By Marilyn Odendahl

The Indiana Citizen

October 16, 2023

In a lawsuit citing religious freedom to challenge Indiana’s near-total abortion ban, the state’s attorney general is attempting to overturn the trial court’s class-certification ruling in the case.

The lawsuit – Anonymous Plaintiff 1, et al. v. The Individual Members of the Medical Licensing Board of Indiana, et al., 49D01-2209-PL-031056 – asserts Indiana’s post-Dobbs restrictions on abortion violate the state’s Religious Freedom Restoration Act by interfering with the plaintiffs’ practice of their religious beliefs. They claim their faiths direct them to obtain abortions in situations prohibited under the state law.

However, Indiana is countering that there is no objective way to determine if women who terminate their pregnancies are doing so because of their religious beliefs or for other non-religious reasons.

In response to the lawsuit, the state, represented by Indiana Attorney General Todd Rokita, has filed two separate appeals. The first is appealing the preliminary injunction, which prevents the state from enforcing the law on the plaintiffs, while the second is appealing the certification of the case as a class action.

After the appeal over the preliminary injunction had been fully briefed and oral arguments had initially been scheduled for September, the class certification order was issued by the trial court. The state’s final brief in the class certification appeal was filed Oct. 5.

Both appeals have now been consolidated into a single case and the Court of Appeals of Indiana has rescheduled oral arguments to Dec. 6, 2023.

Throughout its appeal, the state argues “entirely subjective criteria” must be used to determine which women belong to a religion that allows for abortions. Even within the faiths represented in the lawsuit, which include Judaism, Islam, Unitarian Universalism and Episcopalianism, the support of abortion is not uniformly accepted by all the members, the state asserts.

“…the trial court was simply wrong to conclude that ‘the religions to which Plaintiffs and putative class members belong would guide its practitioners to seek abortions,’” the state writes in its appeal brief. “Maybe. Maybe not. One cannot know in advance.”

Representing the plaintiffs, the American Civil Liberties Union of Indiana is fighting both appeals. The ACLU maintains the class is properly defined and says “numerous courts” have certified classes defined by the members’ religious beliefs.

“The State’s argument would mean that cases challenging government actions as impinging on religious rights could never be brought as class actions, and this is simply not the case,” the ACLU argues in its response brief.

“Moreover, the frequency with which courts certify classes defined in terms of (a) person’s religious beliefs should not be surprising: while these beliefs are certainly personal, they are rarely idiosyncratic, and so governmental action impinging on these beliefs frequently affects numerous persons in fundamentally the same manner,” the ACLU argues.

Indiana’s abortion law, Senate Enrolled Act 1, was passed in August 2022 just weeks after the U.S. Supreme Court overturned the constitutional right to terminate a pregnancy in Dobbs v. Jackson Women’s Health Organization. The Hoosier law criminalizes abortions except where the pregnancy endangers the mother’s physical health or life or is the result of rape or incest or the fetus has a lethal anomaly.

 Four women of differing religious faiths and Hoosier Jews for Choice filed their lawsuit in September 2022, claiming the state’s restrictive abortion law violates Indiana’s Religious Freedom Restoration Act. The plaintiffs say their sincere religious beliefs direct them to terminate pregnancies in certain situations in which abortions are now prohibited under Indiana’s law.

Marion County Superior Court, which issued the preliminary injunction and the class certification, found the women whose religious beliefs support abortion could be identified. The trial court held membership in the class is defined by two criteria: the first being the ability to become pregnant and the second being membership in a religion that would direct the believer to abort a pregnancy under certain circumstances.

In its class certification order, the trial court was careful to point out the limits of its finding. It was not ruling that the denial of abortion access placed a substantial burden on religious practice under RFRA.

“The Court finds that the designations thus far merely provide sufficient evidence that one could determine putative members of the class proposed by Plaintiffs through objective criteria,” Judge Heather Welch wrote in the order. “Whether limiting abortion services is a substantial burden of the practice of these religions remains a question that goes to the ultimate determination in this matter.”

The ACLU asserts although the plaintiffs are not pregnant, their RFRA claim is still valid. If the women become pregnant, they will not be able to follow their religious beliefs and obtain an abortion in situations currently not allowed under Indiana law.

“The State repeatedly argues that because the plaintiffs do not need abortion care today, they are not members of the class they have sought and the class was improperly certified,” the ACLU asserts in its response brief. “However, it is undisputed that solely because of (Indiana’s new abortion law) the plaintiffs have radically changed their behaviors to avoid becoming pregnant. They, as well as the members of the class, therefore need the assurance today that abortion care is available to them. The class is therefore properly defined and the plaintiffs are members of the class.”

In its reply brief, Indiana presses its argument that the class cannot be objectively defined. It notes the trial court defined the class differently to include women who do not need an abortion but have changed their behavior to avoid becoming pregnant. Also, according to the state, the plaintiffs have amended the class definition to include those who wish to have abortion services available.

“The revised definition would include women, like plaintiffs, who are not pregnant, who may never become pregnant, who may never assert a religious need for an abortion, and who may never face a legal obstacle to obtaining one,” the state argues. “It apparently would include anyone asserting an abstract desire of ‘abortion services’ to be ‘available.’”

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and, and worked as a planner for other newspapers, including the Louisville Courier Journal. 

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