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Indiana judge backs a religious right to abort

And poses a serious challenge to the Supreme Court’s religious liberty jurisprudence.

Marion County, Indiana, Superior Court Judge Heather Welch. Photo via Indy.gov

(RNS) — Should religious liberty claims prevail over anti-abortion laws in the United States today? A county superior court judge in Indiana, Heather Welch, thinks they should, and she made the argument in an opinion that blocked the state’s new anti-abortion law last week.

In the case at hand, Hoosier Jews for Choice and five anonymous women of several faiths and no faith contend that the measure, which bans abortion after 10 weeks of pregnancy unless it’s the result of rape or incest, violates the state’s Religious Freedom Restoration Act, signed into law by then-Gov. Mike Pence in 2015. Welch granted a temporary injunction on the grounds that the plaintiffs would otherwise suffer irreparable harm and are likely to prevail when the case goes to trial in Indiana’s Supreme Court next month.

The opinion, which relies on the U.S. Supreme Court’s ever-more-robust embrace of religious rights, begins by citing a range of religious beliefs — Jewish, Muslim, Episcopalian, Unitarian Universalist and pagan — to the effect that human life or personhood begins well after conception. These not only tend to support the necessary determination that the plaintiffs are sincere in their beliefs but also underscore the judge’s position that the question of when life begins is theological and philosophical, not scientific.

Facts about the process of human zygotic, embryonic, and fetal development do not answer the question of when life begins. The “personhood” status of a zygote, embryo, or fetus cannot be stated as matters of fact. For many individuals, such as the Plaintiffs, questions such as the beginning of life or when personhood begins cannot be stated without reference to moral, ethical, spiritual, and religious beliefs.

You may disagree with this position and contend that science does indeed establish that there is a human being or person from the moment of conception. However, as the judge points out, the U.S. Supreme Court’s position, put forward by Justice Samuel Alito in his majority opinion in the Hobby Lobby case, is that what counts from a religious liberty standpoint is when a person believes that life begins.

Even if the court should take the position that, as a factual matter, life begins at conception, its free exercise jurisprudence would seem to allow the women in question to procure otherwise prohibited abortions. That’s because, in Welch’s terms, Indiana’s anti-abortion law is “underinclusive” — as restrictive as it is, it nevertheless allows abortions when the life or health of the mother is seriously at risk, when there’s a lethal fetal anomaly and, early on, in cases of rape and incest.

As the U.S. Supreme Court has made abundantly clear (for example, regarding in-person worship attendance during COVID-19), where exceptions for secular reasons are permitted, so must exceptions for religious reasons. So if abortions are permitted for such secular reasons as the mother’s health, the survivability or the fetus and the circumstances of a pregnancy, then abortions grounded in sincerely held religious beliefs must also be permitted.

To be sure, the state of Indiana contends that prohibiting the plaintiffs from having abortions would not meet the standard of “substantially burdening” their religious exercise because abortion is “a secular means to a religious end.” But this, according to the judge, is contradicted by Hobby Lobby, where the secular means of refusing to provide employees with certain kinds of contraception coverage was recognized as a legitimate way to serve the religious end of opposing abortion.

One other thing. Among the plaintiffs in this case is a woman who claims no specific religious basis for her belief. The opinion recognizes her as having a legitimate claim comparable to that of nonreligious conscientious objectors to military service.

Long story short, Judge Welch’s opinion indicates that any woman who sincerely believes that her fetus is not a person should be able to procure an abortion in any state of the Union — as the Supreme Court’s religious liberty jurisprudence currently stands. To that jurisprudence it poses no trivial challenge.

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