RFRA challenge to abortion ban gets first hearing in court

IL file photo

Indiana’s near-total abortion ban is returning to court as opponents and proponents this time argue over whether the new law interferes with sincerely held religious beliefs.

The plaintiffs in Anonymous Plaintiff 1, et al., v. The Individuals Members of the Medical Licensing Board of Indiana, in their official capacities, et al., 49D01-2209-PL-031056, are challenging the state’s new abortion law on religious freedom grounds. They assert the prohibition on most abortions contradicts many religions that direct pregnancies to be terminated in situations that are now banned by SEA 1.

On Friday, the Marion Superior Court will hold an in-person hearing at 9 a.m. to consider the plaintiffs’ motion for a preliminary injunction against the new law.

In a footnote, the plaintiffs, represented by the American Civil Liberties Union of Indiana, acknowledge SEA 1 has already been blocked by a ruling from the Monroe Circuit Court in a different case challenging the new abortion law. The Bloomington-based court granted a preliminary injunction, finding the abortion ban violates the Indiana Constitution’s guarantee of liberty.

However, the plaintiffs urged the Marion Superior Court not to be deterred from entering its own preliminary injunction. The ruling from Monroe Circuit Court is on appeal and could be reversed, so a favorable ruling is necessary to protect the RFRA plaintiffs, they argue.

The Indiana Attorney General’s Office, representing the defendants, has objected to the motion for a preliminary injunction.

“Plaintiffs use religious beliefs to demand medical intervention to end human life,” Indiana argues in its brief. “The State is aware of no case in America holding that a religious belief entitles someone to medical intervention of any kind, much less intervention that ends human life.”

In their reply brief, the plaintiffs characterize the state as believing the new abortion law only affects pregnant women who want to terminate their pregnancies. They describe the state’s view as “remarkably naive” and contend that many Hoosier women are now altering their behaviors to avoid the “devastating physical and emotional consequence” of an unwanted pregnancy.

“… (T)he fact that they have altered their behavior in order to avoid becoming pregnant in the first place, rather than waiting to file suit until they actually become pregnant, does not alter the clear injury that they are suffering as a result of the S.E.A. 1’s prohibition on religiously mandated abortions,” the reply brief asserts.

This case is one of two attempting to use the religious freedom law to strike down the near-total ban on abortion.

The Satanic Temple has filed a lawsuit — The Satanic Temple v. Holcomb, et al., 1:22-cv-01859 — in the U.S. District Court for the Southern District of Indiana. Indiana has not filed an answer to that complaint.

In the case before the Marion Superior Court, both sides cite the landmark U.S. Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), as supporting their respective arguments.

Indiana references Burwell in contending the plaintiffs’ religious beliefs are not synonymous with their religious exercise. The plaintiffs, according to the state, attach no religious significance to abortion, so a law restricting access does not place a substantial burden on their religious exercise.

“Plaintiffs identify no principle that makes abortion a religious act any more than countless other actions that they believe to affect their wellbeing,” the state argues in its brief. “Adopting their view would permit the assertion of RFRA claims against any law that regulates practices Plaintiffs subjectively believe could affect their wellbeing — from restrictions on raw milk to marijuana — even if the action itself carries no inherent religious significance.”

The plaintiffs also point to Burwell in asserting that ordinary acts like growing a beard or slaughtering animals can become a religious exercise to those who hold certain religious beliefs, and that the government must accommodate those beliefs.

“… (T)he State argues that abortion is not a ‘religious exercise,’ and therefore Indiana’s RFRA does not apply,” the plaintiffs state in their reply brief. “But to make this argument, the State necessarily must determine that the plaintiffs are ‘wrong’ in believing that their religion and religious beliefs compel them to obtain abortions under certain circumstances. In doing so, the state ignores the fact that (as Burwell held) ‘courts have no business addressing whether the religious belief asserted in a RFRA case is reasonable.’”

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