The Volokh Conspiracy
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Court Holds That Indiana RFRA Provides Religious Exemptions from Abortion Ban
Note that the decision is not inconsistent with the Supreme Court's holding in Dobbs, though it may of course still be overturned on appeal on other grounds.
From Anonymous Plaintiff 1 v. Individual Members of Medical Licensing Bd. of Ind., decided yesterday by Marion County (Indiana) Superior Court Judge Heather Welch; Josh Blackman has just posted on the subject, but I thought I'd put up my post as well, because it quotes at greater length from the decision and offers some thoughts of my own. First, my thinking, which I think echoes what I blogged about in May:
[1.] If someone sincerely believes that she is obligated by her religion, or even motivated by her religion, to get an abortion under certain circumstances (which some of the plaintiffs did indeed assert, citing their understanding of Judaism), then she would indeed have a strong claim under a state Religious Freedom Restoration Act, such as Indiana's RFRA. By forbidding her from doing what her religion is telling her to do (or by forbidding others from helping her in this task, when their help is necessary), the state abortion ban is substantially burdening her religious exercise. The government therefore has to show that denying the exemption really is narrowly tailored to a compelling government interest. That's what the statute that the Indiana legislature enacted (RFRA) says, and a court must apply it.
[2.] One way of thinking about this is to consider drug laws. Courts have generally rejected the view that the Constitution includes a right to bodily autonomy that protects the right to use drugs. But when someone feels a sincere religious obligation or motivation to use a particular kind of drug, he can seek an exemption under a RFRA—and might indeed win, if the court concludes that granting the exemption wouldn't unduly undermine a compelling government interest. And indeed the plaintiffs in Gonzales v. O Centro (2006) did win under the federal RFRA as to the hallucinogen hoasca.
Likewise, the Court in Dobbs rejected the view that the Constitution includes a right to bodily or reproductive autonomy that protects the right to get an abortion. But when some feels a sincere religious obligation or motivation to get an abortion, she can seek an exemption under a RFRA—and might indeed win, if the court concludes that granting the exemption wouldn't unduly undermine a compelling government interest.
Of course, this requires resolving (among other things) whether there is indeed a compelling government interest in protecting fetal life, and one can debate that question—and, more importantly, the question of how American courts should resolve that question. That's the very thing that Dobbs sought to keep courts from having to do under some constitutional "substantive due process" or "right to privacy" analysis. But RFRAs do indeed call on courts to answer that question, as to religious exemption claims.
[3.] This having been said, I don't think it's enough for courts to conclude that there's no compelling interest because people disagree on the issue, even on religious grounds.
Here's one analogy, in case it's helpful. Say that a person believes his religion requires him or at least motivates him to eat a particular kind of meat for certain religious holidays (e.g., he's a Jew who believes that he ought to eat lamb for Passover). But say that California, or some town in California, concludes that all mammals have rights, and that eating mammals is therefore improper. (California has indeed banned the sale of horsemeat for human consumption; naturally, it would take a major cultural change to extend that to all mammals, but say it does—or say that the person adheres to some religion, old or new, that does call for consumption of horsemeat.)
Under a RFRA, it's not enough for the state to say, "we think mammals have the right to life, and there's a compelling government interest in banning the killing and eating of mammals." The courts would have to actually agree that there is such a compelling government interest. But I also don't think it's enough for courts to say that this is a fundamentally contested moral or spiritual question that turns on people's subjective beliefs. (To quote a backer of the no-horsemeat law, "It's a perversion of the human-animal bond. Eating a horse is morally perverse.") One can have compelling government interests in protecting what the majority views as important rights (animal rights, fetal rights, human rights not to be discriminated against in employment, etc.) even when there's a basic moral and spiritual disagreement—which often has religious dimensions—on the issue.
