When the Indiana Supreme Court upheld the state’s draconian abortion ban, Hoosier opponents of reproductive rights did victory dances.
Indiana Attorney General Todd Rokita took a break from starting senseless fights and looking for ways to run for whatever office might be available to him. He had his office issue this statement:
“We celebrate this day—one long in coming, but morally justified. Thank you to all the warriors who have fought for this day that upholds LIFE.”
U.S. Sen. Mike Braun, R-Indiana, also did some crowing. He’s running for governor.
“Life wins in Indiana. I’m proud that with today’s court decision, Indiana will continue to be a national leader for protecting the unborn and saving thousands of lives. I join the countless Hoosiers who helped win this victory for life in celebrating this historic day,” his statement read.
Rokita and Braun—neither of whom is renowned as a deep thinker or devoted student—might have curtailed their celebrations.
Close readings of the court’s three opinions—the majority one, a concurring one and a somewhat dissenting one—reveal the justices’ profound uneasiness with the issue of abortion and the hasty crusade by Indiana rightwing politicians to impose bans.
What the court firmly rejected was the broad argument that the Indiana constitution prohibits state government from adopting any restrictions on abortion at any time.
That shouldn’t be surprising.
Few if any rights are absolute.
We have, for example, rights to speak freely guaranteed by both the U.S. and Indiana constitutions. But those guarantees can’t prevent government officials from passing laws prohibiting people from texting while driving 80 miles per hour through a school zone.
The greater public has rights that must be balanced against those of the individual.
That’s a reality that escapes many of our radicalized lawmakers.
The court’s majority opinion recognizes this—and all but sends engraved invitations for future litigation regarding Indiana’s abortion ban. It says that, while the ban can’t be struck down simply on its face, there may be parts of it that do violate the constitution.
This should trouble anti-abortion activists.
Following the ruling, Indiana Senate President Pro Tem Rodric Bray, R-Martinsville, did some chest thumping. He said the Indiana General Assembly set out during last year’s special session to craft a law that would stand up to a constitutional challenge.
Bray’s implication was that the lawmakers had acted deliberately and carefully.
If Bray said that with a straight face, he must have been smoking something.
When the legislators gathered to rush through the abortion ban following the U.S. Supreme Court’s Dobbs decision, they moved with all the care and deliberation of hyperkinetic toddlers let loose in a bounce house without adult supervision.
They refused to listen to doctors and medical professionals. They turned deaf ears to lawyers and constitutional scholars pointing out problematic aspects of the law they were considering. They clamped on their earmuffs when business leaders expressed concern about how such a severe restriction of personal liberty would impact efforts to recruit talented workers and attract investors.
Perhaps most important, they made it clear they didn’t want to hear from the millions of women whose lives and health would be affected by their hasty persecution.
The only voices the lawmakers wanted to hear were the ones shouting amen.
Well, their law survived its first and easiest challenge.
But not without the state’s conservative Supreme Court justices expressing misgivings about the law the Indiana General Assembly rushed onto the books.
Tougher challenges await.
My old employer, the American Civil Liberties Union of Indiana, has filed suit arguing that the abortion ban violates Indiana’s Religious Freedom Restoration Act.
RFRA, as it came to be known, also was a cause dear to many of the lawmakers who pushed through the abortion ban. It says that individual businesspeople have rights of conscience and thus may discriminate against gay people if they believe their faith calls them to do so.
The U.S. Supreme Court just supported such a concept, ruling that Colorado could not compel a website designer to provide services for a gay couple wishing to marry.
If the Indiana Supreme Court decides RFRA does not apply to the abortion ban, the state’s justices will be contending that website designers and bakers have rights of conscience but doctors and patients whose faith traditions do not prohibit abortion don’t have the same rights.
Interesting times we Hoosiers live in.