IN THE
Court of Appeals of Indiana
Individual Members of the Medical Licensing Board of Indiana,
in their official capacities, et al.,
Appellants-Defendants
FILED
v. Apr 04 2024, 9:54 am
CLERK
Indiana Supreme Court
Anonymous Plaintiff 1, et al., Court of Appeals
and Tax Court
Appellees-Plaintiffs
April 4, 2024
Court of Appeals Case No.
22A-PL-2938
Appeal from the Marion Superior Court
The Honorable Heather A. Welch, Judge
Trial Court Cause No.
49D01-2209-PL-31056
Opinion by Judge Weissmann
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 1 of 76
Judge May concurs and
Judge Bailey concurs with a separate opinion.
Weissmann, Judge.
[1] The Indiana General Assembly passed a law criminalizing most abortions in
the summer of 2022. Before the law took effect, five anonymous Indiana
women and Hoosier Jews for Choice (collectively, Plaintiffs) challenged the law
in a complaint they filed against the Individual Members of the Medical
Licensing Board of Indiana and the prosecutors in Marion, Lake, Monroe, St.
Joseph, and Tippecanoe counties (collectively, the State).1 Plaintiffs alleged that
the law, now codified as Indiana Code § 16-34-2-1 (Abortion Law), violated
their rights under the state’s Religious Freedom Restoration Act (RFRA). See
Indiana Code § 34-13-9-1 et seq.
[2] The trial court granted Plaintiffs’ request for a preliminary injunction, halting
enforcement of the Abortion Law against Plaintiffs until their underlying
RFRA claim could be resolved. The State appeals that ruling as well as the trial
court’s later certification of this case as a class action. The State claims the trial
court lacked jurisdiction to enter the preliminary injunction because Hoosier
Jews for Choice lacks standing and Plaintiffs’ claims are not ripe for
1
Since Plaintiffs filed their Complaint, one of them—Anonymous Plaintiff 3—has been voluntarily dismissed
from the case.
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 2 of 76
adjudication. The State also claims that Plaintiffs failed to prove the
requirements for a class action or for a preliminary injunction, and, in any case,
the injunction is too broad.
[3] We conclude that Hoosier Jews for Choice has associational standing, that
Plaintiffs’ claims are ripe, and that the class action certification was not an
abuse of discretion. Although we find the trial court did not abuse its discretion
in granting injunctive relief, the preliminary injunction is overly broad because
it enjoins enforcement of the Abortion Law in ways that do not violate RFRA.
We therefore affirm but remand for entry of a narrower injunction.2
Facts
[4] The United States Supreme Court set the stage for this appeal two years ago
when it ruled that the federal constitution “does not confer a right to abortion.”
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 292 (2022) (overruling in
part Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1993)). In so ruling, the Dobbs Court placed the ability to regulate
abortions not protected by federal law squarely in the states’ laps.
[5] The landmark decision unleashed a torrent of state legislative and judicial
activity. Legislatures rushed to enact statutes that incorporated their views on
this divisive issue. Just as quickly, individuals and organizations turned to the
2
We conducted oral argument in this matter and thank counsel for their excellent presentations. We also
thank the amici curiae which submitted briefs. The quality of the submissions—both oral and written—
greatly assisted the Court in deciding this appeal.
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 3 of 76
courts to challenge legislation that did not subscribe to their views of abortion.
The citizens in some states even went to the ballot box to amend their
constitutions to protect reproductive freedoms.
[6] Indiana was among the states to act quickly after Dobbs. Through the Abortion
Law, the General Assembly prohibited abortions except under specified
circumstances when: (1) abortion is “necessary to prevent any serious health
risk to the pregnant woman or to save the pregnant woman’s life”; (2) the
pregnancy resulted from rape or incest; or (3) the fetus has a lethal anomaly.
Ind. Code § 16-34-2-1.3
[7] Before the Abortion Law took effect, Plaintiffs filed their “Class Action
Complaint for Declaratory and Injunctive Relief” seeking to halt the Abortion
3
Throughout the course of this case, the parties sometimes have used the term “fetus” to describe all
developmental stages of a pregnancy. However, this language deviates from the scientifically accepted
language. A zygote is created when the sperm fertilizes the egg. https://my.clevelandclinic.org/health/
articles/7247-fetal-development-stages-of-growth.com, Fetal Development: Week-by-Week Stages of
Pregnancy (clevelandclinic.org) [https://perma.cc/G8NX-WRCJ]; see also https://www.cdc.gov/art/
reports/2020/glossary.html [https://perma.cc/3UTU-AG67] (defining: (1) “fertilization” as “[t]he
penetration of the egg by the sperm and the resulting combining of genetic material that develops into an
embryo”; and (2) “zygote” as “[a] fertilized egg before it divides”).
Once created, the zygote then divides and becomes an embryo about three weeks later. https://my.cleveland
clinic.org/health/articles/7247-fetal-development-stages-of-growth.com, Fetal Development: Week-by-Week
Stages of Pregnancy (clevelandclinic.org) [https://perma.cc/XY87-GW4]; see also https://www.cdc.gov/art/
reports/2020/glossary.html [https://perma.cc/L57M-SREG] (defining “embryo” as “[a]n egg that has been
fertilized by a sperm and has then undergone one or more cell divisions.”).
Around eight weeks post-fertilization, a fetus is formed, and the fetal stage of development continues until
birth of the human child. https://my.clevelandclinic.org/health/articles/7247-fetal-development-stages-of-
growth.com, Fetal Development: Week-by-Week Stages of Pregnancy (clevelandclinic.org) [https://perma.
cc/4BW9-7R7W]; https://www.cdc.gov/art/reports/2020/glossary.html [https://perma.cc/GTH5-A4D3]
(defining “fetus” as “[t]he unborn offspring from the eighth week after conception to the moment of birth”).
We use the term “fetus” when quoting the parties, court decisions, and applicable statutes even if this term
seemingly refers to an earlier stage of development. In all other respects, we employ the scientific terms.
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 4 of 76
Law’s application to them. Their Complaint alleged that the Abortion Law
violated their state RFRA rights.
[8] Under Indiana’s RFRA, “[a] governmental entity may substantially burden a
person’s exercise of religion only if the governmental entity demonstrates that
application of the burden to the person: (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” Ind. Code § 34-13-9-8(b). Plaintiffs allege
that their sincere religious beliefs (or, in the case of Hoosier Jews for Choice, its
members’ sincere religious beliefs) direct them to seek pregnancy terminations
criminalized by the Abortion Law. Plaintiffs further allege that the State has no
compelling interest in preventing these religiously motivated health care
decisions and, even if a compelling interest exists, the Abortion Law is not the
least restrictive means of furthering that interest.
[9] The Anonymous Plaintiffs, as described in their Complaint, are:
• Anonymous Plaintiff 1, who is 39, Jewish, married with one
child, and living in Monroe County. She follows a kosher-
style diet and is active in her synagogue.
In accordance with her religion, she believes life begins when
a child takes their first breath after birth and that the life of a
pregnant woman—including her physical and mental health
and wellbeing—“must take precedence over the potential for
life embodied in a fetus.” Appellants’ Prelim. Inj. App. Vol.
II, p. 70. She further believes, in accordance with her Jewish
faith, that “if her health or wellbeing—physical, mental, or
emotional—were endangered by a pregnancy, pregnancy-
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related condition, or fetal abnormality, she must terminate the
pregnancy.” Id. at 70-71.
She previously terminated a pregnancy when genetic testing
revealed the fetus had a severe chromosomal defect that likely
would cause miscarriage, stillbirth, or death within the first
year after a live birth. Although Anonymous Plaintiff 1 wishes
to have another child, her pregnancy would be considered
high risk due to her age, and she would face the risk of the
same fetal defect. Due to the Abortion Law, she therefore has
refrained from seeking to become pregnant.
• Anonymous Plaintiff 2, who is a 30-year-old Allen County
resident not affiliated with any religious organization and
who does not believe in a single, theistic god. Married with
two children, she instead believes in a “supernatural force or
power in the universe that connects all humans” and that “we
are endowed with bodily autonomy” that should not be
infringed upon. Id. at 75.
Her religious and spiritual beliefs guide her life and dictate
that “[i]f a pregnancy or the birth of a child would not allow
her to fully realize her humanity and inherent dignity, she
would have to terminate her pregnancy . . . even under
circumstances which would not be permitted under [the
Abortion Law].” Id. at 76. She has terminated a pregnancy for
that reason and does not believe that life begins at conception.
Her “significant anxiety about the possibility of an unintended
pregnancy and her inability to terminate such a pregnancy
under” the Abortion Law has resulted in a “harmful”
reduction in physical intimacy between her husband and her.
Id.
• Anonymous Plaintiffs 4 and 5, who are a Jewish, same-sex
married couple without children, living in Monroe County.
Active in their synagogue, they believe in accordance with
their faith that “life begins when a child takes [their] first
breath after being born” and that “the life of a pregnant
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person, including their physical and mental health and
wellbeing, takes precedence over the potential for life
embodied in a fetus.” Id. at 81.
Prior to the Abortion Law’s enactment, the couple had
planned for one of them to become pregnant through
“assisted reproductive technologies.” Id. at 81. They now are
refraining from doing so due to the unavailability of a
pregnancy termination when their religious beliefs dictate it.
• Certain members of Hoosier Jews for Choice, which is a
membership organization aimed at advancing reproductive
justice, supporting abortion access, and promoting bodily
autonomy for Hoosiers. Its members are Jewish persons who
believe that “under Jewish law and religious doctrine, life
does not begin at conception, and that a fetus is considered a
physical part of the woman’s body, not having a life of its
own or independent rights.” Id. at 83.
Hoosier Jews for Choice’s members, some of whom are
capable of becoming pregnant, further believe that “under
Jewish law an abortion is directed to occur if it is necessary to
prevent physical or emotional harm to a pregnant person,
even if there is not a physical health risk that is likely to cause
substantial and irreversible physical impairment of a major
bodily function.” Id.
[10] In conjunction with their Complaint, Plaintiffs sought a preliminary injunction
to prevent enforcement of the Abortion Law. The State objected, arguing that
Hoosier Jews for Choice lacked standing to bring this action and that Plaintiffs’
claims were unripe because none of them were pregnant or seeking an abortion.
The State also argued that Plaintiffs were not entitled to a preliminary
injunction because they were not likely to succeed on the merits of their RFRA
claim.
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[11] The trial court granted the preliminary injunction in a 42-page order containing
thorough findings of facts and conclusions of law. Id. at 17. The trial court’s key
rulings were:
• Anonymous Plaintiffs have standing to seek a preliminary injunction.
• Hoosier Jews for Choice, which is asserting the rights of its members and
not its own rights as an organization, has associational standing.
• The issues are ripe for adjudication because Plaintiffs are suffering injury
and altering their sexual and/or reproductive behavior due to the
restrictions in the Abortion Law.
• Plaintiffs are entitled to a preliminary injunction barring the State’s
enforcement of the Abortion Law against them until the court rules on
the merits of their claims. In so ruling, the court found: (1) that Plaintiffs
had shown that their remedies at law are inadequate, thus causing
irreparable harm pending resolution until final judgment; (2) a
reasonable likelihood of success at trial exists; (3) the threatened injury to
Plaintiffs outweighs the potential harm to the State from a preliminary
injunction; and (4) the public interest would be disserved if the
preliminary injunction were not issued.
[12] The State appealed the entry of the preliminary injunction and, under Indiana
Appellate Rule 56, petitioned to transfer the case from this Court to the Indiana
Supreme Court. Plaintiffs objected to the State’s petition, which our Supreme
Court summarily denied by unanimous vote.
[13] While this appeal was pending, the trial court granted Plaintiffs’ motion to
certify the case as a class action. The court adopted Plaintiffs’ proposed class
definition, which provided:
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 8 of 76
All persons in Indiana whose religious beliefs direct them to
obtain abortions in situations prohibited by [the Abortion Law]
who need, or will need, to obtain an abortion and who are not, or
will not be, able to obtain an abortion because of the [Law].
Appellants’ Class Action App. Vol. II, p. 58.
[14] In response, the State moved for an interlocutory appeal under Indiana
Appellate Rule 14(C), which applies to class action certifications. This Court
accepted jurisdiction and consolidated the preliminary injunction and class
action certification appeals.
[15] While the present consolidated appeal was pending, our Supreme Court
reversed a preliminary injunction issued in a Monroe County lawsuit filed by
several Indiana abortion providers presenting a facial challenge to the Abortion
Law. Members of the Med. Licensing Bd. v. Planned Parenthood Nw., Haw., Alaska,
Ind., Ky., Inc., 211 N.E.3d 957 (Ind. 2023). The abortion providers contended
that a woman’s right to “liberty” under Article 1, Section 1 of the Indiana
Constitution encompasses a fundamental right to abortion and that the
Abortion Law materially burdens a woman’s exercise of this right.
[16] Our Supreme Court rejected this facial challenge. It determined that “Article 1,
Section 1 protects a woman’s right to an abortion that is necessary to protect
her life or to protect her from a serious health risk, but the General Assembly
otherwise retains broad legislative discretion for determining whether and the
extent to which to prohibit abortions.” Id. at 962. The Planned Parenthood Court
concluded that the plaintiffs failed to show a reasonable likelihood of success
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that they could prove, in their facial challenge, that “there are no circumstances
in which any part of [the Abortion Law] could ever be enforced consistent with
Article 1, Section 1.” Id. The Court thus vacated the preliminary injunction in
that case. Id.
[17] The Planned Parenthood Court’s ruling expressly left open the possibility of
future constitutional attacks on the Abortion Law. Id. at 984-85. And although
the Court defined a minimum right to abortion under Article 1, Section 1—that
is, when the abortion is “necessary to protect [the pregnant woman’s] life or to
protect her from a serious health risk”—it did not expound on the potential
breadth of that right. Id. at 976. Furthermore, Planned Parenthood neither
involved nor addressed the Abortion Law in the context of a RFRA challenge.
