In new brief, plaintiffs urge COA to uphold religious-freedom injunction against abortion ban

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While Hoosiers await a ruling from the Indiana Supreme Court on the constitutionality of the state’s near-total abortion ban, plaintiffs in a separate lawsuit challenging the ban on religious freedom grounds are urging the Court of Appeals of Indiana to uphold a second injunction against the law.

The appellees’ brief filed Thursday in The Individual Members of the Medical Licensing Board of Indiana, in their official capacities, et al. v. Anonymous Plaintiff 1, et al., 22A-PL-02938, comes a little more than a month after the Indiana Supreme Court declined to allow direct transfer to the religious freedom case, as it did with the constitutional challenge.

The case before the Court of Appeals argues Senate Enrolled Act 1 — which bans abortion in Indiana with three limited exceptions — violates the state’s Religious Freedom Restoration Act. The Marion Superior Court agreed in December and entered a preliminary injunction, which the state is now appealing.

But in urging the COA to uphold the injunction, the appellees — four anonymous plaintiffs and the group Hoosier Jews for Choice— repeated earlier arguments that SEA 1 prohibits them from seeking religiously-mandated abortions, and that they are altering their behavior to avoid getting pregnant as a result.

“The State argues only that abortion ends the life of an innocent human being and therefore that the State has a compelling interest in prohibiting it,” the appellees’ brief says. “Although presented as a fact, this is at best an opinion — in many instances, a religious one — and is contrary to what was found by the trial court.”

While the brief explores multiple religious views that support or even mandate abortion, the main religion at issue is Judaism.

In addition to Hoosier Jews for Choice, three of the four plaintiffs follow Jewish teachings, while the fourth “believes that there is within the universe a supernatural force or power that connects all humans and is larger than any individual person.” A fifth plaintiff has been dismissed without prejudice as a party to the case.

According to the brief, Jewish beliefs include that life begins at birth, when a child takes its first breath outside the womb. Jewish law also teaches that the life of a pregnant woman takes precedence over the “potential for life that exists in a fertilized egg, zygote, embryo, or fetus.”

“Therefore,” the brief says, “according to their Jewish beliefs, if their (the plaintiffs’) health or wellbeing — physical, mental, or emotional — were endangered by a pregnancy, pregnancy-related condition, or fetal abnormality, they must terminate the pregnancy.”

Plaintiff 1 did just that in March 2022, according to the brief. The plaintiff was pregnant and the fetus was diagnosed with a condition that can result in stillbirth, miscarriage, severe disability or a 90% chance of death within one year of a live birth.

Plaintiff 1 thus obtained an abortion “in accordance with her religious beliefs that the abortion was required to protect her physical and mental health.”

But none of the exceptions to SEA 1’s abortion ban — pregnancy resulting from rape or incest, protecting the life or health of the mother, or fatal fetal anomaly, all with time restrictions — would have applied in Plaintiff 1’s case, the brief argues.

“Plaintiff 1 would like to attempt to have another child. Because of her age, any pregnancy would be high-risk, and she is aware that a pregnancy might seriously endanger her health, without necessarily causing death or a serious risk of substantial and irreversible physical impairment of a major bodily function,” according to the brief. “… There are many scenarios under which Plaintiff 1’s physical or mental health would be at risk in the pregnancy, such that her religious beliefs would direct her to terminate it, but where a termination would not be permitted by S.E.A. 1. Although Plaintiff 1 and her husband wish to have another child, she is unwilling to become pregnant unless she is able to obtain an abortion consistent with her religious beliefs and she is refraining from becoming pregnant, and has significantly restricted sexual activity with her husband, due exclusively to the enactment of S.E.A. 1.”

Plaintiffs 4 and 5 are married and “are planning to have children using assisted reproductive measures.” However, they argued that they are not actively pursuing those measures because they are “aware that in other states, where abortion bans have already taken effect, some women have experienced extreme and emergent risks to their physical health because physicians delayed providing necessary medical care, for fear of violating similar statutes.”

“Although Plaintiffs 4 and 5 wish to try to have a child,” the brief says, “neither is willing to become pregnant unless they would be able to obtain an abortion consistent with their religious beliefs, and they are therefore refraining from becoming pregnant due exclusively to the enactment of S.E.A. 1.”

As for Hoosier Jews for Choice, “The organization and its members believe that under Jewish law an abortion is directed if it is necessary to prevent physical or emotional harm to a pregnant person, even if there is not a physical health risk that is likely to cause substantial and irreversible physical impairment of a major bodily function,” according to the brief.

“Members are currently altering their sexual practices, birth control practices, and family planning as a result of the law and their fear of becoming pregnant,” the group asserts.

Lastly, Plaintiff 2, who does not belong to a specific religion, believes “that persons are endowed with bodily autonomy and that the bodily integrity of others should not be infringed upon. Doing so constitutes a spiritual and moral wrong and inhibits the full express of a person’s humanity.”

Like Plaintiff 1, Plaintiff 2 has had a prior abortion, citing the belief that “the birth of another child would not allow her to fully realize her humanity and inherent dignity … .”

“The passage of S.E.A. 1 has caused Plaintiff 2 significant anxiety about an unintended pregnancy and her inability to terminate such a pregnancy,” the brief claims. “This has resulted in a reduction in physical intimacy between Plaintiff 2 and her husband, which is causing her harm. S.E.A. 1 is substantially burdening her religious beliefs.”

Further, the individual plaintiffs are rejecting the state’s argument that they lack standing because they are not currently pregnant, arguing instead that their altered family planning behavior gives them standing. And Hoosier Jews for Choice maintains it has associational standing to pursue claims on behalf of its members.

More generally, the plaintiffs argue that SEA 1 is a substantial burden on their religious exercise, in violation of RFRA.

“While Indiana is free to have an opinion as to when a human being comes into existence and can legislate to promote that viewpoint, it cannot advance this opinion by prohibiting plaintiffs from practicing their religions,” they argue in the brief. “RFRA exists to carve out exceptions to otherwise generally applicable laws, even when the laws are supported by important governmental interests.

“Moreover, the State cannot demonstrate that S.E.A. 1 is the least restrictive way to promote its interest,” the brief continues. “Although the state argues that it must protect each fertilized egg and what develops during pregnancy, S.E.A. 1 allows abortions to occur in limited situations. Allowing exceptions in certain situations, but not where the abortion is compelled by religious exercise, renders S.E.A. 1 fatally underinclusive as applied to plaintiffs.”

The appellees — represented by the American Civil Liberties Union of Indiana — have requested oral argument before the Court of Appeals. The court has not yet ruled on that request.

Meanwhile, the Indiana Supreme Court is considering whether SEA 1 violates the Indiana Constitution via a violation of the right to “liberty.”

The state is arguing in that case — Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al., 22S-PL-338 — that the right to liberty cannot be interpreted as the right to an abortion.

But the plaintiffs — who are represented by the ACLU of Indiana in the constitutional case, as well — argue the right to “liberty” includes a person’s right to manage the most personal aspect of their lives, including deciding when and if to have a child.

The high court heard arguments in the constitutional case in January. A ruling has not yet been handed down.

While SEA 1 remains enjoined, prior Indiana law allowing abortion up to 20 weeks’ postfertilization remains in effect.

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