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By Marilyn Odendahl

The Indiana Citizen

April 5, 2024

A preliminary injunction blocking the enforcement of Indiana’s near-total abortion ban against women who claim the law violates their religious beliefs has been upheld by the Court of Appeals of Indiana with one judge even asserting that, under the abortion law, the state is favoring one religion over others.

The ruling was issued Thursday in Individual Members of the Medical Licensing Board of Indiana, et al. v. Anonymous Plaintiff 1, et al., 22A-PL-2938. In this second challenge to the state’s 2022 abortion law, the plaintiffs argued Indiana’s new restrictions on terminating pregnancies violated their rights under the state’s Religious Freedom Restoration Act.

“Without a preliminary injunction, Plaintiffs will suffer the loss of their right to exercise their sincere religious beliefs by obtaining an abortion when directed by their religion and prohibited by the Abortion Law,” Judge Leanna Weissmann wrote for the appellate court. “They have also shown their sexual and reproductive lives will continue to be restricted absent the injunction and as a result of the Abortion Law.”

In addition to affirming the preliminary injunction, the Court of Appeals also upheld the class certification. Now, the temporary block on the law applies to all Hoosiers whose religious beliefs would direct them to terminate their pregnancies in situations banned by the abortion law.

However, the Court of Appeals did agree with Indiana that the preliminary injunction was overly broad and could prevent the state from stopping abortions that are outlawed but are not directed by the plaintiffs’ religious beliefs. The appellate court instructed the Marion County Superior Court to more narrowly tailor the preliminary injunction.

Indiana Right to Life president Mike Fichter called the ruling “wrongly decided” and applauded the state’s new abortion law as “reducing Indiana abortions to the lowest level in five decades.”

“We are confident Indiana will prevail against any claims that abortion – the intentional ending of an innocent and helpless human life – is a religious freedom,” Fichter said in a statement.

The American Civil Liberties Union of Indiana, which is representing the plaintiffs in this case, declared the ruling a win.

“For many Hoosiers, the ability to obtain an abortion is necessary based on a sincerely held religious belief,” Ken Falk, ACLU of Indiana legal director, said in a statement. “The burden placed on these individuals by Indiana’s abortion ban is absolute and life-altering. The Religious Freedom Restoration Act is clear that it protects religious freedom for all Hoosiers and the Court of Appeals’ decision today reflects that clear directive.”

The ruling does not end the case but, rather, prohibits the state from enforcing the abortion law against women whose religious beliefs allow them to obtain abortions, while the matter continues to be litigated in the trial court. Now the state has the option of either filing a motion for an en banc hearing, which asks that all of the Indiana Court of Appeals judges hear the case, or appealing to the Indiana Supreme Court, or returning to litigation in the trial court.

Appellate court does not see state’s compelling interest

Indiana’s 2022 abortion law was passed soon after the U.S. Supreme Court overturned a woman’s right to an abortion in Dobbs v. Jackson Women’s Health Organization. The state law prohibits most abortions, except when the woman’s health is at risk, the pregnancy is the result of rape or incest, or the fetus has a lethal anomaly.

Five unidentified women and Hoosier Jews for Choice filed the RFRA challenge to the abortion law. The plaintiffs believe that life begins at first breath after birth – and not at conception – and have sincerely held religious beliefs that would allow them to have an abortion under circumstances, including emotional and mental harm, currently not allowed by state law.

In 2022, the Marion County Superior Court issued the preliminary injunction, finding, in part, that the threatened injury to the plaintiffs outweighed the potential harm to the state.

The decision from the Court of Appeals follows the 2023 landmark ruling in Members of the Medical Licensing Board of Indiana et al. v. Planned Parenthood, et al., 22S-PL-338. There a 4-1 majority of the Indiana Supreme Court upheld the state’s near-total ban on abortion but also found Article 1, Section 1, of the Indiana Constitution protects a woman’s right to an abortion.

As the Court of Appeals noted, the state’s Supreme Court “did not expound on the potential breadth of that right” nor did it address the new abortion law under RFRA. The appellate court asserted that while the Supreme Court found the Indiana General Assembly had been delegated the task of determining when the state’s interest outweighed a woman’s, the legislature had not “fully drawn those interests.”

Consequently, the Court of Appeals was not convinced Indiana has a compelling interest in protecting a potential life from the moment an egg is fertilized. The appellate court noted the legislature has not exempted in vitro fertilization procedures, although a potential life might be destroyed during this procedure. Moreover, the exemptions included in the abortion law permit the pregnancy to be terminated at all stages of gestation.

“Thus the broader religious exemption that Plaintiffs effectively seek has the same foundation as the narrower exceptions already existing in the Abortion Law: all are based on the interests of the mother outweighing the interests of the zygote, embryo, or fetus,” Weissmann wrote. “The religious exemption that Plaintiffs seek, based on their sincere religious beliefs, merely expands the circumstances in which the pregnant woman’s health dictates an abortion.”

Violating constitutional ban on preferring one religion

Before the Court of Appeals, the state had argued that abortion should not qualify as a religious exercise because it was not a mandatory ritual like eating only kosher food.

However, the Court of Appeals pointed to several court rulings where a RFRA violation was found but there was no required religious observance or practice involved. Claims of religious freedom defeated vaccine mandates and the requirement that members of the Sikh faith cut their hair and shave their beards when they enlist in the U.S. military, the appellate panel noted. Also, the court highlighted the U.S. Supreme Court’s ruling in Burwell v. Hobby Lobby, which excused employers who held religious beliefs opposed to birth control from providing workers with health insurance coverage for contraceptives.

“The State has provided little authority – and none that we find persuasive – to support the more restrictive view that religious exercise does not encompass the pregnancy terminations at issue here,” Weismann wrote. “Plaintiffs’ claims, in fact, seem to be the other side of the Burwell coin. If a corporation can engage in a religious exercise by refusing to provide abortifacients – contraceptives that essentially abort a pregnancy after fertilization – it stands to reason that a pregnant person can engage in a religious exercise by pursuing an abortion.

“In both situations, the claimant is required to take or abstain from action that the claimant’s sincere religious beliefs direct,” Weismann continued. “And in both situations, the claimant’s objection to the challenged law or regulation is rooted in the claimant’s sincere religious beliefs.”

Judge Mark Bailey wrote a concurring opinion in which he asserted the abortion law’s provision that life begins at conception violated the Indiana Constitution’s prohibition on the state favoring “any creed, religious society, or mode of worship.”

“Yet, in this post-Dobbs world, our Legislature has done just that – preferred one creed over another,” Bailey wrote.

He pointed to the amicus briefs filed in the case and noted that religious doctrine of various faiths differ on preciously when a human being gains a soul. Yet, he said, even while theologians disagree, Indiana legislators have attempted to define when life begins.

“Legislators, an overwhelming majority of whom have not experienced child birth, nevertheless dictate that virtually all pregnancies in this State must proceed to birth notwithstanding the onerous burden upon women and girls,” Bailey wrote. “They have done so not based upon science or viability but upon a blanket assertion that they are the protectors of ‘life’ from the moment of conception. In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers.”

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.