A Citizen's Guide to Indiana

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Indiana Trial Court Temporarily Reinstates Reproductive Rights and Enjoins SB 1

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Liberty

“[T]hose who wrote our Indiana Constitution believed that liberty included the opportunity to manage one’s own life except in those areas yielded up to the body politic. The common law, our constitution, and Indiana’s statutes all reflect a commitment to self-determination.”

The Circuit Court Judge for Owen County, sitting as special judge in Owen County, has enjoined the enforcement of Indiana’s recently passed SB 1 which stripped Hoosier girls and women of their reproductive rights. The preliminary injunction was based on the court’s determination that Plaintiffs — a group including the ACLU and Planned Parenthood — were reasonably likely to prevail on the merits of their argument that Article 1, section 1 of the Indiana Constitution protects a right to bodily autonomy that SB 1 violates.

Article 1, section 1 provides:

WE DECLARE, that all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.

The court observes that the right to bodily autonomy had been recognized as judicially enforceable in a pair of 1855 decisions and that whether a right to privacy exists under the Indiana Constitution is an open question. The court further observes that, in 2004, the Indiana Court of Appeals recognized a right to abortion under Art. 1, sec. 1. However, that Court of Appeals decision was vacated when the Indiana Supreme Court took up the case in question. In finally deciding that case, the Indiana Supreme Court specifically declined to weigh in on whether the Indiana Constitution protects reproductive rights. The upshot is that the question remained open.  The trial court in this case has determined that the Indiana Constitution does protect reproductive rights inasmuch as the state constitution has been more protective of individual rights than has the federal rights.

The debates of our Constitutional Convention leading up to ratification of the current Indiana Constitution suggest that those who wrote our Indiana Constitution believed that liberty included the opportunity to manage one’s own life except in those areas yielded up to the body politic. The common law, our constitution, and Indiana’s statutes all reflect a commitment to self-determination.

The Court acknowledges that abortion was not lawful at the time the Indiana Constitution was ratified. However, this does not foreclose the language of Article I, § 1 from being interpreted at this point as protecting bodily autonomy, including a qualified right by women not to carry a pregnancy to term. The significant, then-existing deficits of those who wrote our Constitution particularly as they pertain to the liberty of women and people of color-are readily apparent. As Justice Boehm points out in his Brizzi dissent, “[i]n 1851 we had slavery in many states and Article II, Section 5 of the 1851 Constitution denied the right to vote on the basis of race. Married women had no property rights until they were conferred by statute in 1923. Both of these subjects were debated at length in the 1851 Constitution, but both were left in a state that, by today’s lights, is wholly incompatible with fundamental principles of ordered liberty.” Our analysis here cannot disregard this reality, particularly when considering questions of bodily autonomy.

…

It is without question that the State has an interest in regulating abortion. Plaintiffs concede as much at oral argument. State interests in abortion regulation can include protection of maternal health, preserving fetal life, maintaining societal ethics, promulgating medical ethical standards, and creating bright line rules distinguishing between infanticide and lawful abortion to name a few.

It is also without question that the judicially enforceable liberty rights that are reasonably likely to exist under Article I, § 1 are not unqualified. S.B. 1, however, materially burdens Hoosier women and girls’ right to bodily autonomy by making that autonomy largely contingent upon first experiencing extreme sexual violence or significant loss of physical health or death.

S.B. 1 also materially burdens the bodily autonomy of Indiana’s women and girls by significantly and arbitrarily limiting their access to care. S.B. 1 does so by requiring women and girls to seek treatment at hospitals or ambulatory surgery centers that are majority hospital-owned. The huge majority of abortions are performed in the clinic setting. The evidence supports that the hospitalization requirement is likely to significantly limit the availability of the procedure (even for currently excepted rape and incest victims), will likely significantly increase the cost, and is unlikely to increase the safety of Hoosier women and girls. The Indiana State Health Department’s own reports support the contention that abortion clinics are capable of safely providing the treatment.

(Internal citations omitted, emphasis added).

This is obviously just the initial salvo in the litigation. This being Indiana, I’m not terribly optimistic that the Indiana Supreme Court will ultimately adopt this reasoning. But, it’s definitely a fight worth having. And, the referendum in Kansas suggests that the kinds of draconian restrictions on reproductive liberty adopted by the Indiana General Assembly this summer are not popular, even in red states. So, maybe my pessimism is misplaced.

Nostalgia and Cynicism Masquerading as Wisdom

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I made the mistake of reading the newspaper comment section, and it brought to mind a couple of themes. First is how nostalgia distorts things. The tragedies of today resonate way more than the statistics of yesterday. So, you have people who compare the slings and arrows they are currently experiencing or the fire hose of Bad News from around he world on the one hand with the sepia toned memories of yesteryear, relieved of the clutter, chaos, anxiety, and other negativity that accompanied yesteryear as it was actually happening. It’s like thinking that the music of [pick decade] was so much better than today’s music. You’re comparing every song you’re hearing today against only those songs from the 70s or 80s that survived. Sure, “Billie Jean” was pretty catchy, but 40 years later, it’s not all mixed in with Vandenberg’s “Burning Heart.” The latest murder or robbery is pretty disturbing, especially if it happened in town. And it doesn’t really become less disturbing if I quote statistics telling you that violent crime in the U.S. is about half as prevalent now as it was 30 years ago. Things can *feel* worse even when they are objectively better.

