Religious freedom-based arguments have emerged as a central, and perhaps surprising, strategy for expanding access to abortion in places where abortion is criminalized. A recent Indiana decision granting a permanent injunction against certain religious plaintiffs illustrates the potential of such faith-based arguments, at least for a limited group.
Since the 1990s, legal and judicial protections for religious freedom have expanded dramatically. Following the U.S. Supreme Court’s decision, Employment Department v. Smithto reduce existing protections, Congress passed the Religious Freedom in Reconstruction Act (RFRA) in 1993, which established broader legal protections for religious freedom. RFRA provided that government actions that create a substantial burden on religious activities violate the statute unless the government acts to further a compelling interest and uses the least restrictive means to achieve that purpose.
Congress, which passed the law with near-unanimous support, originally intended to apply RFRA to state and federal actions. However, in 1997 the U.S. Supreme Court City of Boerne vs. Flores Islandnarrowed its application to the federal government only. After that, states like Indiana tried to close the gap. city of boerne left. Currently, 29 states have their own RFRAs, often in addition to the strong religious freedom protections in the Constitution.
After the U.S. Supreme Court ruled in 2022 that there was no federal constitutional right to abortion, reproductive rights lawyers sought to take advantage of this expansion of religious freedom. This strategy has so far been successful in the Indiana case, but Private Members of the Indiana Board of Medical Licensing v. Anonymous Plaintiffs 1.
The case began in 2022 when a group of plaintiffs, including five anonymous women and a group called Hoosier Jews for Choice, challenged Indiana’s abortion ban under the state’s RFRA. The ban only allows abortion in cases of rape, incest, fatal fetal abnormality, or a threat of “serious risk of death or serious and irreversible impairment of major bodily functions.” Plaintiffs raised religious objections and articulated a religious basis for seeking access to abortion under certain circumstances. For example, one of the plaintiffs, a Jewish woman, said she wanted to have another child, but her religious beliefs required her to terminate a pregnancy that would jeopardize her physical or mental health. The second plaintiff, who does not belong to any particular religious tradition, asserted that she had spiritual and religious beliefs about autonomy and the beginning of life that required her to terminate the pregnancy under certain circumstances, such as when “the birth of another child would prevent her from fully realizing her humanity and inherent dignity.”
The trial court granted a preliminary injunction in December 2022, blocking enforcement of the state ban against these particular plaintiffs. The trial court also recognized a class of people with similar religious commitments. The Court of Appeals subsequently affirmed those decisions, but directed the trial court to clarify the scope of the preliminary injunction, which applies only when plaintiffs seek abortions for sincerely religious reasons, rather than for non-RFRA reasons. In December 2024, the Indiana Supreme Court declined to review the intermediate court’s affirmation.
This month, a trial court made the injunction permanent. This means that the state cannot deny abortions to plaintiffs and other people with sincerely held religious beliefs if they request the procedure. Because the plaintiffs’ attorneys, the ACLU of Indiana, moved forward with the class action lawsuit, the ruling would apply to all state residents with similar religious obligations.
In issuing the permanent injunction, the trial court first resolved issues related to standing and maturity. State defendants argued that Hoosier Jews for Choice lacked standing to pursue the RFRA members’ claims. Defendants noted that the Indiana Supreme Court has not made a final decision on whether to recognize this type of nexus status.
However, the Indiana Court of Appeals affirmed the plaintiffs’ right to a preliminary injunction, respected the organization’s position in its decision, and established a standard for determining whether an organization may sue on behalf of its members, based on the U.S. Supreme Court’s decision. Hunt v. Apple Advertising Commission of the State of Washington: “Otherwise, its members would be entitled to sue in their own right,” “the interests sought to protect are closely related to the purpose of the organization,” and “neither the claims asserted nor the relief requested require individual member participation in the litigation.” The Court of Appeals upheld the preliminary injunction, concluding that the Hoosiers Jewish Movement organization met that standard. On remand, Marion County Judge Christina Kleinman ruled that the evidence the defendants presented in an effort to discredit the group’s status as an association did not change that conclusion.
