The Indiana Court of Appeals is weighing a narrow injunction in a lawsuit challenging the state’s near-total abortion ban on the basis of Indiana’s Religious Freedom Restoration Act. Photo by Getty Images.

By Casey Smith
Indiana Capital Chronicle

INDIANA — Does Indiana’s near-total abortion ban violate some Hoosiers’ religious freedom? That question was at the heart of debate Wednesday in the Indiana Court of Appeals, where lawyers for the state maintained it’s incumbent on the government to protect “unborn children,” starting at the point an egg is fertilized.

The latest arguments over the new abortion restrictions stem from a class action lawsuit filed by the American Civil Liberties Union of Indiana in September 2022 on behalf of Hoosier Jews for Choice, as well as a group of anonymous women who represent a variety of faiths.

The lawsuit argues that the new abortion law infringes on their religious beliefs and therefore violates Indiana’s Religious Freedom Restoration Act.

State overreach vs. obligation

For a RFRA challenge to be successful, the plaintiffs must prove their beliefs are religious — not philosophical — and “sincerely held,” as well as that the law is burdensome. The burden then turns to the state, which must show it has a public interest that a religious exemption would undermine.

Ken Falk, ACLU of Indiana’s legal director, argued in court that the plaintiffs have been “pressured” to change their sexual behavior in order to not get pregnant. He said they fear they will not be able to get an abortion — even though their religious beliefs “tell (them) to obtain an abortion,” if it’s in the best interest of the woman’s physical and mental health.

He additionally noted lawmakers included some exceptions to the abortion ban — like those for rape, incest and in-vitro fertilization — and held that carveouts for religious beliefs are necessary, as well.

“For Indiana to say, yes, we recognize secular exemptions, we recognize rape, incest, embryos destroyed in in vitro — we recognize all those secular exceptions, but we’re not going to recognize the religious exception, then what do we have RFRA for?” Falk continued. “We have RFRA to remind government that they have to honor religion, except in the most extreme circumstances.”

Judges question exceptions

James Barta, solicitor general at the Indiana Attorney General’s Office, disagreed. He told the justices that protections for unborn children “have nothing to do with any particular religious significance.”

He said exceptions for in vitro, for example, show “there are sometimes other interests that may affect how the state regulates the procedure.”

But the justices pushed back.

“But you are, in incest and rape situations, taking the life, in your argument, of an unborn child. Why did the state put those in the statute?” asked Judge Leanna Weissmann. Judge Mark Bailey additionally asked why religious exemptions weren’t similarly “compelling.”

He maintained the state indeed has an obligation to protect an unborn child “at all stages of development.” He said Hoosier’s religious beliefs are “important,” but that the state may substantially burden those beliefs to achieve a “compelling interest,” like “protecting life.”

Barta cited two Indiana Supreme Court rulings. In Cheaney v. Indiana — a case that dates back to 1972 — there is “a valid interest to project potential life from the moment of conception,” Barta said. He also directed the justices to the state supreme court’s recent Planned Parenthood et al. decision. Barta said that ruling “recognized that the legislature is entitled to make the judgment that personhood begins at conception.”

What happens next?

It’s now up to the Court of Appeals to decide whether a narrow injunction that was previously issued in the case has legal standing.

A Marion County judge ruled last year the ban likely violates RFRA. Judge Heather Welch’s narrow injunction grants a temporary religious exemption from the state’s abortion ban. Even so, it’s been mired in confusion about who it protects.

That’s because the case initially involved only a handful of plaintiffs, and Welch granted the injunction to those plaintiffs before the case was certified as a class-action suit earlier this summer.

The state tried to appeal the injunction directly to the Indiana Supreme Court, which denied the direct appeal.

Instead, the case is now going through the normal appeals process, which included Wednesday’s hearing before a three-judge panel of the Court of Appeals.

Following the panel’s ruling, the case is likely to be appealed to the state Supreme Court — a lengthy process that could take months before a final decision is made in the lawsuit.

Since the law’s passage, the Indiana Supreme Court ruled in a separate lawsuit that the ban does not violate the state constitution, overturning a preliminary injunction and putting the restrictions into effect. The state’s highest court later denied a request for a rehearing.

The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. One part of the law says these exceptions are up to 20 weeks but another part says they can be used anytime. Rape survivors can get an abortion up to 10 weeks post-fertilization.

It also strips abortion clinics of their state medical licenses, and provides that only hospitals and hospital-owned ambulatory surgical centers can provide abortions.

But medical providers across the state have already stopped providing abortion care services altogether. Patients are instead being referred to clinics outside the state.

In November, the ACLU filed an amended complaint challenging the law on behalf of abortion providers. A bench trial in the case is scheduled for May 2024.