Effort to Hold Indiana Justices Accountable for Abortion Ban Spurs Strong Response by Legal Community

Effort to hold Indiana justices accountable for abortion ban spurs strong response by legal community

By Marilyn Odendahl, The Indiana Citizen

Voters angry over the state’s near-total abortion ban are now directing their ire to the three Indiana Supreme Court justices who are on the November ballot for retention, creating enough of a fracas that attorneys are pushing back and urging Hoosiers to keep the bench intact.

“We’ve kind of come down on the side of holding these judges accountable for some rulings that have really impacted Hoosiers,” Kaitie Rector, director of advocacy for nonpartisan MADVoters Indiana, said.

Rector appreciated the gravity of voting against retaining any or all of the justices. She said there is no right or wrong answer to the retention question, but she emphasized that voters should be educated so they can make the decision for themselves.

Still, ticking off the Indiana Supreme Court’s rulings on the state’s new abortion law and school vouchers, Rector sees the justices as going beyond the courtroom and into people’s bedrooms, doctors’ offices and classrooms.

“These judges came down in a very partisan way,” Rector said of the Supreme Court’s decisions.

A group of lawyers have responded by forming the Committee to Preserve the Indiana Supreme Court to advocate for the three justices to be retained. The committee has stocked a Facebook page with information, commentary and photos supporting the retention and regularly posts updates with such messages as “The future of Indiana’s judicial system is on the ballot this year.”

Although an anti-retention sentiment is always present whenever a justice is on the ballot, John Trimble, Indianapolis attorney and former member of the Indiana Judicial Nominating Commission, said the opposition to retention this year is different. In a newspaper column, he wrote the effort to remove the three justices is organized and seemingly focused on the Indiana Supreme Court’s ruling in Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, et al., 22S-PL-338, which allowed the state’s new restrictions on abortion to take effect in August 2023.

The possibility that Democrat Jennifer McCormick would get to fill any vacancy on the Supreme Court if she wins the governor’s race is fueling the drive for the justices’ ouster. Unveiling her abortion rights plan at a news conference Thursday, McCormick also discussed the importance of looking at the records and decision of the justices.

“We’ve learned from the national level, and the state level as well, that those judges are an important piece of our government and that (is a) separate branch we have to pay attention to,” McCormick said, noting she has been asked about her stance on retaining the Indiana Supreme Court justices. “The judges have been appointed by super conservative governors and so, is it time for new judges? I welcome that.”

Indiana State Bar Association Poll

Indiana voters do not directly elect their Supreme Court justices. Rather, the justices are appointed by the governor from three candidates nominated by the Indiana Judicial Nomination Commission. Periodically, voters get the opportunity through retention to keep or boot the court’s members.

This election, Chief Justice Loretta Rush and Associate Justices Mark Massa and Derek Molter, all appointed by Republican governors, are up for retention. Rush and Massa were appointed by Gov. Mitch Daniels in 2012 and Molter was appointed by Gov. Eric Holcomb in 2022.

Also facing a retention vote are two judges from the Court of Appeals of Indiana. Judge Rudolph Pyle and Judge Peter Foley will be on the November ballot but neither of  them has encountered any opposition to their continued service.

This week, the Indiana State Bar Association released the results of a member survey, which showed attorneys and judges across the state overwhelming support the retention of the three Supreme Court justices and the two appellate court judges. More than 80% of the survey respondents supported retention for all the judicial officers. Rush topped the poll with 88% of the respondents saying she should be retained, while Massa and Molter each received support from 84% of the respondents for retention.

In a letter attached to the survey, ISBA’s president, president-elect, vice president and immediate past president assert the survey’s results underscore that the Indiana legal community has confidence in the justices’ “service, qualifications and dedication to the rule of law.” Moreover the state bar leaders encouraged voters to consider a judge’s entire tenure on the bench, instead of focusing on a single ruling.

“Judges are not elected politicians, and their role is fundamentally different,” the ISBA leaders wrote in their letter. “They do not campaign or make promises in exchange for votes. Instead, they are tasked with interpreting the law impartially. Allowing retention elections to become a referendum on one or two high-profile cases threatens to distort the judicial process and compromise the courts’ ability to function independently.”

Rector said MADVoters is not advocating for or against retention. The goal, she said, is to educate and empower voters to make their own decision about retention. However, as an organization, MADVoters looked at its values and determined that the Indiana Supreme Court’s rulings did not align with those valu

“Ultimately, we’re not in the business of trying to get a specific candidate elected or not elected,” Rector said, “Our biggest focus is going to be on our values and our issues. So, for us, our commitment to equity and accessibility for healthcare, our commitment to equitable education means … we can’t support justices who are ruling against the constitutionality of a person’s right to their own body or the separation of church and state in terms of funding school vouchers.”

