Indiana appeals court uses RFRA to block abortion ban

Left to right: Judges of the Indiana Court of Appeals Melissa S. May, L. Mark Bailey, and Leanna K. Weissmann. (Image via WTHR).

The Indiana Court of Appeals issued a bold and unanimous ruling Thursday blocking the state’s near-total abortion ban as a violation of a religious freedom law long championed by conservatives.

The appellate court was unambiguous that the roots of its decision can be found in a framework set up by the U.S. Supreme Court when it overruled Roe v. Wade:

The United States Supreme Court set the stage for this appeal two years ago when it ruled that the federal constitution “does not confer a right to abortion.” In so ruling, the Dobbs Court placed the ability to regulate abortions not protected by federal law squarely in the states’ laps.

Hoosiers after Dobbs

In August 2022, following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, the Indiana state legislature became the first in the nation to pass a ban on nearly all abortions. Immediately thereafter, the ACLU of Indiana sued to challenge the ban on behalf of five anonymous Jewish, Muslim, and spiritual plaintiffs and the group Hoosier Jews for Choice. The plaintiffs argued that their religious beliefs not only support — but in some situations, even mandate — abortions that would be illegal under Indiana’s ban. The conflict between the Indiana abortion ban and the plaintiffs’ individual religious beliefs meant the ban violated the state’s Religious Freedom Restoration Act (RFRA), they said in their complaint.

Indiana’s RFRA was a controversial piece of legislation signed into law in April 2016 by then-Governor Mike Pence, a Republican. Like other RFRA laws, Indiana’s said that local or state government action “may not substantially burden a person’s right to the exercise of religion” unless that action satisfies a strict-scrutiny test. Conservative champions of the law hailed it as a victory for the free exercise of religion while opponents denounced it as a license to discriminate against the LGBTQ+ community.

In recent years, various state and national rulings have expanded the scope of “religious liberty” to include allowing a Christian web designer to refuse service to LGBTQ+ clients and an evangelical Christian postal worker to refuse Sunday work shifts.

Upon signing Indiana’s RFRA statute into law, Pence said in a statement:

The freedom of religion for every Hoosier is enshrined in the Constitution of the United States and in the Indiana Constitution, which reads, ‘No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.’ For generations, these protections have served as a bulwark of religious liberty for Hoosiers and remain a foundation of religious liberty in the State of Indiana, and that will not change.

Now, less than a decade later, the state’s conservative agenda has been turned on its head as the same statute has been used to block Indiana’s restrictive abortion law as a violation of religious liberty.

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