It might be a record this year: five lawsuits filed against newly enacted legislation brought by the American Civil Liberties Union of Indiana.
When I first started covering the legislature in 1999, litigation challenging the constitutionality of a new law was a pretty big deal. In fact, if during the session there was even a hint of a lawsuit, legislators would regroup.
Some of that is on the GOP supermajority, which seems to now consider these lawsuits an expected cost of governing. Yawn.
But, to be fair, even when they work with opposing viewpoints and make significant changes, they still get sued. And frankly, society as a whole has become uber litigious.
There are costs to these suits.
The Attorney General’s Office defends the cases with existing resources, though it occasionally hires outside experts and attorneys to help. And if the state loses, it must pay attorney fees to the ACLU. For years, the state lost case after case on abortion regulations, costing taxpayers millions. But since the overturning of Roe last year, those rulings are going the other way.
There are likely a few issues that will always end in litigation, but others can easily be avoided.
Let’s go through the cases from this year:
- Senate Enrolled Act 480 banned gender-affirming care for minors, even when authorized by parents. This goes much further than surgery — which likely wouldn’t have drawn a challenge — to puberty blockers and hormone replacement therapies. A federal judge issued an injunction protecting the medical care but allowed the surgical ban to go into effect. There honestly wasn’t much middle ground on this debate. Either you believe in parents’ rights to make medical decisions for their children, or you don’t.
- House Enrolled Act 1569 blocked the Indiana Department of Correction from paying for any inmate’s gender reassignment surgery. The lawsuit is on behalf of Autumn Cordellioné, an adult transgender female prisoner confined in the Branchville Correctional Facility, an all-male institution within the DOC, according to the lawsuit. State records indicate Cordellioné is serving a 55-year murder sentence. She has identified as a girl since she was 6, and the ACLU says the surgery is considered lifesaving. I think many Hoosiers would consider this to be an elective procedure, like other plastic surgery, and lawmakers have a duty to oversee state spending.
- House Enrolled Act 1050 allows individuals from Ukraine on humanitarian parole to obtain an ID. or driver’s license. But it doesn’t give the same opportunity to those from other countries, including Haitian refugees who sued. Honestly, this seems to be the most clear-cut of the cases and should have been stopped in the Legislature. Giving favors to one group but not another is an example of unequal privileges.
- House Enrolled Act 1186 creates a 25-foot buffer zone around police that bystanders can’t cross. If they do, they can be arrested even if they aren’t interfering with an investigation. Critics note that law enforcement can use the new law to block recording of police, and therefore accountability. Let’s be clear: if someone is yelling or touching an officer, there are already laws for that and they should be used. This is a brand-new law in which one can be standing quietly simply recording and police can unilaterally move them back. The constitutionality of the law was considered by panels in both the House and Senate and there is legal precedent for some restrictions. But the details are important, and this could be the closest call for judges.
- House Enrolled Act 1608 is known as the pronoun law. It has two sections, the first requiring schools to notify parents if a child changes their name or pronouns. That part of the law — while annoying to parents having to sign off on calling William by the nickname Bill — wasn’t challenged. A second section said teachers can’t teach human sexuality to students from kindergarten through third grade. A federal judge denied an injunction, saying when government employees — like public school teachers — express themselves while on the job, that speech isn’t protected by the First Amendment.
Lawmakers should care more about cases being taken to court, but Hoosiers unhappy with the laws should also stop using the courts as a backdoor to the ballot box.
Niki Kelly is editor-in-chief of indianacapitalchronicle.com, where this commentary previously 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].