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By Marilyn Odendahl

The Indiana Citizen

May 11, 2023

The lawsuit claiming the state’s near total abortion ban violates Indiana’s Religious Freedom Restoration Act has been scheduled for oral argument Sept. 12 before the Court of Appeals of Indiana.

The May 11 order setting oral argument in Individual Members of the Medical Licensing Board of Indiana et al. v. Anonymous Plaintiff 1, et al., 22A-PL-2938, comes as another lawsuit challenging the abortion restrictions is still pending before the Indiana Supreme Court.

Both lawsuits were filed shortly after Gov. Eric Holcomb signed Senate Enrolled Act 1 in August 2022. The Indiana General Assembly crafted the legislation during a special session that was convened shortly after the U.S. Supreme Court overturned abortion rights in Dobbs v. Jackson Women’s Health Organization in June 2022. Hoosier lawmakers passed a law criminalizing abortion with limited exceptions for rape, incest and the physical health of the mother.

The lawsuit citing RFRA was actually the second legal complaint lodged in state court against Indiana’s new abortion law. Plaintiffs filed the lawsuit in Marion County Superior Court Sept. 8, 2022. They asserted the new abortion ban violates the Indiana Religious Freedom Restoration Act because it burdens their sincerely-held religious beliefs which permit a woman to terminate her pregnancy in certain circumstances

The first lawsuit – Members of the Medical Licensing Board of Indiana et al. v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al., 22S-PL-00338 – was filed in Monroe County Circuit Court Aug 31, 2022. Plaintiffs in this case argued the law violates the Indiana Constitution’s guarantee of the right to privacy which includes a woman’s right to decide if she will carry a pregnancy to term.

Finding the plaintiffs in both lawsuits were likely to prevail on their claims, the Monroe and Marion county courts each blocked with new abortion law from taking effect while the cases are being litigated

The Supreme Court accepted emergency transfer of the first lawsuit and heard oral arguments Jan. 19, 2023.  If the justices reverse the ruling from the Monroe County Circuit Court by finding find the state’s abortion law is constitutional, the abortion restrictions will continue to be blocked by the preliminary injunction issued by the Marion County Superior Court in the second lawsuit.

Although the women plaintiffs in the second lawsuit are not identified, court documents note they practice a variety of faiths including Judaism, Islam, Unitarian Universalism and Paganism.

In a December 2022 0rder, the Marion County Superior Court issued the preliminary injunction in the RFRA  lawsuit. The court ruled, in part, the near total abortion ban did impose a “substantial burden” on the plaintiffs’ exercise of their religions and the state did not put forth a compelling interest for enforcing the law against the plaintiffs.

“This court finds that the question of when life begins is a theological one not a factual question for this Court,” Marion County Judge Heather Welch wrote in the December 2022 order. “…While the State may question the sincerity of a plaintiff’s religious belief, it may not question the belief’s veracity. … To do so would place the court as the arbiter of the reasonableness and propriety of religious beliefs and would violate the First Amendment.”

Plaintiffs in both lawsuits are represented by the American Civil Liberties Union of Indiana. The state is represented by the Indiana Attorney General.

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