Category Archives: Personal Autonomy

The Indiana Retention Vote

The other day, a reader asked me what I thought of a current effort to deny retention to three members of Indiana’s Supreme Court– judges who had voted to uphold Indiana’s abortion ban. As I told that reader, voting no on a retention vote because of disagreement with one ruling would set a very dangerous precedent.

I subsequently spoke with several practicing lawyers, including a good friend who is a highly respected trial lawyer, an active member of the local bar, and personally pro-choice. He suggested that I share the following information with my readers.

First of all, the process. For fifty years, Indiana has had a merit selection process to identify and appoint members of Indiana’s Supreme Court and Court of Appeals. Once candidates who have been found to be highly qualified are appointed, they submit to a statewide retention vote within two years. Thereafter, they are submitted for a retention vote every 10 years.

This year, Chief Justice Loretta Rush, Justice Mark Massa, and Justice Derek Molter are up for retention to the Supreme Court. None of them is known as “liberal” or “conservative” or partisan. The organized opposition to their retention is based upon their ruling on a challenge to Senate Bill 1, the abortion ban passed by Indiana’s regressive legislature in the wake of the Dobbs decision. Indiana’s ban broadly prohibited abortion but made exceptions for 1) when an abortion is necessary either to save a woman’s life or to prevent a serious health risk; 2) when there is a lethal fetal anomaly; and 3) when pregnancy results from rape or incest.

We can argue about how those exceptions work–or don’t–in the real world, but they are written into the law.

Abortion providers sued to invalidate the law and to enjoin its enforcement. The lawsuit was what lawyers call a “facial challenge”–meaning that the providers had to prove that they had standing and that there were no circumstances under which the law could be upheld. The court found that the plaintiffs had standing to bring the case and that Article 1, Section 1 of the Indiana Constitution protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk.

At the same time, the majority found that the Indiana Legislature had the authority to prohibit abortions that didn’t fall within one of those three categories. It also recognized that, prior to Roe v. Wade, Indiana and forty other states had upheld legislative limitations on abortion.

Lawyers can agree or disagree with the majority’s interpretation. I do disagree– but it was a reasoned decision, far from the   historical dishonesty and religious ideology that permeated Dobbs.

As readers of this blog know, I strongly support abortion rights, and I disagree profoundly with the Dobbs decision. But the postcards that are being disseminated to the public accusing these three justices of voting to ‘strip away’ Hoosier women’s rights to abortion are misleading and unfair. The Justices are bound by precedent–and, unlike the U.S. Supreme Court– they followed their honest reading of that precedent.

As my lawyer friend reminded me, Indiana has one of the most respected supreme courts in America. Our justices serve in many capacities in national judicial organizations, and Chief Justice Rush has been president of the Conference of Chief Justices and Chair of the National Center for State Courts. Opinions of our supreme court are frequently cited in other state judicial opinions and scholarly articles and relied on by state and federal courts nationwide.

Typically, only 75-80% of those who go to the polls will bother to vote on judicial retention. Of that group, there’s a “hard core” of approximately 30% who always vote no. That means that an organized group opposing a judge or justice need only muster another 21% or so–and that’s why this effort is so dangerous. The retention of judges should be based upon their entire body of work and not upon a single opinion, even a questionable one.

I share the anger of people who oppose Indiana’s ban, but our animus should be directed at the legislature–not at a court that, rightly or wrongly, held that the legislature had authority to act.

If the effort to unseat these jurists succeeds, it will close the Indiana Supreme Court for several months, pending the selection of new justices. Worse still, if the Braun/Beckwith ticket wins (and this is deep-Red Indiana), Christian Nationalists will select the new Judges. I’m sure that Braun would be more than willing to subvert the merit process in order to elevate clones of Alito, et al. to Indiana’s top court.

Be careful what you wish for.

 

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Let’s Talk About Choice

A reader of this blog recently asked me why Americans seem so confused about whether individual “choice” is an essential element of freedom. Why, for example, do many Americans see reproductive choice as a critical human right, but oppose school choice, or the individual’s choice to own lethal weapons? Why did people during a pandemic oppose rules requiring them to wear masks, claiming their right to choose? Can we make sense of these differences?

I think we can.

I have frequently alluded to the libertarian principle that underlies America’s constitutional system. Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. They endorsed the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of another, and so long as they were willing to accord an equal liberty to their fellow citizens.

The principle seems straightforward, but it requires a measure of consensus about the nature of harm to others.

To use a relatively recent example, lots of folks were enraged when local governments imposed smoking bans in public places. They insisted that the choice to smoke or not was an individual one. The bans, however, resulted from medical research documenting the harms done by passive smoke. The ordinances were based upon lawmakers’ agreement that individuals should retain the choice to smoke in their homes or cars or similar venues, but not where they would be polluting the air of non-consenting others.

