You’ll Never Guess Which State Court Just Approved Religious Exemptions From Abortion Bans
On Thursday afternoon, in an important lawsuit seeking to clarify which religious objectors will be taken seriously when they seek legal exemptions, a group of plaintiffs in Indiana scored a notable win: A three-judge panel on the Indiana Court of Appeals agreed to enjoin Indiana’s near-total abortion ban, as applied against a class of religious plaintiffs who had argued that the ban violates a state law protecting religious freedom. In its unanimous 76-page opinion, authored by Judge Leanna K. Weissmann, the panel determined that a preliminary injunction granted to a group of plaintiffs who had alleged that Indiana’s abortion law violated their rights under the state’s Religious Freedom Restoration Act could remain in place. The case now proceeds to trial, or more likely to a direct appeal to the state Supreme Court.
Indiana became one of the first states to enact a near-total abortion ban after Roe v. Wade was overturned in 2022. In September of that year, four state residents of various faiths and a group called Hoosier Jews for Choice claimed that the ban violated the state’s Religious Freedom Restoration Act, which was passed with great fanfare in 2015 under the watchful eye of then-Gov. Mike Pence. The American Civil Liberties Union’s plaintiffs contended that the almost total ban violates Jewish law, which provides that “a fetus attains the status of a living person only at birth,” and religious tenets that give priority to the life and health of the mother over that of the fetus. They also cited the religious teachings of various other faiths that support seeking abortion care under broader circumstances than the ban allows. The plaintiffs contend that their sincere religious beliefs provide grounds for terminating pregnancies in circumstances that are criminalized under Indiana’s prohibition.
A state trial court judge had sided with the plaintiffs in December of 2022, and the state filed an appeal. Among the state’s objections, including ripeness and associational standing, they objected to the fact that the members of the plaintiff class did not share identical religious values, and that their abortion objections did not amount to religious views that should be protected under the state RFRA. As we cautioned after Dobbs was decided, at least one amicus brief filed in the case suggested that their proffered religious values were in fact pretextual. In allowing the injunction to stand, at least for now, with a narrowed class of plaintiffs, the Indiana court has signaled that no single religion has a monopoly on faith claims, and that members of dominant religious groups have no basis for casting doubt on the nature of faith claims advanced by others.
Although the legal arguments here might seem novel, they actually have a long history. For decades prior to Roe v. Wade, liberal and progressive religious leaders had argued on theological grounds for rights to contraception and abortion. What’s changed in the past few years is not religious convictions supporting reproductive rights. What’s new is how courts, often led by conservative judges, understand and create legal doctrines governing religious liberty, as well as the bans that states have enacted in response to the fall of the constitutional right to abortion following the Supreme Court decision in Dobbs.
The Indiana court of appeals did not have any trouble writing its decision. Sometimes judges like to say that a difficult opinion just “won’t write.” This opinion reads as the very opposite of that. Judge Weissmann’s opinion, like that of the trial court, provides a straightforward application of Indiana’s RFRA, a state statute modeled on the federal law.
To receive an exemption under Indiana’s RFRA, the plaintiffs in this case first had to show that Indiana’s abortion ban “substantially burdens” their sincere religious beliefs or practices. This wasn’t hard. As the individual plaintiffs explained, they have stopped trying to become pregnant out of fear that they would not be able to act according to their religious beliefs in circumstances that conflict with Indiana’s abortion ban. For example, several of the Jewish plaintiffs stated that the law would prevent them from acting according to their religious commitments, which would lead them to abort a pregnancy that jeopardizes their mental or physical well-being or when a fetus is diagnosed with severe chromosomal defects that will likely lead to miscarriage or early death, even if those defects are not considered “lethal” within the meaning of state law.
At the start of this litigation, some conservative lawyers floated the deeply dangerous idea that the Jewish plaintiffs in this case were insincere about their religious commitments—in other words, that they are lying to cover for their pro-choice political views. This argument, which the Indiana court rejects in a perfunctory footnote, was preposterous and should never have been made in the first place. Taking criticism (including from us), at least one conservative commentator abandoned his “tentative thoughts” along these lines, acknowledging that liberal and non-Orthodox Jews, like so many other religious believers, can state free exercise claims when they are motivated by their religious ethics, even if they don’t view traditional religious law as binding in the way some others do.
