reproductive rights within the month. Plenty of people would object that the right still technically exists and belongs to the women who previously enjoyed it. They argue that the right will still exist even though it will no longer be enforced and, in fact, women will be jailed if they insist on using it. I take a more utilitarian view of rights and would argue that a “right” which has no material impact on the real world is no right at all, but is rather an unrealized policy preference. I know more than a few people who took the view that warnings about the protections of Roe v. Wade being taken away was just so much fear mongering from the left. They were shocked when the decision came down. In his concurrence, Justice Thomas sent up the signal that protections for same sex marriage (Obergefell), sexual relations (Lawrence), and contraception (Griswold) are also on the hit list. Perhaps the people who were dismissive about the prospect of Roe going away will recognize the threat to these other rights.

I should note that I’m sensitive to the fact that many Americans have a religious belief that a sperm and an egg are endowed with a soul when they are combined. I don’t want to denigrate what is, for many individuals, a very heartfelt and devout belief. But such beliefs should not be the basis for government, state or federal, to dictate that a woman who may believe otherwise must devote the use of her uterus in a manner consistent with that belief, risking her health and well-being against her will.

We’re so rarely arguing about what we’re arguing about

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I was having a discussion on the WELL about the Indiana General Assembly’s latest veto override having to do with transgender women and girls participating in women’s sports. Before I got into the conversation, there had been a fair amount of discussion I regarded as being pretty deep in the weeds and/or a little too focused hypotheticals having to do with athletically gifted edge cases. Among other things, I wrote:

[R]eporting on the ground as someone with kids in Indiana’s schools: this is not an issue of practical importance for Hoosier athletes. It’s clearly a cultural proxy war. Focusing on the particulars of athletic competition is inevitably going to miss the mark because the argument is a pretext. The people voting for this legislation never showed anything like a burning concern
for women’s athletics in the past.

…
There are a couple of trans girls in my kids’ friend group. These kids are not what you’d call athletically gifted. They aren’t going to dominate any sport in any league, male or female. It’d be nice if they could just run around and have fun playing some sports without being turned into political footballs or abstract topics of debate.

The cultural proxy war aspect made me stop and think though. So often what we’re arguing about, with respect to all kinds of subjects, is a stand in for something else. Abortion often really isn’t about abortion, it has as much to do with gender roles and sexual morality. So, when you offer ways to reduce abortion, they often get ignored because they don’t reinforce old notions about gender roles and sexual morality. Gun control gets complicated because the weapon isn’t a tool for hunting or self-defense or whatever the stated purpose; rather it has become a cultural identifier – a shibboleth, I suppose – and, so, regulations that might enhance safety and might not, on a completely practical level, be objectionable become non-starters if they’re seen as impairing a person’s cultural identity or being imposed someone outside of the culture.

Deep thought: People often do not speak plainly

A lot of talk about racism and sexism are really about power and control, and so approaches that superficially confront the stated concerns about race or sex but don’t shift the balance on power or control will be seen as inadequately. On the flip side, requests for superficially inconsequential changes that do indicate a shift in power and control will generate outsize controversy. (Team and building names come to mind for this one.)

And it’s not just the big issues of the day where this happens. Complaints about how a spouse loads the dishwasher could be a stand-in for issues over unequal workloads around the house. Complaints about sex could be more about attention, respect, status, or a multitude of other things. Complaints about “kids these days” are really just nostalgia and unhappiness about aging.

Another small-time example: our local school board politics seem to involve a lot of talk about “transparency” and the various mechanisms for board meetings lately. But the people making these arguments seem mostly not to like that particular decision-makers are in positions where they get to make the decisions. And this dislike very often seems to stem from specific grievances — e.g., someone didn’t keep a position of employment they like, someone else’s kid didn’t get the particular services they wanted, someone else didn’t get to control a school-related working group, a school board member was in the minority as to their preferred choice of a superintendent, etc.. But, these specific grievances wouldn’t have a lot of resonance in the larger community. So, you get these process oriented complaints that are largely divorced from the substance. Addressing the stated process complaints don’t really fix anything because the underlying grievances weren’t at their heart, about the process.

