Indiana RFRA and Abortion

A trial court found that Indiana's abortion law violates the state RFRA.

Flash-back to March 2015. At the time, Mike Pence was the Governor of Indiana. And the Hoosier State enacted a version of the Religious Freedom Restoration Act. This move was highly controversial. Progressive groups feared this bill would provide a license to discriminate in the name of religion. I wrote an essay in National Review explaining that the state RFRA was modeled after the venerable federal standard.

Seven years later, that same RFRA which progressives excoriated, is now being used to stop post-Dobbs abortion laws. And a superior court in Marion County has enjoined the law based on the state RFRA.

Readers of this blog will likely be familiar with some of my writings on religion and abortion (see here, here, here, and here). Indeed, there are two law review articles that engage my views at some length. (I have some quibbles with how the former article characterized my article, and have been in touch with the authors; I think the latter article treats my work fairly.)

There is much to write about the trial court's ruling. Here, I will focus on five primary issues.

First, the court makes a categorical error, and asserts that there is only one view on Jewish law with regard to abortion. For example, the court said "In order to protect the woman, Jewish law recognizes that there are circumstances in which abortion should occur and is mandated even if there is not a physical health risk that is likely to cause death or the substantial and irreversible physical impairment to a woman's major bodily function." And the court said, "Judaism allows for and requires that an abortion be provided if the pregnancy threatens the woman's mental health, for instance if the pregnancy would aggravate psychological problems or cause such problems." To support these claims, the court cited declarations from a few rabbis. But these rabbis do not, and indeed cannot, speak to what Jewish law "mandates" or "requires." A court cannot state, as a matter of fact, what "Jewish law" obligates. (And query whether making these absolute statements amounts to an establishment of what the Jewish faith requires?). These sorts of statements are extremely problematic. I made this point in June:

There is no Jewish equivalent of a Pope. We often speak of "Orthodox," "Conservative," and "Reform" Jews, but even within these categories, there is no official or standardized set of teachings. Every Congregation, indeed, every Rabbi, may follow the teachings in different fashions. Moreover, every Jew can look to faith in his own fashion. And there is no obligation to be consistent. A Jew could hold one opinion in the morning, and then change his mind over lunch, and go back to the original position after dinner. The old saw, Two Jews, Three Opinions, is apt.

What's paradoxical is that the court recognized that another faith, Islam, has different perspectives on the abortion issue. No one spiritual leader can speak for all Muslims. The court wrote:

Although, as in any religion, there are different Islamic schools and views, some Muslim scholars take the position that the fetus does not possess a soul until 120 days after conception.

There are many different schools of thought within Judaism on abortion. The declarations from the rabbis do not speak for all Jews. My colleagues Howard Slugh and Tal Fortgang explain a different Jewish perspective on abortion.

Second, in any event, the specific contours of the Jewish faith are not dispositive for this case. Indeed, Anonymous Plaintiff 2 does "not belong to a specific religious denomination." Rather, her "personal religious and spiritual beliefs . . .  guide her moral and ethical practice and life." What are those beliefs? "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." Moreover, she has a "spiritual obligation to determine whether to remain pregnant." Anonymous Plaintiff 2 claims that her "religious beliefs are sincerely held."

RFRA defines the "exercise of religion" as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." If we assume the beliefs of this anonymous plaintiff are in fact sincerely held, I predict that a future ground of dispute is whether her system of beliefs is religious at all, or rather are based on something other than "religion." Calling something "religious" does not necessarily make it "religious." Justice Scalia's concern in Smith that "each conscience [can be] a law unto itself" would ring true. Given that we are defining a term in a statute, and not in the Constitution, it would be useful to know how the phrase "system of religious belief" was understood when the statute was enacted, and in prior caselaw.

