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The state has filed its opening brief challenging class certification in the case against Indiana’s near-total abortion ban based on the Religious Freedom Restoration Act.
In the brief filed Sept. 8, the state accuses the Marion Superior Court of “turn(ing) the class action device from an efficient tool for addressing numerous concrete, identifiable claims into a platform for airing abstract, highly general grievances.”
The lawsuit argues the near-total abortion ban — which took effect last month after the Indiana Supreme Court denied rehearing to a separate but related case — violates RFRA because the plaintiffs’ religions would require them to get an abortion in situations not covered by one the law’s exceptions. The plaintiffs say they have changed their birth control and/or sexual practices to avoid getting pregnant as a result of the law, which bans abortions except in limited cases of rape or incest, fatal fetal anomaly, or to protect the life or health of the mother.
Marion Superior Judge Heather Welch granted an injunction against the law, known as Senate Enrolled Act 1, in December, then certified the case as a class-action in June.
Challenging that certification in the Court of Appeals of Indiana, the state first argues that the class “is indefinite and unascertainable.”
“The trial court abused its discretion in certifying a class whose membership is defined only by reference to subjective beliefs and states of mind,” the brief states.
Second, the state is arguing that the nature of RFRA claims prevents adjudication of a common claim of harm or final injunctive relief for the class as a whole. It also claims that class certification requires commonality, which the plaintiffs allegedly don’t have.
“The individualized nature of RFRA claims makes it exceedingly difficult to find common harm and issue generic relief that would address different persons’ personal religious beliefs and circumstances,” the brief states. “Here, class members share no common harm, and no single injunction will provide relief to all members.”
Finally, the state argues that the named plaintiffs are inadequate representatives with atypical claims, and that the class lacks numerosity. Also, it argues that the trial court erred in equating the group of people.
“The court superimposed its standing and ripeness determinations onto the class certification analysis, but sweeping into the class all women who have changed their birth control practices has nothing to do with the need to obtain an abortion,” the brief states.
The state is also appealing the injunction in the RFRA case, but it noted in its brief that because of the Indiana Supreme Court’s decision in Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical licensing Board of Indiana, in their official capacities, et al., 22S-PL-00338 it didn’t need to focus on that issue.
“Indiana has already filed briefs addressing the erroneous preliminary injunction, and the Planned Parenthood decision further supports the State’s arguments in that regard,” the brief states.
Meanwhile, the American Civil Liberties Union of Indiana had asked the Marion Superior Court to clarify whom the preliminary injunction covers, but that request was denied last month.
The question was raised because the original injunction only applied to the plaintiffs in the RFRA case, and the class certification came after that injunction was entered. But Welch determined she no longer had jurisdiction to answer that question because the case was already on appeal.
The case — Individual Members of the Medical Licensing Board of Indiana, et al. v. Anonymous Plaintiff 1, et al., 22A-PL-2938 and 23A-PL-1313, is currently set to be heard by Court of Appeals Judges L. Mark Bailey, Melissa May and Leeanna Weissmann at 10 a.m. Dec. 6 in the Indiana Supreme Court courtroom at the Indiana Statehouse.
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