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Attorneys challenging the state’s abortion ban on religious freedom grounds asked the trial court on Monday to dispel confusion in that case by explicitly stating a preliminary injunction extends to all members of the class-action suit.
Meanwhile, state lawmakers could halt the injunction — and the underlying case — with a simple legislative edit.
The move comes after the Indiana Supreme Court tossed out a wide-ranging preliminary injunction late last month when it largely upheld the state’s abortion ban on constitutional liberty grounds.
That left a narrower injunction in place in a second lawsuit using the state’s controversial Religious Freedom Restoration Act to argue that the abortion ban infringes on the religious beliefs of plaintiffs of multiple faiths. The American Civil Liberties Union of Indiana sued in September.
Ken Falk, the organization’s legal director, said he’d hoped the initial, broader lawsuit would succeed and “obviate the need” for a narrower RFRA-based suit. But, he said, the organization was using the “tools at our disposal.”
Clarifications sought
The narrow injunction grants a temporary religious exemption from the state’s abortion ban. But it’s been mired in confusion about who it protects.
That’s because the case initially involved only a handful of plaintiffs, and a judge granted the injunction before the case was certified as a class-action suit.
The ACLU filed Monday asking the Marion Superior Court to clarify that the preliminary injunction, in its view, applies to the full class of plaintiffs. The organization also asked the court to clarify that the injunction protects entities, such as a hospital, performing abortions for class members.
In the filing, the ACLU maintained it was “clear” that the injunction already does both of those things and that “there should be no confusion.” But it wrote that “plaintiffs believe that it would be appropriate for this Court to clarify its injunction to make this explicit to avoid erroneous denials of otherwise permitted abortions.”
Falk said the concept of religious exemptions is “familiar,” citing those for vaccinations. And it’s enforceable, he argued.
“It’s not uncommon at all for a government entity or a private provider to have some sort of process where someone signs something and swears” they’re telling the truth, Falk said. The ban itself, he remarked, requires providers to verify that patients who say their pregnancies were the result of rape or incest are indeed victims.
“We don’t think it’s any problem, from a statutory or constitutional point of view, to put the onus on the person seeking an abortion, to verify that I do have this sincere religious belief,” Falk added.
The RFRA lawsuit doesn’t challenge the provisions within the ban eradicating abortion clinics, but Falk didn’t rule out further legal action if plaintiffs were unable to access abortions from hospitals.
Making a case
A hearing before the Court of Appeals of Indiana on the preliminary injunction is set for September.
The plaintiffs will have to prove their beliefs are religious — not philosophical — and “sincerely held,” as well as that the law is burdensome, said Rick Garnett, a professor at the University of Notre Dame’s Law School. He specializes in constitutional and religious freedom law.
Then, he said, the burden turns to the state, which must show it has a public interest that a religious exemption would undermine.
“It’s more than just, you know, my religion allows abortions. It’s that there are particular cases in which my religion actually would require me … to have an abortion,” said Elly Cohen, co-founder and co-chair of Hoosier Jews for Choice. “So by banning abortion, what we’re saying in the case is that that’s actually a restriction or limitation on our religious freedom.”
Cohen said that the law upheld a particular — Christian — understanding that personhood begins at conception, while Judaism considers a fetus “potential life, but not an actual person.” The pregnant person’s life, she said, “takes priority.”
The state, meanwhile, has argued that it has a public interest in protecting the lives of fetuses.
The law’s religious foundations may not sway the courts, Garnett said.
“The lower court was sympathetic to the RFRA claim. It said, ‘Well, we don’t know when life begins. That’s a religious question,’” Garnett said. “But the thing is, after Dobbs, the Indiana Legislature is entitled to decide when it thinks its interests in protecting life begin.”
“It’s not a theological question,” he continued. “It’s a legal question.”
Courts are generally less likely to give religious freedom exemptions from criminal statutes, he added.
Unproven approach – and possible preemption
Abortion rights activists elsewhere have defeated bans on the reproductive health care procedure by using liberty or privacy clauses included in their state constitutions.
Because of that precedent, the case is “considerably stronger and more conventional,” said Jody Madeira, a professor at Indiana University’s Maurer School of Law.
“I think the RFRA lawsuit … is more of a novel theory,” Madeira said. “It definitely is viable — again, there was a preliminary injunction on the grounds that (the RFRA) theory was enough to merit a preliminary injunction in that case — but, going forward, it’s more untested.”
Madeira said lawmakers might also choose to amend the state’s RFRA law by adding a carveout for abortion, which other states — including West Virginia — have done to preemptively strike down abortion-related lawsuits. That law says RFRA can’t be used as an argument to defend abortion.
But abortion ban author Sen. Sue Glick, R-LaGrange, noted the RFRA challenge emerged before the last legislative session and no lawmakers authored any language restricting the statute’s application to abortion cases, though they had the opportunity.
“I would expect there might be some legislation offered, but right now is the time when a lot of legislators are looking at what they have on their plate for next year,” Glick said. “So they may very well bring that forward for the next session. I have not heard of it; it’s not something that I plan to sponsor right now.”
The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.
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