August 17, 2022

Remembering RFRA – Do businesses have the same influence now?

Protesters gathered in the Statehouse as lawmakers considered the state's near-total abortion ban. - Brandon Smith/IPB News

Protesters gathered in the Statehouse as lawmakers considered the state's near-total abortion ban.

Brandon Smith/IPB News

This conversation has been edited for length, clarity, and broadcast. 

Many Indiana companies say the near-total abortion ban is bad for the economy – are lawmakers persuaded? The majority listened seven years ago when businesses said the Religious Freedom Restoration Act discriminated against LGBTQ communities, and the state pulled back. Do pro-abortion rights viewpoints have the same power now?

WFYI’s Emilie Syberg spoke with Indiana Public Broadcasting Statehouse Bureau Chief Brandon Smith to compare the political moments.

WFYI Reporter Emilie Syberg: So let's go back to March 26, 2015. Then-Gov. Mike Pence signs the Religious Freedom Restoration Act, or RFRA, into law. Then, tell us what happened.

IPB News Statehouse Bureau Chief Brandon Smith: Indiana went crazy for about one week exactly. Reporters at the Statehouse, including myself, had been covering RFRA leading up to the passage in the signing by Gov. Mike Pence. And there had been some testimony we heard in committees opposed to it, notably from the ACLU, pointing out that it could be used to justify discrimination against particularly the LGBTQ community. So there were certainly voices of dissent.

But we didn't see rallies -- we didn't see, you know, huge reactions to the bill before the governor signed it. But then he signed it on that Thursday. And it was a private ceremony. But he did it with a bunch of religious leaders, and particularly the leaders of conservative political groups, religious political groups in Indiana. And that sort of started the really negative attention on the law in Indiana for that next week.

And then, over the weekend, that first just after it was signed Friday and Saturday, you started to hear more voices of dissent from the business community in particular. There was, I think, a rally at the Statehouse, though not of the intensity that we've seen in in the past on issues like right to work or read to ED or the abortion ban debate. But then, Mike Pence went on This Week with George Stephanopoulos on Sunday morning to talk about this new law. So obviously, the fact that that was even happening is a signal that it was starting to get more attention.

But Mike Pence went on with the purpose, certainly from his perspective, of calming the business community's fears about what the law could do and what a lot of Republican leaders thought was a misperception about the law. They didn't see it as a tool for discrimination. They said no, this is a commonly used legal tool. It existed in federal law for almost two decades, I think, by the time Indiana passed [it], and it's just a test that judges have to use when evaluating a law or regulation to say – is it overburdening a person's faith?

Mike Pence went on George Stephanopoulos and George asked him directly, you know, can this law be used to discriminate against gay people? And Pence just wouldn't answer the question. It was, I think it's fair to say, a pretty disastrous appearance. And that really kick-started the furor over this law, and for that next week.

So until Mike Pence signed what was called the "fix," literally one week to the day after he had signed the law in the first place – there was just an intensity at the Statehouse that I've never quite seen in that form. It was the business community, it was lawmakers getting inundated with messages from leaders around the world even. And I've never, we've never seen anything like that in the last decade or so.

Syberg: So businesses weighed in forcefully on the RFRA issue. So why is abortion different?

Smith: I mean, you'd have to ask those businesses, I suppose. For many, I don't think it is. Certainly there are, perhaps, more stark dividing lines on the abortion issue in terms of the general public. And some companies may not want to risk, if you will, upsetting a certain – what they perceive to be a larger base of people by opposing an abortion ban or something like that.

It's also not as clear, I think right now, what an abortion ban will do to to affect businesses to affect the ability to attract and retain talent in Indiana, you know, at the time of RFRA. And again, the focus being on the LGBTQ community, I think it was a moment nationally where Indiana stood out. And it was a moment where all of a sudden, folks in that community had gotten a lot more rights than they'd ever had before. It happened fast, certainly, notably with gay marriage, which is what helped -- quite honestly -- kickstart the RFRA debate here in Indiana. But I think as part of that, there was a general consensus among the business community that we cannot be doing anything to alienate this community.

I don't think that seems to be as true for abortion, weirdly -- if only because it would seem to be a much larger group of the populace that has major problems with abortion bans, certainly by all of the public polling that we've seen on this issue, both in Indiana and across the country. I think the other thing that might be different though about it is Indiana is the first since the Dobbs U.S. Supreme Court decision to pass a new abortion ban. This debate is playing out across the country in a lot of states and will be playing out in a lot of state legislatures over the next several months, and particularly once the new year starts.

Syberg: So what is likely to happen, or what could happen, with the new abortion legislation under our current lawmakers?

Smith: Yeah, I would say that the legislature has gotten more conservative since RFRA. In 2015, certainly, if you had supermajorities of Republicans back then, but I think they've gotten more conservative over the last half decade.

So that would suggest to me – and also we've seen evidence in other areas, though none as divisive as abortion – but we've seen evidence in other areas where Republicans at the Statehouse don't care, quite frankly, what the business community thinks when it comes to social issues. So you had businesses opposing the handgun license bill that allows everyone to carry without a license. That clearly didn't stop the bill. Even their own surveys, legit Republican legislator's surveys said this was not popular with their constituents. They didn't care that this was ideologically driven, and I think it's very similar to abortion.

So I think this legislature is less responsive to the public and to the business community than it was five, six years ago on social issues, like abortion or guns.

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