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Back in 2022, a group of anonymous plaintiffs and a group called Hoosier Jews for Choice filed a lawsuit in state court claiming that Indiana’s abortion ban violated their right to religious freedom. For example, one Jewish plaintiff believes that abortion is necessary when a person’s physical, mental, or emotional health is at risk. Other plaintiffs believe they have a personal spiritual obligation to decide whether to continue with the pregnancy, rooted in religious beliefs about autonomy.

Earlier this month, an Indiana trial court sided with the plaintiffs, ruling that a state law that strengthens religious freedom protections exempts abortion from a ban if the state’s ban would substantially burden an individual’s practice of religion. The judge permanently blocked the law from applying to this group of affected people.

There’s a lot to say about this decision, and it’s already on appeal, but it’s a great decision. state court report An analysis by Mary Ziegler, a law professor at the University of California, Davis, is a good place to start. What strikes me is how this case fits into broader legal developments regarding the meaning of the free exercise of religion. The issue has seen significant (and repeated) intervention by the Supreme Court, Congress, state legislatures, and state courts, as well as cameos from the NCAA, Miley Cyrus (I’ll explain!), and many other notable figures in politics, culture, and business.

For our purposes, the story begins with a 1990 U.S. Supreme Court case. Employment Department v. SmithOregon attempted to apply a law banning peyote to Native American churches that used peyote for sacramental purposes. Breaking with precedent, the court ruled that the First Amendment does not provide protection when neutral, generally applicable laws burden religious activities.

smith This sparked rare bipartisan outrage, with a consensus that the court was wrong. In 1993, Congress responded by passing the Religious Freedom Restoration Act (RFRA) with near-unanimous support. Laws aimed at restoring a previous state of affairssmith This standard requires that government actions that burden religious practices be closely tailored to achieve the government’s compelling interests. However, in 1997, the Supreme Court ruled as follows: City of Boerne vs. Flores Island that Congress exceeded its constitutional authority in applying RFRA to the states;

city ​​of boerne This led to increased activity in state legislatures and codified RFRA protections into state law. Congress also passed another The Religious Land Use and Institutionalized Persons Act (RLUIPA) applied RFRA standards to state prisoners and made state land use regulations a condition of receiving federal funds. Currently, all 50 states are subject to RLUIPA, and 29 states have adopted their own RFRA. In some other states, such as Massachusetts, state supreme courts have interpreted the state constitution to provide stronger free exercise protections than the U.S. Constitution.

But what began with broad bipartisan agreement suddenly changed by the mid-2010s, as conservatives began applying religious freedom arguments more and more frequently to oppose protections for LGBTQ+ rights, access to contraception and abortion, and more. The Supreme Court rejoined the fray in 2014, dramatically expanding RFRA’s authority. Burwell vs. Hobby Lobby Store Ruling. A court has ruled that Hobby Lobby, a privately held for-profit company, can deny employees health insurance coverage for contraceptives required by the Affordable Care Act, citing the company’s management’s religious objections.

In this new context, Indiana passed its own RFRA in 2015 under a cloud of controversy and boycotts. Critics argued that the law included provisions extending protections to corporations and other businesses and could open the door to religiously motivated LGBTQ+ discrimination. NBA players, Apple’s CEO, the NCAA, Miley Cyrus, and many others spoke out against it, while companies, unions, and many cities and states announced boycotts. In the face of widespread outrage, Indiana amended RFRA and added explicit anti-discrimination protections.

Supreme Court decision to be handed down in 2022 Dobbs v. Jackson Women’s Health Organization The assertion that there is no right to abortion in the federal constitution begins a new chapter in the state’s RFRA. After dozens of states, including Indiana, imposed abortion bans and other restrictions. dobbssome have been sued on religious freedom grounds.

Recent Supreme Court precedent extends religious freedom protections under RFRA far beyond what was previously available.smith In these cases, standards have a big impact. For example, the Indiana Court of Appeals’ decisions in the early stages of this case relied heavily on the Supreme Court’s reasoning. hobby lobby. Indiana defended the law by arguing that abortion is not a mandatory religious ritual, but the court noted that “purchasing health insurance is not a mandatory religious ritual either.”

The trial and appellate courts also pointed to other legal exceptions to the state’s abortion ban, arguing that Indiana cannot claim a compelling interest in denying immunity to plaintiffs while also granting immunity to others. “The Abortion Act allows a plaintiff to seek an abortion if she becomes pregnant as a result of rape, but not when her religious beliefs mandate it,” the trial court said.

Both the Supreme Court and many states have given space for religious conscience to become increasingly involved in challenges to laws of general application. The Indiana case tests the limits of these decisions while also serving as a reminder that religious conscience flows in different directions.

Alicia Bannon is the editor-in-chief state court report. She is also the director of justice programs at the Brennan Center for Justice.

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