Third, the trial court found that the state lacks a compelling interest to prohibit abortion in this context. Specifically, the court ruled that "the question of when life begins is a theological one not a factual question for this Court." In other words, the Court cannot accept the state's contention that there is a compelling interest to protect fetal life from conception, because that is a religious and not legal question. Dobbs was able to avoid this question, but at that moment, I realized that RFRA would force the court to grapple with defining the compelling interest.

Right here is the trial court's most vulnerable point. I don't expect this part of the ruling to survive on appeal. States can be afforded some latitude to define compelling interests, especially concerning the police power. And the Supreme Court is no doubt toiling with these issues now: Students for Fair Admission and 303 Creative may have to tackle the compelling interest issue. (I address that issue in an amicus brief for 303 Creative.) Justice Scalia in Smith objected to Sherbert due to the difficulty of defining a compelling interest. (Somewhere, Justice Barrett is wiping sweat off her brow for not overruling Smith in Fulton.)

By contrast, the analysis of "least restrictive means" is trickier, since there are exceptions for rape and incest, but not for religious exercise. Do those exceptions, in light of Fulton and the most-favored nation approach, undermine the state's compelling interest?

Fourth, if we take these arguments to their logical conclusion, then RFRA would provide greater protections than Roe and Casey. A person's sincerely-held religious belief, however defined, may require an abortion through the ninth month. Indeed, any burden--even if not undue--would violate those rights. For example, requirements to obtain a sonogram, which were upheld under the Casey regime, would violate a woman's free exercise. Who needed substantive due process when RFRA was here all along?

Fifth, I am not certain about the scope of the court's remedy. Usually, RFRA exemptions are granted to named plaintiffs, who articulate specific objections to a government practice. And the injunction here seems limited to the named plaintiffs. One of the groups, Hoosier Jews for Choice, presumably would probably accept as a member any Jewish woman who seeks to obtain an abortion. (It's not clear if every member of that organization needs to share the same religious beliefs, or if non-Jews could join?) How would other Indianans avail themselves of this ruling? Could a person in urgent need of an abortion suddenly find their faith, and profess a sincerely held belief? A class was not yet certified. And, as I wrote in May, certifying such a religious class would be difficult, as individual beliefs are so personal. And proving sincerity based on class representatives cannot work.

***

I wrote about this issue before Dobbs was decided because I recognized it would have legs. Those who historically have favored a broad reading of RFRA, and seek to overrule Smith, need to contend with these arguments. Doing so will not be pleasant, as the barrage of responses to my posts illustrate.  Abortion and religion are the third and fourth rails in our polity. (I lost count of how many times I was called an anti-semite.) Going forward, it is not enough for states to rely on the "compelling interest" prong. I think there needs to be a more careful discussion of "least restrictive means," and whether there is in fact a "substantial burden" of a religious exercise.

Comments

[John F. Carr]

The more specific or later law on a subject generally controls. The seven year old RFRA, as construed, is so broad that anybody can have an abortion any time. The months-old abortion ban is both later and more specific. Reading it to be preempted by the RFRA clearly violates legislative intent, which is after all what the judge is supposed to be determining in this case. It would be different if the right to an abortion came directly from the state constitution.

[ReaderY]

Not so. It is a hallmark of RFRA laws that they say they apply to later laws unless an explicit textual exception is made, and no implied exception is permitted. You can’t get out of this this easily.

[bacchys]

Shorter Blackman: We're all about protecting religion, but any religion we don't like isn't a religion!

[Dr. Ed 2]

There was a case in my Con Law textbook about a kid who didn't want to go to Vietnam and his case went to SCOTUS twice -- the second time, SCOTUS ruled that even though he was not a member of any recognized religion, his strongly-held pacifist values were enough to get him out of being drafted -- that those were religious values.

[Joe_dallas]

Doesnt the states interest in protecting life generally overrule/override RFRA.

It certainly would override sincerely held religious belief in human sacrifice.

