To cover government and politics these days you almost need a law degree. That’s because virtually every controversial issue ends up in court.
It wasn’t this way when I first arrived at the Indiana Statehouse in 1999. The House and Senate margins were closer and passing significant legislation required compromise.
But Republicans have had supermajorities in the House and Senate for more than a decade now. And while most of the legislation is still bipartisan, the big bills — the ones that have the biggest impact and scope — are one-sided.
There is little moderation anywhere in the Indiana system right now. And that leads to anger, distrust and, of course, lawsuits.
Consider the cases we are following right now:
Abortion ban – not one, but two, legal challenges filed by the American Civil Liberties Union of Indiana. The legal basis is different in each lawsuit with the Indiana Supreme Court upholding the law in one case and the other under a limited injunction.
Transgender health care ban for minors — An injunction has also been issued in this case, though it’s a partial one, based on Senate Enrolled Act 480 passed in April. It would have banned all gender-affirming care for minors, from surgery to hormone therapy and puberty blockers.
Sports ban for transgender female athletes – This case initially went to court and received an injunction related to one specific student. But that student later moved out of Indiana and the case was dismissed.
Human sexuality law — a lawsuit has been filed challenging House Enrolled Act 1608, which limits when teachers can discuss human sexuality.
That’s not including the numerous election-related lawsuits in recent years challenging laws that impact voting.
Both sides of the aisle
But it’s not just Democrats and the minority fighting back. Republicans are using the courts in their own way.
Attorney General Todd Rokita sued TikTok over both security concerns and availability of inappropriate material to minors.
And the AG’s office defeated an agency rule that allowed transgender Hoosiers to change their gender on their birth certificates and permitted nonbinary designations on state driver’s license.
The Indiana Right to Life Victory Fund sued state officials in 2021, alleging that restrictions on corporate campaign contributions violates the First Amendment. The case is now on hold after the 7th Circuit Court of Appeals punted a key question to the Indiana Supreme Court.
Politics intrude on criminal cases unrelated to specific policies, including the arrest and subsequent guilty plea from Rep. Jim Lucas, R-Seymour, for misdemeanor charges of drunk driving and leaving the scene of an accident. A Fort Wayne man was also recently charged with a felony for harassing a congressman.
A medical licensing issue involving an abortion provider that attracted national media attention could still end up in court. And a state senator asked a judge to seal his records in an ongoing medical malpractice case, citing attention from public media and attacks on his reputation.
Litigious society
The penchant to file suit is everywhere in society, not just in state affairs. But each suit costs taxpayers either in fees to defend it or push it through. Mediation is hopeless in most of these situations.
For years, the ACLU of Indiana challenged clearly unconstitutional abortion restrictions, winning over and over and over again. Now that Dobbs overturned Roe v. Wade, those rulings are heading the other way in favor of the state.
Legislators never talk about the cost of these cases — though they openly acknowledge the legal challenges they invite — and don’t seem to care despite their fiscal conservative nature.
Now laws impacting transgender Hoosiers have been added to the mix.
One way to avoid these highly-divisive issues is to let the people decide directly. Indiana doesn’t generally use ballot questions to determine policy but Indiana Supreme Court Justice Christopher Goff encouraged Indiana lawmakers to do just that in a concurring opinion on abortion.
“In my view, there is a reasonable likelihood that (Indiana’s Constitution)’s guarantee of ‘liberty’ includes a qualified right to bodily autonomy, one which the General Assembly must accord some weight in the legislative balance,” he wrote. “More importantly, I believe that the abortion question is fundamentally a matter of constitutional dimension that should be decided directly by the sovereign people of Indiana.”
It would certainly cost taxpayers less than these lengthy court battles.
Niki Kelly is editor-in-chief of indianacapitalchronicle.com, where this commentary first appeared. She has covered Indiana politics and the Indiana Statehouse since 1999 for publications including the Fort Wayne Journal Gazette. Send comments to [email protected].
