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Indiana’s Religious Freedom Restoration Act is used to grant exemptions for vaccines and medical care. Could it allow for an exception to Indiana’s near-total abortion ban?
Attorney Kenneth Falk argued Thursday before the Indiana Supreme Court that the ban known as Senate Enrolled Act 1 violates his client’s religious beliefs.
Falk represents Hoosier Jews for Choice and some other anonymous plaintiffs who sued individual members of the Indiana Medical Licensing Board citing religious violations. In December, 2022, the Marion County Superior Court issued a preliminary injunction, prohibiting the state from enforcing the ban against the anonymous plaintiffs. The Indiana Court of Appeals partially affirmed the lower court’s decision in April 2024.
“RFRA exists to prevent substantial burdens on religious exercise, and this is the precise injury caused to the plaintiffs,” Falk told the court.
Falk, an attorney with the American Civil Liberties Union, argued that the law protects against injury to a person’s ability to practice their religion, citing Burwell v. Hobby Lobby in which the U.S. Supreme Court affirmed Hobby Lobby’s refusal to allow its insurance to be used for purchasing contraception, which included four methods that could halt fetal development.
Indiana Solicitor General James Barta called the trial court’s injunction “unprecedented.”
“Our nation’s long tradition of respect for religious exercise has never been understood to encompass a right to intentionally destroy human life any more than a right to abusively punish children,” he said. “This court should not be the first high court to endorse a novel theory that brooks no discernable limits on individual conduct.”
Barta also argued the plaintiff case was deeply flawed. His said they relied too heavily on hypotheticals, and Indiana had a compelling interest to protect fetal life.
“The plaintiffs’ entire claim is built on a chain of speculation,” he told the court. “During the four years that this case has been pending, the plaintiffs have never been pregnant or wanting an abortion. Their concern is about what might happen if they become pregnant, want an abortion, if their religious beliefs direct them to terminate.”
Chief Justice Loretta Rush asked if a person’s views on abortion constituted religious exercise. Barta said they did.
Rush asked how Barta’s view of the plaintiffs’ case would change if one of the plaintiffs was pregnant or trying to get pregnant.
“I think for any plaintiff, you need to have more than ‘someday intentions’ about wanting an abortion for religious reasons,” he said.
Rush noted that both Barta and the federal Hobby Lobby case affirm that abortion could constitute a religious exercise.
“It ordered that you did not have to order contraceptives or any type of abortion inducive medication based on your religious beliefs. Isn’t this the flipside of that?” she said.
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