S5, Ep. 26: Archaic laws and new theories emerge from state abortion debates

The intersection of abortion and religion often grabs headlines, and this episode of Respecting Religion looks at recent developments in two states: Arizona and Indiana. Amanda and Holly discuss an Indiana case that involves free exercise arguments under state law to support abortion, and they examine the impact of Arizona’s 1864 law that criminalizes abortion. Both situations are resulting from the tremendous change in the law after the Dobbs decision in 2022, leading to some unexpected situations. 

SHOW NOTES
Segment 1 (starting at 00:38): The Arizona situation

Our next episode will be our 100th episode! It’s your chance to ask Amanda and Holly anything – send in your questions by April 29 to [email protected].

Amanda and Holly previously discussed the aftermath of the Dobbs decision in episode 4 of season 4, released in October 2022. The show was titled “A religious freedom right to an abortion?” 

The New York Times has this helpful resource that shows the differences in the laws regarding abortion in states across the country. 

Amanda and Holly mentioned this article for Vox written by Nicole Naera: The history of Arizona’s Civil War-era abortion ban

After we recorded this program, the Arizona House voted to repeal the 1864 law, and the Arizona Senate is expected to vote on it next week. Read more in this Washington Post article by Caroline Kitchener and Yvonne Wingett Sanchez. 

 

Segment 2 (starting at 12:12): The Indiana litigation

For a more in-depth discussion of the Religious Freedom Restoration Act (RFRA), check out episode 6 of season 5: RFRA at 30.

Read the opinion from the Indiana Appeals Court and the concurrence at this link.

Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC.

Transcript: Season 5, Episode 26: Archaic laws and new theories emerge from state abortion debates (some parts of this transcript have been edited for clarity) 

HOLLY: At the very least what we see is a challenge to the strict laws and approach that recognizes that religion does come into play in the decisions that women make about their reproductive freedom.

 

Segment 1: The Arizona situation (starting at 00:23)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. Today we’re discussing the intersection of abortion and religion, a theme that often grabs headlines these days, looking particularly at a couple of remarkable developments in the states, decisions in Arizona and Indiana.

AMANDA: We are seeing a plethora of new laws and limits on abortion and know that that will be a critical aspect of the 2024 elections, including the 2024 presidential election. Religion is infused in many parts of these policy debates, and one surprising way that many of our listeners might not be as familiar with this aspect of religion and the law is an argument for a religious Free Exercise right to obtain an abortion.

And, Holly, you and I have discussed some of this topic previously in season 4, episode 4, when we were talking about the immediate aftermath after the Supreme Court’s decision in the Dobbs case that overturned the right to an abortion and how religion might be implicated in both the legal cases but also the new laws and policies that would come about in a post-Roe world.

HOLLY: That’s right. And we mentioned in that earlier show The New York Times has a helpful resource that shows the different laws regarding abortion, of course that have changed and the new developments have multiplied in the states across the country since that decision back in 2022. And so today we’re going to just touch on a couple of those developments, as we know that we’re talking about this in real time, as people are struggling to pass new laws, and people are filing lawsuits to fight some of these most aggressive bans.

AMANDA: Well, before we get too deep into our conversation for today, we do want to remind everyone that our next episode will be the 100th episode of Respecting Religion, and we want to hear from you. It’s a great time for you to ask us anything. You can email both of us at [email protected]. So get us those questions in soon so that we can tackle them on next week’s show.

HOLLY: We look forward to reflecting on this time together, our fifth season and these 100 episodes, and encourage you to engage in that conversation with us.

Well, let’s start by looking at that opinion, Amanda, that really got everyone’s attention coming out of Arizona. I’d say one of the most jarring developments on abortion restrictions came out of Arizona earlier this month. It was reported that the Arizona Supreme Court was holding that an 1864 law criminalizing abortion would soon go into effect.

And perhaps you, as we, have some questions about it, so we wanted to share what we found, a little bit of description about the case, hoping that this is not representative of what we’re going to see, but it’s, of course, you know, just one of many shocking developments we’ve seen in this area of the law.

AMANDA: That’s right, Holly. And just to kind of give a sense, you know — when I saw 1864, I first, of course, immediately thought of, well, that was in the middle of the Civil War, so really an entirely different country at that point, when we think about what was going on during that history. I did the math. That was 160 years ago.

