Can Indiana’s religious freedom law strike down the state’s abortion ban?

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The overturning of Roe v. Wade and Indiana's subsequent enactment of a near-total abortion ban led to numerous protests at the Indiana Statehouse. (IL file photo)

Indiana’s controversial religious freedom law is at the heart of at least two ongoing lawsuits that seek to strike down the state’s near-total abortion ban, fueling debate about where to draw lines between religion and policy.

The first legal challenge — a class action lawsuit filed last month by the American Civil Liberties Union of Indiana — argues that the new abortion law violates Indiana’s Religious Freedom Restoration Act.

The Satanic Temple — a nontheistic religious organization based in Salem, Massachusetts — filed a separate federal lawsuit last week, making a similar claim that the Indiana abortion ban violates RFRA. The group maintains the ban is unconstitutional and an infringement on its members’ religious beliefs.

The new abortion ban is on hold for now after a Republican judge in Owen County last month issued a temporary injunction in a separate ACLU lawsuit that challenges the constitutionality of the law. Under the injunction, the state’s previous abortion law stands — allowing abortions up to 20 weeks — while the matter continues to play out in court.

Indiana’s RFRA law is not often used in court challenges, but legal experts say the lawsuits could be at least somewhat meritorious.

Such speculation is largely on hold until the cases play out more in court, however. The Indiana Attorney General’s Office has yet to file responses in either lawsuit, and oral arguments for the ACLU case won’t be heard until next week.

Debating the intersection of law and religion

The lawsuits attempt to turn RFRA’s language back on Indiana’s Republican lawmakers who supported both the religious freedom bill and the abortion ban.

The controversial RFRA measure — lauded by religious conservatives — passed the Indiana Legislature in 2015, prohibiting government action that interferes with a person’s religious exercise. It stipulates that the government must show a “compelling” reason to enact a law that forces someone to do something against their religious beliefs.

Former Indiana Gov. Mike Pence, who signed the law, drew major criticism from opponents who argued that RFRA makes discrimination legal.

The ACLU lawsuit was filed in Marion Superior Court on behalf of Hoosier Jews for Choice, as well as five anonymous women who represent a variety of faiths including Judaism, Islam and independent spiritual belief systems.

They argue that they have “sincere religious beliefs that direct them to obtain an abortion” that would be banned “and who are at risk of needing an abortion in the future consistent with these beliefs.”

According to the plaintiffs, although some religions — and adherents of those religions — believe that human life begins at conception, “this is not a theological opinion shared by all religions or all religious persons.”

Daniel Conkle, an Indiana University Maurer School of Law professor in Bloomington who testified in support of RFRA in 2015, said unless the plaintiffs in the ACLU case can show their religious beliefs require them to seek an abortion, they’re unlikely to prevail in court.

“Some of these claimants are women whose religion permits her to have an abortion, but that’s all she can say,” Conkle said. “In my view, that in and of itself will not be enough to meet the threshold. A lot of people are religious, and the religions of most folks permit them to do all kinds of things. But here, does the religion require a person to have an abortion, versus merely permit it?”

But “it gets very fuzzy,” if a claimant can successfully argue that their religion “significantly or substantially points them in that direction,” Conkle continued.

He said it’s possible that “at least some women” could get through that initial legal hurdle by proving their religion “strongly influences or motivates” them to get an abortion, but he noted that more testimony needs to be heard to determine if that’s the case for any of the ACLU’s clients.

If so, it would then be up to the state to show that the abortion ban “serves a compelling governmental interest.” The state could prevail on the grounds that the prevention of abortion serves a compelling interest in protecting human life, Conkle said, but “that argument may or may not succeed.”

“The state has to show that the abortion law not only serves a legitimate interest in protecting fetal life, but that the interest is compelling, which is a much, much more difficult standard to meet,” he said.

Robert Katz, a professor at Indiana University Robert H. McKinney School of Law in Indianapolis, added that the Indiana attorney general’s response to the ACLU filing — which is due by Nov. 2 — will also shed light on the state’s defense of the ban.

“The state’s main challenge will be to provide public reasons for banning abortion — that is, reasons that people of different religions and moral backgrounds could accept,” Katz told the Indiana Capital Chronicle. “The ban cannot be sustained based on one or more religious groups’ distinct and controversial theological claims about fetuses and pregnant women.”

Can a RFRA challenge overturn the abortion ban?

It’s also still unclear whether the lawsuit filed by The Satanic Temple could be successful in court.

The group’s legal challenge similarly alleges ​​that Indiana’s abortion ban violates RFRA. The Satanic Temple says the ban makes the exercise of the Satanic abortion “ritual” a crime.

The ritual serves as a protective rite designed to “cast off notions of guilt, shame, and mental discomfort that a patient may be experiencing due to choosing to have a medically safe and legal abortion,” according to court documents filed by The Satanic Temple.

The lawsuit — filed in the U.S. District Court for the Southern District of Indiana — asks the court to stop the enforcement of Indiana’s near-total ban on abortion for members of The Satanic Temple who became “involuntarily pregnant” after their birth control failed. The Indiana chapter has over 11,300 members, according to the lawsuit.

“All of the involuntarily pregnant women who are (temple) members believe the fetal tissue they carry in their uterus — from conception until viability — is part of their body and not imbued with any humanity or existence,” plaintiffs said in the lawsuit.

The Satanic Temple previously filed lawsuits against abortion restrictions in other states, including in Texas and Missouri.

Conkle said “limited relief” is the most likely outcome in either lawsuit, not an outright strike-down of the abortion ban.

“That would confine the operation of the Indiana abortion law in such a way that it would not apply to those particular women in those particular circumstances,” Conkle said. “It would not invalidate the law outright.”

Other legal challenge ongoing

Oral arguments for the ACLU lawsuit are scheduled for Oct. 14 in Indianapolis.

The state has until mid-October to respond to the lawsuit filed by The Satanic Temple.

Meanwhile, a separate ACLU of Indiana lawsuit filed on behalf of health care providers and a pregnancy resource center is also still pending. The state attorney general’s office appealed the injunction issued in the lawsuit and is awaiting a new ruling from the appellate court. Lawyers representing the state are hoping to advance the issue to the Indiana Supreme Court.

The suit argues that the abortion ban “will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and violate the Constitution’s due course of law clause through its unconstitutionally vague language.”

The court challenge is based on the Indiana Constitution. The Supreme Court of the United States in June ruled that the U.S. Constitution does not guarantee abortion rights.

The Republican-dominated Indiana General Assembly advanced the abortion-restricting measure during a heated, two-week special session that concluded in August.

That made Indiana the first state in the nation to approve such legislation since the high court ruling that overturned Roe v. Wade.

The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.

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