ACLU cites law signed by Mike Pence in fight to overturn Indiana's abortion ban

A lawsuit filed by the American Civil Liberties Union of Indiana on behalf of five anonymous plaintiffs and a group called Hoosier Jews for Choice last year in Marion County, Indiana, could upend the state’s restrictive abortion ban by using a law that former Gov. Mike Pence signed in 2015.

A superior court judge granted class action status for the complaint, which was filed Sept. 8, 2022, on the grounds that Indiana’s current abortion law stands in violation of the state’s Religious Freedom Restoration Act.

“Although some religions, and adherents of those religions, believe that human life begins at conception (however defined), this is not a theological opinion shared by all religions or all religious persons,” the complaint reads.

The complaint adds that in Jewish law “a fetus attains the status of a living person only at birth,” and “Islam does not believe that the fetus is ensouled at the moment of conception and some Muslim scholars take the position that the fetus does not possess a soul until 120 days after conception.”

The suit also identifies the beliefs of Unitarian Universalists and the Episcopal Church.

Unitarians, the suit reads, “believe that a person who is pregnant should be entitled to obtain an abortion and if the person is blocked by the law or outside authorities, their endowed rights are impinged upon.”

The Episcopal Church believes, according to the suit, that all human beings have the right to health care, including abortion care. 

“Therefore, an Episcopal cleric may counsel a woman seeking an abortion where to continue the pregnancy would cause serious mental health or physical problems, even if the health problem would not involve a serious risk of substantial and irreversible physical impairment of a major bodily function, that it is morally and religiously permissible for the individual to obtain the abortion, as her life and wellbeing are of primary importance at that point,” the complaint says.

In her 29-page order, Marion Superior Court Judge Heather Welch found there was “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.”

Last week, former Vice President Pence announced a run for the 2024 Republican nomination for president. Pence has been the most vocal anti-abortion candidate to date, although he has not spoken about abortion since his announcement.

On the day of the U.S. Supreme Court’s June 24, 2022, ruling that overturned Roe v. Wade, Pence told Breitbart News: “Today, Life Won. By overturning Roe v. Wade, the Supreme Court of the United States has given the American people a new beginning for life, and I commend the justices in the majority for having the courage of their convictions.”

During an April appearance on “Face the Nation,” Pence told CBS News correspondent Robert Costa that he had “deep concerns” about mifepristone, the abortion medication approved by the Food and Drug Association nearly two decades ago. Mifepristone is used in over half of all abortions in the U.S, the Guttmacher Institute reports.

“You know, I’m pro life. I don’t apologize for it. I think the fact the Biden administration allowed Mifepristone to be made available on a mail order basis was a- a fundamental change. Even in states that have limited abortion. I’d like to see this medication off the market to protect the unborn,” Pence said.

This is the second suit filed by the ACLU in an effort to block Indiana’s near-total abortion ban. In August it filed a suit on behalf of Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, along with other plaintiffs, arguing the ban violates the right to liberty and privacy contained in the Indiana Constitution. The suit is currently being considered by the state Supreme Court and, for now, abortions in the state are allowed at up to 20 weeks’ gestation.

Though information isn’t available for the next steps of the Indiana class action, the typical stages of such lawsuits are discovery, or an investigatory stage, in which lawyers ask for documents to prove allegations, and finally a resolution in the case if it goes to trial. Otherwise the case could be settled out of court. 

Published with permission of The American Independent Foundation.