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Rights know no gender: Let 2023 be the year women are fully recognized under the law

Published in the Fort Wayne Journal Gazette on 1/22/23: “Rights know no gender: Let 2023 be the year women are fully recognized under the law”

Written by Laurie A. Gray, JD

Three days after the leak of the draft Dobbs opinion that would overturn Roe v. Wade, I attended a continuing education event for local attorneys. During a panel discussion on the U.S. Constitution and in response to a question about equal rights for women, the only male attorney on the panel benevolently conceded that women do not currently have equal rights under the U.S. Constitution and congenially opined that there is no way an Equal Rights Amendment will pass now. The women attorneys on the panel and in the audience accepted this proclamation in silence.

We can no longer remain silent.

The United States Constitution does not affirmatively guarantee women any right to property, education, contraception, health care, divorce or child custody. The rights of every woman depend entirely on uncertain U.S. Supreme Court opinions and the state where she lives. The South Carolina Supreme Court recently decided that women have a right to privacy under their state constitution. The Idaho Supreme Court decided that their state Bill of Rights does not apply to pregnant women. It still reads “all men” have the right to life, liberty and the pursuit of happiness. Historically, men didn’t get pregnant. Sorry, ladies. Your right to reproductive health care and bodily autonomy will remain subject to popular vote in Idaho.

What rights do women have in Indiana? We’re waiting to see. In the wake of the Dobbs decision, Indiana convened a special legislative session to pass an abortion ban with very limited exceptions. Challenges to the ban have been filed in Monroe County and Marion County, and preliminary injunctions issued in both. The Indiana Supreme Court agreed to hear oral arguments on the Monroe County injunction on January 19, and an opinion should be forthcoming.

To be clear, the Court’s decision will be on whether the preliminary injunction should stand while the case pends, and not on the ultimate issues. Nevertheless, in ruling on that injunction, the Court must consider the likelihood of success on the merits of the claim that Article 1 Section 1 of the Indiana Constitution provides women with the judicially enforceable right to bodily autonomy and self-determination.

Article 1 of the Indiana Constitution is our State Bill of Rights. Section 1 declares that all PEOPLE are created equal and endowed with certain inalienable rights including life, liberty, and the pursuit of happiness. Up until 1984, only MEN were guaranteed inalienable rights in Indiana.

A second preliminary injunction was granted in the Marion County case based on Indiana’s Religious Freedom Restoration Act (RFRA). The State has sought transfer to the Indiana Supreme Court in that case also, but as of the time of this writing, the Court has neither accepted nor rejected transfer.

In her order granting the Marion County preliminary injunction, Judge Welch found that Indiana’s own statutes do not endow zygotes, embryos, and pre-viability fetuses with the legal status of human beings. She further noted that the U.S. Supreme Court recognized in Burwell v. Hobby Lobby that the question of when life begins is a religious one that the State may not answer legislatively or as a factual matter.

Politicizing women’s health and human rights only divides an already polarized nation further. We are each entitled to our own strongly held beliefs, and we don’t have to agree on everything to find common ground and work together. We can choose people over politics.

We are all human. We share the same fundamental needs and desire for freedom. We all want to create a better world for our children. When we create a better world for ALL children, we create a safer world for our own children.

This is my prayer for 2023:

  • May the Indiana Supreme Court uphold women’s inalienable rights as PEOPLE to life, liberty, religious freedom, health care, and bodily autonomy.

  • May our elected leaders break away from obstructionism and religious ideologies to work together and represent all Hoosiers.

  • May every eligible Hoosier register and vote for qualified candidates who have demonstrated a commitment to public service.

  • May we all stop looking at each other through a binary, tribal lens that seeks only to divide and come together for the good of our state and our country.

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