By Marilyn Odendahl

The Indiana Citizen

July 27, 2023

The Court of Appeals of Indiana has delayed oral arguments in the religious freedom challenge to the state’s near-total abortion ban until December, allowing a narrow group of Hoosier women to have continued access to the procedure even as the state’s prohibition is scheduled to take effect Tuesday.

In an order filed Wednesday by Court of Appeals Chief Judge Robert Altice, Jr., the arguments in Indiana Members of the Medical Licensing Board of Indiana, et al. v. Anonymous Plaintiff 1, et al., 22A-PL-2938, have been postponed from Sept. 12 to 10 a.m. Dec. 6. Each side will have 30 minutes to present their arguments to the appellate panel of Judges Melissa May, Leanna Weissmann and Mark Bailey.

Also, the arguments are being moved to the courtroom of the Indiana Supreme Court which is bigger than the courtroom in which the Court of Appeals presides.

Another lawsuit challenged the constitutionality of the state’s new abortion law, arguing the prohibitions violated a woman’s right to liberty under Article 1, Section 1 of the Indiana Constitution. A split Indiana Supreme Court in June upheld the constraints in Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al., 22S-PL-338.

With the Supreme Court’s ruling, the new restrictions on abortion could take effect as soon as Aug. 1. However, a block remains in place under the religious freedom lawsuit, although it only covers women who hold religious beliefs that permit abortion.

Indiana’s new abortion law, Senate Enrolled Act 1, was passed by the Indiana General Assembly and signed by Gov. Eric Holcomb less than two months after the U.S. Supreme Court overturned Roe v. Wade in the summer of 2022. The American Civil Liberties Union of Indiana represented two groups of plaintiffs and filed two lawsuits seeking to overturn the new law.

The religious freedom case originates from a class action lawsuit filed by a group of women and Hoosier Jews for Choice who claim S.E.A. 1 violates Indiana’s Religious Freedom Restoration Act. Representing a variety of religious beliefs, including Judaism, Islam, Episcopalianism, Unitarian Universalism and Paganism, the women plaintiffs claim their sincere religious beliefs direct them to obtain an abortion under the circumstances prohibited by S.E.A. 1.

The Marion County Superior Court granted the plaintiffs’ motion for a preliminary injunction in December 2022. In part, the trial court found S.E.A. 1 imposed a substantial burden on the plaintiffs’ exercise of their religious beliefs and, without the injunction, the plaintiffs would suffer irreparable harm.

The state appealed and the appellate court scheduled oral arguments for Sept. 12.

Then in June, Marion Superior granted the plaintiffs’ motion to certify the case as a class action. This expanded the number of plaintiffs to include all individuals in Indiana whose religious beliefs direct them to obtain abortions in the situations prohibited by S.E.A. 1 but who will not be able to terminate a pregnancy because of the new ban.

S.E.A. 1 prevents all abortions except if the mother’s life is at risk, the fetus has a “lethal fetal anomaly,” or the pregnancy is the result of rape or incest.

The state immediately filed a motion for interlocutory appeal to challenge the class certification. With a July 19 order, the Court of Appeals granted the interlocutory appeal for Indiana Members of the Medical Licensing Board of Indiana, et al. v Anonymous Plaintiff 1, et al., 23A-PL-01313.

In that same order, the appellate court consolidated the state’s two appeals into Indiana Members of the Medical Licensing Board of Indiana, et al. v. Anonymous Plaintiff 1, et al., 22A-PL-2938. Also, the order expedited the schedule for the parties to submit their briefs for the class certification issue and combined the two appeals into the single oral argument that will take place at the end of the year.

All three appellate judges concurred on granting a hearing for the class certification appeal. However, Bailey dissented from the other parts of the order.

The RFRA challenge to Indiana’s abortion law has attracted national attention. Organizations that have filed amicus briefs include the Jewish Coalition for Religious Liberty, The Becket Fund for Religious Liberty, Historians of Religion, Reproduction and the Law, and Americans United for Separation of Church and State.

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