INDIANAPOLIS – For nearly eight hours on Tuesday, the Indiana House Criminal Courts Committee heard polarizing testimony on SB1, with virtually no one supporting the bill. For activists like David Mervar who often wore pro-life T-shirts and MAGA hats, abortion was, plain and simple, “murder” and OB-GYNs are “baby killers.”

There were a dozen or so physicians who testified in white coats. “I am asking you to let me do my job,” Dr. Caroline Rouse, a physician with Riley Children’s Health’s Maternal Fetal Medicine. “My job is to predict and prevent complications and death as best I can. Not to wait until catastrophe occurs and then act. In cases where pregnancy increases the risk of serious complications and death, discussing abortion is my medical and ethical responsibility.”

“The current wording of impairment of life or physical health is not only too broad, but it also fails to give clear guidance for physicians to determine whether a pre-viability delivery would be allowed,” Dr. Christina Francis, an OB-GYN from Fort Wayne. “This has the danger of either allowing abortions for any reason or making physicians hesitate to intervene in a potentially life-threatening situation.”

Then there was “Norma,” a grandmother who had been raped and kept her baby, who showed up at the podium with a poster of her extended family, prompting State Rep. Timothy Wesco to post a photo on Facebook, saying, “This is Norma. Tragically conceived. Triumphantly alive! And a proud grandmother!”

A number of pro-life activists warned House Republicans not to support SB1, maintaining that a “perfect” abortion restriction bill would have no exceptions. They were reminded of the Liberty Defense candidates who primaried two dozen Republicans and would be back if they didn’t support a total ban. Jacob Stewart told committee Republicans, “I urge you don’t let this opportunity go to waste or abandon those who got you elected.”

Rep. Wesco, R-Elkhart, would post on Facebook, “The only polls that guide my decision are the ones open on Election Day. History has shown time and time again that public opinion polls can be easily skewed and completely wrong. The legislature should protect the life of the child and the life of the mother with no (other) exceptions. Life is too sacred to make exceptions.”

Then came Tuesday night when the polls closed in ruby-red Kansas, and the verdict should be a thunderclap to General Assembly Republicans. By a stunning 59-41% margin, the right to an abortion will remain in the Kansas Constitution. In the first ballot test of abortion rights in post-Roe America, Kansas voters turned out in historic numbers to overwhelmingly reject a constitutional amendment that would have opened the door for state lawmakers to further restrict or ban abortions across the state.

According to the Kansas City Star, the vote stands as “a major win for abortion rights advocates, preserving access in a red state as the procedure is banned or severely restricted in much of the region. It wasn’t just urban counties, like Democratic-leaning Wyandotte County, that turned out to protect abortion rights. Rural counties like  Franklin and Osage also favored vote ‘no’ by significant margins.” (See page 16 for more Kansas analysis).

Turnout is the huge story here. There were 727,360 people who voted in the Kansas Republican and Democratic primaries, while 908,705 people voted in the referendum, a difference of 181,385 voters. Thus, protecting abortion rights is most definitely a galvanizing issue for Democrats after the Supreme Court’s overturn of Roe v. Wade in late June. While 350,699 Kansans turned out in the 2014 Republican mid-term wave election, the 908,360 who turned out demonstrated the abortion issue could emphatically change the mid-term trajectory.

The Bulwark’s  Will Saletan observed, “Even if you assume that everyone who voted in the Democratic gubernatorial primary also voted for the ballot measure, that leaves more than 250,000 “no” votes, roughly half the “no” constituency, that didn’t come from Democrats. And even if every “yes” vote on the ballot measure came from a Republican, that leaves at least 75,000 people who voted in the GOP gubernatorial primary but didn’t support the ballot measure.”

While the Kansas bombshell likely won’t change any of the Indiana General Assembly majorities, all eyes will be on the secretary of state’s race where Democrat Destiny Wells led in a recent poll over Republican Diego Morales, who defeated incumbent Republican Holli Sullivan at the June Indiana Republican convention.