[4.] I also think that, for a showing of substantial burden, it wouldn't be enough for a claimant to say that she disagrees with the law's moral or religious underpinnings, for instance because she doesn't believe that human life starts at conception, or because she doesn't believe that animals have a right not to be slaughtered for food. Thus, say someone merely says,
My religion tells me that only humans are entitled to a right not to be killed for various reasons, and that it's permissible to eat all animals, at least so far as they aren't placed in unnecessary pain. I reject the blasphemous attempt by the state to redefine who has such rights, and I want to do make my own decision without regard to the state's position.
I'm inclined to say that can't be sufficient for a RFRA claim: The mere fact that one's religion allows one to do something—and perhaps even counsels one to do whatever one thinks is right—doesn't strike me as enough to show a substantial burden. There has to be a religious reason for eating horsemeat, not just a religious reason for disapproving of the state's ban on horsemeat.
[5.] But there's also an extra twist here—one of the plaintiffs, Anonymous Plaintiff 2, cited beliefs that weren't just about abortion, but were about autonomy writ large:
[Anonymous Plaintiff 2] does not belong to a specific religious denomination, but has personal religious and spiritual beliefs that guide her moral and ethical practice and life. She does not believe in a single, theistic god, but believes that there is within the universe a supernatural force or power that connects all humans and is larger than any individual person. Central to her spiritual beliefs is the belief that persons are endowed with bodily autonomy and that the bodily integrity of others should not be infringed upon. To do so constitutes a spiritual and moral wrong and inhibits the full expression of a person's humanity.
[Anonymous Plaintiff] 2 believes that, at least prior to viability, a fetus is a part of the body of the mother. Central to her religious beliefs is that she maintains spiritual and physical autonomy over her own body, including a fetus, and it is her spiritual obligation to determine whether to remain pregnant.
She believes that if a pregnancy or the birth of another child would not allow her to fully realize her humanity and inherent dignity, she should terminate that pregnancy, and this is so in circumstances which would not be permitted under S.E.A. 1. Anon. 2 has terminated a pregnancy for precisely this reason in the past….
The beliefs appear not to be abortion-specific, and seem just to be "you should do whatever will lead you to realize your humanity and inherent dignity." It sounds like the beliefs are broad enough that they would presumably give their holder an exemption from any restriction on action that sufficiently involves "her own body," which would presumably include the right to do things with her own body and not just to her own body.
If this theory is accepted, then it sounds like Anonymous Plaintiff 2 would be living the libertarian dream: Whenever she is motivated to do anything by the belief that it is necessary "to fully realize her humanity and inherent dignity," the government wouldn't be able to restrict that unless it can show that denying her an exemption is the least restrictive means of serving a compelling government interest.
Maybe that's what the Indiana Legislature signed up for by enacting the Indiana RFRA; and of course the legislature could avoid that by specifically exempting certain laws from the RFRA (since RFRA is just a statute). Indeed, that's what the Indiana Legislature did with regard to antidiscrimination laws, which are expressly excluded from the Indiana RFRA. Still, it would be a remarkable result that gives me pause, entirely apart from its effect on abortion laws—though, again, libertarians who believe that the courts should indeed broadly protect a vast range of liberty, may well cheer loudly for it.
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In any event, here are offer some excerpts from the decision:
The Complaint alleges that S.E.A. 1 [the Indiana abortion ban] violates [the Indiana state] RFRA because it "burdens the plaintiffs' sincere religious beliefs, and those of a putative class of those similarly situated," by prohibiting abortion in circumstances where Plaintiffs' religion "direct[s]" them to obtain an abortion…. Plaintiffs argue that S.E.A. 1—which prohibits abortion except where a pregnancy seriously endangers a mother's health or life, a pregnancy is the result of rape or incest, or the unborn child has a lethal anomaly—violates their rights under Indiana's RFRA.
