The Indiana Supreme Court will not immediately decide whether the state's Religious Freedom Restoration Act (RFRA) creates an exception to its near-total abortion ban.
In a 3-2 decision, the state's high court declined Tuesday to review an April 4 Court of Appeals ruling, preferring to wait for a record more fully developed than the preliminary injunction issued Dec. 2, 2022, by Marion Superior Judge Heather Welch that was partially affirmed in an interlocutory appeal.
"While the case presents transfer-worthy issues with previously undecided questions of statewide importance, it is still evolving through a preliminary posture; some of the current issues may become moot and new issues may emerge as litigation progresses," said Justice Derek Molter, a Newton County native.
"Given the limited impact of the preliminary injunction that is the subject of the appeal, the prudent course is to let the trial court decide what final relief, if any, to grant the parties before we weigh in."
The order denying transfer was supported by Molter, Chief Justice Loretta Rush and Justice Christopher Goff, while Justice Geoffrey Slaugher, a Crown Point native, and Justice Mark Massa favored the Supreme Court resolving some key issues now.
"While I can appreciate my colleagues' wait-and-see view in the abstract, I cannot agree with their rationale for deferring consideration of this appeal today," Slaughter said.
"Many of these 'transfer-worthy issues...of statewide importance' are legal questions as to which the trial court gets no deference. Answering these questions now may leave the trial court with greater clarity and fewer things to decide on remand."
The preliminary injunction exempts from Indiana's near-total abortion ban the four individual plaintiffs and members of Hoosier Jews for Choice, a religious organization the Court of Appeals determined had legal standing to challenge the abortion statute.
It was issued and upheld after the trial and appellate courts determined Senate Enrolled Act 1 (2022) violates RFRA by substantially burdening the religious beliefs of Hoosiers — particularly those who do not accept the notion that life begins at conception or whose faith favors protecting the life or health of a living woman over the potential life of a fetus.
At the same time, the appeals court directed the now-retired trial judge to narrow the injunction to more specifically identify the governmental acts that are restrained.
Welch also certified as a class "all persons in Indiana whose religious beliefs direct them to obtain abortions in situations prohibited by Senate Enrolled Act 1," but did not extend the injunction to the class — setting up another issue for her judicial replacement to resolve on remand.
It remains to be seen how far the case will go back at the trial court. Molter noted, for example, a new trial judge simply could eliminate the injunction and class certification.
The Republican-controlled General Assembly and Republican Gov.-elect Mike Braun also could expressly exempt the abortion law from the protections provided by RFRA when state lawmakers convene their annual four-month session in January.
Indiana was the first state in the nation to legislatively impose new abortion restrictions following the U.S. Supreme Court's June 24, 2022, Dobbs ruling that overturned the high court's 1973 Roe v. Wade decision legalizing abortion nationwide.
The law prohibits all abortions in the state from the moment of conception, except within 10 weeks gestation for pregnancies caused by rape or incest, or 20 weeks if necessary to prevent serious physical impairment or the death of a pregnant woman, or because of a lethal fetal anomaly.
The Indiana Supreme Court last year affirmed the constitutionality of the statute while also recognizing, for the first time in state history, that the Indiana Constitution includes a right to abortion when necessary to preserve a woman's life or protect her from a serious health risk.
Though the justices declined to specifically identify what constitutes "a serious health risk" that would entitle a woman to obtain an abortion.
As a result, a separate case seeking to answer that question is pending at the Indiana Court of Appeals after Owen Circuit Judge Kelsey Hanlon ruled in September the law appropriately leaves it to the "reasonable medical judgment" of doctors to determine when an abortion is necessary.
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