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A controversial Indiana law once championed by Mike Pence could end up protecting abortion access in the state if a lawsuit filed by the ACLU is successful. Last week, a superior court judge granted class action status to a suit seeking to strike down the state’s near-total ban on abortion on the grounds that it violates Indiana’s Religious Freedom Restoration Act (RFRA), which then-Governor Pence signed into law in 2015.
The complaint, filed on behalf of five unnamed plaintiffs — three Jews, one Muslim, and one whose belief system is described as “universal consciousness” — as well as the organization Hoosier Jews for Choice, asserts that Indiana’s near-total abortion ban violates their sincere religious beliefs. In seeking class action status, lawyers for the plaintiffs argued that the law infringes on the beliefs of countless additional Hoosiers, including practitioners of Unitarian Universalism, Episcopalianism, and paganism.
A judge on Tuesday agreed, finding that there is a large enough group of potential plaintiffs in Indiana with the same objections to the law as the existing plaintiffs for the challenge to proceed as a class action lawsuit. In a 29-page ruling, Marion Superior Court Judge Heather Welch found there was “sufficient evidentiary support that the religions to which plaintiffs and putative class members belong would guide its practitioners to seek abortions under particular circumstances based on testimony from leaders of these faiths.”
If his signature achievement ends up as the basis for protecting abortion access in Indiana, it is unlikely to be welcome news for Pence. The former vice president, who announced last week he is seeking the Republican nomination for president, holds the most regressive views on abortion of anyone currently in the GOP field. When the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization last year, he declared “we must not rest” until abortion is outlawed in every state. A spokesman for Pence did not immediately respond to a request for comment about the lawsuit.
Indiana’s RFRA, which became law in 2015, asserts the government may not infringe on one’s ability to practice his or her religion without a compelling reason. At the time, it was widely condemned as an effort to legalize discrimination against the LGBTQ community. Pence initially defended the law, before — under pressure from the likes of Tim Cook, Salesforce, and the NCAA — he called on the Indiana General Assembly to clarify that the law did not create a license to discriminate against the gay community, infuriating some evangelicals.
TThe law could now be used to strike down Indiana’s near-total abortion ban. In the complaint the ACLU notes that “under Jewish law, a fetus attains the status of a living person only at birth,” and quotes the 19th century Orthodox Rabbi Moshe of Pressburg, declaring, “No woman is required to build the world by destroying herself.” Lawyers also argue that in a number of majority-Muslim countries — including Kuwait, Jordan, Qatar, Bahrain, and the United Arab Emirates — abortion is legal to preserve the pregnant person’s health: “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.
This is the second ACLU lawsuit challenging Indiana’s ban. The ban is currently enjoined while the first suit — which argues the ban violates Indianans’ rights to liberty and privacy — is being considered by the state’s Supreme Court.
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