The state of Indiana is appealing a Marion County judge’s March 5 ruling in favor of an additional religious right exemption to Indiana’s near-total abortion ban, but legal experts believe the ruling could present a way to claw back the right to an abortion following the Supreme Court’s decision to overturn Roe v. Wade in 2022.
Indiana’s near-total abortion ban prohibits abortion with limited exceptions, including rape; the law was passed a month after the Supreme Court decision.
Marion County Judge Christina Klineman’s permanent injunction allowed abortion as a religious right because “there is significant public interest in ensuring the religious freedom of all citizens.”
“This permanent injunction is meant simply to capture those rare instances where an abortion does not fall within the enumerated exceptions but is likewise a necessary religious exercise,” according to the ruling.
The ACLU of Indiana said in a statement that the ruling makes clear that Indiana cannot enforce its abortion ban in ways that violate someone’s religious freedom.
“Today’s ruling is a recognition that religious freedom protects people of many faiths and beliefs, not just those favored by the state,” said Stevie Pactor, senior staff attorney at the ACLU of Indiana, in a statement. “For more than three years, our clients have challenged a law that forces them to choose between their faith and their autonomy.”
Attorney General Todd Rokita has appealed the decision, which means the case heads to the Indiana Court of Appeals.
Two anonymous women — a Jewish woman and a woman with spiritual beliefs — and Hoosier Jews for Choice filed a lawsuit about three years ago, arguing that Indiana’s abortion ban goes against the state’s Religious Freedom Restoration Act, which was passed in 2015 amid uproar that it would legalize discrimination against LGBTQ+ residents.
In the case, the Jewish woman argued that her religion teaches that “life begins when a person takes their first breath after being born.” Her Jewish faith also teaches that the health of a pregnant woman is more important than the life of an embryo or fetus, according to court documents.
“Therefore, according to her Jewish beliefs, if her health or wellbeing — physical, mental or emotional — were endangered by a pregnancy, a pregnancy-related condition, or a fetal anomaly, she must terminate the pregnancy,” according to court records.
The woman, who previously had an abortion, would like to attempt to have another child, but a pregnancy might “seriously endanger her health.”
“(She) believes that her religion instructs her that she cannot imperil her life in that way given that Jewish law instructs her that a fetus is not a life,” according to court records.
The second plaintiff is a woman without a specific religion “but has personal religious and spiritual beliefs that guide her life, including her moral and ethical practices.” She does not believe that life beings at conception, but that a fetus is a part of the body of a mother, according to court records.
The woman, who has had an abortion in the past, said she’s had less intimacy with her husband for fear of an unintended pregnancy, according to court records.
“Because of her religious belief in spiritual and physical autonomy over her own body, including a fetus, she believes it is her spiritual obligation to determine whether to remain pregnant,” according to court records. “As a matter of her religious beliefs, she believes that if a pregnancy or the birth of another child would not allow her to fully realize her humanity and inherent dignity, she should terminate that pregnancy, and this is so in circumstances that would not be permitted by statute.”
Attorneys for Hoosier Jews for Choice argued in court that many members of the organization have been altering their sexual practices, birth control usage and family planning for fear of becoming pregnant since Indiana passed its near-total abortion ban, according to court records.
The state argued that the lawsuit lacks standing and its “claims are unripe,” according to court records. The state also argued that the abortion ban penalizes the abortion provider not the person receiving the abortion, “but this is a false flag,” according to court records.
Further, the state argued that plaintiffs in the case have to prove that a person seeking an abortion as a religious exercise has no “alternative means” of following their religious beliefs, according to court records.
But, the court ruled that the “alternative means” argument assumes something that the case did not seek, which is “the right to abortion access under all circumstances,” according to court records.
“The court finds that the threatened injury to plaintiffs outweighs harm to the defendants because the abortion law already has exceptions and there has been no showing that this limited exception for religious exercise would somehow explode the number of abortions sought in contradiction of their stated interest,” according to court records.
India Thusi, a law professor at the Maurer School of Law at Indiana University Bloomington, said the ruling “was positive.”
“This is a great development in the right direction,” Thusi said. “As someone who is concerned with sexual autonomy and religious rights for all people, this is a good step.”
Susan Zinner, a professor in the School of Public & Environmental Affairs at Indiana University Northwest, said the plaintiffs presented “a creative argument” that could be used in Republican-led states to “claw back” on abortion bans.
“This could be a way for pregnant women in red states to expand the right to abortion because red state courts tend to respond favorably to religious protection arguments,” Zinner said.
Similar cases have been filed in Kentucky and Missouri, where the cases were dismissed on procedural grounds, Zinner said. Similar cases were also filed in Utah and Wyoming, and those cases are still being considered in the courts, she said.
“Most people of faith support legalized abortion. The big exception is Christian Evangelicals. This seems like a strategy that some faith groups might be interested in pursuing,” Zinner said. The Roman Catholic Church also opposes abortion.
Typically, anti-abortion groups use religion — specifically in Evangelical Christianity — as a reason to limit or ban abortion, but religion has a much broader scope, Thusi said.
“These laws that protect free exercise apply to all of us. They apply to all our different faiths and exercises of faiths,” Thusi said.
While it’s possible that the legislature may take up a bill to counter the ruling, Thusi said the legislature would have to be careful “not to then single out particular groups in a way that would violate their religious freedoms.”
“It would be pretty difficult. I don’t doubt that there might be political incentives for them to say they are going to respond to this, but being able to actually do so in a meaningful way, I’m just not certain about that,” Thusi said.
Indiana Right to Life president Mike Fichter said in a statement that the permanent injunction “is deeply distressing and a perversion of the law’s intent.”
“Indiana’s Religious Freedom Restoration Act was never intended to equate taking the life of an unborn child with religious expression in our state. While this current injunction is limited to the plaintiffs in the case only, if it withstands challenge, it will be exploited so anyone claiming a spiritual belief, even if personal and non-theistic, can justify taking a child’s life,” Fichter said.
The organization applauded Rokita’s appeal.
“Indiana Right to Life will continue in its work to make Indiana a model state in providing compassionate support for pregnant moms and protections for their unborn babies,” Fichter said in the statement.
Indiana Democratic Party Chairwoman Karen Tallian said the court order “is a positive step for women across Indiana — but this ban remains in place outside of religious exemptions.”
“No one should support forced pregnancy,” Tallian said. “Countless Hoosier women have had to cross state lines to receive care or risk their lives and religious beliefs because of Indiana’s extreme abortion ban.”
