Rep. Ed DeLaney: Legislature should allow voters to decide on abortion

There was only one dissent to the Indiana Supreme Court’s decision on abortion. It needs to be read by every citizen and especially by every Indiana legislator.

The majority decision limits women’s constitutional rights in the abortion context to what amounts to physical self-defense. Now women are only protected when they face death or a serious health risk during pregnancy. The court did not decide whether the state Constitution requires the law adopted last year to include its limited exceptions in cases of rape or incest. So we are left with a restrictive ban passed in less than two weeks by a lopsided legislative majority.

A dissent came from Justice Christopher Goff. He drove home the magnitude of what the court’s decision means for Indiana’s democratic system.

Justice Goff’s opinion focuses on how to deal with a right recognized for 50 years but now withdrawn. As he makes clear, once the U.S. Supreme Court withdraws protections under the federal Constitution, some institution must determine whether that right will still be recognized in the various states. The alternatives are a decision by the Legislature, the state courts or the people. Once freed from federal enforcement of rights and left free to act by our Supreme Court, the Legislature is free to limit our freedoms. That is, unless the Legislature chooses to refer the topic to the voters by proposing a constitutional amendment, which the Legislature itself drafts.

Justice Goff notes that “many of the liberties that Hoosiers take for granted—the right to vote, to travel, to marry, to educate one’s children as one sees fit or to refuse medical treatment—stand on federal precedents that are also now vulnerable to reversal.” This is a judicious way of saying that the present U.S. Supreme Court is in the process of eroding rights long recognized by the court. The limited right to an abortion once allowed under Roe v. Wade is not the only right in peril. The long move toward civic freedoms that begun in the 1950s is being reversed.

Justice Goff makes clear his view on who should resolve the present quandary. He asserts that “the abortion question is fundamentally a matter of constitutional dimension that should be decided directly by the sovereign people of Indiana.” He goes on to address his “colleagues in the General Assembly.” He asks that they let the voters decide whether the term “liberty” as used in our Indiana Constitution “protects a qualified right to bodily autonomy.” This “colleague” agrees and will work to that end.

Our Legislature was free to ignore the extension of new rights such as to abortion (within the confines of the Roe decision) or to gay marriage, so long as the U.S. Supreme Court controlled the field. But as Justice Goff suggests, the current occupants of that court are setting aside precedents which the same court created over several decades. The continued existence of those rights is left to the states.

Sadly, another one of the now-abandoned precedents—the one barring gerrymandering—has also been tossed aside. The practical effect is that in many states, one party has a supermajority, allowing that party and the active part of its primary voters to decide on what rights we enjoy. Indiana is one of those states.

The legal recognition of fundamental issues such as abortion should be decided by the voters of Indiana and not by an unrepresentative supermajority in safe, gerrymandered districts. Let the people of Indiana speak through a referendum. Are Republican legislators afraid of Indiana voters?•

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DeLaney, an Indianapolis attorney, is a Democrat representing the 86th District in the Indiana House of Representatives. Send comments to ibjedit@ibj.com.

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