State says IN Supreme Court must end ‘significant uncertainty’ created by ruling in RFRA challenge to abortion law

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Signs litter the floor outside the Indiana House Chamber as lawmakers debate the state's new abortion legislation. (IL file photo)

While preparing to defend the state’s abortion ban against a constitutional challenge now at the Indiana Supreme Court, Indiana is trying to get the justices to review a second challenge that claims the ban violates the state’s Religious Freedom Restoration Act.

In October, the Supreme Court accepted emergency transfer of Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, Inc. et al., 22S-PL-00338. That case challenges the constitutionality of the state’s new abortion restrictions.

Now, Indiana Attorney General Todd Rokita is seeking to again skip the Court of Appeals of Indiana by filing a petition to transfer directly to the Supreme Court the RFRA case, Anonymous Plaintiff 1, et al. v. The Individual Members of the Medical Licensing Board of Indiana, in their official capacities, et al., 22A-PL-02938.

The Marion Superior Court heard oral arguments in the RFRA case in October and granted the plaintiffs’ motion for a preliminary injunction this month.

The American Civil Liberties Union of Indiana, which is representing the plaintiffs, did not respond to a request for comment regarding the transfer petition. However, following the trial court’s order, the organization hailed the ruling as a “crucial victory.”

“Abortion is legal in Indiana today. This preliminary injunction acts as a second layer of protection, ensuring the rights of Hoosiers on the grounds of religious freedom,” Ken Falk, ACLU of Indiana legal director, said in a news release. “This decision represents another crucial victory for abortion access, and we will continue to fight this ban until it is blocked for good.”

The Attorney General’s Office defended its decision to appeal.

“Science, not religion, tells us that abortion kills a human being — i.e., a human organism that exists,” an attorney general spokesperson said in an email. “When a legislature outlaws abortion, it extends the same ethical judgment embodied in laws prohibiting homicide. Making ethical judgments about the treatment of human beings is a compelling function of government.

“Indeed, the very nature of law is to make ethical judgments about human actions and their consequences. Just because a legal rule effects an ethical judgment does not make it ‘religious,’ even if many people subscribe to that ethic as a matter of religious faith,” the spokesperson continued. “RFRA does not authorize everyone to be a law unto themselves in the name of religion. That would be anarchy. Laws protecting religious exercise are not commitments to anarchy.”

In the petition to transfer filed by the attorney general, the state asserts an immediate judicial review of the Marion Superior Court’s ruling is needed to determine whether the state can enforce prohibitions on abortion in most cases against someone who claims abortion is a religious exercise. Also, Indiana argues the plaintiffs did not present a case ripe for judicial review because none of them are pregnant, and it questions whether Hoosier Jews for Choice can assert a RFRA claim on behalf of its members on a theory of associational standing.

The state is asking the Supreme Court to accept the case to settle the uncertainty created by the Marion Superior Court’s ruling. With the preliminary injunction in place, a “significant uncertainty” has arisen as to the enforcement of state laws regulating abortion.

“The breadth of the trial court’s order magnifies that uncertainty, as the lower court’s rationale seemingly has no limits and would apply to any person asserting a religious reason for seeking an abortion, not just the named plaintiffs,” the attorney general states in his motion.

Five anonymous plaintiffs and Hoosier Jews for Choice challenged the state’s new abortion ban under RFRA in September. They claimed their sincerely held religious views permit abortions in situations restricted by Senate Enrolled Act 1, the law banning abortions in Indiana with limited exceptions.

Marion Superior Judge Heather Welch found the case was ripe for adjudication. The plaintiffs, the court found, are altering their behavior by taking steps to avoid becoming pregnant or by practicing abstinence.

From there, the trial court reasoned the plaintiffs had established they would likely be successful on the merits of their RFRA claim. In particular, the court found that SEA 1 imposes a substantial burden on the plaintiffs’ religious exercise.

Indiana had argued the plaintiffs’ religious exercise was not substantially burdened because  abortion is not a religious practice “but a secular means to a religious end.” Moreover, the state asserted it has a compelling interest in protecting the unborn.

The Marion Superior Court rejected those arguments, describing them as “nearly identical” to those already rebuffed by the U.S. Supreme Court in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). There, a majority of U.S. Supreme Court justices held the religious beliefs of company owners were violated even though the activity was the payment of money for contraceptives.

“This Court finds that the Plaintiffs(‘) practices regarding abortion are religious in nature: they have established that, under circumstances that would be prohibited by S.E.A. 1, their religious beliefs would compel them to have abortions,” Welch wrote.

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