Individual Members of the Medical Licensing Board of Indiana v. Anonymous 1

• Court: Indiana Court of Appeals
• Decided: April 4, 2024
• Docket: 22A-PL-02938
• Status: Published

Opinion

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-

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 5 of 76 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

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 6 of 76 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 7 of 76 [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

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 9 of 76 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 10 of 76 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

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 12 of 76 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 13 of 76 [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).

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 14 of 76 [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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 15 of 76 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

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 16 of 76 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).

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 17 of 76 [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

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 18 of 76 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

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 20 of 76 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

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 21 of 76 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 24 of 76 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

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 25 of 76 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 28 of 76 [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.”

[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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 29 of 76 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 Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 30 of 76 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,

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 31 of 76 187 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 32 of 76 [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).

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 33 of 76 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].

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 35 of 76 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).

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 40 of 76 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.” Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 41 of 76 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.” Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 43 of 76 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 44 of 76 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

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 45 of 76 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 48 of 76 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 52 of 76 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 60 of 76 [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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 74 of 76 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.”)

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 75 of 76 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.

Court of Appeals of Indiana | Opinion 22A-PL-2938 | April 4, 2024 Page 76 of 76