Discussion and Decision
[18] The State raises five primary issues, which we resolve as follows:
I. The issues are justiciable. Hoosier Jews for Choice has
associational standing to raise its members’ RFRA challenges
to the Abortion Law. Plaintiffs’ claims are ripe, although the
Plaintiffs are not now pregnant or seeking an abortion.
II. The trial court properly certified the case as a class action.
III. A preliminary injunction was merited.
IV. The scope of the injunction was overbroad so we remand to
the trial court for adjustment.
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I. Justiciability of Plaintiffs’ Claims
[19] The State’s standing and ripeness claims fall within the general doctrine of
justiciability. Garau Germano, P.C. v. Robertson, 133 N.E.3d 161, 167 n.9 (Ind.
Ct. App. 2019). “Justiciability . . . is ‘[t]he quality or state of being appropriate
or suitable for adjudication by a court.’” Berry v. Crawford, 990 N.E.2d 410, 418
(Ind. 2013) (quoting Black’s Law Dictionary 943 (9th ed. 2009)). “[J]usticiability
is not a question of jurisdiction, but whether it is prudent for the Court to
exercise its jurisdiction.” Citizens Action Coal. of Ind. v. Koch, 51 N.E.3d 236, 241
(Ind. 2016).
A. Standing of Hoosier Jews for Choice
[20] We first turn to the State’s claim that Hoosier Jews for Choice lacks standing.
We review such issues de novo. Ehrlich v. Moss Creek Solar, LLC, 219 N.E.3d
760, 763 (Ind. Ct. App. 2022). “Standing is a key component in maintaining
our state constitutional scheme of separation of powers.” Pence v. State, 652
N.E.2d 486, 488 (Ind. 1995). The standing requirement imposes a limit on the
court’s jurisdiction by requiring that a litigant be “entitled to have a court
decide the substantive issues of a dispute.” Solarize Ind., Inc. v. S. Ind. Gas & Elec.
Co., 182 N.E.3d 212, 216 (Ind. 2022).
[21] Although a party’s standing may be conferred by statute or common law,
plaintiffs must always meet the “irreducible minimum” standing requirements
originating from the Indiana Constitution’s separation of powers clause. Id.;
Lockerbie Glove Co. Town Home Owner’s Ass’n v. Indpls. Hist. Pres. Comm’n, 194
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 11 of 76
N.E.3d 1175, 1183 (Ind. Ct. App. 2022). These requirements mandate that a
plaintiff “demonstrate a sufficient injury” that is “personal, direct, and one the
plaintiff has suffered or is in imminent danger of suffering.” Holcomb v. Bray,
187 N.E.3d 1268, 1286 (Ind. 2022). Thus, the invalidity of “a particular statute .
. . is almost never a sufficient rationale for judicial intervention; the party
challenging the law must show adequate injury or the immediate danger of
sustaining some injury.” Pence, 652 N.E.2d at 488. This determination is made
“by looking at a lawsuit’s allegations—not its outcome.” Holcomb, 187 N.E.3d
at 1286.
i. Associational Standing Is Widely Recognized
[22] RFRA confers standing on an organization under certain circumstances. It
provides that “[a] person whose exercise of religion has been substantially
burdened, or is likely to be substantially burdened, by a [RFRA] violation” may
assert a RFRA claim. Ind. Code § 34-13-9-9. A “person” in this context
includes “[a]n organization,” “a religious society,” and “a group organized and
operated primarily for religious purposes.” Ind. Code § 34-13-9-7(2).
[23] Though Hoosier Jews for Choice is a “person” under RFRA, the organization
does not allege any violation of its own RFRA rights. Without more, Hoosier
Jews for Choice cannot meet the “irreducible minimum” standing
requirements. See Solarize, 182 N.E.3d at 216. Hoosier Jews for Choice instead
asserts a cognizable injury to its members in the form of RFRA violations.
Hoosier Jews for Choice therefore claims associational standing, a concept
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rarely applied in Indiana state courts but long ago accepted by federal courts
and many state courts.
[24] Associational standing, a 20th century offshoot of third-party standing, “is
largely a creature of federal law, and permits an association to sue on behalf of
one or more of its members” under certain circumstances. Bd. of Comm’rs of
Union Cnty. v. McGuinness, 80 N.E.3d 164, 169 (Ind. 2017). Sometimes
described as “representational” or “organizational” standing, this concept was
at the forefront of the U.S. Supreme Court’s landmark decision last summer in
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S.
181, 230 (2023) (ruling in favor of an organization with associational standing
that race-based affirmative action programs in college admissions processes
violated the Fourteenth Amendment to the United States Constitution).
[25] In recognizing the associational standing of the plaintiff, a non-profit
organization alleging injury to its student members and not to itself, the Court
relied on the test enunciated in Hunt v. Wash. State Apple Advert. Comm’n, 432
U.S. 333, 343 (1977). Under the Hunt test, which is used extensively in the
federal court system, an organization has standing to raise the claims of its
members when: “(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to the organization’s
purpose; and (c) neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Id.
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[26] A large number of state courts, like their federal brethren, have found value in
the associational standing doctrine. As of 2008, nearly half had adopted
associational standing.4 These states typically have relied on the Hunt test or
some modified version of it in determining whether plaintiffs qualified for
associational standing. See, e.g., City of Pikeville v. Ky. Concealed Carry Coal., Inc.,
671 S.W.3d 258, 264 (Ky. 2023) (requiring proof of only the first Hunt
requirement for associational standing); Ill. Road & Transp. Builders Assoc. v.
Cnty. of Cook, 204 N.E.3d 189, 195-97 (Ill. 2022) (applying unmodified Hunt test
in determining associational standing).
[27] Indiana courts have been slower to embrace the associational standing doctrine.
But two panels of this Court have recognized associational standing, and both
applied the Hunt test. See, e.g., Bd. of Comm’rs in Cnty. of Allen v. Ne. Ind. Bldg.
Trades Council, 954 N.E.2d 937, 941 (Ind. Ct. App. 2011) (“We find
associational standing to be the most helpful lens for analysis, and thus address
whether the Appellees have associational standing to sue on behalf of their
members”), trans. denied; Save the Valley, Inc. v. Ind.-Ky. Elec. Co., 820 N.E.2d
677, 680-82 (Ind. Ct. App. 2005) (concluding that plaintiff organizations had
associational standing after noting two dozen states that have accepted the
doctrine of associational standing).
4
See, e.g., Interactive Gaming Council v. Brown, 425 S.W.3d 107, 114 (Ky. Ct. App. 2014) (stating “most of our
sister states have adopted associational standing”); Int’l Union of Operating Eng’rs, Local 148 v. Ill. Dep’t. of Emp.
Sec., 828 N.E.2d 1104, 1112 (Ill. 2005) (identifying 24 states that have adopted associational standing with
some version of the Hunt test).
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[28] Our Supreme Court has neither explicitly recognized nor denounced
associational standing. Cf. Bd. of Comm’rs of Union Cnty, 80 N.E.3d at 170
(assuming, without deciding, that associational standing was available). 5 We
therefore follow the lead of the two panels of this Court, many other state
courts, and the federal courts and recognize the doctrine of associational
standing. We also find that the Hunt test, relied upon by these courts in pure or
altered form, is the proper test for determining whether associational standing
exists.
ii. Associational Standing Is Beneficial to the Pursuit of
Justice
[29] Assuming the requirements of the Hunt test are met, recognizing associational
standing has broad benefits. See Lockerbie Glove Co. Town Home Owner’s Ass’n,
194 N.E.3d at 1183; Save the Valley, 820 N.E.2d at 680-81. “[A]llowing an
association to represent its members’ interests promotes judicial economy and
efficiency.” Save the Valley, 820 N.E.2d at 680. Clothed in associational
standing, “a single plaintiff, in a single lawsuit, [may] adequately represent the
interests of many members, avoiding repetitive and costly independent
actions.” Id. The association’s members who have individual standing, in turn,
may “pool their financial resources and legal expertise to help ensure complete
and vigorous litigation of the issues.” Id. at 680-81. A third recognized benefit is
5
In its recent decision in Planned Parenthood, 211 N.E.3d at 966, our Supreme Court stated that third parties
must “have their own direct injury” to have standing in cases in which they raise the claims of others. But
Planned Parenthood did not involve associational standing, so we therefore do not read it as rejecting the
doctrine.
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that “associations are generally less susceptible than individuals to retaliations
by officials responsible for executing the challenged policies.” Id. at 681.
[30] The value of associational standing is evident in the RFRA context. Plaintiffs
who believe their RFRA rights have been violated may be unable to pursue
litigation due to the cost. They also may be unwilling to step forward
individually and share intimate details of their religious beliefs or private
conduct in the way that a RFRA challenge to statutory limitations may require.
iii. Trial Court Correctly Determined that Hoosier Jews for
Choice Has Associational Standing
[31] We reject the State’s claim that Hoosier Jews for Choice does not meet the
requirements for associational standing. The first two Hunt requirements are
easily met here. And though the third requirement is more difficult to assess, we
ultimately find that Hoosier Jews for Choice has met it.
a. First Two Hunt Requirements Met
[32] No disagreement exists as to the first Hunt requirement: that the organization’s
members would otherwise have standing to sue in their own right. The State
attacks only the standing of Hoosier Jews for Choice, not of its membership. As
the parties do not dispute that individual members of Hoosier Jews for Choice
have standing to sue in their own right, we find the first Hunt requirement is
met.
[33] The record is equally clear as to the second Hunt requirement: that the interests
the organization seeks to protect are germane to its purpose. Hoosier Jews for
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Choice’s stated purpose is “to take action within the Jewish community and
beyond to advance reproductive justice, support abortion access, and promote
bodily autonomy for all people across the state of Indiana.” Appellants’ Prelim.
Inj. App. Vol. II, p. 149. In this litigation, Hoosier Jews for Choice is asserting
its members’ rights under RFRA by seeking to halt the Abortion Law’s
restrictions on reproductive choices that conflict with its members’ exercise of
their sincerely held religious beliefs. This conduct falls within the organization’s
stated goals.
b. Third Hunt Requirement Met
[34] Hunt’s third requirement—that neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit—is a
closer question. In asserting its members’ RFRA claims, Hoosier Jews for
Choice alleges that its members’ sincerely held religious beliefs dictate that
reproductive health care decisions be left to the individual members. Hoosier
Jews for Choice claims each member must decide whether prioritizing her
physical, mental, or emotional health over that of the potential life—as directed
by the member’s religious beliefs—requires the termination of a pregnancy.
[35] The parties debate whether the personal nature of this claim requires the
individual members’ participation in this lawsuit. In arguing that the individual
members must participate, the State relies heavily on Harris v. McRae, 448 U.S.
297 (1980).
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[36] In Harris, a church organization, relying on the First Amendment’s religion
clauses, joined other plaintiffs in seeking to enjoin enforcement of legislation
known as the Hyde Amendment. Id. at 302-06. The Amendment limited
funding for abortions under the Medicaid program. Id. at 302. The
organization’s membership purported to include “pregnant, Medicaid eligible
women who, as a matter of religious practice and in accordance with their
conscientious beliefs, would choose but are precluded or discouraged from
obtaining abortions reimbursed by Medicaid because of the Hyde
Amendment.” Id. at 321.
[37] The Harris Court ruled that the organization lacked associational standing
under the Hunt test because the organization’s claim required the participation
of its individual members. Id. The Court reasoned:
[The organization] concedes that “the permissibility, advisability
and/or necessity of abortion according to circumstance is a
matter about which there is diversity of view within . . . our
membership, and is a determination which must be ultimately
and absolutely entrusted to the conscience of the individual
before God.” It is thus clear that the participation of individual
members of the [organization] is essential to a proper
understanding and resolution of their free exercise claims.
Id.
[38] The State contends that a similar diversity of views exists among the members
of Hoosier Jews for Choice. But the State’s argument largely depends on an
exaggeration of the deposition testimony of a founding member of the
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organization. The State contends, for instance, that the founding member
“conceded” that Hoosier Jews for Choice would accept members who
“disagree” about when abortions should be permitted. However, the founding
member’s testimony was far more conjectural.
[39] He testified that prospective members must sign a document similar to a
statement of belief attesting to their agreement with certain Jewish tenets.
Appellants’ Prelim. Inj. App. Vol. V, p. 35. He described these Jewish tenets as
including beliefs that: 1) no separate life exists during pregnancy; 2) no being
with rights independent of the pregnant woman exists during pregnancy; and 3)
an abortion is “directed to occur if it is necessary to prevent physical or
emotional harm to a pregnant person.” Id. at 32-36. When asked whether
membership restrictions would attach to a person who believes women should
have the choice of abortion but does not follow these Jewish tenets, the
founding member testified that he “believe[d] so” and that he “definitely
[would] want to hear them out” so he could be “more informed and understand
them.” Id. at 35-36. But he conditioned those statements, noting that “I’m not
the end-all-be-all of Hoosier Jews for Choice” because “[i]t’s a group
organization.” Id. at 36.
[40] The State also suggests the founding member “conceded” that any decision
about the necessity of an abortion is for the pregnant person to make
individually. In fact, the founding member’s testimony was far less conclusive.
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 19 of 76
[41] The founding member testified that the pregnant woman would be violating
Jewish law and tradition if she did not have an abortion when Jewish law and
tradition directed it. Id. at 61. The decision whether to follow the tenets of
Jewish faith or violate Jewish law is an individual decision, as is the
determination of whether the pregnancy would harm the pregnant person’s
physical or emotional well-being, according to the founding member’s
testimony. Id. at 33, 61.
[42] Contrary to the State’s claim, no part of the founding member’s testimony
establishes that Hoosier Jews for Choice’s members have disparate religious
beliefs as to abortion. His testimony revealed no members of Hoosier Jews for
Choice who do not subscribe to the Jewish tenets that he discussed. His
testimony, in fact, corroborates the allegations in Plaintiffs’ Complaint that
Hoosier Jews for Choice “is made up of persons who believe that under Jewish
law and religious doctrine, life does not begin at conception, and that a fetus is
considered a physical part of the woman’s body, not having a life of its own or
independent right.” Appellants’ Prelim. Inj. App. Vol. II, p. 36. His testimony
also is consistent with Plaintiffs’ allegations that Hoosier Jews for Choice and
its members “believe that under Jewish law an abortion is directed to occur if it
is necessary to prevent physical or emotional harm to a pregnant person, even if
there is not a physical health risk that is likely to cause substantial and
irreversible physical impairment of a major bodily function.” Id.
