Indiana Supreme Court hears case on a ‘religious right’ to abortion

The Indiana Supreme Court heard oral arguments Sept. 10 in a case believed to be the first in the world in which a high court has considered whether a state constitution or law creates a religious right to an abortion, with U.S. Sen. Jim Banks, R-Ind., among those who filed briefs urging the court to reject the claim.

The case, Individual Members of the Medical Licensing Board of Indiana v. Anonymous, centers on a 2022 lawsuit by Hoosier Jews for Choice and several Jewish women who argue Indiana’s near-total abortion ban, enacted that same year, violates the state’s 2015 Religious Freedom Restoration Act (RFRA) by substantially burdening their sincerely held belief that abortion is sometimes religiously required. A Marion County judge sided with the plaintiffs in 2022, the Indiana Court of Appeals affirmed in 2024, and a different Marion County judge made the injunction permanent for a certified class in March of this year. The state appealed directly to the Indiana Supreme Court, which heard roughly an hour of arguments on Sept. 10, with no timeline set for a ruling.

Banks, represented by attorney James Bopp Jr., filed an amicus brief in late May, arguing that RFRA doesn’t protect claims to religiously justified violence, including against the unborn and that Indiana has continuously desired to protect prenatal life since statehood. The brief leans heavily on the Indiana Supreme Court’s own 1972 ruling in Cheaney v. State, which called the state’s interest in protecting unborn life “valid and compelling” and stated it begins “from the moment of conception.” 

“There is no religious right to an abortion, it’s that simple,” Banks said in a Sept. 11 statement. “Every unborn child deserves the right to life, and the Indiana Supreme Court has a responsibility to ensure our state’s pro-life law remains in full effect.”

Bopp said the state’s interest in protecting unborn life “holds under the federal constitution, the state constitution, and RFRA.”

At Thursday’s oral arguments, Indiana Solicitor General James Barta made a similar case on the state’s behalf, arguing the nation’s tradition of respect for religious exercise has “never been understood to encompass a right to intentionally destroy human life,” and that RFRA doesn’t give religious objectors free rein to override a law serving a compelling state interest.

ACLU of Indiana Legal Director Ken Falk, representing the plaintiffs, argued the state applies religious exemptions inconsistently, noting parents can exempt children from school vaccination requirements simply by “signing a piece of paper saying it’s my religious belief.” Hoosier Jews for Choice co-founder Amalia Shifriss has said RFRA shouldn’t apply only to claims like those of “evangelical bakers” declining to serve same-sex weddings while excluding others’ religious convictions about abortion. One of the plaintiffs, an anonymous Jewish woman, has said in court filings that she wants another child but fears becoming pregnant without assurance she could obtain an abortion if her faith required it.

Plaintiff 2 testified that she believed in “bodily and spiritual autonomy” and that any infringements upon that would constitute a “spiritual and moral wrong that inhibits the full expression of a person’s humanity.”

An amicus curiae brief filed by attorneys with the Becket Fund for Religious Liberty on behalf of the Indiana Catholic Conference — which represents the bishops of the state in matters of public policy — noted that while “people may sincerely hold secular moral or philosophical beliefs, those beliefs do not generally trigger statutory or constitutional protection unless they are also rooted in a system of religious duty.” 

Becket attorneys pointed to the Wisconsin v. Yoder case where the U.S. Supreme Court distinguished between “philosophical and personal” beliefs and religious beliefs held by a body of believers. 

“This distinction anchors laws addressing ‘religion’ in their historical context and ensures that religion is not made a proxy for personal or political ideology,” the brief argued. 

Legal scholars have called the case a significant test of how far religious-liberty protections extend. Similar religious-exemption challenges to abortion bans have been filed in several other states since Roe v. Wade was overturned in 2022, but the one against Indiana is the first to succeed at the trial and appellate level.