[ReaderY]

Ne of the fundamental questions here is whether the state’s interest in fetal life is compelling. Dobbs definitely didn’t decide that question. What Dobb’s said, after overturning Roe’s findamental right to an abortion, is that the state’s interest in fetal life is rational, and in the absence of a fundamental right rational basis is good enough.

That leaves the door open to a position that the state’s interest is merely rational, not compelling, and hence religious rights trump.

One could go further. One could adapt the Alito “most favored nation” position, under which if a state allows medical exceptions, it must also allow religious position. Since state abortion laws generally allow some sort of medical exceptions, under Alito’s well-publicized position the outcome would seem open and shut that they also have to allow religious exceptions as well.

[Joe_dallas]

You may have missed the point -
If state enacts statutes that ban abortion after (x) weeks, then the states interest in protecting the life would override RFRA

[Nelson]

If I read his post right, he is saying that the state's interest is rational, religious freedom is a compelling interest, and a rational interest cannot overrule a compelling interest.

IANAL, but that was my read.

[ReaderY]

I do say Dobbs never characterized the state’s interest as greater than rational basis. But I say more than that.

The state’s abortion ban has various exceptions, including for “serious health risks” among others. Under Alito’s opinion as a 3rd Circuit Justice in Police v. Newark, which he came to espouse as a Supreme Court Justice, religion has a sort of “most favored nation” status. If you make exceptions for anyone else, including medical exceptions, you have to make exceptions for religion too. The existence of exceptions proves the state’s interest isn’t really as compelling as the state says it is. Alito has already applied exactly this reasoning to support religous exemptions in vaccine cases.

So it seems to me that if Indiana adapts the Alito position, the Plaintiffs win.

[David Nieporent]

Under Alito’s opinion as a 3rd Circuit Justice in Police v. Newark, which he came to espouse as a Supreme Court Justice, religion has a sort of “most favored nation” status. If you make exceptions for anyone else, including medical exceptions, you have to make exceptions for religion too.

Nope. You need to re-read the case. He expressly allowed for exceptions that furthered the purpose of the statute without triggering protection for religious exemptions.

[ReaderY]

To clarify, the Indiana trial court’s opinion holding ther is only a rational state interest in prohibiting abortion is a permissable position for a lower court to take under Dobbs. And in any event, Indiana law may treat the question differently from federal law.

I don’t think the court’s discussion about “only a theological” question is true after Dobbs (or before for that matter). But the bottom line of rational basis is within Dobbs’ holding.

[Dr. Ed 2]

What I immediately thought of was Islamic Honor Killing -- and if that would be permitted.

[Nelson]

Except murder and are very different things, legally.

[ReaderY]

The basic difficulty with Professor Blackman’s argument here is that under pre-Smith Free Exercise Clause precedent, so far as the court is concerned Jewish law is what the plaintiff says Jewish law is, except in the unusual case, and one not likely relevant here, where the state can establish a lack of sincerity.

The fact that other people may say Jewish law says something else is totally irrelevant to the issues facing the court in this case.

I suspect issues like this are part of the reason Kavanaugh and Barrett have refused to go along with the Alito interpretation of Smith. And I suspect that if the issue goes to the Supreme Court, the court’s 3 liberals will find a reason to support an expansive interpretation of religious liberty on this particular issue, perhaps resulting in a majority

[bernard11]

The fact that other people may say Jewish law says something else is totally irrelevant to the issues facing the court in this case.

Correct, but don't expect SCOTUS to accept that.

[Drewski]

Exactly. This is similar to how courts (and Blackman) are willing to accept arguments from Catholics that they are prohibited from vaccinating, despite the fact that the Catholic church takes the opposite position. For some reason, Blackman holds Jews to a different standard than he does Catholics and advocates for the government to do the same.

[JasonT20]

For some reason...

Yes, it is a complete mystery why Blackman seems to have a double standard here.

[bernard11]

Well, there are a lot of versions of Christianity out there.

Should we conclude that no belief held by Christians is a religious belief unless all versions share it?

