Editorial: As abortion right fades, another right is vital

As the fractured Republican supermajority in the Indiana Statehouse tries to decide how far it will go in stripping Hoosier women of the right to abortion, two factions have emerged.

Let’s call the first the establishment faction. Here, Sen. Susan Glick, R-LaGrange, who has a reputation as one of a handful of consensus-seeking bridge-builders in the GOP caucus, was sent to the front to drive Senate Bill 1. That bill would widely ban abortion except in narrow cases of rape, incest or to save the life of the mother.

Let’s call the second camp the extremist camp. These Republicans believe there should be no abortion whatsoever, even if a woman is raped; even if carrying a pregnancy to term will kill her. If that sounds extreme, that’s because their position is extreme.

So extreme that these members believe anyone who has an abortion or performs one for any reason should face felony criminal charges. So extreme that powerful Sen. Mike Young of Indianapolis resigned from the Republican caucus rather than support Glick’s bill.

Senate President Pro Tem Rodric Bray responded to Young’s resignation by asserting, as an elected public official, a right to privacy that the United States Supreme Court just eviscerated. In a dreadfully ironic statement to Indiana Capital Chronicle, Bray said of the rift with Young, “this is a family matter that should be handled in-house between the two of us and our caucus.” You know, like how the decision to have an abortion used to be handled between a woman, her family and her doctor.

The result of this foreseeable feud within the supermajority means that bad law is likely if anything manages to pass. Under these circumstances, the optimum result is no bill passing. Democrats, with their meager numbers in the legislature, wish for that outcome.

Glick’s bill was under siege from the start because it appeared to at least recognize the reality that sometimes an abortion is a medical necessity. The extremists appear to have the upper hand, however, because by Day 2 of the special session, Glick was making concessions to them. The bill advanced to the full Senate after it was amended to include a criminal charge carrying a potential one to five years in prison for a doctor convicted of performing an illegal abortion. Further amendments are likely.

Doctors — and perhaps patients — could go to prison for a choice which, until last month, had been enshrined as a federal right.

The right to an abortion is fading away in Indiana. The debate is now who to send to prison if someone makes that choice, even if that choice is to save a woman’s life.

At this dark hour, Hoosiers should be reminded of another significant right that some people would rather you not understand. It’s enshrined in the Indiana Constitution, so it’s harder to take away. Article 1, Section 19 says, in its entirety:

“In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”

Mark those words, “the jury shall have the right to determine the law.”

Whatever lawmakers end up deciding, our state Constitution gives us Hoosiers a trump card: the clear right to nullify at trial any criminal prosecution based on a law that a juror, exercising her conscience, determines to be unjust.

There was a reason this right was given to the people in our state’s founding charter: To protect against extremists.