Kleinman also agreed with the appellate court that other plaintiffs’ claims are ripe for litigation even if they are not pregnant or on the verge of planning a pregnancy. The judge emphasized that Indiana’s RFRA protects not only those who have already been harmed, but also those whose religious freedom may be subject to substantial burdens. Additionally, the plaintiffs had already recalibrated their family planning decisions and intimate lives because of the abortion ban, the judge said.
The court next addressed whether Indiana law substantially burdened the plaintiffs’ religious practices. Indiana argued that its ban would not affect the women themselves because only providers would face criminal penalties. Kleinman rejected this argument. Mr. Kleinman reasoned that the fact that the plaintiffs did not have access to abortion and that third parties were similarly burdened did not change the analysis.
Indiana emphasized that some plaintiffs concerned about threats to life or health may be able to successfully invoke the state’s medical exception. Therefore, it said, the plaintiffs had other ways to act on their religious beliefs other than requesting an injunction. Kleinman argued that an injunction is needed in “the rare instances where abortion does not fall within the enumerated exceptions but is a necessary religious practice as well.”
The state then argued that the ban should be upheld because it is the least restrictive means available to achieve the compelling interest of protecting the life of an unborn child, even if the ban burdens the plaintiffs’ religious practices. Kleinman focused on the inconsistent treatment of prenatal life in state law, finding that states have failed to prove they have a compelling interest in preserving life. For example, the state exempted IVF embryos and allowed plaintiffs to “seek an abortion if the pregnancy is the result of rape, but not if the pregnancy is coerced by religious beliefs.” Kleinman similarly reasoned that states had less restrictive alternatives to pursuing their desire to protect prenatal life. Kleinman writes that the state has managed to accommodate that interest, creating secular exceptions to the ban for things like rape and death threats, for example. “There is no reason why disputes with RFRA cannot be handled similarly.”
Indiana Attorney General Todd Rokita appealed the decision. Given the Indiana Court of Appeals’ decision to uphold the preliminary injunction, Mr. Rokita is unlikely to succeed in the short term. If the case goes to the Indiana Supreme Court, the outcome is less certain. Although the court declined to intervene in the case in 2024, four of the court’s five justices suggested the case contained issues worthy of consideration by the court, and three found it best to wait until later in the case to address the issues raised in the case. Notably, the Indiana Supreme Court previously rejected a broad challenge to the state’s abortion ban, declaring that the state constitution does not include a “fundamental right to abortion under any circumstances.” However, the court held that the Constitution protects “a woman’s right to obtain an abortion necessary to preserve life or protect against serious health risks.”
Many state courts are considering similar religious freedom claims. Plaintiffs, Utah Family Planning Association vs. State They argue that Utah’s abortion ban violates the state constitution’s religious freedom provisions. The Utah Supreme Court granted a preliminary injunction against law enforcement on other grounds. Litigation in this case continues. And in July 2025, the Kentucky Court of Appeals ruled that Jewish woman Jessica Kalb had standing to challenge the state’s abortion ban under RFRA and the Establishment Clause. Kalb had hoped to use one of the nine frozen embryos to have a second child through in vitro fertilization, but she held off because she feared the impact of the state’s ban on religiously required abortions. The trial continues in the trial court.
Given that not all abortion seekers are contesting religious convictions, religious freedom cases would at most limit state abortion bans to some degree. There are also important unanswered questions about how patients with religious objections can actually enforce their rights, even if they ultimately win in court. Nevertheless, the Indiana case is an important sign that such claims can be successful for plaintiffs whose conscience requires them to consider abortion.
Symbolically, this case and others like it serve as an important reminder that people of faith exist on all sides of the nation’s abortion divide. And religiously motivated plaintiffs may be able to demonstrate that there are important limits to the state’s ability to criminalize abortion, especially those whose beliefs are most burdensome.
Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law.