[43] This basic commonality of views among Hoosier Jews for Choice’s
membership was missing in Harris. Unlike Hoosier Jews for Choice, the
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plaintiff organization in Harris conceded a “diversity of view” within its
membership as to “the permissibility, advisability and/or necessity of abortion
according to circumstance.” Harris, 448 U.S. at 321. Noting that a free exercise
case requires a plaintiff “to show the coercive effect of the [challenged]
enactment as it operates against him in the practice of his religion,” the Harris
court determined, based on the organization’s concession, that “the
participation of individual members of the [plaintiff organization] is essential to
a proper understanding and resolution of their free exercise claims.” Id.
[44] Unlike Hoosier Jews for Choice, the plaintiff organization in Harris did not
allege its members were “directed” by their religion to obtain an abortion under
specific circumstances in which the challenged law would restrict abortion
access. Whereas the members in Harris did not agree as to “the permissibility,
advisability and/or necessity of abortion,” Hoosier Jews for Choice has alleged
its members “believe that under Jewish law an abortion is directed to occur if it
is necessary to prevent physical or emotional harm to a pregnant person.” Id.;
Appellants’ Prelim. Inj. App. Vol. II, p. 36. As the Abortion Law restricts
abortions necessary to prevent physical or emotional harm to a pregnant
person, an understanding of the coercive effect of the Abortion Law as it
operates against the individual members of Hoosier Jews for Choice in their
exercise of religion is not dependent on their individual participation in this
lawsuit.
[45] Our ruling is consistent with federal decisions finding that even some disparity
of views or interests among the organization’s members does not render
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associational standing unavailable. See, e.g., Catholic Benefits Ass’n LCA v.
Sebellius, 24 F.Supp.3d 1094, 1100-02 (W.D. Okla. 2014) (rejecting the notion
that “Harris dictates that all RFRA claims require individual participation” and
finding organization representing employers had associational standing based
on its members’ shared submission to “Catholic conviction that contraceptives
violate their conscience,” despite other disparities); Nat’l Mar. Union of Am.,
AFL-CIO v. Commander, Mil. Sealift Command, 824 F.2d 1228, 1234 (D.C. Cir.
1987) (ruling that “the mere fact of conflicting interests among members of an
association does not of itself defeat the association’s standing”).
[46] Moreover, Hunt’s third requirement is based on prudential rather than
constitutional constraints. United Food & Com. Workers Union Local 751 v. Brown
Grp., Inc., 517 U.S. 544, 556-57 (1996).6 Rules of prudential standing—
considered more flexible than their constitutional counterparts—are “best seen
as focusing on . . . matters of administrative convenience and efficiency.” Id.;
United States v. Windsor, 570 U.S. 744, 757 (2013). In this regard, Hunt’s third
requirement has three central purposes: (1) to “promote adversarial intensity”;
(2) to “guard against the hazard of litigating a case to the damages stage only to
find the plaintiff lacking detailed records or the evidence necessary to show the
harm with sufficient specificity”; and (3) to hedge against any risk that the
6
Hunt’s first two requirements are spawned by the federal constitution’s “case or controversy” requirement
applicable to federal courts whereas the third Hunt requirement, as a “prudential” rule of standing, essentially
is self-imposed judicial restraint. Brown Grp., 517 U.S. at 555-57; see also Schulz v. State, 731 N.E.2d 1041,
1044 (Ind. Ct. App. 2000) (adopting certain federal prudential standing limitations as “equally applicable to
questions of standing under the Indiana [C]onstitution”).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 22 of 76
damages recovered by the association will fail to find their way into the pockets
of the members on whose behalf injury is claimed. Brown Grp., 517 U.S. at 556-
57. These purposes already are served in this case.
[47] For instance, adversarial intensity exists in this case even without the
participation of Hoosier Jews for Choice’s members. The record on appeal, the
quality of the parties’ lengthy written submissions and their oral presentations,
and the number of amici curiae vividly illustrate this point. Moreover, Hoosier
Jews for Choice already has provided substantial evidence from non-member
sources like Jewish scholars and rabbis showing that its members’ religious
beliefs conflict with the Abortion Law.
[48] Finally, the relief sought in this case is injunctive relief, not damages. Where
only injunctive relief is sought, associational standing is more easily established,
partly because the relief is uniform. Id. at 546 (noting that damages claims
necessarily involve individualized proof and therefore the individual
participation of association members).
[49] For all these reasons, we conclude that Hoosier Jews for Choice has met Hunt’s
third requirement and has associational standing.7
7
We note that an Idaho state court and an Indiana federal district court have rejected an organization’s claim
of associational standing in a RFRA challenge to post-Dobbs statutory restrictions on abortions. See Satanic
Temple v. Labrador, 2024 WL 357045 (D. Idaho Jan. 31, 2024) (finding that plaintiff organization lacked
associational standing because it failed to specify the identity of any of its members who had been or would
be injured by the abortion law); Satanic Temple, Inc. v. Rokita, 2023 WL 7016211 (S.D. Ind. Oct. 25, 2023)
(rejecting associational standing when organization failed to identify any of its members and relied only on
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 23 of 76
B. Ripeness
[50] We next consider the State’s claim that the Plaintiffs’ claims are not ripe. The
ripeness doctrine is linked to the principles underlying standing. Horner v. Curry,
125 N.E.3d 584, 589 (Ind. 2019) (describing ripeness as a “corollary doctrine[]”
to standing).
[51] Whereas standing first asks “whether a litigant is entitled to have a court
decide” its substantive claims, “ripeness asks whether the claim is sufficiently
developed to merit judicial review.” Holcomb, 187 N.E.3d at 1285. In other
words, ripeness “involves the timing of judicial review and the principle that
judicial ‘machinery should be conserved for problems that are real and present
or imminent, not squandered on problems that are abstract or hypothetical or
remote.’” Ind. Fam. Inst., Inc. v. City of Carmel, 155 N.E.3d 1209, 1218 (Ind. Ct.
App. 2020) (quoting In re Paternity of M.G.S., 756 N.E.2d 990, 1004 (Ind. Ct.
App. 2001)).
[52] For a claim to be ripe, “there must exist not merely a theoretical question or
controversy but a real or actual controversy, or at least the ripening seeds of
such a controversy.” Holcomb, 187 N.E.3d at 1287 (quoting Zoercher v. Agler, 202
Ind. 214, 172 N.E. 186, 189 (1930)). Put simply, “the issues in a case must be
statistical probabilities). These decisions do not support a different result here. The State does not claim that
Hoosier Jews for Choice has not identified its membership or those who allegedly have suffered or will suffer
harm from the Abortion Law. In fact, the State deposed members of Hoosier Jews for Choice and referred to
them by name during the depositions.
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based on actual facts rather than abstract possibilities.” Id. A claim that “rests
upon ‘contingent future events that may not occur as anticipated, or indeed
may not occur at all’” is not ripe for adjudication and therefore not subject to
appellate review. Texas v. United States, 523 U.S. 296, 300 (1988) (quoting
Thomas v. Union Carbide Agric. Prods., Co., 473 U.S. 568, 580-81 (1985)); see also
Garau Germano, 133 N.E.3d at 168.
[53] The essence of Plaintiffs’ claim is that the Abortion Law “severely burdens
[their] sincere religious beliefs” under RFRA by banning abortions under
circumstances when their “sincere religious beliefs . . . direct them to obtain an
abortion.” Appellants’ Prelim. Inj. App. Vol. II, p. 61. We agree with the trial
court that this claim is ripe.
i. Standard of Review
[54] Indiana courts have taken divergent approaches when analyzing ripeness. Some
panels of this Court have borrowed the federal courts’ two-part test for ripeness.
See, e.g., Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461
U.S. 190, 201 (1983) (considering during the ripeness determination the fitness
of the issues for judicial decision and the hardship to the parties caused by
withholding court consideration); see also Garau Germano, 133 N.E.3d at 168
(citing the test for ripeness used in Pac. Gas & Elec. Co.); Brogan v. State, 925
N.E.2d 1285, 1289 (Ind. Ct. App. 2010) (same).
[55] Other Indiana appellate cases have relied simply on our Supreme Court’s
language, found in Holcomb and other decisions, focusing on the requirements
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of “a real or actual controversy, or at least the ripening seeds of such a
controversy,” that is “based on actual facts and not abstract possibilities.”
Holcomb, 187 N.E.3d at 1287 (citing Zoercher, 172 N.E. at 189).
[56] Our Supreme Court has never cited the federal test for ripeness except in a case
considering whether federal law preempted state law. See Hardy v. Hardy, 963
N.E.2d 470, 474 n.3 (Ind. 2012) (approving Court of Appeals’ analysis of
ripeness that incorporated federal ripeness test, although ripeness issue was
raised on transfer). Accordingly, in addressing the State’s argument that the
Plaintiffs’ RFRA claims are unripe, we follow the lead of Holcomb and
determine whether the Plaintiffs’ RFRA claims reveal “a real or actual
controversy, or the ripening seeds of a real controversy,” based on actual facts,
not abstract possibilities. Holcomb, 187 N.E.3d at 1287 (quoting Zoercher, 172
N.E. at 189).
ii. Plaintiffs’ Claims Are Ripe
[57] The State asserts that the Plaintiffs’ RFRA claims are too undeveloped to
determine whether the Abortion Law substantially burdens their sincere
religious exercise or whether any such burden furthers the State’s compelling
interest.8 The State focuses on two specific characteristics of the Anonymous
8
The State also argues that the trial court erroneously found Plaintiffs’ claim was ripe because they “are
doing as did the Governor in Holcomb v. Bray and [are] merely challenging the validity of a statute.”
Appellants’ Prelim. Inj. App. Vol. II, p. 40 (citing 187 N.E.3d 1268, 1275 (Ind. 2022)). This comparison is
erroneous. Holcomb centered on the Governor’s argument that the challenged statute was unconstitutional on
its face—a claim that does not require consideration of the facts. Holcomb, 187 N.E.3d at 1287 n.9. Plaintiffs
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 26 of 76
Plaintiffs: 1) their sincere religious beliefs ultimately leave to them as
individuals the final decision on whether an abortion is mandated by those
beliefs; and 2) they are not now pregnant.
[58] The State notes that after a plaintiff establishes a RFRA violation, RFRA
requires that the State prove a compelling government interest that is satisfied
through application of the challenged law to the particular claimant whose
sincere exercise of religion is being substantially burdened. See, e.g., Gonzales v.
O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006). The
State claims this is a claimant-by-claimant, fact-sensitive inquiry that is
impossible to conduct before Plaintiffs are pregnant. The State therefore insists
pregnancy is an essential condition to Plaintiffs’ relief. 9
[59] The State further contends that the lack of any pregnant Plaintiffs renders this
case merely an abstract dispute because Plaintiffs have not yet been burdened
by the Abortion Law. According to the State, whether any Plaintiff will even
become pregnant—and whether those who do would be directed by their
religious beliefs to terminate the pregnancy under circumstances prohibited by
here are not challenging the constitutionality of the Abortion Law. Instead, they are challenging the Abortion
Law as applied to them, contending this application violates their rights under RFRA. Although the facial
challenge in Holcomb lacked the fact sensitivity of this appeal, Holcomb’s general statements about ripeness
remain equally applicable here.
9
In response, Plaintiffs claim the State’s argument is tantamount to a rule that only pregnant persons may
challenge an abortion ban. And thus, due to the temporary nature of pregnancy, such a law will be
impossible to challenge. This claim confuses ripeness and mootness. See Garau Germano, 133 N.E.3d at 167
(noting that the justiciability doctrine has four major categories: standing (who may sue), ripeness (when is
the suit appropriate), mootness (whether the suit involves an active dispute), and political question (whether
the dispute should be left to the political branches)).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 27 of 76
the Abortion Law—is inherently speculative and based on “abstract
possibilities.’” Appellants’ Prelim. Inj. Br., p. 34.
[60] We agree that pregnancy, by its very nature, defies simple prediction. Some
women become pregnant despite their use of contraceptives. Other women fail
to become pregnant even when actively seeking that result. But Plaintiffs have
alleged and presented evidence to support a substantial burdening of the
exercise of their sincere religious beliefs in the form of altered sexual and
reproductive patterns.
[61] Due to their inability to obtain an abortion as their religious beliefs dictate,
Anonymous Plaintiffs 1, 4, and 5 have alleged they are not attempting to
become pregnant when they otherwise would. Anonymous Plaintiffs 1 and 2
report that they have severely decreased their sexual intimacy with their
husbands due to concerns about becoming pregnant while the Abortion Law’s
restrictions are in effect. Some members of Hoosier Jews for Choice also have
altered their sexual and reproductive practices in response to the Abortion Law.
We agree with Plaintiffs and the trial court that these changes show a
substantial burdening of the religious exercise of Plaintiffs and that these
allegations of existing harm from the Abortion Law render Plaintiffs’ lack of
pregnancy irrelevant to ripeness.
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[62] Although no Indiana appellate court has addressed the ripeness of a RFRA
claim,10 ripeness decisions in non-RFRA contexts have informed our analysis
and support our finding. Indiana appellate courts repeatedly have found claims
ripe in the face of arguments, like the State’s here, that the plaintiffs had yet to
suffer actual injury.
[63] Most recently, in Morales v. Rust, 228 N.E.3d 1025, 1034 (Ind. 2024), our
Supreme Court ruled that a candidate who preemptively sued to prevent his
removal from the ballot alleged a ripe claim. Noting that “[a]ny lingering
doubts about . . . ripeness have been quelled because [the candidate] alleges [the
challenged election law] infringes on his constitutional rights,” the Court
ultimately determined that the candidate’s claim was ripe because he was “in
imminent danger of suffering” a real—not a theoretical—injury to his rights.”
