Religious Right to Abortion: A Recent U.S. Appeals Court Decision

Frederick Mark Gedicks is Guy Anderson Chair and Professor of Law at the J. Reuben Clark Law School, Brigham Young University.

An appeals court in the U.S. state of Indiana recently found a religious right to abortion under the state’s religious freedom statute (Individual Members of the Med. Licensing Bd. v. Anonymous Plaintiff 1 (Indiana Ct. App. Apr. 4, 2024)). However startling its holding, the court’s analysis is doctrinally orthodox, closely following U.S. Supreme Court precedent applying the First Amendment’s Free Exercise Clause and the 1993 federal Religious Freedom Restoration Act to claims for religious exemptions.

The Indiana court refused to second-guess the claim that Indiana’s restrictive abortion law significantly interfered with the plaintiffs’ ability to live their religion, just as the U.S. Supreme Court refused to question Hobby Lobby’s claim that health insurance coverage of certain contraceptives violated its religious beliefs about the beginning of human life.

Next, the court rejected the state’s claim that the abortion law furthers its compelling need to protect human life after fertilization, noting the law’s many exceptions: for the disposal of fertilized ova in in vitro fertilization and for abortions when the life or health of the pregnant person is at risk, when pregnancy results from rape or incest, or when the fetus suffers from a “lethal anomaly.”

Finally, the court rejected the state’s claim that the restrictive abortion law was the least-restrictive means of achieving those interests. Noting that the law permits abortion in circumstances that prioritize the life and health of the pregnant person, the court found that the state could not deny a religious exemption that also prioritized life and health.

In short, Medical Licensing Board is a garden-variety application of U.S. Supreme Court precedent governing religious exemptions.