‘You Guys Are In On This’

Voters have never voted to remove a sitting justice from the Indiana Supreme Court. But, if a justice would be ousted, the voters would not be able to select the replacement. That duty would fall to the judicial nomination commission which would solicit applications, interview candidates and recommend three people for the vacancy. The governor would then either pick one of the three as the new justice or reject the recommendations and force the selection process to start again.

A Democrat has not appointed a justice to the Supreme Court since 1999 when Gov. Frank O’Bannon elevated Robert Rucker from the Court of Appeals. Rucker retired in 2017 and was replaced by a Holcomb appointee, Justice Christopher Goff.

McCormick did not say whether support of reproductive rights would be a litmus test she would apply to any potential candidates for the Indiana Supreme Court, if she is elected governor. However, she did say many factors come into play when making judicial appointments, and she would select justices and judges who trust women and health-care providers, trust public schools, and celebrate LGBTQ rights.

“I certainly would put folks in those positions, or put their names forth, that were competent and that, obviously, had character, but also, too, would listen to the majority of Hoosiers and be another avenue of a voice for them,” McCormick said.

Logan Strother, associate professor of political science at Purdue University, is an expert in judicial politics and is not surprised by the fight over retention in Indiana. The public prefers the judiciary to be nonpolitical, he said, but largely because of the gridlock in Congress and some rulings by the U.S. Supreme Court, federal and state courts are increasingly seen as making policy rather than just applying the law as written by the legislative branch.

In Indiana, Republicans have long controlled the executive branch, have a supermajority in the General Assembly and have appointed all five of the state’s Supreme Court justices. Consequently, Strother said, people view the justices as crafting laws and setting policy the same way as lawmakers, so when the courts make rulings on high-profile issues like abortion, voters want to hold the judicial officers accountable just like they do the legislators.

“It’s unusual because for so much of American history, judges have sort of gotten a pass,” Strother said. “(The judiciary has said) ‘Oh, we’re just doing the law that the legislature gave us,’ but now the people are like, ‘No, you guys are in on this.’”

Making Sense Of A Complex Ruling

Trimble, the Indianapolis lawyer, wrote his column to not only support the retention of the three justices, but also to clear up what he sees as a lot of confusion surrounding the Indiana Supreme Court’s ruling on the new abortion law.

Rector acknowledged the legislature made the law and the court just reviewed it. MADVoters recognizes the judiciary did not write the abortion restrictions or vote to enact the bill into law, but, she said, Molter wrote – and Rush and Massa signed – the opinion that lifted the injunction and enabled Senate Enrolled Act 1 to take effect.

“It wasn’t that they ruled that Indiana could ban abortion,” Rector said. “They’re ruling on the constitutionality of it, but ultimately, those three judges did vote to uphold the ban.”

Not quite, Trimble noted in his column. While the majority ruled the health-care providers who challenged the state’s new abortion law had standing to bring the case, he wrote, the plaintiffs could not demonstrate that they would likely prevail on the merits. The Supreme Court based its decision on the “procedural posture of the case” and not on the merits of any claim, Trimble wrote.

Ironically, on the question of constitutionality, the Supreme Court found the Indiana Constitution does contain a right to abortion. Trimble said the justices held that Article 1, Section 1, of the state’s constitution does protect a woman’s right to an abortion when her pregnancy poses a serious risk to her health or to her life.

“Boiled down to simplicity, this was a ‘who decides’ case,” Trimble wrote, “and the court found that the Legislature had the right to decide with limited exceptions.”

Rector said Hoosiers are frustrated by the abortion law, in particular, and are shifting their anger to the judiciary because they have not been able to moderate the legislature. Even though 64% of Indiana residents support abortion access, she said, citing to a Ball State University poll, they cannot change the statute because the state does not allow ballot initiatives and gerrymandering has created safe districts for the majority Republicans so those lawmakers do not need to listen to their constituents.

Hoosiers are looking for a way to express their discontent, Rector said, and they are realizing, “I can vote out the justices who voted to uphold the ban.”

This article was published by TheStatehouseFile.com through a partnership with The Indiana Citizen (indianacitizen.org), a nonpartisan, nonprofit platform dedicated to increasing the number of informed, engaged Hoosier citizens.

Marilyn Odendahl has spent her journalism career writing for newspapers and magazines in Indiana and Kentucky. She has focused her reporting on business, the law and poverty issues.