Id.
[64] Morales is consistent with other Indiana appellate decisions that have found a
claimant’s action ripe without proof of an existing injury. For instance, in
Nichols v. State, 947 N.E.2d 1011, 1016 n.4 (Ind. Ct. App. 2011), the Court
found a probationer’s claim that his mandatory sex offender registration should
be for 10 years, rather than for life, was ripe. This was so despite the
10
Only one Indiana appellate court has been faced with an argument that a RFRA claim is unripe. Ind. Fam.
Inst. Inc. v. City of Carmel, 155 N.E.3d 1209 (Ind. Ct. App. 2020). But the Family Institute panel ultimately
decided the plaintiffs lacked standing to raise their RFRA claims and did not reach the ripeness issue. Id. at
1218-21.
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defendant’s lack of actual injury until the 10-year period expired without his
removal from the list. Id.
[65] Similarly, in In re Peeples, 37 N.E.3d 502, 512 (Ind. Ct. App. 2015), the Court
found a trustee’s challenge to the trial court’s imposition of expense and hiring
limitations to be ripe, despite the lack of evidence that the trustee would ever
have needs beyond those restrictions. The Court ruled:
[The appellant’s] decision-making as trustee will be affected by
the limit, even if it does not go to the trial court seeking more
money. Also, as things stand, before considering engaging the
services of a third party, [the appellant] must weigh whether it is
worth the additional trouble and expense of petitioning the trial
court for permission to do so. We consider these restrictions to be
more than abstract possibilities when viewed from [the
appellant’s] perspective.
Id. at 512.
[66] Finally, in Ind. Educ. Emp. Relations Bd. v. Benton Cmty. Sch. Corp., 266 Ind. 491,
496, 365 N.E.2d 752, 754-55 (1977), the Court rejected a ripeness challenge to a
declaratory action challenging the constitutionality of a statute requiring a
hearing to determine organized labor representation from which the school
corporation would have no right to judicial review. In an opinion that
intertwined standing and ripeness analyses, the Court, finding the lawsuit was
not premature, reasoned:
We know of no principle requiring a party who deems himself
assaulted by a statute, believed to be unconstitutional, to defer
such challenge until he has been battered and to decry the
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validity of his adversary’s constitutional authority only with his
dying breath.
Benton Comty. Sch. Corp., 266 Ind. at 499, 365 N.E.2d at 755.
[67] Thus, the courts in Morales, Nichols and Peeples found ripeness despite the lack of
existing injury to the litigant. Peeples also involved uncertainty as to whether the
challenged action would ever cause the ultimate harm alleged. The anticipated
harm in Benton was more definite but, as in Morales, Nichols and Peeples, had not
yet occurred. All four courts found either immediate or imminent injury caused
by the challenged action rendered the claims ripe.
[68] Plaintiffs here have made a greater showing of harm than the litigants whose
claims were found ripe in Morales, Nichols, Peeples, and Benton. Through
evidence of their sexual and reproductive changes compelled by the Abortion
Law, they have established an “actual controversy” that is ripe. See Holcomb,
187 N.E.3d at 1287. As the trial court found, “The undisputed evidence shows
why the Plaintiffs have taken these [restricted intimacy or restricted family
growth] measures because their only alternative is the unacceptable risk of
needing a termination of a pregnancy that would be required by their religious
beliefs but prohibited by [the Abortion Law].” Appellants’ Prelim. Inj. App.
Vol. II, p. 41.
[69] But even if Plaintiffs did not establish existing harm from the Abortion Law
that constitutes an “actual controversy,” their RFRA claims are ripe because
they have established “the ripening seeds of such a controversy.” See Holcomb,
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187 N.E.3d at 1287. Indiana RFRA specifies that “[a] person whose exercise or
religion has been substantially burdened, or is likely to be substantially burdened, by
a violation of this chapter may assert the violation or impending violation as a claim
. . . .” Ind. Code § 34-13-9-9 (emphasis added). In light of this statutory
language and our Supreme Court’s ripeness holding in Morales, supra, which
found a claim ripe based on imminent future injury, a litigant who establishes
an impending RFRA violation logically would have a ripe claim.
[70] In addition to alleging an existing RFRA violation relating to changes to their
sexual and reproductive activity compelled by the Abortion Law, Plaintiffs also
have alleged an impending RFRA violation. They assert that if they were to
become pregnant, they would be substantially burdened by the Abortion Law
by being unable to obtain an abortion that their religious beliefs direct. They are
sexually active women capable of bearing children so the prospect of pregnancy
without the availability of a religiously directed abortion is evident. Given these
assertions of an impending violation, the lack of pregnancy alone does not
render Plaintiffs’ claims unripe, just as in Morales, supra, the candidate’s lack of
removal from the ballot did not render his claim unripe while an imminent
constitutional violation loomed. Instead, Plaintiffs’ non-pregnant status,
standing alone, would translate into an unripe claim under Indiana Code § 34-
13-9-9 only if Plaintiffs’ exercise of religion “has not been substantially
burdened” or is not “likely to be substantially burdened,” by the Abortion Law.
Id.
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[71] Through their allegations that the Abortion Law bars them from obtaining
abortions that their religious beliefs direct, Plaintiffs have shown that their
religious exercise is likely to be substantially burdened by the Abortion Law.
See, e.g., Doster v. Kendall, 54 F.4th 398, 416-17 (6th Cir. 2022) (finding service
members’ federal RFRA claims were ripe because they had established an
imminent injury from the challenged vaccine mandate, although they had not
taken the required vaccine and the military had not yet enforced the mandate),
cert. granted, judgment vacated on other grounds, 144 S. Ct. 481 (2023); Chelsey
Nelson Photography, LLC v. Louisville/Jefferson Cnty. Metro Gov’t, 624 F.Supp.3d
761, 781-82 (W.D. Ky. 2022) (ruling that wedding photographer’s pre-
enforcement challenge under RFRA to an ordinance guaranteeing access to
goods and services regardless of sexual orientation was ripe).
[72] We conclude that Plaintiffs’ claims are ripe because they present at least the
“ripening seeds of a . . . controversy,” if not an already existing “real or actual
controversy,” that is based on facts, not “abstract possibilities.” See Holcomb,
187 N.E.3d at 1287; Planned Parenthood Ctr. of Tucson, Inc. v. Marks, 17 Ariz.
App. 308, 312-13, 497 P.2d 534, 539 (1972) (finding in this pre-Roe v. Wade
decision that a challenge to the constitutionality of statutes criminalizing
abortion was justiciable, despite the lack of a pregnant petitioner, and rejecting
the argument that the plaintiffs would have to wait to be prosecuted under the
statute before the issues would be ripe).
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II. Class Action Certification
[73] The State next contends the trial court abused its discretion in certifying this
case as a class action. We review a trial court’s class action certification ruling
for an abuse of discretion. LHO Indpls. One Lessee, LLC v. Bowman, 40 N.E.3d
1264, 1269 (Ind. Ct. App. 2015).
[74] Class action certification does not involve consideration of the merits of the
claims. Id. at 1268. Instead, the trial court assumes the merits of an action and
determines whether the named plaintiff has satisfied the requirements for class
action certification under Indiana Trial Rule 23. Id. A party requesting class
action certification carries the burden of proving that the proposed class meets
all the requirements of Trial Rule 23(A) and at least one of the requirements of
Trial Rule 23(B). Id. at 1269.
[75] Trial Rule 23(A) provides that a plaintiff may sue as a representative on behalf
of a class if these four requirements are met:
1. The class is so numerous that joinder of all members is impracticable
(“numerosity”).
2. There are questions of law or fact common to the class (“commonality”).
3. The claims or defenses of the representative parties are typical of the
claims or defenses of the class (“typicality”).
4. The representative parties will fairly and adequately protect the interests
of the class (“adequacy”).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 34 of 76
[76] As for Trial Rule 23(B), the trial court found that Plaintiffs met subsection 2,
which requires that:
the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole.
Ind. Trial Rule 23(B)(2).
[77] Along with the express requirements of Trial Rule 23, Indiana courts have
imposed an implicit “definiteness” requirement for class action certification.
LHO, 40 N.E.3d at 1269. “A properly defined class is necessary at the onset
because a judgment in a class action has a res judicata effect on absent class
members.” Id.
[78] The State contends that Plaintiffs failed to prove all the class action certification
requirements. We reject the State’s claim and find no abuse of discretion in the
trial court’s class action certification.
A. The Class is Sufficiently Definite
[79] The trial court approved the following class definition:
All persons in Indiana whose religious beliefs direct them to
obtain abortions in situations prohibited by [the Abortion Law]
who need, or will need, to obtain an abortion and who are not, or
will not be, able to obtain an abortion because of the [Law].
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Appellants’ Class Action App. Vol. II, p. 58. The State argues that the proposed
class is not definite because it is based on religious beliefs, motivations, and
needs that are inherently subjective and externally unobservable.
[80] “The class definition must be specific enough for the court to determine
whether or not an individual is a class member.” Wal-Mart Stores, Inc. v. Bailey,
808 N.E.2d 1198, 1201 (Ind. Ct. App. 2004). “If the definition includes persons
without interests or standing in the lawsuit, it is not adequate.” Indep. Hill
Conservancy Dist. v. Sterley, 666 N.E.2d 978, 981-82 (Ind. Ct. App. 1996).
[81] The State focuses on Plaintiffs’ assertions that their religious beliefs leave to the
individual Plaintiff the ultimate decision on when those beliefs mandate an
abortion. The State claims this subjective determination renders the class
indefinite because class certification cannot depend on a state of mind. But the
State’s argument is too broad because the core belief of the members remains
uniform.
[82] Plaintiffs share the view that their sincere religious beliefs require abortions that
are prohibited by the Abortion Law. Although their religious beliefs may differ
as to when abortions are mandated, varying religious beliefs among the class
have not barred certification in numerous federal RFRA cases. See, e.g., Doster,
54 F.4th at 441 (affirming class certification in RFRA litigation brought by Air
Force servicemembers of various faiths challenging COVID-19 vaccine
mandate); DeOtte v. Azar, 332 F.R.D. 188, 197 (N.D. Tex. 2019)
(acknowledging that “a person’s religious beliefs are deeply personal and
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 36 of 76
subjective” but that “the contours of those beliefs are purely objective” and
therefore certifying a class in RFRA litigation challenging the Patient
Protection and Affordable Care Act’s mandatory contraceptive coverage). The
State has not established that the trial court abused its discretion in defining the
class.11
[83] We also reject the State’s claim that a “fail-safe class” was created here. A “fail-
safe class” is “one that is defined so that whether a person qualifies as a
member depends on whether the person has a valid claim.” Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). “Such a class definition is
improper because a class member either wins, or by virtue of losing, is defined
out of the class and is therefore not bound by the judgment.” Id. But because
the trial court’s class definition does not incorporate all the requirements that a
class member must have to succeed under RFRA, it is not a “fail-safe class.”
See, e.g., Ind. Code §§ 34-13-9-9 (requiring that Plaintiffs be “substantially
11
In arguing that the class definition is not definite, the State relies primarily on two federal district court
rulings denying class action certification in cases involving religious claims. The first is Lindh v. Dir. Fed.
Bureau of Prisons, No. 2:14-cv-151, 2015 WL 179793 (S.D. Jan. 14, 2015), in which a prisoner challenged
clothing rules that prevented him from wearing his pants above his ankles as allegedly prescribed by his faith.
The United States District Court for the Southern District of Indiana found indefinite the following proposed
class: “all male Muslim prisoners confined within the Bureau of Prisons.” Id. at *1-3. The second case relied
upon by the State is West v. Carr, 337 F.R.D. 181 (W.D. Wis. 2020), in which the United States District Court
for the Western District of Wisconsin found indefinite a class defined as: prisoners “who have experienced or
are likely to experience a cancellation of [an Umbrella Religious Group] congregate religious service or study
group, where such service or study group is a religious exercise.” Id. at 186.
But the denial of class action certification in Lindh was based on undisputed evidence that not all Muslims
believed that their faith required males to wear their pants above the ankle. Lindh, 2015 WL 179793, at *7.
And West involved no common religious beliefs. 337 F.R.D. at 190-91. Lindh and West therefore are
distinguishable from this case, in which the class definition is specifically linked to the class members’
religious beliefs that direct them to obtain abortions in situations prohibited by the Abortion Law.
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 37 of 76
burdened” by the challenged law).12 The trial court did not abuse its discretion
in finding the definiteness requirement satisfied.
B. The Class Satisfies Trial Rule 23(A) Requirements
[84] The State also claims the trial court abused its discretion in certifying the
litigation as a class action because the Plaintiffs did not meet any of the Trial
Rule 23(A) requirements. We find no such deficiency.
i. The Class Satisfies the Commonality Requirement
[85] The commonality requirement in Trial Rule 23(A)(2) focuses on the
characteristics of the class. LHO, 40 N.E.3d at 1271. Commonality is satisfied if
the claims of the individual plaintiffs stem from a common nucleus of operative
fact—that is, a “common course of conduct.” Id. (quoting Connerwood
Healthcare, Inc. v. Estate of Herron, 683 N.E.2d 1322, 1327 (Ind. Ct. App. 1997)).
[86] Arguing that the commonality requirement mandates that each member of the
proposed class suffers the same harm, the State contends the class members do
not meet that requirement. But a panel of this Court rejected this very argument
in LHO, a tainted food case in which some class members suffered symptoms of
food poisoning and others just tested positive for salmonella without
experiencing symptoms. The LHO Court ruled that “[t]he fact that members
12
The State suggests various ways in which the class definition could be improved that do not rise to an
abuse of discretion. If the class definition proves inadequate during the litigation, the trial court has discretion
to adjust it before a final decision on the requested permanent injunction. See T.R. 23(C)(1) (specifying that
class certification orders are “conditional, and may be altered or amended before the decision on the merits”).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 38 of 76
have a different degree of symptoms or damages does not negate the
commonality component.” Id. at 1272. Observing that “individual questions do
not prevent a class action on common questions,” the court concluded the
plaintiffs had established “a common course of conduct” because the
contaminated meals were served during a luncheon and evening event on the
same date at the same hotel. Id.