And it was also almost 50 years before Arizona even became a state. Arizona had its statehood in 1912, and so we have this really ancient law that, according to the Arizona Supreme Court, is in effect for all of the people who are now living in the state of Arizona, none of whom, by the way, were alive at the time that this law was passed.

HOLLY: Hard to imagine that a law that was passed before your state became a state was somehow going to now control your reproductive freedom. But we are living in strange times, aren’t we?

AMANDA: We definitely are. So here’s the text of this old, now new law in Arizona: “Every person who shall administer or cause to be administered or taken, any medicinal substances, or shall use or cause to be used any instruments whatever, with the intention to procure the miscarriage of any woman then being with child, and shall be thereof duly convicted, shall be punished by imprisonment in the Territorial prison for a term not less than two years nor more than five years.”

And so to translate this arcane law to modern English, it seems that anyone who provides an abortion by any means, including a medicinal abortion, would be subject to conviction and two to five years in prison and fines. And for women who might procure medicine for an abortion over state lines, they themselves would be subject to prosecution, in addition to any doctors who might perform an abortion.

And as I read that statute, you’ll note, there’s no exception for rape or incest. There’s no exception for the health of the mother. Now, this isn’t the first law that Arizona has passed when it comes to abortion, and in fact, just two years ago, the Arizona legislature passed a law banning abortion after the 15th week of pregnancy. But in so doing, they did not repeal this very old law.

And so earlier this month, the state supreme court justices, all of whom have been appointed by Republican governors, voted 4 to 2 that the 160-year-old law supersedes the 2022 rule. And the ruling stated, “In light of this opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal.”

HOLLY: Well, and according to Arizona Attorney General Kris Mayes, the earliest this 1864 law could take effect is in June. We’ve heard that this has, as it should, elicited quite a lot of response, and so the legislature is scrambling. A lot of political actors are kind of taking advantage of this to try to move the state to rectify the situation. But we’ll certainly be closely watching this, and of course, it is alarming, regardless of your perspective, to think that the Court’s decision in Dobbs would lead to this kind of chaotic response.

AMANDA: And, of course, on Respecting Religion, we talk about religion and the law. But before we get to kind of how religion is implicated in this particular case, I do want to point out that one of the arguments from Dobbs was, you know, it is not the Court’s responsibility or the Constitution’s responsibility to protect a right to an abortion and that should be left up to the states.

And so there was this sense of democratic action in legislatures deciding what law would be put in effect for their citizenry. And yet here we have a court deciding to supersede a 2022 law, one passed in very recent memory — in fact, the same year that the Dobbs case was decided — to put that aside in favor of this 160-year-old law that none of the people living in Arizona ever voted for or voted for representatives to pass the law. So there’s something fundamentally anti-democratic about this decision and about the impact on the people who are living in the state of Arizona.

HOLLY: Well, the 2022 law was quite restrictive of abortion rights in and of itself. And so I think the Court’s decision properly makes people wonder exactly if there’s an end to this game of like tightening abortion restrictions or if, you know, you could be left, as you note, Amanda, to a branch that seems to be acting very politically in order to be even more harsh toward women and reproductive freedom.

AMANDA: Yeah. And I’ll say, the supreme court of Arizona’s opinion is in itself just a very long explanation of statutory interpretation. In fact, the justice writing the opinion of the court, Justice Lopez, says in the opening paragraph, “This case involves statutory interpretation. It does not rest on the justices’ morals or public policy views regarding abortion, nor does it rest on the statute’s constitutionality which is not before us.”

But, you know, just having to say that makes me wonder —

HOLLY: Yeah.

AMANDA: — how much of this really is about someone’s moral or religious views that are being implicated in this decision.

HOLLY: Yeah. If I’m living in Arizona, that’s not giving me much comfort. Well, there’s an article that we want to link to in our show notes from Vox that explains a little bit more about this Arizona law and the history behind it, and it addresses to some extent the role of religion in the developing laws on abortion.

A couple of important things that we noted were that it says that, “Abortion laws of the mid-1800s were the product of discussions among lawyers and doctors and were designed to professionalize abortion services and medicine writ large — a seemingly noble cause, but also one driven by physicians’ self-interests and the desire to both boost (white) women’s birth rates and weaken a nascent feminist movement.