“I feel we’re on this sort of seesaw where one party sort of gets the upper hand on social-cultural issues, then they overplay that hand,” Christine Matthews, a moderate Virginia Republican and longtime strategist for GOP candidates, told the Washington Post. “Republicans have taken things too far.” She warned of fueling Democratic arguments that Republicans “want to take our country back to the 1950s” and said she swore out loud after reading one anti-abortion advocate’s comments that a 10-year-old rape victim, under model legislation, would have to give birth.

Indianapolis Councilwoman Ali Brown observed, “There was no doubt Choice would win in Kansas. If you put choice on a ballot anywhere in this country, it wins. Overwhelmingly, the American people believe that #AbortionIsHealthcare. The only place Choice goes to die is gerrymandered legislatures.”

Going against public opinion

A poll conducted in late July by Indy Politics and ARW Strategies showed that most Hoosiers think abortion should be legal in all or most cases at 54%, while just 40% said it should be illegal in all or most cases. And a Public Policy Poll conducted in Indiana July 14-15 revealed that 71% believe woman should have access to all reproductive health care options, including abortion. This includes 58% of Republicans and 62% of independents.

But the Kansas bombshell and Indiana public polling (Republicans have refused to release their own polling on the issue) are unlikely to change the trajectory of SB1.

Leadership in both chambers need to prove they can pass a bill and multiple sources tell Howey Politics Indiana that they are working toward concurrence.

The problem for Speaker Todd Huston and Senate President Rodric Bray is that their own extensive polling probably shows that nothing in the bill is supported by a majority of Hoosiers. One informed and reliable source tells HPI, “I’m guessing that the poll numbers on the ban look pretty darn close to the Kansas outcome.”

It’s a repeat of the 2013-14 sequence when some Republicans sought via HJR3 and HJR4 to pass a constitutional amendment keeping marriage only between a man and a woman despite a number of polls showing wide support for gay marriage. Those failed when a handful of House Republicans voted against the resolutions.

Why Bray Huston will seek concurrence

Why will Huston and Bray move SB1 forward?

Because public opinion is playing virtually no role in shaping their views. They are, historically, true believers. This is their own personal view shaped by a narrow Right to Life segment of voters.

They believe they can ride it out, thanks to the 2021 reapportioned districts that up until now appeared to be protecting the huge GOP super majorities. The worst case scenario for the majority caucuses would be to lose a handful of suburban districts that might jeopardize the super majorities, but not the majorities.

The November dynamic is whether GOP voters and/or independents reject Republicans who vote for the near total ban. Democrats will need to have money and candidates to exploit this opportunity, and they might not have either.

When the Senate passed SB1 by a 26-20 vote (after only sponsoring State Sen. Sue Glick openly backed the bill), it was several GOP senators who sounded the alarm.

“How this bill is worded … (is) mean and cruel,” Sen. Ron Alting told Dave Bangert of Based in Lafayette. “I have listened to my constituents, particularly women who overwhelmingly oppose this bill. This bill, it’s an attack on all women.”

As the Senate vote took place Saturday afternoon, State Sen. Vaneta Becker, R-Evansville, said the bill went against “everything the Republican Party stands for. This bill doesn’t make anything better; it makes things worse. SB1 removes vital health care from 52% of the state’s population.” She predicted “unintended consequences from ignorance. Are we meeting the medical needs of the people we represent with this legislation? No, we’re just making a mess.”

The 11 Indiana Senate Democrats voted against the bill, joined by nine Republicans. “This is a papa state. This isn’t government,” said Sen. Tim Lanane, D-Anderson. “This is the male-dominated government saying to women, ‘You lose your choice.’”

The bill seemed to be hanging by a thread on Friday after Indiana and U.S. Right to Life groups urged lawmakers to defeat the bill. Indiana RTL CEO Mike Fichter said on Friday, “While we are encouraged by the addition of language giving the attorney general the power to prosecute when illegal abortions occur, SB1 contains a vague life of the mother exception that will be easily exploited to cover most abortions. SB1 lacks any requirement that claims of rape be reported to police, denying women the help they need while allowing perpetrators to escape justice and seek other victims.”