[bernard11]

"the question of when life begins is a theological one not a factual question for this Court." In other words, the Court cannot accept the state's contention that there is a compelling interest to protect fetal life from conception, because that is a religious and not legal question.

Right here is the trial court's most vulnerable point. I don't expect this part of the ruling to survive on appeal. States can be afforded some latitude to define compelling interests, especially concerning the police power.

Well, most vulnerable from a political POV, but not from a logical one. As the court says, a state taking that position is making a religious statement. It is total question-begging to say that the decision should be overturned because the state has a compelling interest, when the so-called compelling interest is simply based on an assertion by the court.

[Michael D]

Are not most state prohibitions after X weeks based on the fetus reaching some medical milestone? For example, heartbeat or viability, instead of some religious based belief.

[John F. Carr]

The limits around 22 weeks are mostly leftovers from the Roe era and are based on viability.

[Nelson]

Heartbeat laws kick in before a fetus has a heart, so that's disputable as a "medical milestone".

[JasonT20]

Heartbeat laws kick in before a fetus has a heart...

And before it's a fetus.

[ReaderY]

I think the judge here was wrong that the question involved is a purely “theological question.” Under Dobbs, the questions of whether and when abortion should be prohibited, and hence whether fetal life is worth protecting and from what point, are secular questions open to state legislatures to consider. This mistake in reasoning may provide a ground for the Supreme Court of Indiana to reconsider the question.

However, the court’s ultimate conclusion that the State of Indiana’s interest in abortion is rational but not compelling is within the permissable range left open by Dobbs. Dobbs concluded a state’s interest in abortion prior to viability is at least rational, and never concluded it was stronger than rational. This leaves a lower court free to hold that the state interest lies exactly where Dobbs left it. Liberal lower courts are under no obligation to go further in the state’s favor than Dobbs. In addition, because the question here is entirely a matter of Indiana law, the Indiana courts are free to stay that their state law looks at the question differently from federal law.

Finally, whatever the outcome of this case in the Indiana courts, the Indiana Legislature is free to amend its RFRA, its abortion law, or both to create a different outcome.

[fafalone]

Ah, the same partisan hack that argues that despite no religion, especially Christian religions, condemning vaccines (Christian Scientist leadership said their faith teaches complying with laws and protecting the community above all else) and the Pope supporting them, Christians can claim their Christian faith protects not getting them, now argues that no such analysis is unavailable for abortion, based on raging hypocrisy that makes him look like a tool. Then comes the doubling down on the bad faith intellectual dishonesty by questioning whether such a relief is religious in nature at all, when it was readily accepted despite overwhelming evidence otherwise anti-vax beliefs by people who'd taken every other vaccine were. Then *tripling* down on the idiocy by suggesting there's a far more stringent analysis of sincerity here than he claimed for vaccines.

Different views are great and interesting to read; intellectually dishonest blatant partisan double standards are not.

[elnurmamedrafiev]

If Jews want to be even more hated than they already are, they would go to court to make an argument that their religion requires them to kill babies.

[Nelson]

Sounds like a problem caused by the hate-er, not the hate-ee.

Most religions have an asterisk on thir beliefs that says "unless someone doesn't like it, then never mind". Oh, wait ...

[elnurmamedrafiev]

Liberal "Jews" fake religious beliefs basically conform to their leftist political beliefs.

"Tikkun Olam" means you have to admit every worthless Latin Americans and give them automatic citizenship.

[Nelson]

Wow

[ReaderY]

It doesn’t matter to this legal case in the slightest. But there happen to be prominent Orthodox Jews who hold substantially similar positions, although by no means all of them do.

Jewish views on this, and the reasonng behind them, are simply different from Christian.

From the point of view of a secular court, whether and what other Jewish thinkers or denominations might agree or disagree with the position doesn’t matter in the slightest. The only reason it might have any relevance at all to the legal case is that evidence it’s an existing established Jewish position (whether or not unanimous) may make it easier for the plaintiffs to meet their burden of proof in their initial showing of sincerity. That’s the only role it could play.

