Med. Licensing Bd. of Ind. v. Anonymous Plaintiff

233 N.E.3d 416

INDIVIDUAL MEMBERS OF the MEDICAL LICENSING BOARD OF INDIANA, in their official capacities, et al., Appellants-Defendants

v.ANONYMOUS PLAINTIFF 1, et al., Appellees-Plaintiffs

Court of Appeals Case No. 22A-PL-2938

Court of Appeals of Indiana.

Filed April 4, 2024

West Codenotes

Validity Called into Doubt

Ind. Code Ann. § 16-34-2-1

Appeal from the Marion Superior Court, The Honorable Heather A. Welch, Judge, Trial Court Cause No. 49D01-2209-PL-31056

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

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

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

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 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, 142 S.Ct. 2228, 213 L.Ed.2d 545 (2022) (overruling in part Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791; 120 L.Ed.2d 674 (1992)). 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 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 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-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 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...