Indiana’s appeals court hears arguments challenging abortion ban

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Indiana’s Court of Appeals questioned attorneys this week on exceptions to the state’s abortion ban in a case involving residents who are suing on grounds that it violates a state religious freedom law.

The class action lawsuit, filed by the American Civil Liberties Union of Indiana on behalf of five anonymous residents and the group Hoosier Jews for Choice, argues Indiana’s abortion ban violates the state’s Religious Freedom Restoration Act that was approved by Republican lawmakers in 2015.

The suit was originally filed in September 2022 and a county judge sided with the residents last December.

Indiana later appealed the decision. The court heard arguments Wednesday at the Indiana Statehouse, but did not indicate when it would rule on the appeal.

The lawsuit argues the ban violates Jewish teachings that “a fetus attains the status of a living person only at birth” and that “Jewish law stresses the necessity of protecting the life and physical and mental health of the mother prior to birth as the fetus is not yet deemed to be a person.” It also cites theological teachings allowing abortion in at least some circumstances by Islamic, Episcopal, Unitarian Universalist and Pagan faiths.

Solicitor General James Barta argued in court that the ban does not violate the law because “the unborn are persons entitled to protections.” Three judges hearing arguments peppered him with questions about current exemptions to the abortion ban, including in limited cases of rape and incest.

“Aren’t religious beliefs just as important as those concerns?” Judge Leanna K. Weissmann asked.

The judges also questioned ACLU of Indiana’s legal director Ken Falk about the state Supreme Court’s decision earlier this year to uphold the ban. Falk said at least some of the residents have changed their sexual practices because of the ban despite of their religion’s teaching on abortion.

A spokesperson for the Indiana Attorney General’s office said in a written statement it looks forward to the court’s ruling. “We once again stood up for the rights of the most vulnerable today,” the statement said.

The suit is one of many across the country wherein religious freedom is cited as a reason to overturn a state’s abortion ban, including one in Missouri and one in Kentucky.

In the Missouri case, 13 Christian, Jewish and Unitarian leaders are seeking a permanent injunction barring the state’s abortion ban. The lawyers for the plaintiffs said at a court hearing state lawmakers intended to “impose their religious beliefs on everyone” in the state.

The lawsuit will likely to go to the state Supreme Court. Indiana’s near total abortion ban went into effect in August after the Indiana Supreme Court upheld it in the face of a separate legal challenge from the ACLU.

The ACLU of Indiana revamped its efforts impede the ban in November. In a separate and amended complaint, abortion providers are seeking a preliminary injunction on the ban in order to expand its medical exemptions and block the requirement that abortions be performed at a hospital.

Indiana became the first state to enact tighter abortion restrictions after the U.S. Supreme Court ended federal abortion protections by overturning Roe v. Wade in June 2022. The near total ban makes exceptions for abortions at hospitals in cases of rape or incest and to protect the life and physical health of the mother or if a fetus is diagnosed with a lethal anomaly.

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