Non-Christians Win Temporary Pause to Indiana’s Abortion Ban

Indiana can’t enforce its near-total ban on abortions against people whose religions direct them to end pregnancies in certain circumstances, a state appeals court said.

The Indiana Court of Appeal on Thursday said that Hoosier Jews for Choice and several anonymous plaintiffs were likely to succeed on their claim that the state’s abortion law violates their rights under the Indiana’s Religious Freedom Restoration Act.

Like the federal statute bearing the same name, Indiana’s law prohibits the state from substantially burdening a person’s religious exercise, except when necessary to advance a compelling state interest. Even then, the provision must be written narrowly, the court said.

The decision could be persuasive in several similar cases pending elsewhere. Twenty-two other states have their own versions of RFRA.

Religious Exercise

Judge Leanna K. Weissmann rejected the state’s argument that religious exercise doesn’t include pregnancy termination.

Referring to the US Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores Inc., she said that if “a corporation can engage in a religious exercise by refusing to provide” employees with insurance plans that pay for contraceptives, then “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,” Weissmann said.

The state failed to show that it has a compelling interest in protecting potential life beginning at fertilization or that the law was narrowly written to serve that interest, the court also said.

The law’s exceptions permit abortions at various stages, such as when necessary to save a pregnant person’s life, when a fetus is diagnosed with a lethal anomaly, or if the pregnancy resulted from rape or incest, the court said.

Additionally, Indiana lawmakers excluded in vitro fertilization from the abortion law, even though embryos might be destroyed in the process, the court said.

The plaintiffs were entitled to a preliminary injunction, but the trial court’s order was too broad, the court said. It sent the case back to the Marion County Circuit Court for a narrower injunction, but didn’t suggest specific language.

Judge Melissa S. May Joined.

Judge L. Mark Bailey filed a concurring opinion, saying that lawmakers had shown a preference for one religious over another by basing the law on the premise that life begins at conception.

The Indiana Attorney General’s Office represents the state. The ACLU of Indiana and Stevie Jean Pactor of Indianapolis represent the plaintiffs.

The case is Ind. Members of Med. Licensing Bd. of Ind. v. Anonymous, Ind. Ct. App., No. 22A-PL-02938, 4/4/24.