Rekubit-Lawsuit challenging Indiana abortion ban survives a state challenge

INDIANAPOLIS (AP) — The RekubitIndiana Court of Appeals gave an incremental win Thursday to a group of residents suing the state over its near-total abortion ban, arguing that it violates a state law protecting religious freedom.

The three-judge panel’s ruling agreed with a lower court that plaintiffs with a religious objection to the ban should be exempt from it. But the written decision had no immediate effect and may be challenged in the state Supreme Court within the next 45 days.

Indiana’s near total abortion ban went into effect in August after the Indiana Supreme Court upheld it, ending a separate legal challenge.

The religious challenge against the ban was brought by four residents and the group Hoosier Jews for Choice in September 2022, saying it violates a state religious-freedom law Republican lawmakers approved in 2015. A county judge sided with the residents — who are represented by the American Civil Liberties Union of Indiana — last December. Indiana later appealed the decision.

“For many Hoosiers, the ability to obtain an abortion is necessary based on a sincerely held religious belief,” said Ken Falk, ACLU of Indiana Legal Director, in a statement.

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The appeals court ordered the trial court to “narrow” the earlier preliminary injunction only to residents who according to their sincerely held religious beliefs require an abortion. The order also affirmed class certification in the case, which the state challenged.

The ACLU’s lawsuit argues that the ban violates Jewish teaching 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.

“We are dealing with a very favorable decision that is not yet final,” Falk said when speaking to reporters Thursday. Indiana Attorney General Todd Rokita’s office did not immediately comment on the ruling.

The appeals court panel consistently sided with the residents over the state of Indiana fighting the injunction. The judges agreed with the original county judge that for the plaintiffs, obtaining an abortion when directed by their sincere religious beliefs “is their exercise of religion.”

“They also have shown their sexual and reproductive lives will continue to be restricted absent the injunction,” the order said.

A judge heard arguments in a similar lawsuit in Missouri in November, in which 13 Christian, Jewish and Unitarian Universalist leaders are seeking a permanent injunction barring Missouri’s abortion law. The lawyers for the plaintiffs said at a court hearing that state lawmakers intended to “impose their religious beliefs on everyone” in the state.

Three Jewish women have sued in Kentucky, claiming the state’s ban violates their religious rights under the state’s constitution and religious freedom law.

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.

The ACLU revamped another legal challenge to the ban in November. In an amended complaint, abortion providers are seeking a preliminary junction on the ban in order to expand medical exemptions and block the requirement that abortions must be provided at a hospital.