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The Indiana Court of Appeals on Thursday affirmed a lower court’s preliminary injunction against the state’s near-total abortion ban, allowing women with a religious objection to the ban to be exempt from it.
However, it ordered the trial court to narrow the injunction to apply only to individuals who according to their sincerely held religious beliefs require an abortion.
The original lawsuit raised the question of whether Senate Enrolled Act 1 violates plaintiffs’ rights under Indiana’s Religious Freedom Restoration Act, which prohibits state laws that substantially burden a person’s exercise of religion unless the law advances a compelling interest and does so in the least restrictive manner.
SEA 1 bans abortion in Indiana except in limited cases of rape, incest, fatal fetal anomaly, or to protect the life or health of the mother.
The American Civil Liberties Union of Indiana filed the lawsuit on behalf of the group Hoosier Jews for Choice as well as anonymous practitioners of Judaism, Unitarian Universalism, Episcopalianism, and paganism — belief systems that allow abortion under circumstances outside SEA 1’s exceptions.
The Marion Superior Court issued a preliminary injunction against the law in December 2022. It also certified the case as a class-action.
The state appealed both the preliminary injunction and the class certification. The three-judge appellate panel on Thursday affirmed the trial court but remanded the case back to the Marion Superior Court for a more narrowly tailored injunction.
The appeals court, in an opinion written by Judge Leanna Weissmann, concluded that “Hoosier Jews for Choice has associational standing, that Plaintiffs’ claims are ripe, and that the class action certification was not an abuse of discretion. Although we find the trial court did not abuse its discretion in granting injunctive relief, the preliminary injunction is overly broad because it enjoins enforcement of the Abortion Law in ways that do not violate RFRA.”
Ken Falk, ACLU of Indiana legal director, said in a statement that the appeals court decision reflects the “clear directive” that the Religious Freedom Restoration Act “protects religious freedom for all Hoosiers,” including those who believe an abortion is necessary based on a sincerely held religious belief.
The Indiana Attorney General’s Office did not immediately respond to Indiana Lawyer’s request for comment on whether the state would appeal the decision.
In its appeal, the state also challenged the breadth of the injunction.
“The State asserts the injunction is so broad that it enjoins future government action that may not violate RFRA. RFRA authorizes relief that ‘prevents, restrains, corrects, or abates the [RFRA] violation’,” Weissmann wrote in the appellate court decision. “For instance, the injunction would bar the State from preventing Plaintiffs from obtaining abortions that are outlawed by the Abortion Law but that are not directed by Plaintiffs’ sincere religious beliefs.”
Judge Melissa May joined Weismann in the majority opinion. Judge L. Mark Bailey concurred in a separate opinion.
Bailey cited the U.S. Constitution and the Indiana Supreme Court at the start of his separate opinion
“In this post-Dobbs world, our Legislature has … preferred one creed over another. Based upon the premise that the State has a compelling
interest in the outcome of a woman’s pregnancy arising at the very moment of conception, there is a codification of when life begins, something intensely debated among adherents to various religions,” Bailey wrote. “Moreover, if I glean anything from the broad range of views on this concept of ensoulment contained in the amicus briefs, it is that there is truly no consensus about when ensoulment occurs. Rather, it is to be determined as an article of faith unique to each particular religious society. And despite the diversity of viewpoints on the concept of ensoulment, there is no claim among the amici that the termination of a pregnancy extinguishes the soul.”
He further notes similarly with the majority opinion that the General Assembly has yet to enact “wholly consistent statutory schemes conferring the rights of a human being upon zygotes, embryos, and fetuses.”
“In a more perfect world, each pregnant woman in evaluating her options would have no burden beyond examining her individual conscience, counseling with her spiritual advisor, and consulting with her medical provider,” Bailey wrote. “But a perfect world this is not and resulting pregnancy is not always a simple free will contract or agreement. Despite untiring and commendable legislative efforts, we do not live in a society in which we can confidently say that women and girls of childbearing age live free from physical and psychological domestic abuse, rape, human trafficking, incest, and economic disparity.”
The case is Individual Members of the Medical Licensing Board of Indiana, et al. v. Anonymous Plaintiff 1, et al., 22A-PL-2938.
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