2nd lawsuit challenges Indiana’s abortion ban on religious freedom grounds

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Editor’s note: This article has been updated with comments from Indiana Attorney General Todd Rokita. 

The American Civil Liberties Union of Indiana filed a second lawsuit today against the state’s new abortion law, claiming Senate Enrolled Act 1 violates Indiana’s Religious Freedom Restoration Act.

Filed as a class action on behalf of five anonymous individuals and those similarly situated along with Hoosier Jews for Choice, the lawsuit is seeking to have the state’s near-total abortion ban declared unlawful. The complaint was filed in Marion Superior Court and lists as the defendants the members of the Medical Licensing Board of Indiana along with prosecutors in five counties.

“There are numerous other persons in Indiana whose sincere religious beliefs are that they may and should obtain abortions for reasons not allowed by S.E.A. 1 who are injured, or reasonably will be injured, by the statute,” the complaint states. “… S.E.A. 1 will substantially burden the exercise of religion by the individual plaintiffs and the putative class by preventing them from obtaining abortions that are directed by their sincere religious beliefs.”

The lawsuit — Anonymous Plaintiffs 1 -5, on their own behalf and on behalf of those similarly situated; Hoosier Jews for Choice v. The Individual Members of the Medical Licensing Board of Indiana; and the Marion County Prosecutor, Lake County Prosecutor; Monroe County Prosecutor, St. Joseph County Prosecutor; Tippecanoe County Prosecutor, 49D01-2209-PL-031056 — comes little more than a week after the ACLU of Indiana filed a complaint in Monroe Circuit Court on behalf of abortion providers seeking to block the new abortion ban.

Both lawsuits name the same defendants.

In a statement, Indiana Attorney General Todd Rokita defended the constitutionality of the new abortion law but did not directly address the argument that the law violates RFRA.

“The Indiana Constitution says nothing about securing the right to abortion, which the state outlawed before, during and after the time of constitutional adoption. The text, history and structure of our Constitution excludes any serious argument that abortion is a fundamental right in our state,” Rokita said. “Our legislators voted to stop these inhumane practices, and it’s why my office is dedicated to defending this life-saving law. Defending validly passed laws, including those intended to protect the unborn, is a core mission of the attorney general.”

SEA 1 was passed during a special session of the Indiana General Assembly and signed into law Aug. 5 by Gov. Eric Holcomb. The measure prohibits most abortions, giving limited exceptions for rape, incest, the health or life of the mother, and a lethal fetal anomaly.

The ban is scheduled to take effect Sept. 15.

The challenge to SEA 1 filed last week asserts the law violates the Indiana Constitution’s guarantees to privacy and equal privileges and immunities. Also, the lawsuit claims contradictory language in the health-or-life exception is unconstitutionally vague.

Monroe Circuit Judge Holly Harvey issued an order Sept. 2 recusing herself from presiding over the case. She did not provide a reason for her recusal.

The parties have requested that Monroe Circuit Judge Geoffrey Bradley be appointed as a special judge in the matter. Bradley has seven days from today to either accept or decline the request.

The lawsuit filed Tuesday challenges SEA 1 on religious freedom grounds by asserting that not all religions believe human life begins at conception.

Namely, the complaint says Jewish law holds that a fetus becomes a living person at birth while Islam does not believe the fetus is “ensouled at the moment of conception.” Also, according to the complaint, Unitarian Universalists and the Episcopal Church believe access to abortion is part of an individual’s dignity and worth as a human being.

The lawsuit even identifies paganism as demanding women have “full bodily autonomy, free from interference from others.”

“Indiana’s RFRA law protects religious freedom for all Hoosiers, not just those who practice Christianity,” Ken Falk, ACLU of Indiana legal director, said in a news release announcing the new lawsuit. “The ban on abortion will substantially burden the exercise of religion by many Hoosiers who, under the new law, would be prevented from obtaining abortions, in conflict with their sincere religious beliefs.”

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