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Antiquated view of equality: Reliance on 1893 ruling shows Indiana not serious about women's rights

First Published by Fort Wayne Journal Gazette on 7/15/2023

Written by Laurie A. Gray, J.D.

On June 30, 2023, the Indiana Supreme Court reinstated the Indiana abortion ban hastily passed last summer in the wake of the Dobbs decision overturning Roe v. Wade. Indiana is following lockstep with the United States Supreme Court as it strips women of fundamental liberties and grants our General Assembly unfettered legislative power over women’s reproductive lives.

Never mind that Indiana ratified the Equal Rights Amendment in 1977 and amended our state constitution in 1984 to guarantee fundamental rights to “all people” rather than “all men.” Writing for the majority, Justice Derek Molter claims the amendment was “purely stylistic” providing “no substantive change.” He cites the Indiana Supreme Court case In Re Leach and declares that the Indiana Constitution has protected men and women equally since 1893.

The Indiana Supreme Court says that women and men have been equal in Indiana since 1893. The assertion is absurdly offensive. What is “equality” without the right to vote, to enact laws, to serve on juries, to participate in government, and a hundred other basic civil rights that Hoosier men have always enjoyed?

Women did not and still do not enjoy equal rights or equal protection—not in the US and not in Indiana. For some eye-opening statistics, read Ejaculate Responsibly by Gabrielle Blaire and No Visible Bruises by Rachel Louise Snyder. They tell us that in the United States, a pregnant woman is more likely to die due to that pregnancy than a police officer is to be killed on the job, and all women are more likely to be killed by an intimate partner than a soldier is to die on active duty. Hoosier women already fare worse than the national average. Indiana’s response? Rob women of bodily autonomy and criminalize their reproductive healthcare.

Indiana’s Orwellian lip service to equality for women places all Hoosiers on notice: “All people” in the Indiana Constitution is the equivalent of “We the People” in the federal Constitution. Historically and currently, not all human beings, or even all citizens, are included. As Justice Christopher Goff wrote in his dissent, “Many of the liberties 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.”

In Indiana, only Justice Goff resists the Court’s decision to restrict women’s rights retroactively based on “the doings of exclusively male institutions in times when women were excluded and marginalized from public discussion.” Justice Goff stands with women and all people by insisting that the 1984 Amendment to the Indiana Constitution should mark the starting point for constitutional analysis in Indiana.

In Dobbs, the US Supreme Court held that state legislatures need only a rational basis to any legitimate state interest to regulate women’s reproductive health care. Justice Goff says this surely violates the Indiana Constitution: “It cannot be that upon becoming pregnant, women relinquish virtually all rights of personal sovereignty in favor of the Legislature’s determination of what is in the common good.”

After Dobbs, we know the only constitutional right guaranteed to women in the US is the right to vote added by the 19th Amendment in 1920. Constitutional law now presumes men’s right to bodily autonomy and protects it with strict scrutiny while presuming a state’s right to regulate women’s bodies. Men enjoy an almost absolute constitutional right to reproduce, while women have no constitutional right NOT to reproduce. Women must prove a negative—that a law has no rational basis to any state interest—or submit and obey. This is Hoosier “equality for women” since 1893.

Allowing the government to draft women (even children as young as nine years old) into unpaid, involuntary service violates the most fundamental human rights to agency and bodily autonomy. The famous Turnaway study found that being denied an abortion ties women to abusive partners, increases risks of serious health complications and death, and reduces financial security and safety for both women and children.

Justice Goff urges the General Assembly to put before Hoosier voters the question of whether the Indiana Constitution protects a woman’s bodily autonomy. Vote for representatives who support ballot initiatives and equal rights for all.

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