The U.S. Supreme Court 2014 decision in Burwell v. Hobby Lobby allowed religious, anti-abortion employers to refuse to cover contraception in their employee health insurance. But an extraordinary April 4 appellate court decision in Indiana turned the conservative Supreme Court’s landmark Hobby Lobby decision into a winning argument for abortion rights.
An extraordinary court decision in Indiana turned the conservative Supreme Court’s landmark Hobby Lobby decision into a winning argument for abortion rights.
The unanimous ruling from the three-judge panel, which found that the state’s abortion ban burdens the religious beliefs of those whose faiths permit abortions, signals the possibility of a long overdue shift in the conservative bias of religious freedom jurisprudence. It also signals the emergence of a partial, albeit untested, argument for people needing an abortion in states that have banned it.
The Indiana case was brought in 2022 by five anonymous plaintiffs of faith and the group Jewish Hoosiers for Choice. They’re seeking a religious exemption from the abortion ban Indiana enacted following the U.S. Supreme Court’s reversal of Roe v. Wade that year. They said the ban violates their rights under the state’s Religious Freedom Restoration Act (RFRA), which, like the federal law the owners of Hobby Lobby successfully relied on to avoid providing contraception coverage, protects religious objectors from laws that “substantially burden” their “sincerely held” religious beliefs.
The plaintiffs argued that their religious doctrine teaches that a fetus is part of a woman’s body, not an independent being with its own rights. The abortion ban, then, violates their religious freedom to decide whether to have an abortion. This argument, which undergirds similar religious freedom lawsuits across the country, including in Kentucky, Missouri and Florida, is a profound pushback against the Christian right’s attempts to assert their position, that life begins at conception and that a fetus is a person, as the only genuine religious belief.
In defending the abortion ban, the state argued that because seeking an abortion is not a mandatory religious ritual for the plaintiffs, they were not entitled to the protections of the state’s RFRA. But the court rejected this argument out of hand, citing the U.S. Supreme Court’s Hobby Lobby ruling as decisive precedent. “The procurement of health insurance is not a mandatory religious ritual, either,” wrote Judge Leanna K. Weissmann (who was appointed to the court by the governor who signed the state’s abortion ban into law). If the owners of Hobby Lobby could engage in religious exercise by refusing to provide coverage for contraceptives they considered abortifacients, the court concluded, then “it stands to reason that a pregnant person can engage in a religious exercise by pursuing an abortion.”
The Indiana Supreme Court will have the final word in the likelihood that the state appeals. Nonetheless, religious liberty scholars see the appellate court decision as an important corrective in a protracted effort to undo the lopsided application of RFRA in favor of Christian conservatives. Elizabeth Sepper, a professor at the University of Texas School of Law and an expert on religious liberty law, told me the decision is “enormously significant,” as it shows “what an even-handed application of religious liberty doctrine looks like.”
Sepper cautioned, though, that even if the state’s high court lets the decision stand, how that decision might be applied is still uncertain. A RFRA-based court injunction against the abortion ban would presumably shield a doctor from being charged with a felony for performing an otherwise illegal abortion. But it is not clear how these scenarios would play out in real life, since doctors would be risking jail, financial penalties and loss of their medical licenses. “There’s a great deal of confusion and concern,” said Sepper, including among doctors who might worry in our current environment about “blowback” and “harassment,” even if the state did not prosecute them.
The decision shows how, in the decade since the Hobby Lobby decision, there’s been a backlash against the Christian right’s efforts to impose their religious beliefs on everyone else. Still, the decision shows how, in the decade since the Hobby Lobby decision, there’s been a backlash against the Christian right’s efforts to impose their religious beliefs on everyone else. The Hobby Lobby case grew out of the Christian right’s broader attack on Obama-era efforts to expand reproductive and LGBTQ rights. The Christian right cast those policies as tantamount to persecution of Christians. With Republicans in control of the House of Representatives following the 2010 midterms, they staged a series of volatile hearings intended to portray Obama as “trampling” on the religious freedom and conscience rights of Christians who opposed contraception and abortion. In the process, those Republicans made it clear that they believed that religious freedom for conservative Christians took precedence over the rights of everyone else. In other words, they believed in religious freedom for me but not for thee. That’s why the Indiana Court of Appeals decision finding religious freedom for those with opposite beliefs on abortion is so momentous. In addition to turning the 2014 Hobby Lobby decision against the Christian right’s position, the Indiana court’s decision also shows that the Christian right’s state-level excesses might be coming back to haunt them. The state RFRA was signed into law by then-Gov. Mike Pence in 2015. There was a frenzy of Christian right efforts that year to craft expansive religious exemptions for opponents of marriage equality as they anticipated the high court’s impending decision in Obergefell v. Hodges, which allowed same-sex couples to marry. But these religious dogmatists apparently did not anticipate that their RFRA would provide potent legal ammunition to people with religious beliefs different from their own following their criminalization of abortion. Dobbs, which overturned Roe, was a high watermark for the Christian nationalist activists who seek to make their “biblical worldview” the law of the land. The Indiana decision is a hopeful sign that the tide might be turning, with courts ready to hear how that particular “biblical worldview” infringes on the rights of other Americans, including religious people whose beliefs have been sidelined by the Christians right’s quest to monopolize religious freedom for a right-wing minority.
Sarah Posner
Sarah Posner is the author of "Unholy: How White Christian Nationalists Powered the Trump Presidency, and the Devastating Legacy They Left Behind." 
