A Citizen's Guide to Indiana

Masson's Blog

HB 1123: Abortion Coverage in Insurance Policies

by 13 Comments

The Senate will take up HB 1123 on second reading. It prohibits a health insurance policy from covering abortion services provided by a medical provider except that it can provide such coverage if the pregnancy is the result of rape or incest or if an abortion is necessary “to avert the pregnant woman’s death or a substantial an irreversible impairment of a major bodily function of the pregnant woman.” However such coverage may be provided through an endorsement or rider.

This is pretty clearly an effort to make it more difficult to get an abortion. (I have keen insights, I know.) If we pretend there is another motivation for this bill, what’s the rationale? “Abortion is murder, but it’s o.k. if you finance it with a separate contract.”

The “major bodily function” language is, I think, telling. What if there is the risk of irreversible impairment to the woman as a person but not, necessarily, to her as a biological machine? Too bad, I guess. Mental impairments are too easy to fake and, in our heart of hearts, we don’t believe they’re “real” diseases.

Liberty versus Utility

by 6 Comments

I have, at times, described my political instincts as a mix of libertarianism and utilitarianism. My libertarian bona fides are in serious question these days, but lets run with it for the moment. Jay Ackroyd at Eschaton has a post today that puts those two ways of approaching policy in serious tension.

Piketty says that wealth distributions skewed to the top decile reduces economic growth, and now the IMF reports the same is true of skewed income distributions.

Good news! Giving free money to poor people is good for the economy! Legislation establishing confiscatory estate taxes and setting up a government jobs program fixing infrastructure must be in the works!

I was sort of glib with my title. I don’t suppose “liberty” would be the particular focus, but more of a natural right to property. But, I guess Libertarians do the same to some extent. Their concern is perhaps generally with “liberty” but they spend most of their time on property rights with liberty rights being in more of a soft focus.

But, for argument’s sake, what if the premise is correct: that confiscating property from dead people and giving it to poor people was very beneficial to the economy? But, let’s also say there is a natural right of dead people to give property to their children.

What’s a policymaker to do in that situation? Honor the property rights of the recently deceased or promote the utility of the living?

I expect you probably go with the mixed bag we’ve had in the past. The government takes some and leaves some alone. And we haggle endlessly over the proper balance.

7th Circuit: No Preliminary Injunction for Notre Dame on Contraception Challenge

by 1 Comment

I’m not sure I’ll get to a full review of the 7th Circuit’s decision in Notre Dame v. Sebelius (pdf), but the first few pages were good reading.

The ACA gives Notre Dame a route for opting out of providing contraception or paying for contraception for its students and employees. If it fills out a form saying:

“I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to
be covered; the organization is organized and operates as a
nonprofit entity; and the organization holds itself out as a
religious organization.”

then it gets an exemption. The oral argument I heard seemed to have Notre Dame’s counsel indicating that filling out the form violated its religious beliefs. However, the real objection seems to be that its students and employees would still have access to birth control. In the case of students, the insurer, Aetna would provide it; and in the case of employees, its third party administrator, Meritain would provide it. The federal government would reimburse Meritain up to 110% of its costs. As for Aetna, per the court:

Aetna can expect to recoup its costs of contraceptive coverage from savings on pregnancy medical care, since there will be fewer pregnancies if contraception is more broadly available, at no cost, to Notre Dame’s female employees and students, as well as from other regulatory offsets.

Neither Aetna nor Meritain have religious objections to contraception.

Judges Posner and Hamilton did not see a preliminary injunction being justified as they don’t appear to believe that filling out the form described above constitutes a religious burden and (I suppose – I haven’t finished reading the case) the subsequent imposition of a burden on Aetna and Meritain isn’t Notre Dame’s to complain about.

Filed Under: Law

7th Circuit: Boys Basketball Hair Length Rule Violates Equal Protection

by 6 Comments

Yesterday, the 7th Circuit issued an opinion in the case of Hayden v. Greensburg Community School (pdf) concerning a complaint over a hair length rule imposed by a boys basketball coach at Greensburg Junior High.

It’s tough to draw a lot of long term conclusions from this case since it was in a sort of odd procedural posture where the parties had stipulated to facts and asked the court to enter judgment one way or another based on those stipulated facts. The record didn’t have a lot of information about what, if any, burdens were imposed on the girls basketball team. If there had been a showing that the burdens imposed on girls were comparable, even if different, the decision apparently might have been different.

But, Judges Rovner and Easterbrook reversed the District Court judge and found that the facts did support an equal protection claim based on the fact that boys were required to cut their hair short and girls had no apparent hair length rule:

This is a case of disparate treatment rather than disparate impact; the hair-length policy, being applicable only to boys teams, draws an explicit gender line. The intent to treat boys differently from girls is therefore evident from the one-sided nature of the policy.
. . .
The hair-length policy applies only to male athletes, and there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. Why, then, must only members of the boys
team wear their hair short?

Update Bob Cook, writing at Forbes, has an article with a lot more detail about the background of this case.

