The Likely ‘Model’ For Looming Indiana Abortion Restrictions

With the Indiana General Assembly and Gov. Eric Holcomb on the precipice of historic abortion restrictions in the wake of the U.S. Supreme Court rendering Roe v. Wade moot with its Dobbs ruling, the architect of what happens beyond July 25 will likely be Terre Haute attorney James Bopp Jr.

Asked if he is currently advising General Assembly Republicans and Gov. Holcomb, Bopp told Howey Politics Indiana that he “wasn’t at liberty to say.”

A week before the U.S. Supreme Court Dobbs ruling, the National Right to Life Committee released what is called “model” legislation that Bopp helped develop as special counsel. In early July, the Indiana Right to Life endorsed this model. Bopp said the model offers “the best opportunity to protect the unborn, adding, “It is important that such states not only prohibit illegal abortions, but also employ a robust enforcement regime, so that these laws are sure to be enforced. Our model law does just that.”

Bopp described his call for the only abortion exception would be to save the life of the mother. “I think we are morally obligated to perform abortions to save the life of the mother. So this isn’t a reluctant thing in my mind, it’s a necessary thing,” he said. “All of this fanciful talk that you just described is obviously not true because we had 150 years of history in our country, before 1973, in which abortion was always allowed for the life of the mother.”

He also described the “robust enforcement regime” that he said would be aimed at Democrat Marion County Prosecutor Ryan Mears in a city where most of Indiana’s 7,000 to 8,000 annual abortions are surgically performed. “That is because of radical Democrat prosecutors like the Marion County prosecutor, who has already said he will not enforce any criminal abortion,” Bopp said. “That is a radical seizure of power by a petty tyrant in Indianapolis where he thinks he’s above the law. It’s the legislature’s job to adopt laws, not his.”

Mears called the overturning of Roe v. Wade “profoundly disappointing,” adding he would not “criminalize women and our medical professionals.” He said his “limited resources” would be used to address violent crime.” Monroe County Prosecutor Erika Oliphant, who described herself as “unequivocally pro-choice,” said in a statement that she “cannot legally or ethically proclaim a blanket refusal to prosecute a particular crime because that is, in essence, passing legislation.”

Asked to describe this “enforcement regime,” Bopp explained, “That would involve civil remedies like damage actions by the woman or relatives. It would involve licensing, termination of physician licenses for doing unlawful abortion. It would also involve an understanding that illegal abortion clinics prospering in Marion County are very much like organized crime being dealt with through RICO laws. That’s another remedy that’s available.”

Bopp calls the current Texas law that incentivizes citizens with a cash “bounty” if they succeed in suing anyone who has helped a person get an illegal abortion “way too broad.”

“Yes, damage actions or injunction actions may be broad, but they can only be brought by attorney general, local prosecutors, or people involved, not strangers,” he said. “Like the father of the child, the grandparents of the child, and ultimately for damage actions, the woman herself who had the unlawful abortion,” he said.

Who are these women seeking abortions? A study by researchers at Indiana University and Ibis Reproductive Health, the All-Options Pregnancy Resource Center, Chicago Abortion Fund and Kentucky Health Justice Network was created by surveying 428 “abortion-seeking Hoosiers.” It found: 10% were teenagers; the average age was 26; some 65% were mothers and parents with 52% having one to three children; 53% said they were Christian or Catholic; 43% were White, 35% Black, 11% Latino (according to Census data Indiana is 84% White, 10% Black and 7% Latino); 19% failed to obtain an abortion; and 10% had attempted to end the pregnancy on their own, without clinical supervision.

There is no current polling in Indiana, though a 2019 Ball State survey found Hoosiers evenly split on the issue. A Politico/Morning Consult poll revealed 70% of voters oppose laws that would stop people from crossing state lines to get an abortion; 68% oppose state laws that allow private citizens to sue anyone who provides or assists in the procedure; 63% oppose penalizing abortion providers with fines; 61% oppose measures that would make it illegal to get abortion pills through the mail; while 60% of Republicans oppose state laws that would ban all abortions (i.e. no exceptions for instances of rape, incest or health of the mother).

At this writing, we don’t know where the 110 Republicans stand on the issue. We do know this: Out of 150 General Assembly members, only 39 are female.

As for Gov. Holcomb, he said in late June he had no “red lines” as to what he wouldn’t sign. “I am comfortable saying I want to make progress to protect innocent life and I will continue to be,” he said last Tuesday. Holcomb said his “red lines” did not mean that “anything goes.”

“I would never approach any issue that way,” he explained. “I have not laid out any ultimatums to say, ‘This is what should be in or shouldn’t be in, or can be in or couldn’t be in’ for me.”

The columnist is publisher of Howey Politics Indiana at www.howeypolitics.com. Find Howey on Facebook and Twitter @hwypol.