The
Indiana Court of Appeals issued a bold and unanimous
rulingThursday blocking the state’s near-total abortion ban as a violation of a
religious freedom law long championed by conservatives.
ACLU of Indiana sued to challenge the ban on behalf of five anonymous Jewish, Muslim, and spiritual plaintiffs and the group Hoosier Jews for Choice. The plaintiffs argued that their religious beliefs not only support — but in some situations, even mandate — abortions that would be illegal under Indiana’s ban. The conflict between the Indiana abortion ban and the plaintiffs’ individual religious beliefs meant the ban violated the state’s
Religious Freedom Restoration Act (RFRA), they said in their complaint.
Indiana’s RFRA was a controversial piece of legislation signed into law in April 2016 by then-Governor
Mike Pence, a Republican.
In recent years, various state and national rulings have
expanded the scope of “religious liberty” to include
allowing a Christian web designer to refuse service to LGBTQ+ clients and an
evangelical Christian postal worker to refuse Sunday work shifts.
An Indiana state trial court blocked enforcement of the abortion law via preliminary injunction [OP] in December 2022, and Indiana appealed.
Moreover, Weissmann also drew upon the Supreme Court’s logic from its 2014 ruling in
Burwell v. Hobby Lobby: “If a corporation can engage in a religious exercise by refusing to provide abortifacients — contraceptives that essentially abort a pregnancy after fertilization — it stands to reason that a pregnant person can engage in a religious exercise by pursuing an abortion.”
“The State does not explain why a victim of rape or incest is entitled to an abortion, but women whose sincere religious beliefs direct an abortion are not,” Weissmann wrote. The court’s analysis at this stage is another way its decision is something of a script-flip. Rape and incest exceptions to abortion bans are typically considered concessions that render an abortion statute less stringent. However, those same exceptions were viewed by the appeals court as a kind of poison pill that proves Indiana simply lacks the necessary interest to intrude on religious freedom from the moment of fertilization.
Bailey issued an additional brief but biting concurrence of his own in which he chastised the legislature for “prefer[ring] one creed over another” by outlawing abortion.
“Indeed, where theologians cannot agree, legislators are ill-equipped to define when life begins,” Bailey wrote.