Jim Bopp Jr., general counsel to the National Right to Life, added, “SB1 contains vague language and ill-defined terms which would actually protect abortion instead of protecting unborn children. SB1 also would undermine existing protections for unborn children with disabilities. The pro-life movement calls upon pro-life legislators in the Indiana legislature to reject this travesty of a bill.”

State Sen. Mike Young, R-Indianapolis, who left the Republican caucus last month, said, “I know this will be the toughest position we’ll take in our lives. I’m voting no, not because I agree with the other side. I just don’t agree with this bill. The bill wouldn’t be up here if there weren’t the votes.”

House makes SB1 changes

On Tuesday, Committee Chair Rep. Wendy McNamara, R-Evansville, introduced amendment 25, which changes and clarifies several things. The amendment, which passed by consent, does the following things:

Uses existing code for clarity;

Limits abortions except to protect the life and physical health of the mother, in cases of rape or incest and when the fetus is diagnosed with a lethal fatal anomaly;

Abortions, medical and surgical, can only happen at a hospital or outpatient ambulatory center owned by a hospital;

Maintains existing penalties for a person who performs an unlawful abortion;

Requires the physician’s license to be revoked for specific violations;

Requires terminated pregnancy report to include the reason for abortion and why it was performed, and needs to be compiled quarterly instead of yearly;

Creates an 11-member task force to put together a report and present it to the Indiana General Assembly by Dec. 1, 2022, regarding cases in which a county prosecutor makes blanket refusals to enforce state laws or constitutional provisions.

It did not include a Senate amendment that would allow firebrand Attorney General Todd Rokita to prosecute in counties like Marion where officials said they would not back criminalizing doctors.

Rep. Matt Pierce, D-Bloomington, said he has “a lot of problems” with the bill, but added, “This fixes a lot of problems that were created in the Senate. As you can imagine, there are still a lot of problems that remain.”

Indiana Right to Life lobbyist Jodi Smith told the AP the organization remained opposed to the proposal because it is too lax, saying it was “very vague and poorly defined,” adding, “The concern is that will either open carte blanche of opportunity for abortion-minded doctors, or it could ensure that good doctors that need more clarity don’t know what the allowable procedures are, and they will hesitate. Either option, it ends poorly for women.”

Friday vote expected

After more than 100 Hoosiers testified (far more than the 60 people who testified in the Senate last week), it passed by an 8-5 vote with retiring Republican Rep. Cindy Ziemke joining four Democrats. “I believe that the decision should be between a woman and her doctor,” Ziemke said. SB1 is expected to be further amended today and a final vote is expected Friday.

As with the Senate, despite the fact that Right to Life remains opposed and the public opinion mounted against SB1, HPI’s forecast is that it passes the House and heads toward concurrence, with multiple members saying they voted to keep the process going.

Senate, House divided on refund

The Senate and House chambers seem to be on opposite sides when it comes to proposals for funding social services and providing inflation relief to Hoosiers (Downard, Capital Chronicle). Just one day after a House committee stripped and replaced the Senate’s bill with their own version, Senators voted 10-1 to do the same to the House version Wednesday. “There is no nefarious motive on our part to do anything but to keep the legislation moving forward,” said Sen. Travis Holdman, R-Markle. “We are in the midst of negotiating with the House on these topics.”

Holdman, the author of Senate Bill 2, chaired the committee on Tax and Fiscal Policy, which voted on House Bill 1001. He also brought the amendment to replace the text of the House bill with his own bill. 

Rep. Sharon Negele, the author of HB 1001, seemed optimistic that lawmakers would find a middle ground.

“My guess is we’ll come up with a compromise between paying down some debt but also, hopefully, including the automatic taxpayer refund,” Negele, R-Attica, said. “It’s overwhelming(ly clear) that constituents want the refund.”

Negele stressed the need to direct the proposed $58.5 million funding to specific programs, rather than the Senate’s approach of allowing agencies to decide who gets $45 million in various grants.

“On the Senate side, it wasn’t as targeted, whereas we were really concerned about making sure that the dollars went straight to a program that we knew could expand quickly,” she said. “It’s so critical to us that these dollars go straight into these programs.”