Last week, an Indiana appeals court ruled in favor of a group of plaintiffs who challenged the state’s restrictive abortion law on the ground that it interfered with their right to religious freedom. The ruling in Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1 might yet be reversed by the Indiana Supreme Court. Even if not, because it was based on state rather than federal law, it has no direct application beyond Indiana or to people who cannot sincerely claim a religious basis for seeking an abortion.
Nonetheless, the ruling marks an important milestone in the legal battle over abortion. Heretofore, religion has typically been invoked in such skirmishes almost exclusively by people who oppose abortion asserting their religious scruples as a basis for opting out of various legal obligations. For example, in the 2014 case of Hobby Lobby v. Burwell, the U.S Supreme Court held that the federal Religious Freedom Restoration Act (RFRA) entitled a closely held for-profit corporation to an exemption from the mandate to provide employees with health insurance that includes coverage for contraception on the ground that the company’s owners regarded some methods of contraception as tantamount to abortion, which they opposed on religious grounds. The Indiana ruling signals that religious claims may no longer be a tool reserved for social conservatives.
Moreover, the Indiana ruling could spread to other states and the federal government. After all, the basis for the court’s decision was Indiana’s state RFRA, which in every relevant respect is identical to the federal RFRA. Indeed, as I shall explain, the Indiana court’s logic, if accepted elsewhere, could provide a basis in federal constitutional law to challenge abortion laws in every state that substantially restricts abortion.
The Parties and Their Claims
The plaintiffs in the Indiana case are an organization (Hoosier Jews for Choice), three individuals, and a couple. They all claim (with the organization claiming on behalf of its members) that Indiana’s very restrictive abortion law substantially restricts their ability to exercise their religion in violation of the state RFRA. They succeeded in the trial court in obtaining a preliminary injunction against the enforcement of the abortion law to them.
Roughly half of the appeals court decision addresses procedural issues. The court decided all of the important ones in favor of the plaintiffs, including that: Hoosier Jews for Choice has organizational standing on behalf of its members; the various plaintiffs’ claims are ripe, notwithstanding the fact that none of them is currently pregnant seeking an abortion because the fear of running up against the state abortion restriction has reasonably led them to take disadvantageous measures; and the case can proceed as a class action. The appeals court resolved only one procedural issue against the plaintiffs, and even then, it merely instructed the district court to clarify its injunction to make clear that it applied only in circumstances in which the plaintiffs would have valid RFRA claims—a clarification that the plaintiffs appear to find fully acceptable.
The key substantive issue the Indiana appeals court resolved in affirming the trial court’s entry of a preliminary injunction was whether the plaintiffs had demonstrated a likelihood of success on the merits. The appeals court said they had. To understand why, consider the claims presented.
All but one of the plaintiffs are Jewish and claimed that in some circumstances their faith would require them to have an abortion. The other plaintiff “does not believe in a single, theistic god” but nonetheless claims that what the court calls her “religious and spiritual beliefs” once before led her to terminate a pregnancy that she thought inconsistent with “her humanity and inherent dignity” and could lead her to seek to do so again. Without knowing more about the nature of the underlying beliefs or Indiana law, I cannot say for certain that this plaintiff’s views count as “religious,” so I shall focus on the Jewish plaintiffs.
One might wonder whether Jews who are not strictly observant (as the Indiana plaintiffs apparently are not) really regard Jewish law (as found in the Torah, Talmud, and other sources) as a binding source of guidance on abortion (or anything else, for that matter). Professor Josh Blackman raised this question shortly after the Supreme Court overruled the federal constitutional right to abortion in what he titled a set of “tentative thoughts,” later clarifying (in a co-authored law review article and a solo blog post) that he did not mean to imply that liberal Jews could not have sincere religious objections.
The Indiana court found no obstacle to the Jewish plaintiffs’ state RFRA claim—and rightly so. After all, under the state RFRA, a protected “‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Notably, that very same language also appears in a provision of federal law that defines religious exercise under the federal RFRA. Other longstanding principles of religious freedom at both the state and federal level make clear that so long as a claimant sincerely espouses a religious claim, it does not matter whether their view is idiosyncratic or unorthodox—and courts are reluctant to delve too deeply into the content of a party’s religious views to determine their sincerity. Accordingly, the Indiana appeals court appears to be correct to have validated the plaintiffs’ religious claims.