“There was no national abortion debate to speak of. Religion wasn’t yet a major factor in Americans’ views on abortion in the way it is today, and scientists had not yet developed methods to detect pregnancy during the first months of gestation.”

So you see this article is pointing out some things that, yes, make the point that you said, Amanda — that it’s kind of hard to even relate to a law that was enacted at a time that was so foreign to modern developments and the needs of society.

AMANDA: I mean, it’s like placing this statute in some kind of time capsule and importing it into our modern-day context without any kind of regard for what impact that’s going to have on the people who are living in our current society. And so, I mean, that was one of my big takeaways from learning about this and reading the Vox article is that context matters. And when we are living in a completely different scientific and social context that the impact that this old law could have on people is really kind of beyond the imagination.

And so, you know, it will be interesting to see what happens in the next six weeks, Holly, between when the attorney general has said that this law would take effect, whether the legislature might repeal the 1864 law, or if there will be other challenges to it being put into effect.

 

 

Segment 2: The Indiana litigation (starting at 12:12)

HOLLY: Switching from Arizona to Indiana, another state that has quite severe restrictions on abortion, we note there that in the summer of 2022, after the Dobbs decision, the Indiana General Assembly passed a law criminalizing most abortions.

And before the abortion law took effect, a group of plaintiffs filed a complaint that the law violated their rights under the Indiana Religious Freedom Restoration Act, which was passed in 2015. And the plaintiffs are represented by the ACLU. So here in Indiana we have not only another law enacted after Dobbs with very severe restrictions on abortion, but we’re seeing immediately the result of Dobbs in that you’re going to have people looking for other ways to secure the right to an abortion, including making religious freedom arguments.

For those of our listeners who don’t recall, of course, RFRA stands for Religious Freedom Restoration Act, and Indiana passed their statute back in 2015. I remember at the time, Amanda, there was quite a lot of news about that, a little back and forth, political debate, because people are like, Why are you doing this now? I think it was after the Hobby Lobby decision. The state, as I recall, went back and amended the law, which is based on the federal Religious Freedom Restoration Act. But they actually amended it to make clear that it did not apply in a way that would provide exemptions to nondiscrimination laws.

So I was — I hadn’t thought about that Indiana law in a while, and it was interesting to see that it came up this way. Again, the federal Religious Freedom Restoration Act, which was passed back in 1993, in order to provide a statutory basis for a strong Free Exercise rights after the Supreme Court’s decision in 1990, the Employment Division v. Smith case, you had this big federal statute to ensure that when laws were passed that burdened religion, that the government had to show they had a compelling interest before they did that. It basically put a thumb on the scales toward Free Exercise of religion.

But a few years after that, the Supreme Court held that the federal RFRA had gone too far and it did not apply to the states, so immediately thereafter — Amanda, you and I remember this episode in our country’s history in a fight for Free Exercise. A lot of states moved to pass state RFRAs, and other states had similarly strong Free Exercise protections in their state constitutions. And then there was this kind of spurt to have new state RFRAs, including in Indiana in 2015.

What’s new that we’re seeing now is states are taking a look at these protective religious freedom laws in this context of abortion, and that’s simply because there has been such change in the law with the Dobbs decision — such a massive pulling the rug out from under this constitutional right that was taken for granted, to some extent. So that’s been an upheaval in the law. And, of course, in recent decades, there has been this resurgence of Free Exercise law, both under the federal Constitution, but in the states. So it makes sense that we would see some activity in this area.

And, in fact, this change in the law and the change in the landscape is one of the first things that the court noted in this case that we’re going to talk about, and that is a case that’s coming out of the Indiana Court of Appeals. And they noted very early in the case that the United States Supreme Court set the stage for this appeal two years ago when it ruled that the federal Constitution, quote, “does not confer a right to abortion.”

In so ruling, the Dobbs Court placed the ability to regulate abortions not protected by federal law squarely in the states’ laps. The court’s basically saying, We could see this coming.

AMANDA: The opinion goes on to say, “The landmark decision” — meaning Dobbs — “unleashed a torrent of state legislative and judicial activity. Legislatures rushed to enact statutes that incorporated their views on this divisive issue. Just as quickly, individuals and organizations turned to the courts to challenge legislation that did not subscribe to their views of abortion. The citizens in some states even went to the ballot box to amend their constitutions to protect reproductive freedoms.”