[87] Here, Plaintiffs’ shared claims—that their religious beliefs direct them to obtain
abortions that the Abortion Law prohibits—are sufficient to establish a
common course of conduct. At issue are the same laws (RFRA and the
Abortion Law) and the same general injury (the unavailability of abortions that
Plaintiffs’ religious beliefs direct). See DeOtte, 332 F.R.D. at 197-99 (finding the
commonality requirement met in a federal RFRA case in which plaintiff
employers had differing religious beliefs but all challenged the Affordable Care
Act’s contraceptive coverage mandate and alleged the same broad injury—
being forced to purchase insurance coverage for their employees that violated
the employers’ religious beliefs).
[88] Finding commonality here seems entirely consistent with other class action
certifications in RFRA challenges to military COVID-19 inoculation mandates.
See, e.g., Doster, 54 F.4th at 419 (approving class certification, despite varying
religious beliefs among the plaintiffs); U.S. Navy SEALs 1-26 v. Austin, 594
F.Supp.3d 767, 779 (N.D. Tex. 2022) (finding that proposed class met the
commonality requirement because all of its members suffered the same core
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 39 of 76
injury—RFRA and First Amendment violations—although their damages
might be diverse due to varying religious beliefs).
[89] In any case, the State’s focus on varying harms allegedly suffered by Plaintiffs
appears to be an improper invitation to consider the merits of Plaintiffs’ claims.
See LHO, 40 N.E.3d at 1268 (stating that a court “may not conduct a
preliminary inquiry into the merits of the suit” when determining whether to
certify a case as a class action); Bolka, 693 N.E.2d 613, 617 (Ind. Ct. App. 1998)
(stating individual questions relating to potential defenses are irrelevant to class
certification and therefore do not impact whether a common course of conduct
exists).
[90] For similar reasons, we reject the State’s parallel claim that a single remedy
cannot cure the harm of each class member.13 The trial court did not err in
finding the commonality requirement met.
13
The State misstates the trial court’s class action certification order when it suggests the court “express[ly]
concede[d] that a single injunction cannot provide a remedy benefiting the entire class.” Appellants’ Class
Cert. Br., p. 44. The court ruled:
To the extent that any future injunctive relief would need to be more narrowly
fashioned to satisfy T.R. 65(D) and ensure that the remedy is only applicable to
the claims as demanded by the putative class members, the Court has the capability
to fashion such a remedy as needed. The contours of such a remedy do not need to
be addressed at the class certification stage and may be addressed following further
litigation on the merits of this case.
Appellants’ Class Cert. App. Vol. II, p. 37. Thus, the trial court viewed a single injunction as capable of
addressing all class members’ claims, although the court recognized the injunction might need to be narrowly
tailored to comply with Trial Rule 65(D).
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ii. The Class Satisfies the Adequacy of Representation and
Typicality Requirements
[91] The adequacy requirement in Trial Rule 23(A)(4) has three components: “(1)
the chosen class representative cannot have antagonistic or conflicting claims
with other members of the class; (2) the named representative must have a
sufficient interest in the outcome to ensure vigorous adequacy; and (3) counsel
for the named plaintiff must be competent, experienced, qualified, and generally
able to conduct the proposed litigation vigorously.” LHO, 40 N.E.3d at 1273.
The State challenges only the first two components.
[92] Unlike the adequacy requirement, the typicality requirement is satisfied by one
showing: that the representative plaintiffs’ claims are neither in conflict with nor
antagonistic to the class as a whole. Id. at 1272. Thus, the adequacy
requirement essentially encompasses the typicality requirement. Id. at 1273.
[93] The State contends that the named Plaintiffs are neither members of the
certified class nor representative of the class because they may never become
pregnant or need an abortion. For the same reasons, the State argues that the
named Plaintiffs’ claims are not typical of the class.
[94] But these arguments just repeat the State’s assertion that the Plaintiffs have not
suffered any injury from the Abortion Law—that is, that their exercise of
religion has not been substantially burdened by the Abortion Law due to their
lack of pregnancy. As the merits of Plaintiffs’ claims are presumed for purposes
of class action certification, the availability of potential individualized defenses
that would defeat a named Plaintiff’s claim “is not a bar to class certification.”
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Id. at 1274. And even if Plaintiffs’ claims later prove unmeritorious, “Trial Rule
23(D)(2) contemplates that a representative might have to be replaced, since it
provides for the appointment by the trial court of new representatives should
such appointment become necessary.” Id.
[95] Plaintiffs have shown an adequate interest in the outcome to ensure vigorous
advocacy. The named Plaintiffs all are claiming that the Abortion Law
substantially burdens their exercise of their sincerely held religious beliefs and,
as a result, they have restricted their efforts to become pregnant or otherwise
expand their families. As the named Plaintiffs’ claims are not antagonistic or
conflicting with other members of the class and Plaintiffs have a sufficient
interest in the outcome to ensure vigorous adequacy, the trial court did not
abuse its discretion in finding the adequacy of representation and typicality
requirements were met.
iii. The Class Satisfies the Numerosity Requirement
[96] As to the numerosity requirement in Trial Rule 23(A)(1), the State argues that
the evidence fails to reveal the number of people in the class. But “the
numerosity prerequisite is not simply a test of numbers.” LHO, 40 N.E.3d at
1270. Instead, the determination focuses on whether joinder would be
impracticable, with consideration also of judicial economy and the ability of the
class members to institute individual lawsuits. Bolka, 693 N.E.2d at 616. Joinder
impracticability focuses on the characteristics of the class and not just the class
representatives. Matter of Tina T., 579 N.E.2d 48, 54-55 (Ind. 1991).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 42 of 76
[97] “A finding of numerosity may be supported by common sense assumptions.”
Bolka, 693 N.E.2d at 616. Here, Plaintiffs assert that common sense requires a
finding that hundreds, if not thousands, of potential class members exist. The
named Plaintiffs in the class alone comprise 49 people: the four Anonymous
Plaintiffs and the 45 members of Hoosier Jews for Choice who allegedly are
able to bear children, of whom at least 13% have already changed their sexual
and reproductive behaviors solely to avoid becoming pregnant when an
abortion required by their religious beliefs is unavailable. Appellees’ Class Cert.
Br., pp. 42-43. Further, Plaintiffs assert, and the State does not contest, that
more than 26,000 Jewish persons, of which presumably a significant part are
women, live in Indiana. Thus, the trial court acted within its discretion in
finding the numerosity requirement met.
C. The Class Satisfies Trial Rule 23(B)(2) Requirements
[98] Trial Rule 23(B)(2) requires that Plaintiffs prove “the party opposing the class
has acted or refused to act on grounds generally applicable to the class, thereby
making appropriate final injunctive relief or corresponding declaratory relief
with respect to the class as a whole.” T.R. 23(B)(2). The State claims this single
injunction rule remains unmet because Plaintiffs have sought relief broader than
RFRA allows.
[99] In their Complaint, Plaintiffs request an injunction “enjoining defendants from
taking any action that would prevent or otherwise interfere with the ability of
the individual plaintiffs, the class members, and Hoosier Jews for Choice’s
members from obtaining abortions as directed by their sincere religious beliefs.”
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Appellants’ Prelim. Inj. App. Vol. II, p. 85. The trial court appeared to
acknowledge that the relief sought in the Complaint may be greater than that
authorized by RFRA. See generally Indiana Code § 34-13-9-10(b)(1) (allowing
“[d]eclaratory relief or an injunction or mandate that prevents, restrains,
corrects, or abates the violation of this chapter”). But that is no obstacle because
lesser relief—that is, a narrower permanent injunction—could be issued on the
same Complaint if Plaintiffs ultimately prevail.
[100] The State otherwise contends that no class-wide injunction is possible due to
the diversity of religious views within the class, as well as the varying
circumstances under which each faith mandates an abortion. But the State
largely just repeats its claim that the class is too indefinite due to its members’
varying faiths and beliefs—an argument we already have rejected.
[101] The injunction sought by Plaintiffs, as they assert in their brief, is essentially a
religious exemption to the Abortion Law. Thus, a single injunction seemingly
could provide final, appropriate relief for the entire class consistent with RFRA
upon proof that the Abortion Law violates Plaintiffs’ rights under RFRA. This
is no different from the injunctions approved in the servicemember’s RFRA
challenges to vaccine mandates. See, e.g., Doster, 54 F.4th at 439-441 (rejecting
claim that a single injunction would not afford relief to the class of
servicemembers challenging vaccine mandates). Accordingly, we conclude that
the trial court did not abuse its discretion in finding the Trial Rule 23(B)(2)
requirements met.
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III. Preliminary Injunction
[102] Having determined the issues are justiciable and that class action certification
was not an abuse of discretion, we turn to the central issue in this appeal: the
propriety of the preliminary injunction. To obtain a preliminary injunction, the
movant must show by a preponderance of the evidence that: (1) the movant has
a reasonable likelihood of success on the merits; (2) the remedies at law are
inadequate and irreparable harm will occur while the case is pending; (3) the
threatened injury to the movant from a denial of the injunction outweighs the
potential harm to the nonmovant from granting the injunction; and (4) the
public interest would not be disserved by granting the injunction. Thind v.
Delaware Cnty., 207 N.E.3d 434, 439 (Ind. Ct. App. 2023); Vikery v. Ardagh
Glass, Inc., 85 N.E.3d 852, 859-60 (Ind. Ct. App. 2017).
[103] On appeal, the State contends Plaintiffs proved none of the preliminary
injunction requirements and that the imposed injunction is overly broad.
Appellate review of a preliminary injunction is “limited and deferential.” State
v. Econ. Freedom Fund, 959 N.E.2d 794, 801 (Ind. 2011). A trial court has
discretion to enter a preliminary injunction and will be reversed only upon an
abuse of that discretion. Id. at 799-800.
A. Plaintiffs Have Shown a Reasonable Likelihood of Success
[104] In determining whether the trial court properly determined that Plaintiffs’
RFRA claims have a reasonable likelihood of success, we must look to the
elements of a RFRA claim and the evidence submitted. A party establishes a
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prima facie case under Indiana’s RFRA by showing the disputed governmental
action substantially burdens the party’s sincerely held religious belief. Blattert v.
State, 190 N.E.3d 417, 421 (Ind. Ct. App. 2022).14 Upon that showing, the
burden shifts to the government to establish that a compelling governmental
interest is “satisfied through application of the challenged law” to the claimant
whose sincere exercise of religion is allegedly substantially burdened. Id. at 421
(quoting Gonzales, 546 U.S. at 420). “Further, the government must establish
that the substantial burden is the least restrictive means of furthering that
interest.” Id.; see also Ind. Code § 34-13-9-8.
[105] If the government does not meet its burden, “the court . . . shall allow a defense
against any party and shall grant appropriate relief against the governmental
entity.” Ind. Code § 34-13-9-10(a). RFRA allows for injunctive and declaratory
relief as well as an award of all or part of the costs of litigation, including
reasonable attorney fees, for violations. Ind. Code § 34-13-9-10(b)-(c).
[106] The State offers two reasons why Plaintiffs’ RFRA claims are unlikely to
succeed. First, the State asserts that Plaintiffs cannot prove that abortion is a
“religious exercise” within the meaning of RFRA. Second, the State argues that
the Abortion Law is the least restrictive means to achieve what the State views
as its compelling interest in protecting the potential for life beginning at
14
Federal RFRA claims require the same analysis. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 705
(2014).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 46 of 76
fertilization. We conclude that the trial court did not abuse its discretion in
finding the Plaintiffs’ RFRA claims are likely to succeed.
i. Plaintiffs Have Shown Pregnancy Termination Qualifies as
a Religious Exercise
[107] The parties do not quarrel over the definition of religious exercise—only
whether abortion falls within that definition. “Exercise of religion,” for
purposes of the Indiana RFRA statute, “includes any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” Ind.
Code § 34-13-9-5. In the federal RFRA context, the U.S. Supreme Court has
concluded that “the ‘exercise of religion’ involves ‘not only belief and
profession but the performance of (or abstention from) physical acts’ that are
‘engaged in for religious reasons.’” Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 710 (2014) (quoting Emp. Div. Dep’t of Hum. Res. v. Smith, 494 U.S. 872,
877 (1990)).15
[108] The State claims that abortion does not fall within that definition because
pregnancy termination is just one of several ways Plaintiffs can prioritize their
15
Although Indiana courts have not yet spoken on this issue, the federal courts treat federal RFRA as
typically more plaintiff-friendly than the First Amendment’s free exercise of religion clause. As then U.S.
Court of Appeals for the Sixth Circuit Judge Sonia Sotomayor once explained: “[T]he Free Exercise Clause
does not normally inhibit enforcement of otherwise valid laws of general application that incidentally burden
religious conduct . . . RFRA, in contrast, requires strict scrutiny of such laws where the incidental burden on
religion is substantial.” Hankins v. Lyght, 441 F.3d 96, 112 (6th Cir. 2006) (citations omitted) (Sotomayor, J.,
dissenting); see also Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005) (noting that RFRA-type
legislation provides protections beyond that guaranteed by the First Amendment); Brzonkala v. Va. Polytech
Inst. & State Univ., 169 F.3d 820, 881-82 (4th Cir. 1999) (“[RFRA] created a right of religious exercise that
was more generous than that right protected by the Constitution . . . .”).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 47 of 76
own well-being over that of any potential life. The State thus analogizes
abortion to seeing a therapist or nutritionist during pregnancy. The State
concludes that abortion, as described by Plaintiffs, should be viewed simply as
an enhancement to Plaintiffs’ physical, emotional, or mental well-being, rather
than a religious exercise.16
[109] The State also emphasizes that abortion should not qualify as a religious
exercise because Plaintiffs, by their own admissions, will not necessarily seek to
terminate every pregnancy. According to the State, abortion is not the type of
mandatory ritual, such as eating only kosher food or Sabbath requirements for
some, that has been found to be a religious exercise. See, e.g., Baranowski v. Hart,
486 F.3d 112, 124 (5th Cir. 2007) (recognizing kosher prison diets and Jewish
Sabbath and holy day services as religious exercise); Adkins v. Kaspar, 393 F.3d
559, 568 (5th Cir. 2004) (recognizing Sabbath and holy day gatherings as
cognizable religious exercises).
