Indiana Solicitor General Tom Fisher speaks to reporters from outside the Marion County Superior Court in Indianapolis on Oct. 14, 2022. (Casey Smith/Indiana Capital Chronicle)
A Marion County judge heard arguments Friday in a lawsuit that seeks to strike down the state’s near-total abortion ban on the basis of Indiana’s controversial religious freedom law.
The legal challenge up for debate was filed in August by the American Civil Liberties Union (ACLU) of Indiana. The lawsuit argues that the new abortion law violates Indiana’s Religious Freedom Restoration Act (RFRA).
The new abortion ban is on hold until at least January after a Republican judge in Owen County last month issued a temporary injunction in a separate ACLU lawsuit that challenges the constitutionality of the law based on liberty and privacy protections. Under that injunction, the state’s previous abortion law stands — allowing abortions up to 20 weeks — while the matter continues to play out in court.
The ACLU of Indiana argued in court on Friday that the standing injunction shouldn’t stop the judge from halting the law in the RFRA case. Lawyers for the state maintained that an injunction in this case is “unnecessary,” and that a judge’s order would only have “symbolic significance.”
Judge Heather Welch, who is presiding over the case, said she expects to issue an order by the end of November, if not sooner.
Indiana’s RFRA law is not often used in court challenges, but legal experts say the lawsuit could be somewhat meritorious.
Are religious rights violated by the new abortion law?
The ACLU of Indiana insists the state has not met the requirements under Indiana’s RFRA law to enact the near-total abortion ban.
The plaintiffs in the lawsuit include five anonymous women who represent a variety of faiths including, Judaism and Islam. At least one person has no “recognized” faith tradition but is driven by her own moral beliefs.
Ken Falk, ACLU of Indiana’s legal director, said the Hoosiers plaintiffs in the case have had their lives “upended” by the abortion ban. Some have stopped trying to get pregnant, he said, while others feel “forced” to stop having sex altogether because they fear they’ll be unable to obtain an abortion if they become pregnant.
Falk pointed to “well-rooted” Jewish and Islamic beliefs that life begins at birth, not conception. In some situations, the religions can compel women to obtain abortions in situations that are banned by the state’s new abortion restrictions, including to protect the mental or physical health of the mother.
Under Indiana’s RFRA statute, the abortion law must advance a “compelling” government interest in the least restrictive way possible. The state said in court documents that compelling interest is to save lives. Falk said in court Friday that the ban is not the least restrictive option, nor should it be up to the government to determine whether a fetus is a life.
“The state cannot simply decree what is religious and what is secular,” Falk said Friday during oral arguments. He additionally pointed to other legal practices that are religious to some but secular to others, including circumcision, taking communion and required school attendance.
Falk called for a separate injunction to be issued by the judge in this case, noting that the injunction ordered in the ACLU’s other lawsuit “could be overruled at any time.”
But Indiana Solicitor General Tom Fisher, arguing on behalf of the state, maintained that because the abortion ban was halted in the other lawsuit, an injunction in this case would not benefit the plaintiffs.
“It’s unclear why we’re even here,” Fisher said. “If people don’t want to change their behavior based on the injunction in that case, why would they change their behavior with an injunction here?”
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Fisher doubled down that the plaintiffs’ argument is “highly general” — to say the women’s behaviors have “changed” as a result of the abortion law are not enough to bring a claim under Indiana’s RFRA law, he said.
The women’s religions are not commanding them to get an abortion “right now,” but rather “at some undefined time in the future,” and RFRA doesn’t permit that, he continued.
After oral arguments were heard Friday morning, Fisher maintained — as he did in court — that the state legislature has the right and duty to enact laws like that protect Hoosiers and serve their interests.
“I think just because a law happens to be consistent with some religious teachings, doesn’t make it a religious law,” Fisher said. “The General Assembly is entitled to enact laws for safeguarding the ethics of society, and it’s hard to imagine a higher ethical calling than protecting the vulnerable human beings who are unborn. Religious liberty is important, let’s bear that in mind, but so is protecting the unborn.”
Abortion law still paused
The Indiana Supreme Court on Wednesday took jurisdiction over the other ACLU of Indiana lawsuit, which likely keeps abortion access in Indiana safe for several more months.
In the decision, the state’s highest court granted a request by Republican Attorney General Todd Rokita to bypass the Indiana Court of Appeals. The court also denied the state’s request to stay the preliminary injunction that is currently blocking the law.
Briefing deadlines are set for December, according to the court’s order. An oral argument is set for Jan. 12.
The Republican-dominated Indiana General Assembly advanced the abortion-restricting measure during a heated, two-week special session that concluded in August.
That made Indiana the first state in the nation to approve such legislation since the high court ruling that overturned Roe v. Wade.
The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. One part of the law says these exceptions are up to 20 weeks but another part says they can be used anytime. Rape survivors can get an abortion up to 10 weeks post-fertilization. It also strips abortion clinics of their state medical licenses, and provides that only hospitals and hospital-owned ambulatory surgical centers can provide abortions.
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