The Gist

Opponents of Indiana’s near-total abortion ban won a legal victory Thursday with a state Court of Appeals decision finding that the ban likely violates the Religious Freedom Restoration Act signed into law by then-Gov. Mike Pence in 2015.

The 3-0 decision from the appeals court sends the case back to a Marion County judge for more action — and could very well be appealed to the Indiana Supreme Court.

But it casts more uncertainty over the legal standing of the anti-abortion law that has reduced by 97% the number of procedures performed in the state from before the law took effect last summer.

What’s Happening

The appeals court decision largely sided with the American Civil Liberties Union of Indiana, which filed the lawsuit on behalf of the organization Hoosier Jews for Choice and five women who claimed the ban violates their religious rights on when they believe abortion is acceptable.

“Through their allegations that the Abortion Law bars them from obtaining abortions that their religious beliefs direct, [the women] have shown that their religious exercise is likely to be substantially burdened by the Abortion Law,” the court ruling said.

The court also ruled the lawsuit could move forward as a class-action case on how to apply the Religious Freedom Restoration Act, often referred to as RFRA. That means legal rulings in the case could apply statewide rather than only to the women identified in the suit.

“A single injunction seemingly could provide final, appropriate relief for the entire class consistent with RFRA upon proof that the Abortion Law violates [the women’s] rights under RFRA,” the decision said. “This is no different from the injunctions approved in [a military] servicemember’s RFRA challenges to vaccine mandates.”

As part of the ruling, the appeals court judges pointed out the inconsistency of the abortion ban exempting in vitro fertilization procedures while the state attorney general’s office asserted the law was aimed at protecting potential human life from an egg’s fertilization.

Protections for in vitro treatments have come into question nationally since an Alabama court ruling in February said frozen embryos for such procedures could be considered children.

“We need look no further than the language of the Abortion Law to determine that the General Assembly does not view the State’s compelling interest as beginning at fertilization,” the Indiana appeals court ruling said. “The Abortion Law exempts in vitro fertilization procedures from its scope, although there is the potential for life that might be destroyed in the process of this procedure.”

Why It Matters

The ACLU of Indiana hailed the appeals court decision as protecting abortion rights of women based “on a sincerely held religious belief.”

“The burden placed on these individuals by Indiana’s abortion ban is absolute and life-altering,” said Ken Falk, the ACLU of Indiana’s legal director. “The Religious Freedom Restoration Act is clear that it protects religious freedom for all Hoosiers, and the Court of Appeals’ decision today reflects that clear directive.” 

Indiana Right to Life, the state’s most prominent anti-abortion group, called the decision “wrongly decided” and pointed to the state Supreme Court’s ruling last year rejecting the ACLU’s broad challenge to the abortion ban’s constitutionality.

“The Indiana Supreme Court has already ruled the state has a compelling interest in protecting unborn life, and Indiana’s new abortion-restriction law is doing that by reducing Indiana abortions to the lowest level in five decades,” Indiana Right to Life President Mike Fichter said in a statement. “We are confident Indiana will prevail against any claims that abortion — the intentional ending of an innocent and helpless human life — is a religious freedom.”

The state attorney general’s office, which has been defending the abortion ban in court, pointed out that the existing injunction applied to only those involved in the lawsuit.

“The ACLU is right about one thing — this case is far from over and Hoosiers know our office will always fight to protect the unborn,” the office said in a statement.

What’s Next?

The appeals court decision sends the case back to a Marion County court with instructions to narrow an injunction blocking enforcement of the abortion ban against the women who filed the suit.

The appeals court found the judge’s injunction would block the state from enforcing the abortion ban against the women even in circumstances not involving religious freedom claims.

Further action will likely depend on whether the attorney general’s office pursues an appeal to the state Supreme Court.

Meanwhile, a trial is scheduled to begin May 29 on a separate ACLU challenge to the abortion ban.

That challenge looks to broaden the ban’s health exceptions, based partly on the Indiana Supreme Court’s ruling last year that the state constitution limits the General Assembly to banning abortions “which are unnecessary to protect a woman’s life or health.”

This story has been updated with comment from the state attorney general’s office.

Tom Davies is a Statehouse reporter for State Affairs Pro Indiana. Reach him at [email protected] or on X at @TomDaviesIND.

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