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Judge certifies challenge to Indiana’s pro-life law as a class action

by | Jun 8, 2023

By Dave Andrusko

On Tuesday, in a  29-page order, Marion County Superior Court Judge Heather Welch certified a lawsuit  brought against the state of Indiana by the American Civil Liberties Union of Indiana as a class action.

The class action designation “ensures the results of the litigation — one of two pending state court challenges to the abortion restrictions enacted last year by the Republican-controlled General Assembly and Republican Gov. Eric Holcomb — apply to every affected person, and not just the individuals who contested the statute,” Dan Carden reported.

The state’s new abortion law– Senate Enrolled Act 1– was signed by Indiana’s pro-life Gov. Eric Holcomb on August 5, 2022, and was set to take effect on Sept. 15. Writing for the Associated Press, Tom Davies explained that “The Indiana ban, which eliminated the licenses for all abortion clinics in the state, includes exceptions allowing abortions at hospitals in cases of rape and incest, before 10 weeks post-fertilization; to protect the life and physical health of the mother; and if a fetus is diagnosed with a lethal anomaly.”

But the law was put on hold in late September by Owen County Judge Kelsey Hanlon. She said “There is reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana Constitution” and that the clinics will prevail in the lawsuit.  The judge’s injunction meant that abortion providers could resume services at least until the Indiana Supreme Court issues its ruling.

“The lawsuit, which was filed by the ACLU on behalf of Hoosier Jews for Choice and four anonymous women representing various faiths, claims that Indiana’s new abortion law violates the state’s Religious Freedom Restoration Act, or RFRA,” Casey Smith reported for the Indianapolis Business Journal.

“The lawsuit claims the state abortion ban prohibits women from exercising their religious beliefs in violation of the Religious Freedom Restoration Act, which prohibits the government from interfering with the exercise of religious beliefs unless it has a compelling interest in doing so (such as protecting human lives),” Micaiah Bilger reported.

Attorneys representing Indiana have vigorously challenged the designation of class action on numerous occasions, including before Judge Welch.

They “argued against the proposed class by saying that it depends on class members’ ‘individual circumstances, states of mind, and subjective beliefs at any given moment,’” according to Joe Schroeder of Fox News. “The office of Indiana Attorney General Todd Rokita also argued that there is no objective way of determining who would be religiously motivated to receive an abortion, and that there is no consensus among the religions being represented in the case.”

Judge Welch conceded that “there are certainly conflicts within religious traditions on when a practitioner may be compelled to seek an abortion on religious grounds” but concluded in her ruling that there is  “sufficient evidentiary support that the religions to which plaintiffs and putative class members belong would guide its practitioners to seek abortions under particular circumstances based on testimony from leaders of these faiths.”

This is the second case challenging Senate Enrolled Act 1. The first was in January in which the plaintiffs based their case on liberty and privacy rights . “Attorneys for abortion care providers maintained that the ban will ‘severely’ injure women and girls, while lawyers for the state doubled down on their position that abortion access is not enshrined in the Indiana Constitution,” Smith reported. “ The Indiana Attorney General’s Office said in court filings that abortion was banned by law in Indiana as early as 1835.”

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