Essentially, the libertarian premise asks: What is the nature of the “harm to others” that justifies government intervention? When may government disallow a seemingly personal choice? How certain does the harm have to be? Does harm to others include harms to non-persons (fetuses)?

Most sentient Americans understood that a rule requiring people to wear masks in public places during a pandemic was essential to preventing harm to unconsenting others, just as the ordinances against smoking in a local bar protected non-smokers from the hazards of passive smoke, and laws against speeding protect against potentially deadly accidents.

When we get to issues like gun ownership and educational vouchers, there is considerably less agreement–although survey research suggests that most Americans favor considerable tightening of the laws governing who can own weapons, given the daily evidence that lax regulation is responsible for considerable and often deadly harm to others.

What about allowing “parental choice” in the use of tax dollars to send one’s children to private and religious schools? Or, for that matter, “parental choice” to control what books the local library can include on its shelves?

The evidence strongly suggests that “educational choice” is harming both civic cohesion and the public school systems that serve some 90% of the nation’s children. (Given the large percentage of voucher users who choose religious schools, there is also a strong argument to be made that these programs violate the First Amendment’s Separation of Church and State.) There is also a significant difference between exercising choice with one’s own resources–which parents can absolutely do–and requiring taxpayers to fund those choices.

With respect to libraries, parents can certainly choose to prevent their own children from accessing books of which they disapprove, but efforts to keep libraries from offering those books to others is a clear violation of the portion of the libertarian principle that requires willingness to accord equal liberty to others.

Whether to impose on an individual’s right to choose a course of action will often depend upon a weighing of harms. With respect to a woman’s right to choose an abortion, even people who claim that a fertilized egg is a person should understand that an abortion ban demonstrably harms already-living women–physically, emotionally and economically. (It has become abundantly clear that very few of the “pro life” activists really believe that a fertilized egg is equivalent to a born child; they are far more likely to favor a return to a patriarchal time and a reversal of women’s rights. But even giving them the benefit of the doubt, a weighing of the harms clearly favors women’s autonomy.)

Bottom line: a free society will accord individuals the maximum degree of individual choice consistent with the prevention of harm to others. There will always be good-faith debates about the nature and extent of the harms justifying government prohibitions, but those debates should start with a decent respect for–and understanding of– the philosophical bases of our constitutional system and the relevant credible evidence.

A good society chooses wisely.

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Family Values

What are “family values?”

To hear Republicans describe them, family values are a traditional, a backward-facing insistence on sexual “purity” (for women) and heterosexuality: mom in the home watching the children (no pre-school or day care), gays in the closet, no access to abortion. Occasionally, there will be a nod to the importance of dad’s fidelity, but that gets awkward these days, given GOP allegiance to a male sexual predator.

Democratic policies illustrate a very different approach to valuing families.

For one thing, Democrats emphasize job creation, so that families can adequately care for the children they may–or may not–choose to have. (On that score, the GOP’s performance has been dismal: during the DNC, Bill Clinton noted that, since 1989, America has created about 51 million new jobs. Fifty million were created during Democratic administrations, one million under Republicans. This jaw-dropping statistic turned out to be true, albeit slightly misleading.)

Even if you discount the importance of a robust economy to the health of the American family, a glance at the policies pursued by the parties confirms that Democrats are far more family-friendly. Nicholas Kristof recently made that case. Calling Republican efforts to paint themselves as the “pro-family” party “chutzpah,” Kristof wrote

Children are more likely to be poor, to die young and to drop out of high school in red states than in blue states. The states with the highest divorce rates are mostly Republican, and with some exceptions like Utah, it’s in red states that babies are more likely to be born to unmarried mothers (partly because of lack of access to reliable contraception).

One of President Biden’s greatest achievements was to cut the child poverty rate by almost half, largely with the refundable child tax credit. Then Republicans killed the program, sending child poverty soaring again.

Can anything be more anti-child?

Well, maybe our firearms policy is. Guns are the leading cause of death for American children and teenagers, largely because of Republican intransigence and refusal to pass meaningful gun safety laws.

It’s because of the G.O.P. that the United States is one of only a few countries in the world without guaranteed paid maternity leave. Republicans fought universal health care and resisted the expansion of Medicaid; that’s one reason a child in the United States is three times as likely to die by the age of 5 as a child in, say, Slovenia or Estonia.

Kristof also noted several of the anti-child policies advanced in Project 2025, including ending Head Start–which has been a lifeline for low-income children– and dismantling the Department of Education.

Banning abortion and requiring women to give birth whether or not they can afford to feed and clothe a child is hardly “pro family”– even ignoring the fact that when women with dangerous pregnancies cannot access adequate care, they often die, leaving existing children motherless. And Republican extremism on abortion and birth control has led to obstacles to in vitro fertilization–for some families, the only avenue to producing those children Republicans want women to keep turning out.

