ACLU files second lawsuit challenging Indiana’s near-total abortion ban

The American Civil Liberties Union of Indiana on Thursday filed a second lawsuit challenging Indiana’s near-total abortion ban that is set to take effect in one week.

The lawsuit was filed in Marion County Superior Court on behalf of Hoosier Jews for Choice, as well as five anonymous women who represent a variety of faiths including, Judaism, Islam, and independent spiritual belief systems.

They argue that they have “sincere religious beliefs that direct them to obtain an abortion” that would be banned “and who are at risk of needing an abortion in the future consistent with these beliefs.” 

The lawsuit seeks an injunction on the Indiana abortion law.

Indiana was the first state in the nation to approve such legislation since the high court ruling that overturned Roe v. Wade. The ban is still set to take effect on Sept. 15.

The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. One part of the law says these exceptions are up to 20 weeks but another part says they can be used anytime. Rape survivors can get an abortion up to 10 weeks post-fertilization. It also strips abortion clinics of their state medical licenses, and provides that only hospitals and hospital-owned ambulatory surgical centers can provide abortions.

Lawsuit argues religious freedom violations

Specifically, the lawsuit claims the new abortion ban violates Indiana’s Religious Freedom Restoration Act (RFRA).  

The controversial RFRA measure — lauded by religious conservatives — passed the Indiana legislature in 2015, prohibiting government action that interferes with a person’s religious exercise. It stipulates that the government must show a compelling reason to enact a law that forces someone to do something against their religious beliefs.

Former Indiana Gov. Mike Pence, who signed the law, drew major criticism from opponents who argued that RFRA makes discrimination legal.

The ACLU lawsuit attempts to turn RFRA’s language back on Indiana’s Republican lawmakers who supported both the religious freedom bill and the abortion ban.

According to the plaintiffs, although some religions — and adherents of those religions — believe that human life begins at conception, “this is not a theological opinion shared by all religions or all religious persons.”

“Indiana’s RFRA law protects religious freedom for all Hoosiers, not just those who practice Christianity,” ACLU of Indiana legal director Ken Falk said in a statement. “The ban on abortion will substantially burden the exercise of religion by many Hoosiers who, under the new law, would be prevented from obtaining abortions, in conflict with their sincere religious beliefs.”

The lawsuit points to Jewish principles, which maintain that “a fetus attains the status of a living person only at birth.” The embryo or fetus is considered “a physical part of the woman’s body, not having a life of its own or independent rights,” according to the complaint. Jewish law further recognizes that “abortions may occur, and should occur as a religious matter.”

Islamic beliefs referenced in the lawsuit also permit abortions in certain circumstances, including when the physical or mental health of the mother is in “pressing need.” The plaintiffs also argue that a fetus is not “ensouled at the moment of conception,” noting that some Muslim scholars posit that the fetus does not possess a soul until 120 days after conception.

Similar arguments are made in the lawsuit for other abortion-affirming religious beliefs held by Unitarian Universalists, Episcopalian Christians and Pagans.

“Because of S.E.A. 1 and the penalties that will be imposed on physicians who violate the law, the individual plaintiffs and the members of the putative class will not be able to obtain abortions, despite the fact that they have sincere religious beliefs that direct them to obtain abortions,” the ACLU of Indiana wrote in the filing.

Other legal action is still pending

Last week, the ACLU of Indiana filed a separate lawsuit on behalf of health care providers and a pregnancy resource center.

The suit argues that the abortion ban “will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and violate the Constitution’s due course of law clause through its unconstitutionally vague language.” 

The court challenge is based on the Indiana Constitution. The Supreme Court of the United States in June ruled that the U.S. Constitution does not guarantee abortion rights.

That lawsuit is still pending, awaiting the assignment of a special judge to preside over the case.

The Republican-dominated Indiana General Assembly advanced the abortion-restricting measure during a heated, two-week special session that concluded earlier this month.

Senate President Pro Tem Rodric Bray told the Indiana Capital Chronicle last week that he was confident the legislative body’s work could hold up to a lawsuit and reiterated his comments on Thursday. 

“We feel like we drafted a bill that will hopefully withstand a constitutional challenge and I hope that’s the case,” Bray said last week about the first lawsuit.

Republican House Speaker Todd Huston and anti-abortion group Indiana Right to Life did not reply to requests for comment.