[Both Sides]

Jews will replace you.

[Nelson]

LOL!

[Nelson]

I am not a lawyer, nor do I play one on TV. That said, I have some questions.

"A court cannot state, as a matter of fact, what "Jewish law" obligates."

This seems to be a complaint about the court overstating what "Jewish law" is. But immediately after that he quotes himself, "Every Congregation, indeed, every Rabbi, may follow the teachings in different fashions.". So it seems to be a distinction without a difference.

With rabbis specifically stating that Jewish law (as practiced by their congregations) obligates abortion in situations that are illegal by the Indiana statute, using the RFRA would be valid, correct? The fact that it is some, not all, Jewish congregations wouldn't impact the valudity of a sincerely held (but not universal) religious belief, correct? So the first point seems a semantic, not substantive, critique.

"Calling something "religious" does not necessarily make it "religious.""

This seems to be an argument that religious folks have tried not to make because of the danger of invalidating their own religious beliefs. If the Bible rejects something that you accept (or vice versa) would that invalidate your claim of a sincere Christian faith? I'm not a man of faith (although I'm a dabbling Quaker lately), but this seems like a direct threat to claims of religious faith, writ large. Is the government defining the contours of "real" religion a valid state activity under the Constitution (Indiana's or the US's)? Relatedly, does sincere adoption of a religion require a minimum time period and, if so, is that a valid determination for the state to make (Prof. Blackman's "two Jews, three opinions" hypothetical)?

"States can be afforded some latitude to define compelling interests, especially concerning the police power."

Does that definition require a factual foundation? If the state says, for example, that green is an immoral color, can they outlaw it? Or would they be required to establish the immorality of green as a fact before passing legislation outlawing it? Or (always a possibly) does it depend upon the state?

In this specific case, would they be required to prove a fetus is legally alive before the could claim a "compelling interest to protect fetal life from conception"? Or is a state's claim of compelling interest unchallengable?

"A person's sincerely-held religious belief, however defined, may require an abortion through the ninth month."

If we assume this most-extreme premise, is the length of gestation relevant to the RFRA? Assuming fetal life hasn't been established (which I don't think it has, yet), what would prevent the RFRA from protecting a pregnant woman with a sincerely held religious belief? Just because the fetus is older than the statute allows? Isn't that the point of this RFRA challenge?

A lot of what Prof. Blackman seems to be starting to question are the "do not enter" zones that religious people have protected in the past. Tests for religious sincerety. Tests for valid religious beliefs. Tests for duration of religous faith. Tests for the size of a congregation.

I think about my mother, a lifelong Catholic who believes divorce isn't wrong and is pro-choice. Would she be considered a Catholic? Would she be considered "religious"? Would her faith be cinsidered "sincere"? As I understand it, right now a claim of sincere religious belief isn't usually (or ever?) challenged. Is Prof. Blackman suggesting that should change? And, if so, what else would that impact?

[JasonT20]

“A person’s sincerely-held religious belief, however defined, may require an abortion through the ninth month.”

“Pro-abortion forces want to allow abortions right up to the moment of birth!!!”

This is utter bullshit. The point of abortion, as a medical procedure, is to terminate a pregnancy, not to kill the fetus. I can’t imagine any scenario where delivering a live, healthy baby wouldn’t be a safe and effective way to end the pregnancy if that was possible. Thus, I can’t imagine any doctor with reasonable ethics doing otherwise.

This has become more and more common for anti-abortion forces to use as a straw man.

[Alpheus W Drinkwater]

Apparently when one approves of the law in question, it's perfectly okay to question the sincerity of the religious belief of a plaintiff challenging the law. Who would've guessed?

[myself]

LOL, leave it to Blackman to argue that a religion exemption he doesn't like isn't valid because he thinks the person's religion isn't valid!