Kristof also recognized the importance of the economy in supporting families. If marriage rates are important–and he agrees that they are–the evidence of economic influence is compelling.

Union membership among men raises their marriage rates, for example, apparently because they then earn more money and become more stable and appealing as partners. But Republicans have worked for decades to undermine unions.

And while marriage is important, so is access to divorce. Before easy access to divorce, large numbers of women were trapped in violent marriages that terrorized them and their children. (JD Vance is on record counseling women to remain in such marriages.) As Kristof notes,

One careful study by the economists Betsey Stevenson and Justin Wolfers found that the introduction of no-fault divorce in America was associated with about a 20 percent reduction in female suicides, at least a 25 percent reduction in wife-beating and an apparent decline in husbands murdering wives.

Which raises the question: can an anti-women party be pro family values?

In this policy arena–as in so many others–the fundamental difference between today’s GOP and the Democratic Party really does get back to dramatic differences in values. That’s why calls to “bridge our differences” and “achieve compromise” ring so hollow. If the debate is about the best way to achieve result X–say, feeding hungry children–then we can absolutely come to some sort of mutual agreement. But when one party wants to feed children and the other party doesn’t, compromise isn’t likely. 

Americans aren’t divided over policy; we are divided over values–and not just family values.

 
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Let’s Send A Message

I have occasionally quoted my cousin Mort, a noted cardiologist, on issues involving medical care. He recently shared with me his concerns over the challenge of providing appropriate–or even barely adequate–medical care to women in the wake of the Dobbs decision. In Indiana, this is a huge problem, because–unlike other states– We the People lack any effective electoral mechanism to reverse our GOP-dominated legislature’s assaults on reproductive liberties.

As I was reading my cousin’s email, it occurred to me that while Indiana voters might not be able to mount a referendum, we do have a way to send a message to the pious, self-important legislators who think that occupying a gerrymandered seat in the General Assembly entitles them to overrule people with specialized expertise who actually know what they’re doing.

That message is our vote.

Here’s my proposal: Every pro-choice voter in Indiana should go to the polls and vote Blue “all the way down.” In addition, they should make sure their state senators and representatives know that their vote is tied to reproductive choice–by posting on social networks, writing their legislators, or by carrying a sign or wearing a t-shirt saying “pro-choice voter” when they go to the polls.

As my cousin knows–and Indiana’s Republican legislators evidently don’t– reproductive autonomy isn’t just about being forced to give birth; it is often a matter of life and death.

The U.S. House of Representatives Energy and Commerce Committee’s Ranking Member, Frank Pallone, Jr. (D-NJ), has recently released a 40-page report detailing the findings of a 10-month-long investigation into the impact of the Supreme Court’s Dobbs vs. Jackson ruling on the practice of obstetrics and gynecology. This was the court’s decision on June 24, 2022, that took away a woman’s previously recognized constitutional right to abortion and gave states the right to limit or outlaw abortions.

In September 2023, Pallone launched the investigation to examine how providers and, by extension, their patients, are impacted by the Dobbs decision. In conducting the investigation to determine the effects on medical practice, the Democratic Committee staff interviewed OB–GYN educators and resident physicians. The investigation disclosed alarming effects that included the following:

  • Providers are seeing sicker patients suffering from greater complications due to delayed care caused as a result of the Dobbs decision.
  • The Dobbs decision has harmed the training of OB–GYN residents in restrictive states.
  • Residency applicants are increasingly concerned about the quality of abortion training programs offered in restrictive states.
  • Residency directors are finding restrictions on clinical communication are degrading trust between providers and patients and are robbing patients of the ability to make informed decisions about their health.
  • The training of OB–GYN residents in abortion-protective states has been harmed as programs in those states strain their capacity and resources to help train out-of-state residents from restrictive states.
  • Restrictive state laws are already leading us to a future with a provider workforce less prepared to provide comprehensive reproductive health care.
  • OB–GYN residents and program directors are increasingly frustrated, discouraged, and experiencing negative mental health effects in the aftermath of the Dobbs decision.
  • Residency program leaders who participated in the report universally agreed that abortion care is integral to other components of reproductive health care and should not be eliminated or isolated from residency training.
  • After Dobbs, OB–GYN residency applicants more strongly preferred programs in states that permit abortion access.
  • A patchwork of state restrictions is leading to disparate systems of reproductive health care, worsening reproductive and maternal health care shortages, and fracturing the OB–GYN workforce.

As my cousin concluded (I could almost see the smoke coming out of his ears!), Dobbs was yet another example of the naivete and hubris of a politicized Supreme Court. The Court flouted scientific evidence, overruling knowledgeable and skilled medical practitioners in a field in which they were totally unqualified.