Competing Interests
Both the Indiana and federal RFRAs provide that even a law that imposes a substantial burden on the exercise of religion can be enforced if it is “the least restrictive means of furthering [a] compelling governmental interest.” That language was drawn from the U.S. Supreme Court’s “strict scrutiny” test for evaluating laws that infringe fundamental constitutional rights (like free exercise of religion). It is notoriously demanding.
The Indiana appeals court found that the state abortion law, as applied to claimants with sincere religious objections, did not promote a compelling interest and was not the least restrictive means of advancing the interests it promotes. The court’s reasoning on the first point was somewhat odd, however.
The appeals court distinguished a prior Indiana Supreme Court case that did find a compelling interest in forbidding abortion. That case was not relevant, the appeals court said, because it pre-dated Roe v. Wade, but now that Roe has been overruled, it is difficult to see why that matters. The appeals court also noted aspects of the Indiana abortion law that, it said, were inconsistent with the legislature’s belief that the law serves a compelling interest. It pointed to the law’s permission for in vitro fertilization and its allowance for certain abortions based on medical grounds or in pregnancies resulting from rape. Yet these ostensible inconsistencies appear to be more relevant to the question whether the law satisfies the least-restrictive-means requirement—a requirement that is sometimes described as “narrow tailoring”—than to whether Indiana has a compelling interest in forbidding abortion.
Thus, the appeals court was more persuasive in arguing that Indiana’s law is not the least restrictive means of promoting its goals. In essence, the court said that the law’s limited allowances for abortions based on health showed that the state recognized secular grounds for prioritizing health over fetal life, but that in denying the plaintiffs’ religiously rooted claims for a broader prioritization of health over life, the state was effectively discriminating against religion. As I shall explain next, that reasoning, if broadly adopted, would have nationwide implications.
Federal Implications
I have noted throughout this column that Indiana’s RFRA is a near-verbatim copy of the federal RFRA. Does that imply that abortion laws throughout the country are subject to religious exceptions? The short answer is no, but the longer answer is maybe.
As originally enacted, the federal RFRA required religious exceptions to laws at all levels of government—federal, state, and local. However, in the 1997 case of City of Boerne v. Flores, the U.S. Supreme Court held the federal RFRA unconstitutional as applied to state and local governments. The law continues to operate to constrain the application of other federal laws (as in the Hobby Lobby case discussed above), but the federal RFRA can no longer be invoked by a claimant seeking a religious exemption from a state or local law.
Nonetheless, federal constitutional law can be invoked as a basis for challenging state abortion laws. The Indiana appeals court decision hinted at how that is possible in its suggestion that the state’s failure to treat religious conceptions of health as generously as secular conceptions amounts to discrimination against religion. Indeed, the appeals court prominently and repeatedly relied upon Church of the Lukumi, Babalu Aye, Inc. v. City of Hialeah, the leading U.S. Supreme Court case holding that the Free Exercise Clause of the First Amendment, as made applicable to state and local governments via the Fourteenth Amendment, forbids religious discrimination.
Meanwhile, more recent U.S. Supreme Court cases—especially the 2021 ruling in Tandon v. Newsom—establish a broad understanding of what constitutes impermissible favoritism for secular exceptions over religious ones. As Professors Micah Schwartzman and Richard Schragger argued forcefully in an article published last year in the Iowa Law Review, the logic of Tandon and related cases provides a solid basis for religious exceptions from abortion restrictions.
To be sure, the Iowa appeals court ruling does not bind other state or federal courts. Moreover, the U.S. Supreme Court Justices who have defined religious discrimination very broadly are the same ones who overruled the federal constitutional right to abortion. The logic they espouse in the religious freedom cases may imply religious exceptions to abortion restrictions, but their ideological views could blind them to those implications.
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Speaking for the majority in Dobbs v. Jackson Women’s Health Org. in 2022, Justice Samuel Alito asserted that in overruling a nearly five-decade-old precedent, the Court sought to “return . . . authority” over abortion policy “to the people and their elected representatives.” That claim was either disingenuous or naïve. As last week’s Indiana appeals court ruling and the U.S. Supreme Court’s own oral argument last month in the abortion-pill case illustrate, there is no end in sight to litigation over abortion.