Under Indiana’s RFRA, once the plaintiffs show that the state’s abortion ban substantially burdens their religion, Indiana then has to prove two things: that the ban is justified by a “compelling interest” and that the ban is the “least restrictive means” of achieving that interest. Here, the state’s argument looks simple: It has a compelling interest in protecting life starting at conception, and allowing religious exemptions would undermine that interest. According to the state, an abortion ban is necessary—nothing less would do the job.
But here is where Indiana runs directly into the buzzsaw of current religious exemptions doctrine. In case after case, the U.S. Supreme Court has told us that if the state allows secular exceptions from its law, then it better have a really good explanation for why it doesn’t also allow religious exemptions. The Indiana court, applying its state RFRA—again modeled on federal law—tracks this reasoning to devastating effect for the state.
As Judge Weissmann explains, because Indiana’s abortion law has numerous secular exceptions, including for medical emergencies, cases of rape and incest, and when the fetus has a “lethal fetal anomaly,” and because the state’s 2022 abortion ban has an explicit exception for in vitro fertilization, the state interest in protecting life from the moment of fertilization is selectively applied. These exceptions thus raise the question: If the state allows abortion in some cases, why not also allow religious exemptions? As Judge Weissmann notes:
We need look no further than the language of the Abortion Law to determine that the General Assembly does not view the State’s compelling interest as beginning at fertilization. The Abortion Law exempts in vitro fertilization procedures from its scope, although there is the potential for life that might be destroyed in the process of this procedure.
As we are seeing the IVF debate play out in Alabama and on the national stage, states can’t grant exceptions for it without raising questions about further possible exceptions. Among other important insights, the Indiana panel says what should be obvious: The state isn’t quite as committed to its compelling interest in protecting life from conception as it purports to be. If it were, it wouldn’t allow the destruction of fertilized eggs in the IVF process (or in the case of rape or incest). But it does, and so, under the logic of current religious liberty doctrine, it may not discriminate against religious believers who want to make these same choices.
The Indiana appeals court decision to allow religious exemptions in the abortion context is going to be jarring for many people. And one reaction might be that abortion isn’t a form of worship or religious ritual. But Judge Weissmann offers the right response to this objection, which is that the decision not to have a child can be as profoundly religious as the decision to have one. As she concludes:
The State has provided little authority—and none that we find persuasive—to support the more restrictive view that religious exercise does not encompass the pregnancy terminations at issue here. Plaintiffs’ claims, in fact, seem to be the other side of the Burwell [v. Hobby Lobby] coin. 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.
Thursday’s ruling does not strike down the abortion ban currently in effect. It simply allows this litigation to go forward, with the lower court narrowing the class. Even if the plaintiffs eventually succeed, the practical effect of the religious exemption is yet to be determined. It could provide the basis for further litigation over possible remedies, including for doctors and other medical providers to provide care for those with religious exemptions.
With the ascendency of religious exemptions, especially in federal law, it would be natural to wonder what happened to the old-fashioned objection that abortion bans are really just an attempt by the state to impose one religious view about when life begins on others who don’t share that perspective. Even though the U.S. Supreme Court once rejected an argument along these lines, it has not lost its force. And in a remarkable concurring opinion, Judge L. Mark Bailey gave it full expression, writing:
Legislators, an overwhelming majority of whom have not experienced childbirth, nevertheless dictate that virtually all pregnancies in this State must proceed to birth notwithstanding the onerous burden upon women and girls. They have done so not based upon science or viability but upon a blanket assertion that they are the protectors of “life” from the moment of conception. In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers. The least that can be expected is that the remaining Hoosiers of child bearing ability will be given the opportunity to act in accordance with their own consciences and religious creeds.
Given the opportunity, some ideas will not be repressed, and in Indiana, the idea that abortion is a matter of religious freedom has broken through in the lower courts. Now the question is likely to be whether the Indiana Supreme Court will affirm that religious liberty applies even when it is liberal and progressive believers who are pressing their claims.