I will readily admit that my recommendation–vote Blue to send a message–might require a few Hoosiers to be single-issue voters this November. Those of us who have already surveyed the caliber of candidates being offered by Indiana’s GOP and the issues they are peddling will have no problem voting Blue from top to bottom, but pro-choice Republicans may find it more difficult (although really, Republicans–have you looked at your statewide ticket? Those MAGA theocrats sure don’t resemble the Republicans I used to know…)

Trump keeps saying that abortion/reproductive liberty is no longer a “big deal” electorally. He’s so wrong.

Even one election cycle that turned Indiana Blue–or even purple–would send a much-needed message to our legislative overlords. And we might even elect competent and thoughtful public servants for a change!

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The Utilitarian Argument For Religion

When my husband and I first married, we had spirited arguments about religion. (Bad pun intended.) Neither of us was religious, but my husband held particularly negative views of organized religion; I countered by equating religion with philosophy, and arguing that humans needed to have considered beliefs about the meanings of their lives, which either philosophy or religious doctrine could supply.

Over the years, I’ve come to agree with my husband.

Dismissing all religion is, of course, is manifestly unfair. I have several friends among the clergy, and friends and family who are religious in the sense that I once saw religious belief: as a guide to help wrestle with the moral issues that confront all thinking humans. They see the bible not as some inerrant word of God, but as a repository of tales intended to illuminate those moral quandaries and suggest moral/ethical solutions.

My friends are clearly not representative of what we might call public religiosity. 

I recently came across a report that illustrates–unfortunately–the sort of religion that increasingly motivates political theocrats like Indiana’s Beckwith and Banks.

A prominent and prolific theologian in the Church of the Nazarene will face a church trial later this month for advocating for LGBTQ affirmation at a time when the denomination is doubling down on its opposition to same-sex relations.

The Rev. Thomas Jay Oord, an ordained elder and a lifelong member of the denomination, is accused of teaching doctrines contrary to the Church of the Nazarene. He is also being charged with conduct unbecoming of a minister for his efforts to move the denomination to affirm LGBTQ people. The church holds that “the practice of same-sex sexual intimacy is contrary to God’s will.”

I find it fascinating that people who assert belief in the existence of an omnipotent and all-knowing deity have the hubris to believe that they are perfectly able to ascertain the will of that unknowable deity, and are confident that their God–who presumably created the people they hate– shares their prejudices.

This news item is only one of hundreds of similar examples, which brings me to the ongoing arguments about the utility of religion in society. Persuasion recently recapped those arguments, beginning with the position of those who assert that secularism is the source of our social ills. 

A growing cadre of intellectuals think the decline of religious belief has created a moral and spiritual vacuum, which has been filled with surrogate religions like wokeness and political extremism. They believe there’s a crisis of meaning in Western societies as people scramble to fill the “God-shaped holes” in their lives with other objects of worship. They argue that a renewed commitment to the Judeo-Christian tradition is the only way to restore a sense of social solidarity and shared purpose—and perhaps even save the West.

As the essay notes, these “new Theists” present a remarkably one-sided view of the history of religion, and especially Christianity. In contrast, it points to a straight line from Enlightenment humanism to the liberal rights and freedoms that the New Theists erroneously attribute to the influence of Christianity.

Enlightenment thinkers like Voltaire challenged the authority of scripture, religious dogmatism, and the power of the Catholic Church. Baruch Spinoza rejected the idea of God as a transcendent supreme being, resisted supernatural beliefs, and made the case for religious pluralism and tolerance. In his Tractatus Theologico-Politicus, Spinoza said the state should hold sway over religion and argued for a rational interpretation of scripture. David Hume relentlessly challenged the moral and metaphysical claims of religion. While there were gradations of belief and unbelief among Enlightenment thinkers, a core aspect of Enlightenment thought was criticism of religion. And no wonder: the Enlightenment was in large part a response to centuries of religious oppression, dogma, and violence in Europe.

The essay is well worth reading in its entirety, but its basic thrust is that a Judeo-Christian “revival” would be highly unlikely to bring cohesion– “even Christians can’t agree on what it means to live in ‘one nation under God.'”

True, freedom and pluralism can be destabilizing. But as the essay notes, the proposed religious “solutions” are worse than the problem. Reversion to a phoney and contrived “Judeo-Christian tradition” wouldn’t be a step toward “some lost renaissance of cultural cohesion. It would be a return to familiar forms of tribalism, prejudice, and dogma.”

The pastors and politicians seeking to impose religious conformity are pursuing a fool’s errand–using religion (their own, of course) as a tool to achieve social consensus. (As the opening example illustrates, even theologians within the same denomination differ about “God’s will.”) 

At best, they are misreading history; at worst, they’re really advocating Christian Nationalism.  

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