Who Would Jesus Kill? Abortion-as-religion court ruling opens door to legal murder, critics warn

Indiana drew an unwanted national spotlight when its Republican-controlled Senate rejected a redrawn electoral map that would have helped the GOP keep its House majority, with President Trump allegedly threatening to strip the state's federal funding and both Gov. Mike Braun and Trump-affiliated PACs promising to target redistricting opponents in primaries.

Now it's emerging as a potential haven for abortion seekers who live in fellow GOP-controlled states that heavily restrict the procedures and a legal template for effectively nullifying those restrictions, which are already easily circumvented by mail-order abortion pills that remain available nationwide under a U.S. Supreme Court ruling.

Friend-of-the-court briefs are pouring into the Indiana Supreme Court as it reviews a Marion County judge's March ruling that interprets the Hoosier State's Religious Freedom Restoration Act as protecting abortion access for women who invoke religious grounds for ending fetal life, preempting the state's already exception-filled abortion law.

Thirty states, overwhelmingly Republican-leaning, have their own RFRAs separate from the federal one, introduced by congressional Democrats and passed by wide bipartisan margins after SCOTUS created a First Amendment exception for "neutral laws of general applicability" that infringe on religious practices, in that case Native American peyote use.

The successful ACLU of Indiana challenge to Senate Enrolled Act 1, now permanently blocked, suggests courts in other red states may be receptive to RFRA-based arguments for creating exemptions to abortion restrictions when state constitutional challenges fail.

Unlike the Iowa Supreme Court, which discovered a right to same-sex marriage in the red state's constitution shortly after California voters rebuked their courts by banning same-sex marriage in the blue state's constitution, the Indiana Supreme Court last month rejected the ACLU's state constitutional challenge to the abortion law.

The court first upheld the law three years ago, rejecting the "facial" challenge brought by Planned Parenthood and other abortion providers while confirming the state constitution protects abortions that are "necessary to protect" a woman from death or a "serious health risk."

Indiana's high court fast-tracked review of the ruling, granting the state's emergency petition for "immediate transfer" so that the case bypasses the court of appeals. Briefing concludes by July 9, and oral argument is scheduled for Sept. 10.

"This case is a Trojan Horse" to "distort the meaning and purpose of religious liberty itself," the Thomas More Society, representing Indiana pro-life organization Voices for Life as a friend of the court, said in a press release Wednesday. 

"From Cicero to John Locke to the framers of Indiana’s Constitution, the natural law tradition that gave us religious freedom has never treated the taking of innocent life as an exercise of religion," but the ACLU is using it to "smuggle in an unrestricted right to abortion," said Executive Vice President Thomas Olp.

The attempted utilization of RFRAs to protect abortions continues four years of novel legal efforts, following the elimination of federal abortion rights in Dobbs, to divine abortion rights from laws that don't mention abortion, including federal guarantees of emergency medical treatment and workplace accommodations for pregnant employees.

Ruling requires Indiana to accept a 'potentially unlimited number of abortions'

The Indiana law gives abortion providers wide latitude to claim the procedures are legal without an abortion seeker having to assert "sincerely held religious beliefs," undermining its media portrayal as a "near-total" ban. The Kaiser Family Foundation goes even further, falsely calling it a "total ban."

Abortions are permitted if a physician determines before viability or 20 weeks' gestation that the "child" – the law's term – has a "lethal fetal anomaly," which "with reasonable certainty" will end the child's life within three months of birth. 

Using their "reasonable medical judgment," physicians may deem abortions "necessary" to save a woman's life or to "prevent any serious health risk," meaning a "condition that has complicated the mother’s medical condition" and requires an abortion to prevent "a serious risk of substantial and irreversible physical impairment of a major bodily function."

Physicians can also perform abortions for any reason up to 10 weeks' gestation if they claim the pregnancy resulted from rape or incest.

The docket shows the high court has approved eight briefs filed by outside groups as of Thursday, three of them on Wednesday. 

Indiana Sen. Jim Banks reminded his state's Supreme Court it upheld Indiana's "valid and compelling" interest in protecting fetal life "from the moment of conception" the year before SCOTUS invented federal abortion rights in Roe.

"There is no religious right to take a human life," to the extent that government only exists "for the sake of life," his brief says, quoting Aristotle. "Countless judicial decisions affirm the states’ compelling interest in denying requests for an exemption from laws against private violence" even when "practitioners’ views are sincerely held."

Banks warned that a religious exemption "requires the State to allow a potentially unlimited number of abortions," letting any pregnant woman in Indiana "conceivably" join the class approved by the court. It includes women with "spiritual beliefs" on when life begins or who "believe abortion is justified to prevent emotional harm to pregnant mothers."

Nineteen states led by Iowa started with a different tack, arguing the challengers haven't demonstrated "imminent injury" from the law.

"No Plaintiff is pregnant, none has sought an abortion prohibited by Indiana law, none has been denied an abortion and then appealed for religious reasons," and their alleged burdens are "self-imposed behavioral changes based on anticipated future contingencies," they wrote. 

As a "person-specific" law that requires a "fact-intensive analysis" of burdens on religious exercise, RFRA can't be commandeered "to grant overbroad, class-wide, or prospective injunctions that effectively rewrite the State’s abortion statutes," they also said. 

The Legislature created "discrete and carefully defined exceptions" in the law, but the ruling offers no criteria for a "religiously required abortion [...] no process to assess sincerity," no standards for judging a "substantial burden" in a medical context and "no mechanism for deciding who makes those determinations in real time," the brief says.

"Plaintiffs ask this Court to be the first high court anywhere, in the Nation’s long history, to recognize a religious right to end an innocent human life," the Indiana Catholic Conference said in its brief, which resembles the states' brief.

Group injunctions "turn RFRA’s structure on its head, creating a presumption of exemption for individuals who have not demonstrated that they themselves are experiencing a religious burden," giving the state "no further opportunity" to "prove its compelling interest with respect to different religious claimants," the group said.

Compares 'stoning, honor killing, child sacrifice' to self-defense

Notre Dame's Richard Garnett and Georgetown's Stephanie Barclay, prominent religious liberty scholars, scrutinized the 2024 Court of Appeals ruling that the Marion County court "heavily" relied upon to permanently protect religious exemptions to the law.

The appeals court wrongly assumed that "if a law makes any secular exceptions for any reason, the government cannot satisfy strict scrutiny," the most demanding standard of judicial review for governments to meet, they wrote.

Unlike the cases the appeals court cited, which "involve evidentiary disputes about whether government could both accomplish its goal and protect religious rights," in this case "there is simply no dispute" that blocking a religious exemption "is the only method for Indiana to protect those additional human lives," making secular exemptions "simply irrelevant."

The seemingly illogical implication of the appeals court ruling is "that no state could prohibit any religiously motivated homicide—stoning, honor killing, child sacrifice—since all states allow killing for some secular ends like self-defense," the scholars said.

University of Oxford abortion policy researcher Calum Miller, a medical doctor who also challenged the Trump administration's perceived slowness to review the safety of abortion pills, said he was "born not breathing and would have been eligible for homicide for a few minutes after birth on the alleged religious views of some of the plaintiffs."

The Indiana Supreme Court would become "the first apex court in the world" – not just in the U.S. – "to hold that an individual maintains the right to end the life of another on the basis of subjective personal theology," he wrote.

Even France, the first country in the world to protect abortion in its constitution and only two years ago at that, "prohibits most abortions after 16 weeks’ gestation – long before the beginning of life proposed by some of the Appellees," he wrote.