A majority of the Indiana Supreme Court on Friday scheduled oral arguments for Sept. 10 on a religious freedom lawsuit against Indiana's near-total abortion ban. And state lawmakers who passed the prohibitions in 2022 should have foreseen last month's Marion County Superior Court finding that they are in conflict with the state's Religious Freedom Restoration Act of 2015.
Indiana's abortion ban makes allowances for the procedure within the first 20 weeks of pregnancy if a lethal fetal anomaly is diagnosed, or within the first 10 weeks if the pregnancy is a result of rape or incest.
Because Christianity is not the only belief system in the state, the American Civil Liberties Union of Indiana filed a complaint on behalf of five unnamed plaintiffs as well as the organization Hoosier Jews for Choice in June 2023. Since March, the Marion County Superior Court injunction has allowed an abortion for those whose religious beliefs require one.
"This Permanent Injunction is meant simply to capture those rare instances when an abortion does not fall within the enumerated exceptions but is likewise a necessary religious exercise," Judge Christina Klineman's decision said. "Although advances in medicine are extraordinary, neither party to this action has provided this court with an alternative means to the very binary proposition of carrying a fetus to term or not."
The Republican-dominated General Assembly passed the abortion ban during a two-week special session in August 2022, making Indiana the first state to prohibit the procedure after the U.S. Supreme Court overturned Roe v. Wade. A month later, the ACLU asked the court to grant certification of a class that includes all Hoosiers whose religious beliefs "direct them to obtain abortions in situations" prohibited by the ban, and "who need, or will need, to obtain an abortion and who are not, or will not be, able to obtain an abortion."
A judge agreed, finding there is a large enough group of potential Hoosier plaintiffs with the same objections to the abortion ban. Judge Heather Welch found there is sufficient evidence that some religious beliefs would guide their practitioners to seek abortions under some circumstances, based on the testimony from faith leaders.
Attorney General Todd Rokita reacted to the Supreme Court's Friday decision in an X post Saturday. "The lower court's decision fundamentally misunderstands religious liberty by claiming it confers a right to abortion," Rokita wrote.
The ACLU said in a statement Monday that it's disappointed the state is continuing to fight this case. "The core issue remains the same: Hoosiers do not lose their right to religious freedom when they become pregnant," the ACLU said.
The framework provided under RFRA applies to organized religions, but it also applies to people whose religious beliefs don't fit neatly into a specific category.
Under the act, a state law cannot substantially burden religion. Yet the ACLU argued that "under Jewish law, a fetus attains the status of a living person only at birth" and Islam "does not believe that the fetus is ensouled at the moment of conception."
The ACLU of Indiana says RFRA applies to all Hoosiers of faith and not just conservative Christians. And that's been the problem with the near-total abortion ban from the beginning - a narrow interpretation of religion.