Case: Anonymous Plaintiffs 1-5 v. Individual Members of the Medical Licensing Board of Indiana

This case is a challenge, on religious grounds, to Indiana's post-Dobbs anti-abortion law. Indiana Senate Enrolled Act 1 (SEA 1) criminalized all abortion, from conception onwards, except in some cases of rape, incest, fatal fetal abnormality, or when the pregnant woman faces the risk of death or certain severe health risks. This Indiana ban was the first to make it to the books following the Supreme Court's June 2022 decision in Dobbs v. Jackson Women's Health.

The ACLU of Indiana filed this class-action lawsuit on September 8, 2022. The ACLU filed on behalf of Hoosier Jews for Choice, five individual anonymous religious state residents, and a plaintiff class of those similarly situated. The plaintiffs defined the class as all Indiana persons whose religious beliefs direct them to obtain abortions in situations prohibited by SEA 1, but will not be able to obtain one because of SEA 1. The complaint's sole legal claim is that Indiana's abortion ban violates Indiana’s Religious Freedom Restoration Act (RFRA), Indiana Code § 34-13-9.07 et seq. Indiana's RFRA prohibits government action that substantially burdens a person’s exercise of religion unless the burden serves a compelling governmental interest and is the least restrictive means of furthering the interest. The plaintiffs argue that SEA 1 unacceptably burdens religion by prohibiting abortion even when the plaintiffs' religions would direct them to have abortions. For example:

• Under Jewish law, both Conservative and Reform, a fetus begins as a physical part of the woman's body and only attains the status of a living person at birth. Also under Jewish law, abortions may and should occur to prevent a mother's mental anguish from severe physical or mental health issues, even if not as extreme as the exceptions allowed in SEA 1. Some of the anonymous Jewish plaintiffs believe that Judaism instructs them not to imperil their own lives.
• Islam believes the fetuses only obtain souls at 120 days after conception, meaning abortion is appropriate before 40 days, or afterwards, if there is a pressing need, including due to fetal impairment, or risk to the woman's mental or physical health.
• Unitarian Universalists believe the Creator gave every human being inherent worth and dignity, which can sometimes only be honored through abortion.
• The Episcopal Church believes equitable access to all types of women's health care is an integral part of a woman's project to assert her dignity and worth, and clerics may advise women to seek abortions when pregnancy would cause mental health, physical problems, or impair her wellbeing.
• Last, Pagans/non-polytheists stress the divine feminine, the feminine's live-giving elements, and that women are free and autonomous representations of the Goddess who must also have full bodily autonomy, including the ability to obtain abortions.

The individual plaintiffs were women devoted to various faiths and many were concerned with the issues described above and about carrying some potential births to term would risk their physical, mental, and emotional health during and after pregnancy. Notably, one plaintiff was concerned with additional risks such as the heightened genetic risk Jewish women face of passing on certain incurable severe genetic disorders that most often cause death before the age of four (e.g., Tay-Sachs disease, for which one in every twenty-five Ashkenazi Jews is a carrier, Canavan disease, and Niemann-Pick disease). Under SEA 1, a woman would be forced to give birth to children with all of these conditions. Another plaintiff had Crohn's disease, which creates a higher risk of miscarriage and stillbirth, both of which risk the woman's health; additionally, though steroids are often used to treat Crohn's, pregnant women are advised against taking steroids. 

The plaintiffs sought class certification, declaratory relief, a preliminary and permanent injunction, and attorneys fees. The proposed class included all persons in Indiana “whose religious beliefs direct[ed] them to obtain abortions in situations prohibited by” SEA 1, and who either were not or would not be able to obtain an abortion because of SEA 1. The case was filed in Marion Superior Court 1 and heard by Judge Heather A. Welch. The parties postponed briefing the class certification portion of the case pending a decision on the preliminary injunction.

On December 2, 2022, Judge Welch granted the motion for a preliminary injunction. Procedurally, although Planned Parenthood Great Northwest. v. Medical Licensing Board of Indiana also challenged SEA 1, and although the trial court in that case issued a preliminary injunction that the Indiana Supreme Court later refused to stay, Judge Welch said the instant case was still ripe since it was based on different legal claims and sources of rights. Judge Welch found facts in line with the plaintiff's factual allegations about Jewish, Islamic, Unitarian Universalist, Pagan, and Episcopalianism beliefs, and disagreed with Indiana's characterization that these beliefs were subjective and manipulable. She also found that the plaintiffs had established a likelihood of future success on the merits because, under RFRA, substantial burden means "the government put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs." The plaintiffs made out a prima facie case of such a substantial burden because they avoided becoming pregnant, despite wanting children. Judge Welch additionally rejected Indiana's arguments: (1) she did not agree that abortion was only a "secular means to a religious end," (2) she said the state did not have a compelling interest in preserving life, because the question of when life begins had not been legislatively addressed and could not be a factual question for the court, and (3) she called SEA 1 under-inclusive, because it allowed some abortions, inferring that SEA 1 was not the least restrictive way for Indiana to achieve their goal. Last, she said the balance of harms, and the public interest, favored the preliminary injunction.

On December 9, 2022, Indiana appealed this grant of the preliminary injunction to the Court of Appeals of Indiana. The state also filed an emergency petition to transfer the case to the Indiana Supreme Court, which denied the petition in January 2023. 205 N.E.3d 186.

While the appeal remained pending, in April 2023, the trial court heard oral argument on the plaintiffs’ motion to certify the proposed class. The trial court granted this motion on June 6, 2023. In its order, the court stated that a single injunction would provide the putative class members with the same general benefit: the preservation of the right to challenge enforcement of SEA 1 on protected religious exercise under the RFRA. Though each plaintiff had their own religious beliefs, all members of the proposed class were ultimately claiming that their religious practices were substantially burdened by the passage of SEA 1. 

Following the court’s decision, the parties filed a joint motion to stay proceedings in the trial court pending the Indiana Court of Appeals’ consideration of the preliminary injunction and the state’s interlocutory appeal of class certification, the latter of which the Court of Appeals accepted for consideration in July. 

On July 10, 2023, the plaintiffs sought clarification from the trial court that the preliminary injunction extended to class members and protected those who provided abortions allowed by the preliminary injunction to those class members. The plaintiffs additionally filed a motion to temporarily lift the stay so that the trial court could consider and grant the motion to clarify. However, the trial court denied both of these motions, stating that it lacked subject matter jurisdiction to address the motions because the issues were currently before the Indiana Court of Appeals. The Court of Appeals heard oral argument on December 6, 2023. This case is ongoing.