[110] The procurement of health insurance is not a mandatory religious ritual, either,
but it was at the core of a RFRA violation in Burwell v. Hobby Lobby. The Burwell
Court ruled that federal regulations requiring employers to provide insurance
16
To the extent the State is arguing that Plaintiffs’ religious beliefs as to pregnancy termination are not
sincere, the State has waived this argument through its acknowledged failure to raise the issue in the trial
court. See Blackwell v. Superior Safe Rooms LLC, 174 N.E.3d 1082, 1091 (Ind. Ct. App. 2022) (“[I]t is generally
true that a party waives an issue on appeal [by failing] to raise the argument in the trial court.”). We find
unpersuasive the State’s claims that Plaintiffs’ descriptions of their religious beliefs at the trial level were too
sparse to allow such a challenge and that any evaluation of the sincerity of Plaintiffs’ religious beliefs cannot
be made until they are pregnant.
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coverage for contraceptives—including some that prevented development of an
already fertilized egg—substantially burdened the religious exercise of three
closely held corporate employers who objected to abortions based on their
sincere religious beliefs. 573 U.S. at 690-91, 736.
[111] Similarly, hair growth is not a religious ritual. Yet, courts have granted relief
under RFRA to members of the Sikh faith, whose religion banned the cutting of
a male’s hair on his head and face, when they challenged military grooming
policies mandating haircuts and facial shaving. Singh v. Berger, 56 F.4th 88, 110
(D.C. Cir. 2022) (granting preliminary injunction); Singh v. McHugh, 185
F.Supp.3d 201, 233 (D.C. Cir. 2016) (granting summary judgment to the RFRA
plaintiff).
[112] Finally, avoiding vaccinations is not a religious ritual, but courts nevertheless
have enjoined the military from enforcing vaccination mandates against
servicemembers who challenged them under RFRA as a substantial burdening
of their religious exercise. See, e.g., Doster, 54 F.4th at 421 (finding plaintiff
servicemembers “met their duty [under RFRA] to prove that the vaccine
mandate imposed a substantial burden on their sincerely held religious beliefs”);
U.S. Navy SEALs, 27 F.4th at 353 (denying partial stay pending appeal of
preliminary injunction barring enforcement of the vaccine mandate); Air Force
Officer v. Austin, 588 F.Supp.3d 1338, 1357 (M.D. Ga. 2022) (enjoining military
vaccine mandate in RFRA action).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 49 of 76
[113] Although Burwell and these military cases were decided under federal RFRA,
both the federal version of RFRA and Indiana RFRA specify that “exercise of
religion” does not require that the exercise be “compelled by, or central to, a
system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A); Ind. Code
§ 34-13-9-5. This plain language, together with its interpretation in Burwell and
the military cases, leads us to conclude that Plaintiffs’ exercise of religion need
not be ritualistic to be protected by RFRA.
[114] Support for this broad view of the free exercise of religion is prevalent. For
instance, the U.S. Supreme Court has described “[t]he free exercise of religion”
as “first and foremost, the right to believe and profess whatever religion
doctrine one desires.” Smith, 494 U.S. at 877. Indiana’s religious liberty
protections are similarly broad. See Ind. Const. art. 1, § 2 (“All people shall be
secured in the natural right to worship ALMIGHTY GOD, according to the
dictates of their consciences.”) (emphasis in original); id. art. 1, § 3 (“No law
shall, in any case whatever, control the free exercise and enjoyment of religious
opinions, or interfere with the rights of conscience.”); id. art. 1, § 4 (“No
preference shall be given, by law, to any creed, religious society, or mode of
worship; and no person shall be compelled to attend, erect, or support, any
place of worship, or to maintain any ministry, against his consent.”).
[115] In particular, “[t]he inclusion of the phrase ‘in any case whatever’ [in Article 1,
Section 3] demonstrates the framers’ and ratifiers’ intent to provide unrestrained
protection for the articulated values.” City Chapel Evangelical Free Inc. v. City of
South Bend, 744 N.E.2d 443, 445, 448 (Ind. 2001) (rejecting claim that the
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 50 of 76
exercise of religion as defined by the Indiana Constitution’s religious liberties
provisions is limited to the “personal devotional aspect” of worship).
[116] The State has provided little authority—and none that we find persuasive—to
support the more restrictive view that religious exercise does not encompass the
pregnancy terminations at issue here. Plaintiffs’ claims, in fact, seem to be the
other side of the Burwell coin. If a corporation can engage in a religious exercise
by refusing to provide abortifacients—contraceptives that essentially abort a
pregnancy after fertilization—it stands to reason that a pregnant person can
engage in a religious exercise by pursuing an abortion. In both situations, the
claimant is required to take or abstain from action that the claimant’s sincere
religious beliefs direct. And in both situations, the claimant’s objection to the
challenged law or regulation is rooted in the claimant’s sincere religious beliefs.
[117] Again, “the ‘exercise of religion’ often involves not only belief and profession
but the performance of (or abstention from) physical acts[.]” Smith, 494 U.S. at
877. Here, Plaintiffs have shown that the performance of a physical act—an
abortion—is their religious exercise. Hoosiers have a long history of respecting
religious diversity. See generally City Chapel, 744 N.E.2d at 448-49 (during a
review of the history of religious liberties in Indiana, noting that “[t]he influx of
settlers into Indiana reflected the whole range of religious belief and practice,
and there was no religious unity from the beginning and denominations had no
restraints” (internal quotations omitted)).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 51 of 76
[118] Though people of varying faiths may view reproductive choices differently, the
right to free exercise of religion acknowledges that “religious beliefs need not be
acceptable, logical, consistent, or comprehensible to others” to bear protection.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993)
(quoting Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981)). We
therefore conclude that the trial court did not err in finding that Plaintiffs’
abortion when directed by their sincere religious beliefs is their exercise of
religion.17
ii. The State Has Not Established a Compelling Interest or
that the Abortion Law is the Least Restrictive Means of
Furthering that Compelling Interest
[119] In its next attack on the trial court’s judgment, the State asserts that the
Abortion Law is the least restrictive means of achieving the State’s alleged
compelling interest in protecting the potential for life. The trial court found that
the State had not established a compelling interest in enforcing the Abortion
Law against Plaintiffs. Appellants’ Prelim. Inj. App. Vol. II, p. 52. The court
also found that, even if a compelling interest existed, the State had not
established that the Abortion Law was the least restrictive means of furthering
the State’s compelling interest. Id. We agree with both conclusions.
17
The State does not appear to dispute that if pregnancy termination is an exercise of religion by Plaintiffs,
the Abortion Law substantially burdens that exercise.
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a. The State Has Not Shown a Compelling Interest
[120] The State asserts a recognized compelling interest in protecting a potential
human life beginning at fertilization. Its argument is based almost entirely on
the Indiana Supreme Court’s decision in Cheaney v. State, 285 N.E.2d 265, 270
(Ind. 1972).
[121] In Cheaney, the Court recognized that the State had a “valid and compelling”
interest in “a living being and potential human life” from “the moment of
conception.” 285 N.E.2d at 270. But Cheaney involved a federal constitutional
challenge to an Indiana criminal statute outlawing abortion, rather than a claim
brought under state law. The Cheaney decision also predates Roe v. Wade, 410
U.S. at 163-64, which recognized that the State has no compelling interest in
potential life during the first trimester of pregnancy. Decrying the analysis in
Roe—including its ruling that the State had no compelling interest until a viable
fetus exists—the U.S. Supreme Court ruled in Dobbs that the federal
constitution “does not confer a right to abortion.” 597 U.S. at 292. The Dobbs
Court left to the states the regulation or prohibition of abortion, which
presumably entails determinations of the State’s interest in potential life. Id. at
302.
[122] The Indiana Supreme Court’s recent decision in Planned Parenthood did not fully
explain its post-Dobbs view of the State’s interest under the Indiana
Constitution. The plaintiffs in Planned Parenthood conceded that the State had a
“legitimate” interest in “protecting prenatal life.” 211 N.E.3d at 979. But
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 53 of 76
neither the Planned Parenthood plaintiffs nor the Court pinpointed exactly when
that interest begins or the full extent of the State’s interest in zygotes, embryos,
and fetuses.
[123] By ruling that the Indiana Constitution “protects a woman’s right to an
abortion that is necessary to protect her life or to protect her from a serious
health risk,” the Planned Parenthood Court essentially established one general
circumstance in which a woman’s interest in an abortion outweighs any interest
by the State in protecting the potential of life. Id. at 962. But the Court did not
specify when the State’s interest outweighs a woman’s competing interest in
terminating a pregnancy. According to the Court, “Hoosiers have generally
delegated this responsibility to the General Assembly.” Id. at 980.
[124] The General Assembly has not fully drawn these interests. But its preliminary
sketches indicate the State lacks a compelling interest in potential life from the
moment an egg is fertilized. For instance, the General Assembly has declined to
explicitly define human beings to include zygotes, embryos, or all fetuses. See
Ind. Code § 35-31.5-2-160 (defining “human being” as “an individual who has
been born and is alive”); Ind. Code § 35-42-1-1 (differentiating between the
killing of a fetus and the killing of a “human being”); Ind. Code § 34-23-2-1(b)
(defining “child” for purposes of an action for wrongful death or injury to
include “a fetus that has attained viability”). The Abortion Law also does not
designate the exact point during pregnancy when the State’s interest in a
zygote, embryo, or fetus becomes compelling.
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 54 of 76
[125] But we need look no further than the language of the Abortion Law to
determine that the General Assembly does not view the State’s compelling
interest as beginning at fertilization. The Abortion Law exempts in vitro
fertilization procedures from its scope, although there is the potential for life
that might be destroyed in the process of this procedure. Ind. Code § 16-34-1-
0.5. That broad exemption suggests any compelling interest by the State is
absent at fertilization.
[126] Beyond that, the Abortion Law expressly permits abortions at all stages of
gestation provided certain express requirements are met. Specifically, assuming
all other statutory requirements are met:
• Indiana Code § 16-34-2-1(a)(1) permits abortion “before the
earlier of viability of the fetus or twenty (20) weeks of
postfertilization age of the fetus if”:
o “reasonable medical judgment dictates that performing the
abortion is necessary to prevent any serious health risk to
the pregnant woman or to save the pregnant woman’s life”
or
o “the fetus is diagnosed with a lethal fetal anomaly.”
o But not by means of an abortion-inducing drug “after eight
(8) weeks of postfertilization age.”
• Indiana Code § 16-34-2-1(a)(2) permits abortion “during the first
ten (10) weeks of postfertilization age of the fetus, if . . . the
pregnancy is a result of rape or incest.”
• And Indiana Code § 16-34-2-1(a)(3) permits abortion “at the
earlier of viability of the fetus or twenty (20) weeks of
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 55 of 76
postfertilization age and any time after, for reasons based upon
the professional, medical judgment of the pregnant woman’s
physician if . . . performing the abortion is necessary to prevent
any serious health risk to the pregnant woman or to save the
pregnant woman’s life.”
[127] We conclude for several reasons that the State has not demonstrated that a
compelling state interest—particularly one that begins at fertilization—is
“satisfied through application of the challenged law” to Plaintiffs. Blattert, 190
N.E.3d at 421 (quoting Gonzales, 546 U.S. at 420). First, the State relies solely
on Cheaney to its detriment. Decided a half century ago, Cheaney’s compelling
interest statement was made in response to a claim that an Indiana statute
criminalizing abortion violated the Ninth Amendment to the United States
Constitution. 285 N.E.2d at 266-70. The appellant had argued that the Ninth
Amendment “provides a fundamental right to privacy which includes the
woman’s right to decide whether to bear an unquickened fetus.” Id. at 266. A
similar privacy argument ultimately prevailed on the federal level the next year
in Roe, 410 U.S. at 153-54. But the concept of a federal privacy-based right to an
abortion under the United States Constitution was soundly rejected by Dobbs,
597 U.S. at 273, 292. Therefore, Cheaney’s compelling interest holding was
made in the context of a privacy claim that is no longer cognizable.
[128] Moreover, in the 52 years since Cheaney was decided, significant medical
advances have occurred, and state and federal courts have developed extensive
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 56 of 76
precedent in a litany of various abortion-related disputes.18 Although Cheaney
has never been overruled by the Indiana Supreme Court, the Court also has
never directly applied Cheaney’s statement that the State has a compelling
interest in potential life from fertilization. See Humphreys v. Clinic for Women,
Inc., 796 N.E.2d 247, 255 (Ind. 2003) (noting State’s claim under Cheaney of a
compelling interest from “conception” but only recognizing, without reference
to Cheaney, the State’s “interest in protecting fetal life.”). In any case, Dobbs
made clear that it was “return[ing] the issue of abortion to” state legislatures
and that “courts do not substitute their social and economic beliefs for the
judgment of legislative bodies.” 597 U.S. at 289 (quoting Ferguson v. Skrupa, 372
U.S. 726, 729-30 (1963)).
[129] Our Supreme Court’s treatment of Cheaney in Planned Parenthood does not
change our conclusion that Cheaney is distinguishable from the present case. As
Planned Parenthood involved a facial challenge to the Abortion Law that did not
require compelling interest analysis, the Court never mentioned Cheaney’s
finding “that a State interest in what is, at the very least, from the moment of
conception a living being and potential human life, is both valid and
compelling.” Cheaney, 285 N.E.2d at 270.
18
Since Cheaney was handed down, the word “abortion” has appeared in more than 180 Indiana appellate
decisions, none of which have directly applied Cheaney’s statement that the State has a compelling interest in
potential life that begins at “conception.” Cheaney, 285 N.E.2d at 270.
