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Judge grants RFRA-based preliminary injunction against abortion ban

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Judge grants RFRA-based preliminary injunction against abortion ban

Dec 02, 2022 | 5:47 pm ET
By Leslie Bonilla Muñiz
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Judge grants RFRA-based preliminary injunction against abortion ban
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A Marion County judge has blocked Indiana's new abortion ban on religious freedom grounds. (Getty Images)

A Marion Superior Court judge on Friday evening granted a second preliminary injunction against Indiana’s abortion ban in a lawsuit wielding a controversial religious freedom law. The remedy preserves the pre-ban status quo while the matter continues playing out in court.

“Many Hoosiers have sincere religious beliefs that they must be able to obtain an abortion,” the American Civil Liberties Union of Indiana, which filed the suit, said in a statement. “… Today’s preliminary injunction is a second layer of protection.”

Under Indiana’s Religious Freedom Restoration Act, government can only “substantially burden” exercise of religion if it advances a “compelling” government interest in the least restrictive way possible.

The class action lawsuit argues that the new abortion law violates RFRA. The plaintiffs include practitioners of Judaism, Islam, Unitarian Universalism, Episcopalianism and paganism — all belief systems that allow abortions under circumstances outside the ban’s narrow exceptions.

The state, meanwhile, has argued that its compelling interest in this case is “protecting the unborn.”

Judge Heather Welch found that the plaintiffs “are suffering injury and altering their behavior at the current time solely because of [the ban].” She wrote that this represented a “substantial burden,” defined in case law as “pressure on an adherent to modify his behavior and to violate his beliefs.”

She pushed back on the the state’s forays into religion, citing case law to assert that “the question of when life begins is a theological one[,] not a factual question,” and that neither the state nor the judiciary has the authority to answer it.

Attorneys representing the state have argued that abortion itself isn’t a religious practice, calling it “a secular means to a religious end.” Welch contended that the plaintiffs’ “practices regarding abortion are religious in nature.”

Welch also disagreed with the state’s argument that the plaintiffs need to be pregnant and seeking abortions to file suit. And she wrote that Indiana’s abortion ban wasn’t the “least restrictive” way to achieve its goal.

A second injunction

The new abortion ban was in effect for just a week in September before a Republican judge in Owen County issued a first temporary injunction in a separate ACLU lawsuit, which challenges the constitutionality of the law based on liberty and privacy protections.

His decision put the ban on hold until at least January, when the Indiana Supreme Court is scheduled to hear oral arguments.  Under that injunction, the state’s previous abortion law stands — allowing abortions up to 20 weeks.

The Republican-dominated Indiana General Assembly advanced the abortion-restricting measure during a heated, two-week special session that concluded in August. That made Indiana the first state in the nation to approve such legislation since the high court ruling that overturned Roe v. Wade.

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.

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