As a lawyer, I’ve come to understand that the law often just a big bundle of abstractions that we’re using as tools for managing conflict. The law itself is what one writer called “potential violence.” When we’re talking about a law, we’re really talking about if, when, where, why, and how the government will cause people with guns to come and use force against you. You hit me with a car. I complain to the government via its courts. I want money from you. If I’m successful in convincing the government that I ought to have your money, the court will enter a judgment to that effect. And, if you don’t turn over your money to me, as ordered, eventually we’ll get to the point where the people with guns extract it for me. But I never say, “Government, I want you to use your employees with guns to take his money and give it to me.” Instead, I’ll spend a lot of time talking about “negligence.”

There are probably a bunch of sociologists I’ve never heard of who have spilled a lot of ink discussing why we argue in this fashion. It’s likely easier to persuade a group when problems are abstracted because they might identify with concerns that are related but not quite as specific as what’s really motivating and individual. And direct appeals based on selfish motivations that highlight the precise winners and losers along with any force that might be necessary to maintain or alter the status quo are likely more off-putting than indirect appeals that obscure motivations that leave the uglier parts unstated.

Thank you for attending my TED talk.

Portugal Part VI: Last Day in Porto

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It was the last day. It was the best day.

Up the winding stairway.

We began the morning waiting in line for the Livraria Lello. This is a Porto bookstore that’s associated with J.K. Rowling and Harry Potter. Rowling asserts that she had never heard of the place while she was in Porto. It’s easy enough to believe that the book store didn’t inspire anything about Harry Potter, but I’m skeptical of her claim that she’d never heard of it at all. In any case, it’s become enough of a tourist attraction that it charges admission. We wanted to get there early in hopes of avoiding a line. We weren’t successful in that, but it was a cool, sunny morning and the line moved pretty quickly. There were two different buskers on nearby corners competing for our attention and making the scene lively. The store itself is interesting and was packed. Its main feature is a sort of colorful, split spiral staircase. It’s a two floor book store with open space in the middle allowing you to look down on the ground floor from the upper floor. It has classic titles in a lot of different languages. Fairly small, very cramped.  I liked it well enough that I felt compelled to buy a book. For some reason, I was thinking of Orwell’s “1984,” but I couldn’t locate a copy in English. Eventually, I went with a copy of “20,000 Leagues Under the Sea” by Jules Verne. It’s a colorful, hardbound copy with one of those little ribbons attached that serves as a bookmark.

Following the bookstore, we grabbed some snacks and a bathroom break at the Paderia Ribero which we’d been introduced to on our first night there. (Technically, I used the bathroom at the nearby Steak n’ Shake. The rest of our group avoided the chain restaurant!) I also got a beer, because vacation.

The Crew with a View

Properly fortified, we began to stroll Porto. We found ourselves headed generally downhill, toward the river,  by way of the Escaladas de Vitoria – the Stairs of Victory which, I must say, weren’t as imposing as the Escaladas de Verdades we faced on Friday. There’s something profound about Victory being easier than Truth, I suppose.  I was glad to find the statue of Prince Henry the Navigator at a little park called Jardim do Infante. Though, I will say that people at that park seemed to have trouble cleaning up after their dogs. There wasn’t much to it, but the statue was big and one of my favorite areas of history is the Age of Discovery, so it made me happy. Near there, we came across the Igrejas e Museu de Sao Francisco. Primarily, we were in it for the catacombs which Harper obviously loved.  As I mentioned with respect to a church on an earlier day, its style was very busy and I can see why the Puritan reaction was toward very simple, unadorned churches. The catacombs were, unsurprisingly, a little creepy. There was a transparent section with an archeological dig. And you were walking on a bunch of panels framed into a lattice work, kind of like being on top of a drop ceiling – where there were crypts underneath each panel.

Hole in the Wall

Escaping the crypts, we found our way to a literal hole in the wall for lunch. One of the things I loved about Porto and Lisbon were these small restaurants and stores crammed into twisting alleys. This one was close to the Douro River but not right on the riverfront which, I think, dialed down the tourist factor just a bit. Though the family at the table next to us was French – so clearly tourists are a big factor in the place’s existence. (When the owner got the French family to relocate so she could squeeze five of us into the same table – like I said, this place was tiny – I think the French father was trying to joke to me about buying their drinks; but the language barrier was a little too high for me to know for sure.) I had a daily special involving tripe which was pretty good, but it mostly tasted like a bean stew or maybe red beans and rice. Harper was the big winner with her order. I think the translation was shellfish and rice, and she got a pretty impressive variety of shellfish.