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 57 of 76
[130] Given Cheaney’s questionable applicability here and the Abortion Law’s plain
language permitting abortions at various stages of pregnancy, we conclude that
the State has not shown a compelling interest in the protection of potential life
beginning at fertilization.
b. Even if the State Established a Compelling Interest, It
Failed to Show that the Abortion Law Was the Least
Restrictive Means of Furthering that Interest
[131] The State also challenges the trial court’s finding that the Abortion Law is not
the least restrictive means of furthering the State’s alleged compelling interest.
“In other words, if a less restrictive alternative would serve the governmental
purpose, a legislature must use that alternative.” State v. Katz, 179 N.E.3d 431,
458-59 (Ind. 2022).
[132] Least restrictive means analysis requires a comparison of the State’s preferred
means of protecting potential life—the Abortion Law—to other possible
options. See Blattert, 190 N.E.3d at 423. The State has the burden of addressing
each alternative of which it becomes aware during the litigation. Id. “[T]he
State’s ‘burden is two-fold: it must support its choice of regulation, and it must
refute the alternative schemes offered by the challenger.’” Id. (quoting United
States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011)).
[133] Plaintiffs did not expressly provide any alternative schemes for furthering the
State’s alleged compelling interest of protecting the zygote, embryo, or fetus.
Instead, Plaintiffs contend that the Abortion Law is “underinclusive” because it
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 58 of 76
exempts some abortions from criminal prosecution on secular grounds but
includes no religious exceptions. Appellees’ Prelim. Inj. Br., pp. 52-54.
[134] The means used by the legislature to further its compelling interest must be
neither seriously underinclusive nor seriously overinclusive. Katz, 179 N.E.3d at
459. A law is underinclusive when it provides exceptions for secular conduct
that contravene the State’s asserted compelling interest to a similar or greater
degree than religious conduct not subject to an exception. Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993). Underinclusiveness
may “reveal that a law does not actually advance a compelling interest.”
Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449 (2015); see also Church of the Lukumi
Babalu Aye, Inc., 508 U.S. at 547 (ruling that a law cannot be viewed as
protecting an interest “of the highest order” if it allows “appreciable damage to
that supposedly vital interest unprohibited”) (citations omitted). If a less
restrictive method that would serve the government’s interest exists, the
legislature must use that alternative. Katz, 179 N.E.3d at 458-59.
[135] The Abortion Law allows a conditional right to abortions “to prevent any
serious health risk to the pregnant woman or to save the pregnant woman’s
life.” Ind. Code §§ 16-34-2-1(a)(1)(A)(i), (3)(A). This amounts to an exception
to the Abortion Law’s prohibitions based on a prioritization of the pregnant
woman’s health over the survival of the zygote, embryo, or fetus. But that is the
same sort of prioritization reflected in the Plaintiffs’ religious beliefs, albeit on a
different scale.
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 59 of 76
[136] Plaintiffs’ religious beliefs direct them to terminate their pregnancy “if their
health or wellbeing—physical, mental, or emotional—were endangered by a
pregnancy, pregnancy-related condition, or fetal abnormality.” Appellees’
Prelim. Inj. Br., p. 18. In other words, in accordance with Plaintiffs’ religious
beliefs, the pregnant woman’s health must have precedence, with an abortion
available even if, contrary to the Abortion Law: (1) the pregnancy is not life-
threatening; (2) the pregnancy does not present a serious health risk as that term
is used in the Abortion Law; or (3) the fetal abnormality is not lethal within the
meaning of the Abortion Law.
[137] Thus, the broader religious exemption that Plaintiffs effectively seek has the
same foundation as the narrower exceptions already existing in the Abortion
Law: all are based on the interests of the mother outweighing the interests of the
zygote, embryo, or fetus. The religious exemption that Plaintiffs seek, based on
their sincere religious beliefs, merely expands the circumstances in which the
pregnant woman’s health dictates an abortion.
[138] RFRA requires the Government to show that the claimed compelling interest is
satisfied through application of the challenged law to the particular claimants
whose sincere exercise of religion is being substantially burdened. See Gonzales,
546 U.S. at 430-31. That alone is a high bar. U.S. Navy SEALs, 27 F.4th at 350.
But this already challenging standard is heightened further when, as here, the
contested law already provides an exception for a particular group. Id.
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[139] In determining whether the State has met this heavy burden, we must “look[ ]
beyond broadly formulated interests” and “scrutinize[ ] the asserted harm of
granting specific exemptions to particular religious claimants.” Gonzales, 546
U.S. at 431. The State alleges that granting a religious exemption to Plaintiffs
will cause loss of potential life. But the existing exceptions in the Abortion Law
also result in the loss of that potential for life. Thus, the Abortion Law is
underinclusive.
[140] If a policy is underinclusive, the State must adequately explain its differential
treatment to avoid the conclusion that the law does not actually serve a
compelling interest. Ware v. La. Dep’t of Corr., 866 F.3d 263, 269 (5th Cir. 2017).
As the State cannot rely on broadly formulated interests, it must show distinct
harm from granting specific exemptions to particular religious claimants. Hobby
Lobby, 573 U.S. at 726-27; Gonzales, 546 U.S. at 431 (quoting Wisconsin v. Yoder,
406 U.S. 205, 236 (1972)).
[141] The State’s explanation does not meet this standard. The State has not shown
that its claimed compelling interest in protecting the potential for life is satisfied
by denying Plaintiffs’ religious-based exception that prioritizes a mother’s
health over potential life, given that other exceptions are allowed based on the
same prioritization—that is, the exceptions applicable when the pregnancy
poses a “serious health risk” or termination would “save the pregnant woman’s
life.” Ind. Code §§ 16-34-2-1(a)(1)(A)(i), (a)(3)(A); see, e.g., Holt v. Hobbs, 574
U.S. 352, 368-70 (2015) (finding underinclusiveness when prison’s grooming
policy did not allow prisoners to grow half-inch beard for religious reasons but
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 61 of 76
authorized prisoners with a dermatological condition to grow quarter-inch
beards); U.S. Navy SEALs, 27 F.4th at 352 (finding COVID-19 vaccination
mandates to be underinclusive when exemptions were given to 17 other military
members but denied to plaintiffs seeking religious accommodations).
[142] This weakness in the State’s argument is even more apparent when the
Abortion Law’s other exceptions are considered. First, the Abortion Law does
not apply to in vitro fertilization. See Ind. Code § 16-34-1-0.5. That suggests the
Abortion Law does not criminalize zygote destruction, although the State is
claiming a compelling interest that begins the moment an egg is fertilized.
[143] The Abortion Law also allows abortions when the pregnancy resulted from
rape or incest or when the fetus has been diagnosed with a lethal fetal anomaly
so long as other statutory conditions are met. Ind. Code §§ 16-34-2-
1(a)(1)(A)(ii), (2)(A), (3)(A). The State does not explain why a victim of rape or
incest is entitled to an abortion, but women whose sincere religious beliefs
direct an abortion are not. The State also does not explain how allowing an
abortion of a “fetus diagnosed with a lethal fetal anomaly”—as is conditionally
permitted by the Abortion Law—advances the State’s alleged compelling
interest in protecting potential life. Ind. Code § 34-16-2-1(a)(1)(A)(ii).
[144] The rape/incest exception in the Abortion Law—while seemingly favoring the
pregnant woman’s interest over that of the zygote, embryo, or fetus—is based
on a tragic circumstance rather than risks to the mother’s physical health. For
instance, the Abortion Law does not require a victim of rape or incest to obtain
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 62 of 76
a doctor’s certification that “performing the abortion is necessary to prevent any
serious health risk to the pregnant woman or to save the pregnant woman’s
life,” as is required under other abortion exceptions within the Abortion Law.
See Ind. Code §§ 16-34-2-1(a)(1)(A), (a)(3)(A). Given the Abortion Law’s
underinclusiveness and the State’s lack of accompanying justification, we
conclude that the trial court correctly found the State did not satisfy the least
restrictive means test.
B. Plaintiffs Must Prove Irreparable Harm, But They Met
That Burden
[145] The State also claims that Plaintiffs are not entitled to a preliminary injunction
because they did not show they would be irreparably harmed absent the
injunction. Although the trial court found that Plaintiffs satisfied all elements
for a preliminary injunction, it alternatively determined that proof of the
elements of irreparable harm and a balancing of harm in Plaintiffs’ favor were
unnecessary. This alternative ruling was based on precedent establishing that
when the acts sought to be enjoined are unlawful, the petitioner need not show
irreparable harm or a balancing of harm in their favor. See, e.g., Doe 1 v. Boone
Cnty. Prosecutor, 85 N.E.3d 902, 911 (Ind. Ct. App. 2017).
[146] In finding proof of irreparable harm unnecessary, the trial court relied on Short
on Cash.Net of New Castle, Inc. v. Dep’t of Fin. Insts., 811 N.E.2d 819, 823 (Ind. Ct.
App. 2004), in which this Court ruled:
[W]here the action to be enjoined is unlawful, the unlawful act
constitutes per se “irreparable harm” for purposes of the
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 63 of 76
preliminary injunction analysis. When the per se rule is invoked,
the trial court has determined the defendant’s actions have
violated a statute and, thus, that the public interest is so great that
the injunction should issue regardless of whether the plaintiff has
actually incurred irreparable harm or whether the plaintiff will
suffer greater injury than the defendant. Accordingly, invocation
of the per se rule is only proper when it is clear that a statute has
been violated.
(internal citations omitted).
[147] The State asks this Court to reject this per se standard, noting that our Supreme
Court has limited it to cases, unlike the present litigation, in which the violation
of a statute is clear and uncontested. See, e.g., Ind. Fam. & Soc. Servs. Admin. v.
Walgreen Co., 769 N.E.2d 158, 162 (Ind. 2002) (finding per se standard
inapplicable because illegality of challenged action was not clear). Walgreen
predated Short on Cash by two years. Short on Cash cited Walgreen twice on other
points of law but never mentioned the case’s limitations on the per se standard.
Short on Cash, 811 N.E.2d at 822-23.
[148] Some panels of this Court subsequently cited Short on Cash with approval
without mentioning Walgreen or its limitations on the per se standard. See, e.g.,
Planned Parenthood of Ind. v. Carter, 854 N.E.2d 853, 863-64 (Ind. Ct. App. 2006);
Clay Twp. of Hamilton Cnty. ex rel. Hagan v. Clay Reg’l Waste Dist., 838 N.E.2d
1054, 1063 (Ind. Ct. App. 2005). Our Supreme Court then reentered the debate
in Leone v. Comm’r, Ind. Bureau of Motor Vehicles, 933 N.E.2d 1244, 148 n.6 (Ind.
2010).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 64 of 76
[149] The Leone Court observed that the rule in Short on Cash “may or may not reflect
sound injunction law.” Id. But it proceeded to find, consistent with Walgreen,
that the relaxed standard did not apply because the violation of law in Leone
was not clear and uncontested. Id.; see also State v. Econ. Freedom Fund, 959
N.E.2d 794, 804 (Ind. 2011) (applying the per se standard where parties agreed
that statute at issue was violated).
[150] Given our Supreme Court’s decision in Leone, the per se standard does not apply
here because the alleged violation of law—that is, contravention of RFRA
through application of the Abortion Law to Plaintiffs—is vigorously contested.
Accordingly, we agree with the State that the trial court erred in finding proof
of irreparable harm was not required.
[151] But the trial court’s alternative ruling—that Plaintiffs adequately showed
irreparable harm—was justified by the evidence. The trial court found that
absent a preliminary injunction, Plaintiffs would be irreparably harmed by the
loss of their religious freedoms guaranteed by RFRA. A loss of First
Amendment freedoms, which include the right to free exercise of religion, “for
even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976).
[152] In addition, the lack of access to an abortion before Dobbs was found to
constitute irreparable harm justifying a preliminary injunction. J.D. v. Azar, 925
F.3d 1291, 1338 (D.C. Cir. 2019) (concluding that irreparable harm arose from
the lack of access by certain minors to pre-viability abortions). Even a
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 65 of 76
requirement that abortion providers advise patients of certain statutory abortion
restrictions was found, pre-Dobbs, to constitute irreparable harm for purposes of
a preliminary injunction. Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, 194
F.Supp.3d 818, 834-35 (S.D. Ind. 2016) (issuing preliminary injunction in
action challenging, among other things, the constitutionality of an Indiana
abortion statute under the First Amendment’s prohibition against compelled
speech).
[153] Since Dobbs, some courts have continued to enter preliminary injunctions after
finding irreparable harm arising from statutes that had the effect of limiting
abortion access. Fund Texas Choice v. Paxton, 658 F.Supp.3d 377, 414 (W.D.
Tex. 2023) (“Because Texas’s abortion laws restrict the ability to speak openly
about abortion support and threaten to force the organizations to close
entirely,” the plaintiffs that facilitated out-of-state abortions “are suffering an
ongoing and irreparable harm” and were entitled to a preliminary injunction);
Matsumoto v. Labrador, No. 1:23-cv-00323-DKG, 2023 WL 7388852 (D. Idaho
November 8, 2023) (granting preliminary injunction barring enforcement of
Idaho statute criminalizing the facilitation of abortions to minors without their
parents’ consent against plaintiffs, who desired to continue assisting pregnant
people, including minors, with accessing legal abortion care); Okla. Call for
Reprod. Justice v. Drummond, 543 P.3d 110 (Okla. 2023) (reversing denial of
temporary injunction barring enforcement of statutes that limited a woman’s
state constitutional right to an abortion to preserve her own life).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 66 of 76
[154] The trial court did not abuse its discretion in finding Plaintiffs would suffer
irreparable harm absent the preliminary injunction.
C. The Trial Court Did Not Err in Finding the Balancing of
Harms and Public Interest Weighed in Plaintiffs’ Favor
[155] The State claims the balance of harms and public interest favors denial of the
preliminary injunction, given that abortion is an irreversible procedure.
