A superior court judge in Indiana has blocked the state’s near-total abortion ban from being enforced — because it isn’t an absolute ban.
The case, resting on a novel legal theory, was brought in Marion Superior Court by the American Civil Liberties Union, seeking a religious exception from the abortion ban under the Religious Freedom Restoration Act, which would effectively allow those who disagree with the law to not follow it.
As evidence that the law applies, the ACLU pointed to the ban’s exception for rape survivors — a common provision many Republican lawmakers slip into abortion bans in an attempt to make them more palatable to the general public.
But allowing abortion in cases of rape doesn’t do anything to advance the state’s given reason for the legislation, argued the ACLU — namely, to protect the unborn as human life. Therefore, the law doesn’t have a compelling interest for existing outside of the religious beliefs of the lawmakers who made it, and it follows therefore that, just as it doesn’t bind survivors of rape, it shouldn’t bind people whose sincerely held religious beliefs actually endorse or require abortion in certain circumstances.
Judge Christina Klineman ruled in favor of this argument.
“The State has not met its burden to establish that this purported interest is compelling from the moment of fertilization or conception and under all circumstances,” she wrote. “The Abortion Law would allow a plaintiff to seek an abortion if her pregnancy were the result of rape, but not if it were mandated by her religious beliefs. The State has not justified this differential treatment by establishing that its interest in the same prenatal life changes based upon the reason for terminating a pregnancy. The fact that the Abortion Law expressly allows for abortion in other circumstances, in at least one circumstance at any gestational age, demonstrates the lack of a compelling interest in ‘protecting life’ under all circumstances and from fertilization.”
Klineman also poked other holes in the law, including that it explicitly protects the right to in vitro fertilization, even though this requires fertilized human embryos to be discarded as medical waste.
“The State has not satisfied its burden under RFRA to demonstrate a compelling governmental interest in enforcing the Abortion Law against sincere religious practice, either in general or as to the plaintiffs,” Klineman concluded.
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