Three years after injunction, religious freedom lawsuit against Indiana abortion ban nears decision

Three years to the day after a preliminary injunction first paused parts of Indiana’s near-total abortion ban for a limited group of Hoosiers with religious objections, a Marion County court heard final arguments Tuesday over whether the law violates the state’s Religious Freedom Restoration Act.

Superior Court Judge Christina Klineman presided over the summary judgement hearing on Tuesday in Indianapolis but her ruling is still at least two months away.

The American Civil Liberties Union of Indiana represented the plaintiff class, while the Indiana Attorney General’s Office defended the state’s medical licensing board and other defendants.

The underlying lawsuit, filed in September 2022, claims that Indian’s abortion ban imposes a substantial burden on the religious practice of a particular group of plaintiffs whose faiths permit or even require abortion under circumstances broader than those allowed by the statute.

The abortion law, which was enacted in a special 2022 session, only allows for exceptions in the case of a mother’s health, rape or incest, or a fatal fetal anomaly — though each with varying time limits.

The ACLU asked the court to convert a preliminary injunction into a permanent injunction protecting the remaining individual plaintiffs — currently two anonymous women of different faiths — and the certified class, Hoosier Jews for Choice, ensuring that the state cannot enforce the abortion ban against them in ways that conflict with their sincerely held religious beliefs.

“There is a direct conflict between the state’s law and plaintiffs’ religious beliefs,” said attorney Stevie Pactor. “The law forces them to carry pregnancies that their faith teaches could be terminated.”

The state, meanwhile, argued that the plaintiffs have not shown any concrete example of an individual attempting to obtain an abortion for religious reasons and being denied under the law.

The existing preliminary injunction — issued Dec. 2, 2022 — applies only to the plaintiff class and prevents the state from enforcing the ban against those individuals in ways that conflict with their religious beliefs. 

It does not block the abortion law statewide, however, and it also does not require providers to perform abortions.

The attorney general’s office also noted that no one has come forward during the last three years to obtain an abortion for religious purposes under the injunction, and even if they had, doctors would not have been permitted to perform one because they are not covered by the injunction.

“Despite three years of litigation, the plaintiffs have not identified a single instance under (the abortion ban) which one of them — or the thousands of class members they sai Solicitor General James Barta, representing the defendants. “They haven’t even identified the precise circumstances under which that might occur.”

‘Forced’ to act against faith

Central to the ACLU’s argument is that Indiana’s abortion statute violates RFRA by banning abortions even in cases when their clients’ sincerely held religious beliefs require them.

In written filings, ACLU lawyers stressed that the law imposes criminal penalties and medical risks on those acting according to their faith, and that the state has not demonstrated the ban is the least restrictive means of pursuing any compelling interest.

Pactor emphasized that the law imposes an “exceedingly straightforward” burden on the religious rights of the women and organizations represented in the case.
 

“The individual plaintiffs are unnamed women of multiple faiths whose beliefs require them to obtain abortions in situations not allowed by the virtual ban on abortions,” Pactor noted.

She said that has forced many to “change their behavior to avoid pregnancies that they will not be able to terminate, even when compelled to do so by their religious beliefs.”

Pactor emphasized, too, that both the trial court and the Indiana Court of Appeals have already recognized abortion as a protected religious exercise under RFRA.

“The state must show that the ban meets the most stringent form of legal analysis — strict scrutiny — to survive,” she said.

The state has argued a compelling interest in enforcing the ban — “protecting the unborn” — and that the ban is the last restrictive way to further that interest. But the appeals court agreed with the trial court in 2024 that the state hadn’t successfully established either.

“While the Court of Appeals certainly recognized that the government has a permissible interest in protecting prenatal life, it explicitly rejected that this interest was compelling as to the plaintiffs in this case under RFRA,” Pactor said.

“The state simply cannot, and has not, adequately explained this differential treatment,” she continued, referring to the law’s secular exceptions “that allow abortions in certain cases but deny religious exemptions.”

The ACLU has maintained that refusing religious exceptions, while allowing secular ones, is unconstitutional discrimination. 

“The state simply cannot meet its burden under strict scrutiny to justify offering some exemptions for non-religious reasons, and refusing to offer the same exemption for those whose religions require them,” Pactor told the court.

AG holds the law is ‘neutral’

But Barta argued that the abortion ban is a “neutral” law that applies equally to all Hoosiers and does not single out religious beliefs.

“RFRA does not allow individuals to opt out of neutral, generally applicable laws,” Barta said. “Nothing in the statute gives plaintiffs a religious veto over a law that applies to everyone.”
 

He further insisted that the state’s interest in protecting prenatal life is “no less compelling than other interests courts have found compelling, such as protecting bald eagles, ensuring the payment of taxes, or protecting other symbols of the nation.”

Barta said the exceptions baked into the abortion ban are not meant to privilege or target religious versus non-religious reasons. He additionally held that those exceptions are not “gaping holes,” either.

He referenced statewide data showing that abortions have “fallen dramatically” from about 2,300 in the first quarter of 2022 to only 28 in the first quarter of 2025.

Barta said that sharp drop demonstrates that the exceptions are narrowly tailored and not undermining the state’s overarching goal of protecting prenatal life. Thus, he argued, the existence of those exceptions does not mean the law lacks a compelling interest or is not the least restrictive means of achieving that interest.

“The plaintiffs’ response to this has been to say that the state can’t make ‘secular exceptions’ while denying religious exceptions. But that’s not what the state has done,” Barta said. “These exceptions do not say people of religious faith, or people who have no religious faith, get abortions, while the others do not. The exceptions are equally open to all.”

Judge to weigh arguments

Later in the hearing, Klineman pressed both parties on how RFRA’s substantial burden test should apply, which requires courts to determine whether the law places a meaningful constraint on religious exercise, not just a theoretical one.

“If the law forces someone to act contrary to their religious beliefs at risk of criminal prosecution, why isn’t that a substantial burden?” she asked.

Barta responded that the statute itself provides all the mechanisms for enforcement and inquiry and that the plaintiffs can’t outsource those duties to private parties, such as physicians.

The judge also questioned the ACLU on the limits of relief, asking how the court could administer exemptions “without effectively creating individualized abortion standards.”

Pactor replied that the injunction is narrowly tailored to the plaintiffs and the certified class, ensuring their religious exercise is protected without requiring courts to rewrite the statute or impose obligations on other Hoosiers.

Klineman set a Jan. 30 deadline for both sides to submit short proposed orders to her before she issues a ruling.

Indiana Capital Chronicle is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: info@indianacapitalchronicle.com.