 

8 fruits!

After lunch, we crossed over to the south side of the Douro River, this time using the lower level of the Dom Luis I Bridge. We arrived ahead of the other crew and sat on the shore watching the boat traffic. There were some guys having a great time on jet skis. (Not that you often see people having a *bad* time on jet skis.) Our port tasting and tour was at the Calem winery. It started in a room with some screens and videos telling you about the Douro Valley, the soil, the process of wine making and whatnot. From there, we went into a cellar with huge barrels. There was a mark pretty high up on the wall showing where one particularly nasty flood had reached. The tour wasn’t bad, but I’m not sure any of us was particularly engaged in the lecture. Upstairs from the cellar was a nice tasting room with long tables where they’d set out small glasses of port for us to sample. Poor Harper got a juice box. According to the label, it had “8 fruits!” Port is just a little sweet for me, and I don’t love it. But I drank it! My college years kind of toughened up my palate. Cole drank his, and despite having 8 fruits, Harper sampled a bit of the port as well.

Waiting on the sunset

Not far from Calem was “World of Wine!” Great name, but we didn’t get any wine there. The places in Porto and Lisbon where we’d toured tended to be areas where space was at a premium. Like I said, lots of small shops and restaurants seemed to be the rule. So, the facility where “World of Wine” was located was a bit of an eye opener. It is a fairly sprawling commercial building with bars, restaurants, and places with several “experiences:” the Pink Palace Experience, Planet Cork, the Wine Experience, and so forth. I’m not sure what all these experiences entailed, but the general feel of the venue was “mall cinema.” As luck would have it, this facility had a COVID testing site which we needed to board our flights the next day. The testing was in some cramped office spaces tucked into a corner. There was one woman working the office at the end of her shift, and we hit her with eight people. She took us 2 and 3 at a time. Their tests were of the “brain probe” variety. The range of reactions among our crew went from “super easy, barely an inconvenience” to “you’ve given me a lobotomy” with violent sneezing and watering eyes. Good news. We were all negative.

By this time, it was getting near sunset, and we hadn’t caught one in Portugal yet. We’d been told that Portuguese love their sunsets. We were still at river level and we needed a good vantage point, so that meant there would be a lot of climbing. And climb we did (oddly passing our food tour guide from two days earlier en route). Up roads, alleys, and stairs to Jardim do Morro. This is a park on the south side of the river with a fairly steep hillside that looks out over a small road on its edge and, beyond that, a commanding view of the river flowing away to the west. It’s a great place to watch the sun go down. And everybody in town seems to know it. There were a pair of guitar players working together, providing entertainment to the folks on the hill, playing on a path just past the road. It was a festive atmosphere. The guy in front of us just had his own bottle of wine that he uncorked periodically to take a slug. The hillside was full of people lounging. There was a trailer selling beer and wine. Kenza managed to find cotton candy.

Sultans of Swing. Dancing. Sunset.

At one point, a young woman wearing a grape costume happened by the guitarists and started to dance. This prompted a little girl to join in. Eventually the grape woman was dancing with an older woman. As the sun set, the guitarists were playing an extended version of “Sultans of Swing.” I can’t begin to tell you how much I loved this moment. The weather was clear, calm, and comfortable. I’m in a beautiful, far away place surrounded by happy people. Sharing the moment with Amy, Cole, and Harper. There’s music. Dancing. The moment was simple. Human. Joyful.

Kenza stayed with us, but the other crew headed for home. We savored the evening a little longer as sunset turned to dusk. Eventually, we got up and headed back to the north side of the river, crossing the Douro River on the top deck of the Dom Luis I Bridge. At that moment, from that vantage point, it was impossible to take a bad picture.

Impossible to take a bad picture

Realizing that our time was coming to an end, I hit a souvenir shop and picked up a “Super Bock” shirt. We walked to the Majestic. The Majestic is an ornate (art nouveau, I’m told) café on Rua Santa Catarina, an extremely walkable outdoor mall full of restaurants and shops. The Majestic is famous for its architecture as well as for being, historically, a place where writers frequented, J.K. Rowling among them. It was nice to see, but we made a mistake trying to eat there. Nothing looked all that appealing. It was wildly overpriced and mediocre.