The second was what I call cynicism masquerading as wisdom. Culturally, I think we just regard people who perceive or predict gloom and doom as being more serious than people who point out the good or even the stable and mundane. If you predict dangers that don’t materialize, people mostly don’t remember or care. Better safe than sorry, I guess. If you predict sunshine and rainbows prior to a disaster, people will roast you for it. Also, there’s a certain dog-bites-man quality to things working. It’s just not news. Man-bites-dog, on the other hand, deserves a headline. Given that bias for novelty, it’s easy to get the sense that everything is collapsing.

I don’t know that there’s a lot of help for these things. But, the anxiety associated with thinking you live in Fallen Times compared to the good old days isn’t healthy for us. I think the best we can do is probably to be aware of these dynamics, calibrate for them, and adjust our filters accordingly. Also, take a walk and talk to your friends, family, and other real people.

Vote for the Builders

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Idea: Don’t vote for someone whose idea of a good time is venting their spleen on “Nextdoor.com”

Election season is once again upon us. From local races to national ones, it seems like every election cycle is critical. What should you look for in a candidate? Mere partisanship is not enough. For example, four years ago, everyone was rightfully pissed at Trump and his supporters. But, I know of situations where they expressed that anger by voting in local races for any individual who happened to have a “D” by their name, electing people that other Democrats have come to view as toxic. In our local school board races (a subject near and dear to my heart), you can’t fall back on partisan labels anyway. So, how do you pick the people who are going to be good for your community and good at governing?

I’m going to suggest that we all look for the builders. Look for the people who participate in the community and make its institutions stronger. The people who coach little league or organize field trips or plan the Rotary fundraisers. The ones who strengthen the non-profits, run the food drives, or build props for the musical. Avoid the ones who seem always to tear down. Partisanship for partisanship’s sake is a red flag. The people who are perpetually beating a drumbeat of doom, eager to cast stones at functional and dysfunctional institutions and programs alike, never giving credit where it is due — these people are not seeking to improve things. And, if placed in office, they will not improve things. What kind of job do you think a person is going to do in office if they spend their days and nights on social media tearing down organizations they seek to lead? If they paint every bump in the road as a crisis, do you think they’ll suddenly become level-headed and efficient once elected? If negative drama is their brand, it’s not going to change just because they become an officeholder.

This sort of advice might ring hollow, might even be hollow, for state and federal races. Politics at that level is, to some extent, gang warfare; and it’s a numbers game. If your gang is on the outs, it doesn’t matter how civic minded its members might be. But local politics doesn’t have to be that way, and shouldn’t be that way. Don’t vote for the person who shows up to the public meeting to yell at local officials about, say, health policy but who would never volunteer at the vaccine clinic or serve as secretary on the parent-teacher association. Vote for the person who would organize an ice cream social to raise money for the school music program. If your school’s serving the public well, look for the candidates who have been involved in making it that way.

Ultimately, with local races, take the time to find out who the people are, and what they’ve done for the community. If their only claim to fame is an active online presence or pointed and perpetual criticism of the institutions they seek to run, electing them is going to give you a bad time. You might find yourself wondering why that little slice of local government you used to never hear about is suddenly a dysfunctional source of headlines.

Former state senator Brent Waltz sentenced on federal campaign finance charges

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Brent Waltz has been sentenced to ten months in prison on federal campaign finance charges. You can read about the details of the indictment here and here. But, I’m going to summarize it as Waltz getting casino money and being part of a straw man donor scheme to funnel that money to his 2016 primary campaign to be the Republican nominee for the Ninth District Congressional seat. Waltz lost that primary to “Tennessee” Trey Hollingsworth. Waltz ultimately only picked up 13% of the vote in the primary which included four other candidates.

The reason I want to underscore that the money was connected to the casino industry is that Waltz became a state senator after unseating Larry Borst in the 2004 primary. Borst had served for a decades and was chair of the Senate Finance Committee. As long-time State House reporter, Jim Shella observed in a 2020 IBJ column:

Waltz was first elected to the state Senate in 2004 after he won a GOP primary against powerful Finance Committee Chairman Larry Borst. Borst was opposed to more gambling, and Waltz had the support of Republicans who saw Borst as an obstacle. There has been an open discussion in Statehouse hallways ever since about Waltz’s ethics.

I won’t go so far as to say that Borst would be gratified by Waltz’s conviction and sentencing. But his concerns about the gaming industry in Indiana certainly seem to have been proven valid.

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.