According to the State, Plaintiffs’ harms from “changes to their contraceptive
and sexual practices do not outweigh the grave consequences of killing an
unborn child.” Appellants’ Prelim. Inj. Br., p. 60. The State also notes that if
Plaintiffs’ future pregnancies during this litigation threaten their lives or pose a
serious health risk, they could terminate their pregnancies legally under the
Abortion Law. See Ind. Code §§ 16-34-2-1(a)(1), (3).
[156] Relying on a federal appellate decision, the trial court found that because
Plaintiffs showed they are likely to succeed on the merits, entry of a preliminary
injunction would not create any substantial harm to others. See Déjà Vu of
Nashville, Inc., v. Metro Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th
Cir. 2001) (ruling that proof of likelihood of success on a First Amendment
claim often determines a preliminary injunction challenge, given that even a
minimal infringement of First Amendment freedoms constitutes irreparable
injury, no substantial harm to others occurs in the enjoinment of such a
violation, and preventing such violations is always in the public interest), cert.
denied, 535 U.S.1073 (2002).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 67 of 76
[157] Without a preliminary injunction, Plaintiffs will suffer the loss of their right to
exercise their sincere religious beliefs by obtaining an abortion when directed by
their religion and prohibited by the Abortion Law. They also have shown their
sexual and reproductive lives will continue to be restricted absent the injunction
and as a result of the Abortion Law. The opposing harm with an injunction is
the loss of the potential for life represented by a zygote, embryo or fetus that
will no longer exist if a Plaintiff terminates the pregnancy outside the
parameters of the Abortion Law. Thus, Plaintiffs have shown existing harm in
the form of reproductive and sexual restrictions whereas the harm to the public
is conditional (that is, based on the prospect of pregnancy that may eventually
result in a live birth). The trial court did not abuse its discretion in balancing the
harms in favor of Plaintiffs.
[158] We also find no abuse of discretion in the trial court’s finding that the public
interest favored entry of the preliminary injunction. As the trial court
determined, statutory violations are against public interest and may support
issuance of an injunction. See Short on Cash, 811 N.E.2d at 823. And in any
case, injunctions protecting First Amendment freedoms are always in the public
interest. U.S. Navy SEALs, 27 F.4th at 353 (citing Texans for Free Enter. v. Tex.
Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013)).
IV. Breadth of Injunction
[159] Given our finding that the trial court did not abuse its discretion in finding
Plaintiffs were entitled to a preliminary injunction, the only issue remaining is
the State’s claim that the injunction exceeds the trial court’s remedial authority.
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 68 of 76
The trial court enjoined “the Defendants and their officers from enforcing the
provisions of [the Abortion Law] against Plaintiffs.” Appellants’ Prelim. Inj.
App. Vol. II, p. 59. The State argues that the injunction lacks the specificity
required by Indiana Trial Rule 65(D), which requires that the order specify and
“describe in reasonable detail, and not by reference to the complaint or other
document, the act or acts sought to be restrained.” T.R. 65(D).
[160] The State asserts the injunction is so broad that it enjoins future government
action that may not violate RFRA. RFRA authorizes relief that “prevents,
restrains, corrects, or abates the [RFRA] violation.” Ind. Code § 34-13-9-
10(b)(1). For instance, the injunction would bar the State from preventing
Plaintiffs from obtaining abortions that are outlawed by the Abortion Law but
that are not directed by Plaintiffs’ sincere religious beliefs.
[161] Plaintiffs’ response is that the preliminary injunction should be interpreted more
narrowly because Plaintiffs never sought such broad relief. But Plaintiffs do
little else to dispute that the language is as broad as the State suggests. Plaintiffs
instead suggest that the trial court simply can modify the language in the
preliminary injunction if the need arises.
[162] We view the more reasoned approach to be remand for entry of a more
narrowly tailored preliminary injunction. See, e.g., AGS Cap. Corp. v. Prod. Action
Int’l, LLC, 884 N.E.2d 294, 315 (Ind. Ct. App. 2008) (finding that “[a]
preliminary injunction is to be narrowly tailored” and reversing in part and
remanding where parts of preliminary injunction were overly broad).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 69 of 76
[163] We therefore affirm the trial court’s finding that Plaintiffs are entitled to a
preliminary injunction and remand for further proceedings consistent with this
opinion.
May, J., concurs.
Bailey, J., concurs with a separate opinion.
ATTORNEYS FOR APPELLANTS
Theodore E. Rokita
Attorney General of Indiana
James A. Barta
Solicitor General
Katelyn E. Doering
Deputy Attorney General
Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE
THE BECKET FUND FOR RELIGIOUS LIBERTY
Paul J. Carroll
Wooton Hoy, LLC
Greenfield, Indiana
Lori H. Windham
Adèle A. Keim
Rebekah P. Ricketts
Washington, D.C.
ATTORNEYS FOR APPELLEES
Kenneth J. Falk
Stevie J. Pactor
Gavin M. Rose
ACLU of Indiana
Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 70 of 76
ATTORNEYS FOR AMICUS CURIAE
THE JEWISH COALITION FOR RELIGIOUS LIBERTY
Zechariah D. Yoder
Adler Attorneys
Noblesville, Indiana
Joshua M. Blackman
Josh Blackman LLC
Houston, Texas
Howard Slugh
The Jewish Coalition for Religious Liberty
Washington, D.C.
ATTORNEY FOR AMICUS CURIAE
NATIONAL COUNCIL OF JEWISH WOMEN; NATIONAL COUNCIL OF JEWISH
WOMEN INDIANAPOLIS SECTION; RECONSTRUCTIONIST RABBINICAL
ASSOCIATION; ZIONESS; T’RUAH; KESHET; THE RABBINICAL ASSEMBLY;
MOVING TRADITIONS; AVODAH; MUSLIMS FOR PROGRESSIVE VALUES;
RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE; SADHANA: COALITION
OF PROGRESSIVE HINDUS; HINDUS FOR HUMAN RIGHTS; AND CATHOLICS FOR
CHOICE
Jeffrey A. Macey
Macey Swanson LLP
Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE
HISTORIANS OF RELIGION, REPRODUCTION, AND THE LAW
William R. Groth
Bowman & Vlink, LLC
Indianapolis, Indiana
Mark W. Sniderman
Sniderman Law
Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE
CERTAIN SCHOLARS OF JEWISH STUDIES AND RELIGION
Richard E. Shevitz
Arend J. Abel
Natalie A. Lyons
Cohen & Malad, LLP
Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 71 of 76
ATTORNEYS FOR AMICUS CURIAE
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; ADL (ANTI-
DEFAMATION LEAGUE); BEND THE ARC: A JEWISH PARTNERSHIP FOR
JUSTICE; CENTRAL CONFERENCE OF AMERICAN RABBIS; GLOBAL JUSTICE
INSTITUTE, METROPOLITAN COMMUNITY CHURCHES; HINDU AMERICAN
FOUNDATION; INTERFAITH ALLIANCE FOUNDATION; MEN OF REFORM
JUDAISM: METHODIST FEDERATION FOR SOCIAL ACTION;
RECONSTRUCTIONIST RABBINICAL ASSOCIATION; RELIGIOUS COALITION FOR
REPRODUCTIVE CHOICE; THE SIKH COALITION; UNION FOR REFORM
JUDAISM; UNITARIAN UNIVERSALIST ASSOCIATION; AND WOMEN OF REFORM
JUDAISM
Richard B. Katskee
Alex J. Luchenitser
Kalli A. Joslin
Americans United for Separation of Church and State
Washington, D.C.
Katherine Lacy Crosby
Tachau Meek PLC
Louisville, Kentucky
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 72 of 76
Bailey, Judge, concurring.
[164] “All people shall be secured in the natural right to worship ALMIGHTY GOD,
according to the dictates of their own consciences.” IN Const. Art. 1, § 2
(emphasis in original.) “No law shall, in any case whatever, control the free
exercise and enjoyment of religious opinions, or interfere with the rights of
conscience.” IN Const. Art. 1, § 3. Accordingly, our Indiana Supreme Court
has stated:
From the literal text of Sections 2 and 3, the discussions at the
Constitutional Convention, and the surrounding circumstances,
we conclude that the framers and ratifiers of the Indiana
Constitution’s religious liberty clauses did not intend to afford
only narrow protection for a person’s internal thoughts and
private practices of religion and conscience.
City Chapel Evangelical Free, Inc. v. City of South Bend ex rel. Dep’t of Redevelopment,
744 N.E.2d 443, 450 (Ind. 2001). In accordance with abundant religious liberty
and the recognition of a pluralistic society, our Constitution further provides:
“No preference shall be given, by law, to any creed, religious society, or mode
of worship[.]” IN Const. Art. 1, § 4.
[165] Yet in this post-Dobbs19 world, our Legislature has done just that – preferred one
creed over another. Based upon the premise that the State has a compelling
interest in the outcome of a woman’s pregnancy arising at the very moment of
19
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 73 of 76
conception,20 there is a codification of when life begins, something intensely
debated among adherents to various religions.21 Moreover, if I glean anything
from the broad range of views on this concept of ensoulment contained in the
amicus briefs, it is that there is truly no consensus about when ensoulment
occurs. Rather, it is to be determined as an article of faith unique to each
particular religious society. And despite the diversity of viewpoints on the
concept of ensoulment, there is no claim among the amici that the termination
of a pregnancy extinguishes the soul.
[166] Given the breadth of religious diversity and sects among Hoosiers, I am not
surprised that the language employed by the framers of our Indiana
Constitution suggests that an individual facing circumstances attendant to
pregnancy, experienced uniquely by that individual,22 should resort to her own
conscience and her own creed without undue state interference. Indeed, where
theologians cannot agree, legislators are ill-equipped to define when life begins.
20
As noted by the majority, the Abortion Law does not criminalize destruction of zygotes produced in
anticipation of in vitro implantation.
21
I acknowledge that, in asserting its interest, the State no longer need be bound by the trimester formulation
of Roe v. Wade, 410 U.S. 113 (1973). Nor is there any compulsion to follow the “undue burden” test of
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 873 (1992) (which found the trimester
“formulation ... misconceives the nature of the pregnant woman’s interest” and “it undervalues the State’s
interest in potential life” and held that women had a federal constitutional right to abortion without undue
interference from states before viability, but states could prohibit abortions after viability (so long as there was
an exception for pregnancies which endangered a woman’s health or life)).
22
Because of biological realities independent of theological concepts, the physical and emotional burden of
pregnancy falls squarely upon the female. And although the hope is that the psychological, financial,
familial, and legal consequences will be shared, too many times these consequences fall disproportionately
upon the pregnant woman or girl.
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As the majority notes, our legislature has not – to date – enacted wholly
consistent statutory schemes conferring the rights of a human being upon
zygotes, embryos, and fetuses.
[167] In a more perfect world, each pregnant woman in evaluating her options would
have no burden beyond examining her individual conscience, counseling with
her spiritual advisor, and consulting with her medical provider. 23 But a perfect
world this is not and resulting pregnancy is not always a simple free will
contract or agreement. Despite untiring and commendable legislative efforts,
we do not live in a society in which we can confidently say that women and
girls of childbearing age live free from physical and psychological domestic
abuse, rape, human trafficking,24 incest, and economic disparity. And a woman
who has become pregnant of her own free will may subsequently be confronted
23
I must acknowledge that the Abortion Law as it currently exists in Indiana has a chilling effect upon the
scope of medical advice that may lawfully be conveyed. Indeed, the plaintiffs in this matter, who have been
successful in their pursuit of an injunction, have secured no corollary means by which a medical practitioner
could escape legal liability for a procedure performed in contravention of the Abortion Law.
24
Our criminal code defines human trafficking to include multiple acts, such as sex trafficking, forced
marriage, and labor trafficking. See Ind. Code § 35-42-3.5-1 (providing that forcible, fraudulent, or coercive
recruitment, harboring, or transport of a person to provide labor or services is the promotion of human labor
trafficking, a Level 4 felony); I.C. § 35-42-3.5-1.1 (defining promotion of human sexual trafficking, a Level 4
felony, to include recruitment and other forceful, fraudulent, or coercive acts to cause a person to marry,
engage in prostitution, or participate in sexual conduct); I.C. § 35-42-3.5-1.2(a), (providing that a person who
knowingly or intentionally recruits, entices, harbors, or transports a child less than eighteen years of age with
the intent of causing the child to engage in prostitution, juvenile prostitution, or a performance or incident
that includes sexual conduct in violation of I.C. 35-42-4-4(b) or I.C. 35-42-4-4(c) (child exploitation) commits
promotion of child sexual trafficking, a Level 3 felony); I.C. § 35-42-3.5-1.3 (defining child sexual trafficking,
a Level 2 felony, as the knowing or intentional sale or transfer of custody of a child for the purpose of
prostitution, juvenile prostitution, or participation in sexual conduct); and I.C. § 35-42-3.5-1.4(a) (providing
that “A person who knowingly or intentionally: (1) pays, or offers or agrees to pay, money or other property;
or (2) offers a benefit; to or for a human trafficking victim with the specific intent to induce or obtain the
product or act for which the human trafficking victim was trafficked commits human trafficking, a Level 4
felony.”)
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with adverse physical and mental conditions. In the face of monetary scarcity
or physical limitations, she may be forced to allocate limited monetary or
caregiving resources among the unborn and children already in existence,
perhaps including those with special needs. She may lose her support system or
employment. She may find that she needs medical treatment or pharmaceutical
intervention incompatible with fetal life. She may discover that her pregnancy
will not result in a live birth. Legislators, an overwhelming majority of whom
have not experienced childbirth, nevertheless dictate that virtually all
pregnancies in this State must proceed to birth notwithstanding the onerous
burden upon women and girls. They have done so not based upon science or
viability but upon a blanket assertion that they are the protectors of “life” from
the moment of conception. In my view, this is an adoption of a religious
viewpoint held by some, but certainly not all, Hoosiers. The least that can be
expected is that the remaining Hoosiers of child bearing ability will be given the
opportunity to act in accordance with their own consciences and religious
creeds.
[168] For these reasons, I concur with the majority opinion.
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