Abortion Accessibility in Indiana

 In 2022, a group of plaintiffs including five anonymous women and the group Hoosier Jews for Choice challenged Indiana’s abortion ban using the state’s Religious Freedom Restoration Act (RFRA) as testimony. The ban allows for abortion under circumstances of rape, incest, lethal fetal abnormality, and “death or a serious risk of substantial and irreversible physical impairment of a major bodily function”. The plaintiffs proceeded to raise religious objections to address seeking access to abortion under certain circumstances. One plaintiff, a Jewish woman, argued that she hoped for another child but held religious beliefs that would require termination of her pregnancy if it threatened her physical or mental health. Another plaintiff, unaffiliated with a particular religion, claimed that she held beliefs regarding autonomy and the beginning of life that would also require termination of a pregnancy under specific circumstances. 

The RFRA was passed by Congress in 1993 to further protect religious freedom after various Supreme Court decisions had weakened the Constitution’s  protections. The RFRA states that the government cannot interfere with one’s religious practice unless there is compelling reasoning and no alternatives. The act only applied on a federal level, leading various states, such as Indiana, to pass their respective versions. Since then, 29 states have their own RFRAs. Following the Supreme Court’s decision to ban abortion on a federal level, abortion rights lawyers have used these laws as a means to advance their agenda.

Following the plaintiff’s challenge, a trial court granted a preliminary injunction in December 2022, which exempted the group from the state’s abortion ban. The court additionally specified those who hold similar religious obligations. An appellate court went on to sustain the rulings, but requested that the trial court specify that the injunction's scope only applied to when plaintiffs sought abortions for sincere religious reasons. They also specified that these reasons should not implicate the RFRA. In December 2024, the Indiana Supreme Court declined to review the appellate court’s affirmance of the injunction. 

A couple weeks ago, the trial court made the injunction permanent, meaning the state cannot deny abortions to plaintiffs with sincerely held religious beliefs. The plaintiffs counsel, the American Civil Liberties Union of Indiana went on to pursue a class action, meaning the ruling will apply to all state residents. State defendants went on to argue that the Hoosier Jews for Choice did not have standing to use the RFRA for their claims. The Court of Appeals then proceeded to utilize the three part criteria that was established in the US Supreme Court Case Hunt v. Washington State Apple Advertising Commission, to determine whether or not the organization may sue. The criteria states that members have the standing to sue individually, the lawsuit is directly related to the purpose of the organization (HJFC), and individual members don’t need to participate personally. The court ended up affirming the injunction as the group met the criteria. 

The state then argued that the case was currently invalid because the plaintiffs weren’t currently pregnant, which the judge rejected because the law protects when religious freedom is likely to be burdened, not just when it is actively being burdened. The state then argued that the ban didn’t burden women because only doctors face criminal punishment, which the judge also rejected because the women couldn’t access abortions in the first place. The state lastly argued that protecting fetal life is compelling interest, which the judge disagreed with since there are already exceptions (rape or IVF), which undercuts that fetal life must be protected. Indiana’s attorney general appealed.

The case raises the question: should a state be able to use its own religious freedom policy to create abortion access that state law does not allow under most circumstances? It also raises a question regarding the Establishment Clause: does allowing abortion for religious practitioners favor religion over non-religion, since non-religious people are not granted the same right? 

I would argue that the plaintiffs, and citizens in general, should be able to be granted abortion access through religious freedom. When a state creates their respective RFRA, they are voluntarily agreeing to restrain their future authority. Indiana’s RFRA prevents the state from “substantially burdening a person’s free exercise of religion”, as the federal RFRA does similarly. While determining what qualifies as “substantial” is fairly subjective, one could define it as when government actions proceed mere inconvenience to force an individual to violate their religious beliefs. Even if the doctors are the ones that face punishment, if the plaintiffs can’t act on their sincere religious beliefs in the first place, then who gets punished is somewhat beside the point. The plaintiffs also claimed to have already actively rearranged their personal lives around the abortion ban, making the harm present and not just a potential future burden. Overall, this is a substantial burden on religious practitioners. As for the Establishment clause, I believe that this serves more as an accommodation of religion than an establishment. If the plaintiffs here genuinely believe that their religion is being substantially burdened, then they are not asking for special treatment in their views, but to be treated equally in regards to their religion. Obviously that is very tough to determine and arguments for both sides could be made.