The court found the following facts about the plaintiffs' personal religious beliefs:
[Anonymous Plaintiff 1's] Jewish beliefs include the belief that life begins for the child at its birth. She also believes, according to Jewish law and teachings, that the life of a pregnant woman, including her physical and mental health and wellbeing, must take precedence over the potential life. Therefore, according to her Jewish beliefs, if her health or wellbeing—physical, mental, or emotional—were endangered by a pregnancy, pregnancy-related condition, or fetal abnormality, she must terminate the pregnancy. [She also has specific conditions that increase such risks, and that would require her, based on her religious beliefs, to get an abortion should any such risks manifest themselves. -EV] [Anonymous Plaintiff 3, who is Muslim, holds similar views, as do Anonymous Plaintiffs 4 and 5, who are Jewish. -EV]
[Anonymous Plaintiff 2] does not belong to a specific religious denomination, but has personal religious and spiritual beliefs that guide her moral and ethical practice and life. She does not believe in a single, theistic god, but believes that there is within the universe a supernatural force or power that connects all humans and is larger than any individual person. Central to her spiritual beliefs is the belief that persons are endowed with bodily autonomy and that the bodily integrity of others should not be infringed upon. To do so constitutes a spiritual and moral wrong and inhibits the full expression of a person's humanity.
[Anonymous Plaintiff] 2 believes that, at least prior to viability, a fetus is a part of the body of the mother. Central to her religious beliefs is that she maintains spiritual and physical autonomy over her own body, including a fetus, and it is her spiritual obligation to determine whether to remain pregnant.
She believes that if a pregnancy or the birth of another child would not allow her to fully realize her humanity and inherent dignity, she should terminate that pregnancy, and this is so in circumstances which would not be permitted under S.E.A. 1. Anon. 2 has terminated a pregnancy for precisely this reason in the past….
The plaintiffs' religious beliefs are sincerely held and mandate that they receive abortions in circumstances that are prohibited by S.E.A. 1….
The court also made factual findings about broader beliefs of abortion held by at least some Jews, Muslims, Unitarian Universalists, Pagans, and Episcopalians, and I agree with Josh that some of the conclusions are stated far too categorically: For instance, the court finds that, "Under Jewish law, a fetus attains the status of a living person only at birth, when the greater part emerges from the mother," citing two rabbis—but secular courts aren't supposed to decide what "Jewish law" does or does not hold. As the Supreme Court has held, "Plainly, the First Amendment forbids civil courts" from "determine[ing] matters at the very core of a religion," such as "the interpretation of particular church doctrines." But, in the material block-quoted above, the court also made findings about what these particular plaintiffs sincerely believe, which is indeed the correct approach.
The court then applied the Indiana Religious Freedom Restoration Act statute, which provides,
- Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
- A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
- is in furtherance of a compelling governmental interest; and
- is the least restrictive means of furthering that compelling governmental interest….
"[E]xercise of religion" includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
(The Indiana RFRA is based on the federal RFRA, and has been interpreted consistently with the federal RFRA and the Religious Land Use and Institutionalized Persons Act, RLUIPA. And the Indiana RFRA expressly states that it applies to all laws, both enacted before it was enacted and those enacted afterwards.)
The court concluded that the abortion ban substantially burdened the plaintiffs' religious beliefs:
Religious exercise is substantially burdened if the government "put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs." …
The State's primary argument as to substantial burden is that the Plaintiffs' religious exercise is not substantially burdened because abortion is not a religious practice, "but a secular means to a religious end." … This Court finds that the State's arguments are nearly identical to those already rejected by the U.S. Supreme Court in Hobby Lobby. In that case, the Supreme Court held that requiring closely-held for-profit corporations to pay for employees' health coverage, which could include payment for contraceptives that the plaintiffs considered to be abortion-inducing, compelled the owners of the company to engage in conduct that violated their religious beliefs. This was so even though the only activity engaged in by the plaintiffs was the payment of money, rejecting the government's characterization of this behavior as too attenuated to constitute a religious practice.
The Plaintiffs argue that a variety of activities, including those that may be "secular" to some, constitute religious practices, and that the Plaintiffs' practices are as well. The Supreme Court has detailed many activities that—while they may not have religious significance to some people—are religious practices for those who believe. The same is true for the Plaintiffs in this case. See Holt v. Hobbs (2015) (growth of facial hair); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) (ritual slaughter of animals); Wisconsin v. Yoder (1972) (compulsory education beyond the eighth grade).