Filed Under: Law

Make Believe Martyrdom is the Easy Way Out

by 35 Comments

I think I’ve told the story about how, in a college literature class, I raged against a line in “The Catcher in the Rye” that said:

The mark of the immature man is that he wants to die nobly for a cause, while the mark of the mature man is that he wants to live humbly for one.

I see a lot of fantasy persecution on the Internet – second amendment discussions where writers imagine their embrace of firearms is vital to resisting an increasingly tyrannical government. Legal discussions where writers imagine that jury nullification is a vital tool for resisting the abuses of corrupt judges, prosecutors, and law enforcement officers. Discussions of societal trends where Christians and men’s groups imagine they are the real persecuted victims.

In every case, it seemed to me, the real problem was that the world was not emotionally satisfying to the writer and working within the system would be hard, incomplete, and still emotionally unsatisfying. The reality is that, given a broad enough perspective, we are all more or less interchangeable cogs in a vast universe that will grind along just fine with or without us. That’s a tough situation for an individual ego.

The temptation is to become the hero in one’s own personal narrative. And, being Alexander, cutting the Gordian knot with your sword gives you a better shot of dopamine than being part of a committee tasked with unraveling the damn thing.

But, at some point, most of us have to grow up and do what we can to help the system grind along in a more or less satisfactory manner. It’s not glorious. But it’s a citizen’s duty.

House Agriculture Committee: Industrial Hemp & Chickens

by 1 Comment

Today, the House Agriculture Committee will consider SB 357 concerning industrial hemp. It authorizes the state seed commissioner (I didn’t know we had one of those!) to authorize the cultivation and production of industrial hemp. Among other things, industrial hemp is defined as the plant of the Cannabis sativa seed that contains only a limited amount of THC. It makes the state seed commissioner’s authority subject to federal approval. It prohibits the unlicensed cultivation of hemp. The applicant for a production license has to, among other things, certify that they haven’t been convicted of a drug related misdemeanor or felony in the past 10 years. They have to agree to a background check and inspections by the state police.

The committee will also consider SB 179 concerning regulation of poultry and egg producers. Basically, it allows small vendors to operate with fewer regulations. The digest provides:

Allows poultry farms to slaughter and process up to a certain number of poultry annually without inspection under federal regulations. Provides that a local unit of government may not by ordinance or resolution require licensure, certification, or inspection for food or food products of an individual vendor, farmer, or bona fide egg producer who meets certain requirements. Provides that a farmer or bona fide egg producer with an annual egg production from a flock of 3,000 hens or fewer: (1) is not required to have a farmers market retail permit to sell eggs at a farmers market; and (2) may sell eggs: (1) to a restaurant or grocery store; or (2) at a farmer’s market or roadside stand in Indiana if the eggs meet U.S. Consumer Grade B standards.

SB 367: Go Ahead and Discriminate on the Basis of Religion. It’s Fine.

by 15 Comments

An amendment slipped into SB 367 by Rep. Eric Turner on a 9-8 vote would sanction discrimination by contractors with state and local government against employees based on religion.

The amendment alters IC 22-9-1-10 which requires every contract by state or local government to contain a provision that prohibits the contractor, as an employer, from discriminating against an employee based on race, religion, color, sex, disability, national origin, or ancestry.

The amendment adds a subsection that says the contract doesn’t have to prohibit religious discrimination if the contractor is a school, educational, or charitable religious institution owned or conducted by or affiliated with a church or religious institution.

Honest to Goodness, Indiana!

Update: Speaker Bosma apparently doesn’t think this is a good idea and, according to Tony Cook, writing for the Indy Star, will have the bill recommitted to have the amendment stripped out. Still, this doesn’t seem like the sort of language that ought to require a lot of legislative procedural contortions to defeat.

Behind the Scenes on HJR 3

by 17 Comments

Long article by Tony Cook and Bob Berggoetz of the Indianapolis Star on some of the behind the scenes action in the Indiana Senate on HJR 3, the resolution to ban marriage equality in the Indiana Constitution.

The short version seems to be that Indiana’s social conservative activist groups feel like they were promised that the proposed constitutional amendment would pass through the General Assembly in a form that would put it on the 2014 ballot. When the second sentence was stripped out in the House, they were unhappy and became moreso when they felt like Senate leadership did not accommodate their desires to have the second sentence re-inserted in the Senate. The most prominent of these activist groups are Curt Smith of the Indiana Family Institute, Micah Clark of the “American Family Association,” and Eric Miller of “Advance America.” (Indiana families, American families, and advancement! Who could be against those, right?!?)

When Sen. Long assigned the resolution to the Rules Committee instead of the Judiciary Committee, the suspicion of these people was because Judiciary could have re-inserted the amendment while Rules is pretty firmly under the control of Sen. Long who didn’t want the second sentence in. The article reports rumors that socially conservative Senators, such as Mike Delph, were conspiring – as a way to voice their disapproval of the weakened amendment – to align with the Democrats to vote down the remaining sentence entirely when the existing version came to the Senate floor.