And then the court talks about Indiana’s law. It says, “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.”

And so this case arises from these plaintiffs filing a class action complaint for declaratory and injunctive relief, seeking to halt the abortion law’s application to them, and their complaint alleged that the abortion law violated their state RFRA rights.

HOLLY: And, Amanda, I think it will be interesting for our listeners to think about how this comes up. So tell them a little bit about the plaintiffs in this case.

AMANDA: Yeah. So we have particular plaintiffs who are bringing a class action lawsuit. So we have particular people who, if their class is certified, would be representing a much larger group of Indiana residents. But the particular plaintiffs in this case are anonymous plaintiffs, and then an organizational plaintiff, so I’m just going to describe them as the court does here.

“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.’

“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 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.”

And then we have, “Anonymous Plaintiffs 4 and 5, who are a Jewish, same-sex married couple without children, living in Monroe County. Active in their synagogue, they believe, in accordance with their faith, that ‘life begins when a child takes [their] first breath after being born’ and that ‘the life of a pregnant person, including their physical and mental health and wellbeing, takes precedence over the potential for life embodied in a fetus.'”

We also have, “Certain members of Hoosier Jews for Choice, which is a membership organization aimed at advocating reproductive justice, supporting abortion access and promoting bodily autonomy for Hoosiers.”

And for listeners who might not be hardcore basketball fans or who aren’t familiar with the 1980s film by the name “Hoosiers,” Hoosier is just the description for someone who lives in Indiana.

HOLLY: The case has also been certified as a class action covering “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.”

And you can see by this list of plaintiffs that it goes beyond what we’ve discussed before, and that is that in some aspects of Judaism, there are certain times where abortion is mandated. And, of course, it’s a much more complicated issue than we can get into here, but it shows you that the attorneys for the plaintiffs were — you know, they have their plaintiffs, and they don’t all fit in one specific situation. But they are anticipating that this law could affect a variety of people with different religious perspectives on abortion.

And the plaintiffs allege that their sincere religious beliefs — so all of them for different reasons — allege that their sincere religious beliefs direct them to seek pregnancy terminations -– could — that are criminalized by the state of Indiana, and that the state does not have a compelling interest in preventing these religiously motivated health care decisions.

Well, you can imagine that the state pushed back, of course, saying that that’s too speculative, that they don’t know that these plaintiffs will become pregnant, and whether those who do — you know, in what case will their religious beliefs direct them to terminate their pregnancy?

And the court says in response to that — I found quite interesting, it said that, “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.”

So the upshot of this decision is that the court recognized, at least at this injunctive stage, that the plaintiffs could move forward and that this law is put on hold for now.

AMANDA: It’s interesting, Holly, you read from that. I underlined that very sentence, the “We agree that pregnancy, by its very nature, defies simple prediction,” just because it’s — you know, in addition to the legal point that you make, but also a little bit of the absurdity of this, of three judges who are talking about the nature of pregnancy.

And we’ve reflected in our conversations on this in the past, Holly, about just the deeply personal nature of pregnancy and how post-Dobbs we now have courts and legislatures opining and learning much more about reproductive health and talking about it, and just also the immense vulnerability and, I think, bravery of plaintiffs who are willing to put themselves out and raise these claims in courts.

HOLLY: Yeah. And this opinion got a good bit of attention, of course, because Indiana is a conservative state with a strict law on abortion. And as you say, it takes some guts to get out there and to oppose it. But the state trial court granted a preliminary injunction against the law, and then it was affirmed in this appeals court decision.

And the court drew heavily from the federal case, the Burwell v. Hobby Lobby case, because, of course, the Indiana law is patterned on the federal RFRA.

And the Court said this: “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.”

So it’s kind of like, you know, the court’s just not buying it, the state’s quick dismissal of these claims, because it’s looking and saying, you know, the Supreme Court has shown us how religion plays into these decisions. And, of course, again, this decision deals only with Indiana law, only goes up to as high as the Indiana Supreme Court. It is not going to have some wider effect but is certainly worth watching.

