The fate of an injunction against Indiana’s near-total abortion ban on religious freedom grounds is now in the hands of the Court of Appeals of Indiana, which heard arguments in the case on Wednesday.
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 — turns on the question of whether Senate Enrolled Act 1 violates the 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 circumstance’s outside SEA 1’s exceptions.
The state is appealing both the preliminary injunction and the class certification, although the issue of class certification did not come up during the arguments.
A panel including Judges L. Mark Bailey, Melissa May and Leanna Weissmann focused their questions to both parties on SEA 1’s exceptions, as well as the state’s alleged compelling interest in limiting abortion.
In his debut as Indiana’s new solicitor general, James Barta argued on behalf of the state defendants that “there should be no doubt that the state has a compelling interest in protecting unborn children.” He frequently referenced the case of Cheaney v. State, 259 Ind. 138, 285 N.E.2d 265 (1972).
Weissmann questioned when that compelling interest begins. Barta responded that it begins at fertilization.
On the issue of the life-or-health exception to SEA 1, Bailey asked about the difference between physical and mental health. He gave the example of someone who is schizophrenic becoming pregnant and having to stop their medications.
Barta did not answer that question directly but instead reiterated that the state has a compelling interest in prohibiting abortion.
Weissmann then turned her questions to science versus faith, particularly the Christian faith. She talked through how a fertilized egg becomes an embryo, which becomes a fetus at around nine weeks and reaches viability at around 23 weeks.
“The state seems to make a leap in calling a fertilized egg an unborn child,” she said.
Further, Weismann noted different religions have different views on when life begins.
“So how can the state mandate a policy that compels a compelling interest based on a Christian belief system?” she asked.
Barta responded that there is a compelling interest in protecting potential life from the moment of conception.
Turning to the exceptions in the statute, Weissmann asked why there are exceptions for rape and incest. Barta said those exceptions simply reflect the Indiana General Assembly’s ethical judgment.
May turned the conversation specifically to RFRA and noted SEA 1 doesn’t include a religious exception.
In response, Barta pointed to RFRA’s compelling-state-interest exception.
That prompted May to question whether Hoosiers have no religious rights if it is compelling for the state. Barta said people can litigate the issue, but if there is a compelling state interest, that trumps.
Weissmann then took a moment to pause. She noted that Indiana’s RFRA statute is almost identical to the federal religious exercise law, and she pointed to federal religious freedom cases resolved in favor of the people who claimed their religious rights were violated, like the high school coach who wanted to pray on the field and the website designer who wouldn’t create a site for a same-sex marriage.
In light of that precedent, she asked whether the Legislature should have made an exception for religion in the abortion statute.
Barta said the issue was a policy question for the Legislature.
Weissman then noted that looking at the context of other statutes, when a woman is killed and she is one week pregnant, the person who killed her is only responsible for one death. Barta agreed that there are different contexts and policy principles, but looking at RFRA, the state argued life begins at fertilization.
Ken Falk, legal director for the ACLU of Indiana, urged the COA to uphold the injunction against SEA 1.
May questioned how the statute was affecting the plaintiffs.
Falk said the plaintiffs had changed their sexual behaviors and considerations in family planning as a result of SEA 1, thus creating a substantial burden in violation of RFRA.
When asked about the state’s claim that its compelling interest begins the moment an egg is fertilized, Falk said looking at Indiana Code, a human being is defined as a person who has been born.
Also, he argued that a religious exemption should be included in the law.
Weissmann asked if Falk had a suggestion on what the injunction should say if it were narrowed.
“I think it is perfectly appropriate,” he said. “But if it has to be narrowed, we want it to say that the law is enjoined to the plaintiffs to the extent that they are advancing their sincere religious beliefs,” Falk responded.
The full arguments can be watched online.