Whatever machinations took place, the fact is that an amendment to restore the second sentence was never even called to the floor for debate and, I believe, Sen. Delph was the only socially conservative Senator to vote against the remaining amendment.

In fact, the whole process made the social conservatives look rather toothless. Unlike the anti-HJR 3 Freedom, Indiana group, the Smith, Clark, Miller conglomerate seemed unable to engineer supporting resolutions by cities, towns, and other Indiana institutions the way Freedom, Indiana did. The testimony offered by pro-HJR 3 groups was generally in the form of out-of-state shills who offered up a plates of red herring and platitudes about “saving marriage” without connecting the dots about how same sex marriages would endanger existing heterosexual marriages and without seeming to acknowledge that Indiana’s statutory law already prohibits same sex marriages. Meanwhile, Freedom Indiana and its allies offered up real Hoosiers with lives that are harmed by the current law and would be further harmed by the amendment. And, despite the fears of moderate Republicans, primary challenges did not materialize for those having second thoughts about the wisdom of HJR 3.

It’s difficult to say whether this relatively anemic lobbying and public relations activity on the part of HJR 3 supporters was simply a reflection of anemic support for HJR 3 among the broader community or, rather, a reflection of complacency in their relationships with state lawmakers. But, at the moment, there appears to be a fractured relationship between social conservatives and more mainstream Republicans. And, for now anyway, Sen. Delph appears to be on the outside looking in.

SB 229 – Firearm Buyback Programs Prohibited

by 49 Comments

SB 229 being heard in committee today would prohibit the destruction of firearms by a law enforcement agency unless the serial number has been obliterated. It also creates a procedure for an individual determined by a court to be dangerous under IC 35-47-14-6 and whose firearm was ordered retained by a law enforcement agency to have the firearm sold and the proceeds returned to the individual less costs that may not exceed 8% of the sale.

It also prohibits local government, including law enforcement agencies, from conducting firearm buyback programs. It defines “firearm buyback program” as a program to buy firearms from individuals for the purpose of reducing the number of firearms owned by civilians or for permitting civilians to sell firearms to the government without fear of prosecution.

So, if a duly elected Sheriff decides that a buyback program to reduce the number of firearms on the street is the right thing for his community and if a duly elected County Council determines that such a program is the right thing for its community and appropriates money for that purpose, the General Assembly, in its infinite wisdom, would be saying that they are not permitted to do so.

Natural Rights and the State Senator

by 68 Comments

Following the decision by the Indiana Senate to allow HJR 3 concerning marriage inequality to pass second reading without reinserting the second sentence, Sen. Delph caused a stir by taking to Twitter with some out of the box thinking.

The one in particular that prompts this post is:

Now, a lot of respondents took the low hanging fruit and expressed astonishment at the notion that the right to clean water is a modern perversion. I get that, but I also get what I take to be Sen. Delph’s intent here. There is a distinction to be made between “rights” and “things we want.” The majority can’t vote to take away the former but the majority can decide to go a different way on the latter. He has also long taken the position that the judiciary has gone too far in anointing itself the body to decide what rights are and are not. In particular, he does not much like the bedrock judicial case of Marbury v. Madison.

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.

As a historical matter, I have some sympathy for Sen. Delph’s position. Marbury v. Madison was a deft power grab by Chief Justice Marshall. However, if Chief Justice Marshall’s view of things was not the view of the Framers of the Constitution, he got it right and they got it wrong inasmuch as having the judiciary check the legislature in this fashion has contributed greatly to the stability of our form of government.

On the subject of rights, Sen. Delph is out of the mainstream in his view of who gets to discern and articulate those rights and also in his crabbed view of what rights citizens do and don’t have.

I’m out of the mainstream in that I don’t really buy the way the Framers (and Locke) marketed the idea of rights — that they are self-evident, God given, and inalienable. I don’t think rights are any of those things, and I’ve said so in the past. (See, e.g., here):

Americans, by and large, get very uncomfortable with the idea that property is a blessing of government. We like to pretend that government is a necessary evil (sometimes not even that) and don’t like to recognize that government is a fundamental underpinning for our whole way of life. When it comes to property, you’ll get some happy talk about natural rights or being endowed by our Creator with certain inalienable rights. But such talk is entirely inadequate for explaining why it is that the Native Americans don’t dominate the real estate market. The reason is that we alienated the hell out of their right to property and nature’s law didn’t lift a finger to stop us.

In short, I take the position that rights are a product of the law. Sen. Delph seems to embrace the more mainstream view that rights exist outside of and prior to the law. However, his view also permits the notion that rights are not a function of human consensus about right and wrong and, therefore, entails the ability to ignore those purported “rights.”

In my view, a right is something named and enforced as such by the machinery of the law. I would be interested in knowing whether there is a methodology of discerning a “natural right” and distinguishing it from a desire or policy preference. How does the desire for clean water become a right to clean water? How does the desire for property protection by the government become the right to property protection?