Of course, in that section of the opinion, the court, in mentioning Burwell, is talking about Burwell v. Hobby Lobby, the 2015 case where the Court applied the Religious Freedom Restoration Act, the federal statute, to the contraceptive mandate which Hobby Lobby had challenged as applying to them because of their opposition to providing certain contraceptives to their employees, and the Court upheld the application of that statute to Hobby Lobby, saying that they should get the same accommodation that religious institutions had, to avoid having to pay for those contraceptives.

AMANDA: And, you know, there are both — for those who do have a religious viewpoint that requires an abortion in certain cases, there are both promises and limits of a law like this. Obviously, as you note, there are geographic limits that this Indiana appeals court has, but also when you think of it, this is — for those who raised this claim, this does not invalidate the law broadly. And so, you know, I think it is one aspect for people who are looking to protect reproductive health and reproductive freedom, but not the only avenue by any means.

And it will test, I think, the limits of this incredibly broad interpretation of Free Exercise that the Supreme Court started with the Burwell v. Hobby Lobby case and see how consistent — should a claim like this ever make it to the U.S. Supreme Court, it will be interesting to see how consistent the Court is in applying the broader Free Exercise right that it found in that case.

HOLLY: For now, this is how the Indiana Appeals Court summarized the need for the preliminary injunction. They said that, “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 have also 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.”

So there you have it. At the very least what we see is a challenge to these strict laws and approach that recognizes that religion does come into play in the decisions that women make about their reproductive freedom.

It reminds me of Professor Liz Sepper, Amanda, at your alma mater, professor of law at University of Texas, who has been writing about Free Exercise and reproductive rights. And I think what she would say about this is one positive — you know, we can’t overstate its importance. It’s one state, one set of plaintiffs challenging a particular state law and a narrow, although they try not to be too narrow, but a narrow set of plaintiffs to which this decision would apply.

But I think that Professor Sepper would note that it’s important because it does challenge this idea that religion and reproductive rights are always oppositional. And that’s important, because we often hear about the sacred choice to have a child. It’s also important to recognize the sacred choice not to have a child and to have that kind of authority over one’s body and to make those decisions in ways that women do often, including with regard to their religious principles and ideals.

AMANDA: I really agree with that, Holly, and I think another reason that it makes sense for us to talk about this case on Respecting Religion is that it gives a broader view of religion and religious views when it comes to abortion and on the concept of religious liberty. You know, this case was a three-judge panel in the Court of Appeals of Indiana, a unanimous opinion, and one of the justices, Judge Bailey, concurred with a separate opinion.

And it’s at the end of this very long opinion. We can link to the opinion in show notes. It really, I thought, had some important things to say about religious liberty, and Judge Bailey first quotes from the Indiana Constitution and from some prior cases from the Indiana Supreme Court, interpreting those provisions, saying, “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.'”

Judge Bailey then writes, “Yet in this post-Dobbs 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 conception, there is a codification of when life begins, something intensely debated among adherents to various religions. 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 then he goes on, “Indeed, where theologians cannot agree, legislators are ill-equipped to define when life begins.” And so I really appreciated this concurring opinion, and it’s concurring in that it doesn’t have to do necessarily with the state RFRA claim, but rather with the state legislature that has codified one religious view over and above others.

HOLLY: Well, Amanda, in both the oral argument that I watched in this case and in this opinion that we’re discussing, the Court was skeptical of the state saying it had such a compelling interest to apply this law, in light of other parts of Indiana law. It’s clear that they just weren’t going to quickly buy this idea that the state had a compelling interest in protecting a fertilized egg in all situations when there were other areas of Indiana law where that is simply not true.

Regardless, this case is important for us to further think about the complicating narrative of religious freedom and protecting abortion rights in a post-Dobbs world.

That brings us to the close of this episode of Respecting Religion. Thanks for joining us. Remember, send us questions for next week’s show.

AMANDA: For more information on what we discussed, visit our website at RespectingReligion.org for show notes and a transcript of this program.

HOLLY: Respecting Religion is produced by Cherilyn Guy with editorial assistance from Guthrie Graves-Fitzsimmons. Learn more about our work at BJC, defending faith freedom for all, by visiting our website at BJConline.org.

AMANDA: We’d love to hear from you. You can send us your questions at [email protected]. We’re also on social media @BJContheHill, and you can follow me on X, which used to be called Twitter, @AmandaTylerBJC.

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HOLLY: Join us on Thursdays for new conversations Respecting Religion.