This Court finds that the Plaintiffs practices regarding abortion are religious in nature: they have established that, under circumstances that would be prohibited by S.E.A. 1, their religious beliefs would compel them to have abortions.
And the court concluded that denying plaintiffs wasn't the least restrictive means of serving a compelling government interest (the so-called strict scrutiny test). First, it concluded that there was no compelling interest in protecting fetal life. (Again, recall that Dobbs deliberately didn't resolve this question, because it concluded simply that the U.S. Constitution says nothing about abortion, and therefore doesn't generally require a showing of compelling interest to justify abortion laws, just as it doesn't require a showing of compelling interest to justify drug laws, bans on assisted suicide, and a wide range of other laws. Dobbs thus didn't decide what would happen under some statutory or constitutional provision that does require a compelling interest to restrict religious practices, whether involving abortion or otherwise.)
The government may not simply enunciate a general reason for the statute, as RFRA requires a "more focused inquiry." RFRA demands that there be a "case-by-case consideration of religious exemptions to generally applicable rules."
The State first argues that the interest in preventing abortion is compelling. The State argues that abortion at any gestational age beginning at fertilization "ends the life of an innocent human being," and that it has a compelling interest in protecting this class of "vulnerable human beings" from being killed. The State's interest is based entirely on the legislative determination that "human physical life" begins when sperm meets egg. The State presents as a statement of fact that "it is a simple scientific observation" that "the human fetus is a human being," as are zygotes and embryos.
Of course, it is not disputed that human zygotes, embryos, and fetuses are of the human species. In making these factual assertions, the State is therefore attempting to establish as a factual matter when a human comes into being—the "being" part of the phrase "human being." In so doing, the State seeks to establish (1) that the question of when life begins has been definitively answered by science and medicine, and therefore that any theological opinions regarding this question are either wrong or are rendered irrelevant; and (2) it has a compelling interest in prohibiting the termination of pregnancy from the moment of fertilization forward.
The Supreme Court already recognized in Hobby Lobby that the question of when life begins is a religious one that the State may not answer legislatively or as a factual matter. Hobby Lobby (taking as the starting point that "the [plaintiffs] have a sincere religious belief that life begins at conception"). The nature of this enduring question and the dispute surrounding it are illustrated by the very fact of the competing affidavits filed by both sides.
This Court finds that the question of when life begins is a theological one not a factual question for this Court. The U.S. Supreme Court has held that "the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general" and government may not act "to benefit religion or particular religions." "The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion."
In addition, the State may not dictate the parameters of what constitutes a question of religion. As the Supreme Court made clear in the context of the government's attempt to define religion as necessarily involving belief in a "Supreme Being," the State may not construct the confines of religious belief and place some things—such as when life begins—outside of it.
While the State may question the sincerity of a plaintiff's religious belief, it may not question the belief's veracity. The State ignores the fact that "courts have no business addressing whether the religious belief asserted in a RFRA case is reasonable." To do so would place a court as the arbiter of the reasonableness and propriety of religious beliefs and would violate the First Amendment.
This Court finds that Indiana, in its own statutes, does not endow zygotes, embryos, and pre-viability fetuses with the legal status of human being.
Indiana's health code does not define a "human being," but it defines a human embryo as "a human egg cell with a full genetic composition capable of differentiating and maturing into a complete human being."
Indiana's criminal code defines "human being" as "an individual who has been born and is alive." For purposes of an action for wrongful death or injury, a "child" is defined as either a child born alive or a fetus after it has attained viability. The Court of Appeals has noted that there is an inherent distinction between a child born alive and a fetus as "the child who has been born has an independent existence outside the mother's body, and the unborn fetus lives within her body." In Humphreys v. Clinic for Women, Inc. (Ind. 2003), while the State argued that it had a "valid and compelling" interest in protecting fetal life, the Court concluded that this interest was not strong enough to allow the State to refuse to fund certain abortions….
