POST-ROE INDIANA

Now that our SCOTUS has overturned Roe v. Wade, it is proper to wonder what happens next in Indiana. The Hoosier State had no “trigger” law awaiting the overturning of Roe. Still, it is among some 26 states where abortion is already banned or severely restricted or expected to become banned or severely restricted. The CLB expects the General Assembly and Governor Holcomb to follow the predicted path.

In the post-Roe world the United States Constitution no longer affords a pregnant woman the right to choose not to carry the pregnancy to term. After the Indiana General Assembly fulfills its low expectations by banning or severely restricting a woman’s right of choice, there will arise (again) the question of whether the Indiana Constitution affords a right of privacy similar to what Roe once protected.

Here is Article 1 Section 1 of the Indiana Constitution.

Section 1. 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.

Clearly, there are “inalienable rights” beyond those expressly listed. Are abortion rights among those?

That question was put to the SCOTSI in Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973 (Ind. 2005). There was a challenge in that case to provisions of IC 16-34 (the abortion Article) burdening access to abortion. The Indiana Supreme Court split 3-1-1 with the Region’s own Justice Rucker writing for the majority. The Rucker Opinion intentionally dodged the question of whether Article 1 Section 1 of the Indiana Constitution confers a right of choice upon a pregnant woman. In so doing, the SCOTUS upheld the burdens of IC 16-34.

As of these last days of June 2022, Indiana has its abortion laws at IC 16-34. The law burdens the abortion-seeker and provider only lightly up to a 20-week threshold of more substantial burdens. IC 16-34-2-1 declares that abortion is a crime except when done in compliance with statute. What particular crime is committed with a noncompliant abortion is not revealed.

Looking at the Criminal Code of Title 35 we find at IC 35-42-1-0.5 the abortion exemption declaring that abortions complying with IC 16-34 are not murder, voluntary manslaughter, or involuntary manslaughter. This falls short of declaring noncompliant abortion to be any particular form of homicide.

A relevant coincidence is that our General Assembly is about to go into a “special session” called by Governor Holcomb to gain authority for an additional enhanced tax refund or incentive payment to Hoosier tax payers. The General Assembly is certain to take up the prospect of stiffer anti-abortion legislation. The General Assembly should show some restraint. But it won’t. It should show an intelligent, analytic approach. But it can’t.

Once the Indiana General Assembly lives down to my low expectations, there will be a judicial challenge to the new restrictive abortion law. Should the COA rule against the statute, Transfer is guaranteed. How the SCOTSI would rule on the scope of Article 1 Section 1 “inalienable rights” is unknowable at this time¹. Still, the CLB doubts that the SCOTSI will step up as a champion for a woman’s freedom of choice.

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¹ One reason for CLB uncertainty on this point is that there has been a 100% turnover in SCOTSI membership since November 23, 2005 when it decided the Clinic for Women case.