In the Majestic

We got drinks and a basket of bread, paid out the nose, and got out of there. Amy and Kenza wanted francesinhas. The Majestic experience pushed the kids and I over the edge into wanting food that was cheap, fast, and unchallenging. “Mr. Pizza” was calling our name. The line at Café Santiago (where we’d eaten lunch the day before) was long. Amy and Kenza settled in. Cole, Harper, and I headed up the street to Mr. Pizza. In no time flat, we had 6 slices that they were practically giving away. We ate in the park where Amy had left her sweatshirt the day before. I’m not going to say the pizza was “good,” but it definitely scratched an itch. Greasy pizza-by-the-slice a few blocks from a college campus. You know the type. After we ate, Harper needed a bathroom, so we headed back to “Mr. Pizza.” Harper used the facilities, and Cole and I got more pizza. We headed back to the park to wait while Amy and Kenza worked their way through dinner. They gave up on Café Santiago and went to another francesinha restaurant in the area.

 

What we didn’t know when we sat down on the bench in the park is that our “Mr. Pizza” dinner was going to come with a show! We took to calling this guy “Il Borracho.” Total nonsense. We were butchering the words for “The Drunk” in Spanish. Not even close to that meaning in Portuguese. This guy was very active. He carried a portable barricade into the street, smashed a bottle, emptied trash, sat in the street in a swivel chair that he found god knows where. He generally rode the razor’s edge between being merely annoying and actually doing harm. He looked like he was going to pee in the streets several times. We joked that, in America, the cops would’ve shot him by now. Here, when the authorities actually showed, they were pretty tolerant. Eventually, Amy and Kenza came out and watched the show. After a while, we had to call it a night. We’d milked about as much as we could out of the day. We got gelato on the way home just to stretch it out a bit more. Fantastic day.

Il Borracho

The Trip Home

We woke up at 7 and packed. For the life of me, I couldn’t find where the Airbnb instructions were telling us to put the trash. So, we left it bagged up in the apartment. We called an Uber at 7:30. The first crew got theirs with no incident. Ours just didn’t show. Amy had used her app, so I summoned one on my app. We watched our phones and neither of them materialized. They were either sitting still or getting further away. Amy used a different cab app trying to call one of those. Nothing. We got anxious, then desperate, then resigned. We knew that there were two trains getting to Lisbon before our flight. We’d booked the early one because the late one would be cutting it close. We were hopeful that we could get new tickets on the second train. As we’d become pretty sure there was no way to make the train, the icons on our apps started moving. Two of the cars arrived at exactly the same time. We irritated one by sending him away. Apparently we picked the right one because he got us to the train station pretty quickly. Grabbed our bags without even closing the doors on the Uber. Apologized to our driver as we were literally running to the station. Matt had texted us the platform number so we didn’t have to look around. The doors to the train were closed. We got mildly scolded by the conductors, but they let us on without any time at all to spare. We hadn’t gotten to our seats or put our bags up before the train started pulling away.

That got our hearts racing in the morning! We had coffee and snacks to calm down. In Lisbon, we had some time to kill and contemplated storing our bags in a locker and doing some exploring. But, the weather had turned cold and gross, so we just took the metro from the train station to the airport. In the airport, we spent frivolously at the duty free shop to burn the spare Euros we had in our pockets. Then, because we have a fancy pants travel credit card, we get into a number of airport lounges around the world. Lisbon, it turns out, has a pretty nice one. Plenty of seating. TVs with soccer on. A buffet. And a fridge stocked with Super Bock mini-bottles. Score!

We killed time in the lounge and then headed through customs. Amy was impressed and mildly shocked by Kenza taking a beer through passport control. We ended up on a flight home packed with guys from the North Dakota State soccer team. Some guy a couple of seats back had a nasty cough that was pretty steady for the entire eight hour flight home. Getting out of Chicago went just about as smoothly as you could hope. The guy driving the shuttle to long term parking wasn’t all that good at his job. It was constant gas/brake/gas/brake. He dropped a couple of buddies or co-workers off at a spot that definitely wasn’t a stop. And, I’m pretty sure he scraped a car in the lot when he didn’t make a turn as sharply as he should have. But, we got into our car at around midnight and headed for West Lafayette without much in the way of traffic. The moon was amazing. We got home at about 2 a.m. The puppies were glad to see us, and we were happy to see them. Home again, home again, jiggety-jig.