Indiana court uses religious-freedom law to uphold right to abortion
Most plaintiffs in case are Jews who believe human life begins with first breath
Christian conservatives have made it a priority to encourage state-level adoption of Religious Freedom Restoration Acts as a way to protect their religious liberties. But now a state-level appeals court has used a RFRA to take an action opposed by conservatives — the Court of Appeals of Indiana found Thursday that having an abortion can be a religious act, so it used the Indiana RFRA to prevent the state’s abortion ban from being applied to litigants who see having an abortion as a potential religious obligation.
The decision by the Indiana court has no value as precedent as it is a preliminary ruling related to an injunction and applies to only the four individual plaintiffs and one organization that filed a lawsuit. The ruling appears to be the first time that an appeals court has used a RFRA as a way to recognize the legal right to an abortion.
State-level RFRAs are modeled after the federal RFRA, a 1993 law overwhelmingly approved by Congress and signed by President Bill Clinton that says that laws that restrict religious freedom can be enforced only if they are the least restrictive way of protecting a legitimate government interest. The RFRAs have been used largely to protect the rights of religious minorities, such by allowing the use of some otherwise illegal drugs for religious ceremonial purposes. RFRAs have largely fallen out of favor with liberals in recent years, however, as they became increasingly used to argue for the right of certain religious adherents to discriminate against LGTBQ people.
The lawsuit leading to the decision was filed by four anonymous Indiana residents plus an organization known as the Hoosier Jews for Choice. The individuals are:
A married Jewish woman who believes that human life begins when a person begins breathing and that a pregnant woman’s physical and mental health “must take precedence over the potential for life embodied in a fetus.”
A married mother of two children who is not affiliated with a religious organization and who believes in a “supernatural force or power in the universe that connects all humans” and that “we are endowed with bodily autonomy” that should not be infringed upon.
A childless same-sex married Jewish couple who believe that “the life of a pregnant person, including their physical and mental health and well-being, takes precedence over the potential for life embodied in a fetus.”
The decision backing the plaintiffs was unanimously made by a three-member panel of the appeals court. Judge Leanna Weissmann, who was appointed by the Republican governor, Eric Holcomb, wrote the deciding opinion. Her opinion, which was also signed onto by another appeals judge, Melissa May, was based in part on the same logic that has allowed employers to refuse to provide health insurance that violates their religious beliefs:
If a corporation can engage in a religious exercise by refusing to provide abortifacients — contraceptives that essentially abort a pregnancy after fertilization — it stands to reason that a pregnant person can engage in a religious exercise by pursuing an abortion. In both situations, the claimant is required to take or abstain from action that the claimant’s sincere religious beliefs direct. And in both situations, the claimant’s objection to the challenged law or regulation is rooted in the claimant’s sincere religious beliefs.
The panel’s third judge, Mark Bailey, concurred, agreeing with the conclusion but using different reasoning. He questioned the validity of the entire abortion law, saying that state lawmakers were resolving a theological dispute by codifying that human life begins at conception.
Reaction to the decision fell across predictable lines as advocates released press statements:
Rachel Laser of Americans United for Separation of Church and State said: “The court rightly found that Indiana’s abortion ban cannot override religious freedom protections in Indiana law.”
Mike Fichter, president of Indiana Right to Life, said: “We are confident Indiana will prevail against any claims that abortion — the intentional ending of an innocent and helpless human life — is a religious freedom.”
An appeal of last week’s decision to the full appeals court and/or the Indiana Supreme Court is expected. The case is Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1, et al.