Can RFRA take down Indiana’s new abortion law?

It is the height of irony that the new GOP-backed abortion restrictions could be undone by the Religious Freedom Restoration Act.

RFRA caused massive controversy in 2015 because conservative groups and some Hoosiers wanted to use it to justify discrimination, specifically against gay and lesbian Hoosiers who they disagreed with based on religious beliefs.

Think of the bakery that refuses to make a wedding cake for two men getting married. Some cities have anti-discrimination protections that make that refusal illegal. And RFRA was seen as a way to defeat those ordinances.

In essence, RFRA simply sets a higher level of scrutiny a court must use when examining laws that substantially affect religious freedom.

The exact wording is that “a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.” It gives an out by saying “A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.”

So now we come to abortion.

Republicans will clearly argue that saving a life is a compelling governmental interest. But it is the word life that is up for debate.

The American Civil Liberties Union of Indiana is challenging the near-total abortion ban under RFRA, alleging that some faiths don’t believe that life begins at conception as the law provides. Indeed, numerous Jewish Hoosiers testified during the special session hearings that the new law would take away their right to health care unless they are raped or in danger of dying. They noted that the Christian belief on life was overriding the Jewish belief (of some) that life begins with the first breath outside the womb.

The National Council of Jewish Women says sources in the Talmud note the fetus is “mere water” before 40 days of gestation. Following this period, the fetus is considered a physical part of the pregnant individual’s body, not yet having life of its own or independent rights. The fetus is not viewed as separate from the parent’s body until birth begins and the first breath of oxygen into the lungs allows the soul to enter the body.

Micah Clark, executive director of the American Family Association of Indiana, opined in his weekly email that RFRA laws are not used very often, and when they are successful it is usually a narrow religious exemption path that leaves the standing law in place.

“While one never knows what a judge will do, if this lawsuit prevails and makes abortion unrestricted by undermining SB 1, it would be a mockery of RFRA and of a fundamental purpose of government,” he said.

The ACLU of Indiana would disagree, of course, noting that one religion should not be able to dictate law to the rest.

Its complaint also said Islam does not believe that the fetus is ensouled at the moment of conception and some Muslim scholars take the position that the fetus does not possess a soul until 120 days after conception.

“Muslim scholars therefore indicate that within 40 days of conception it is proper and appropriate to seek an abortion for any reason, including reasons not authorized by (Senate Enrolled Act 1),” the lawsuit said.

The complaint also says the Episcopal Church holds that equitable access to women’s health care, which includes reproductive health care, is an integral part of a woman’s struggle to assert her dignity and worth as a human being. And that Unitarian Universalists believe that a person who is pregnant should be entitled to obtain an abortion and if the person is blocked by the law or outside authorities, their endowed rights are impinged upon.

So, is it right that the Christian belief of life that guides the new abortion restrictions takes away the health care rights of Jewish women as well as other faiths?

That is what a judge will have to decide.