The undisputed evidence establishes that the Plaintiffs do not share the State's belief that life begins at fertilization or that abortion constitutes the intentional taking of a human life. To the contrary, they have different religious beliefs about when life begins, and they believe that under certain circumstances not permitted by S.E.A. 1, they would be required to receive abortions. Under the law, the Court finds these are sincere religious beliefs.
The State has not asserted a compelling interest in refusing to provide an exception to the Plaintiffs if the law were otherwise enforceable. Indiana has no interest in violating the sincere religious beliefs and exercise of the Plaintiffs, particularly as the Plaintiffs take no issue with the manner in which their religious exercise was accommodated under Indiana's prior abortion law….
Second, the court concluded that in any event the government didn't show that denying a religious exemption "is the least restrictive means" to serve any such government interest:
"The least-restrictive-means standard is exceptionally demanding and it requires the government to show that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party." Holt.
The State's position is that a human life begins at fertilization and that, as a result, it has in interest in preventing the "killing of an innocent human being."
A statute is not narrowly tailored if it is underinclusive in scope. "Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes." Therefore, "[u]nderinclusiveness can … reveal that a law does not actually advance a compelling interest."
The Plaintiffs argue that S.E.A. 1 is not narrowly tailored and is underinclusive, in that it provides exceptions for some abortions—though not religious exceptions—in circumstances that directly contravene the State's purported interest.
The State argues that abortion, regardless of gestational age of the zygote, embryo, or fetus, is the killing of an innocent human being, and its interest is in preventing that killing. However, the statute explicitly allows abortions in circumstances that the State acknowledges constitute the "killing" of an "innocent human being": for example, where the pregnancy is the result of rape or incest and where the fetus is viable but will not live beyond three months after birth.
The State raises several arguments in response to the Plaintiffs' claims of underinclusiveness. First, the State contends that "[p]ermitting these Plaintiffs—or anyone else—to abort their children in the future would necessarily require the State to forgo its interest entirely." The law explicitly allows some persons to seek abortions, as the State itself recognizes, "where there is a compelling interest on the other side." The State is willing in these instances to "forgo" its interest where it deems the countervailing interest "compelling," but not where a religious mandate rests on the other side of the balance.
The State's argues to narrowly tailor a religious exemption for the Plaintiffs would "turn entirely on the subjective preferences of individual women who may wish to choose abortion for a wide variety of reasons connected to physical or mental health or even self-actualization. Such a broad exception has no limiting principle and would blow a hole in Indiana's abortion prohibition."
This Court finds that there is a limiting principle, as there is in any case involving religious discrimination: the Plaintiffs' sincerely held religious beliefs provide the limits. In this case, the State's arguments unfairly criticize the Plaintiffs' Religious practices as subjective and minimize the importance of the Plaintiffs' religious beliefs which are permitted under RFRA. The Plaintiffs' religious beliefs are no more or less subjective than believing that a human being comes into existence at the moment that a sperm meets an egg or at the moment of birth. In O Centro, in refusing to allow the government to prohibit a religious sect from gaining access to a hallucinogen that was otherwise prohibited as a Schedule I substance by the Controlled Substances Act, the Court did not criticize the "subjective preferences" of the members of this small sect.
Instead, the Court noted that given that there was an exception in the Act for the use of peyote by recognized Indian Tribes, there was no reason to restrict its use to the plaintiffs who had sincere religious needs for the hallucinogen: "if any Schedule I substance is always highly dangerous in any amount no matter how used, what about the unique relationship with the Tribes justifies allowing their use of peyote?" Id. (Court's emphasis). Similarly, if an abortion always kills a human being, there is no reason not to extend the exceptions in S.E.A. 1 to persons whose sincere religious beliefs compel them to obtain abortions in light of the current exception in S.E.A. 1….
