Religious Freedom and Abortion

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Back in 2022, a set of anonymous plaintiffs and a group called Hoosier Jews for Choice filed a state court lawsuit arguing that Indiana’s abortion ban violates their religious freedom rights. One Jewish plaintiff, for example, believes that abortion is required when a person’s physical, mental, or emotional health is in danger; another plaintiff believes she has a personal spiritual obligation, rooted in her religious beliefs about autonomy, to determine whether to remain pregnant.

An Indiana trial court sided with the plaintiffs earlier this month, ruling that if the state’s ban on abortion substantially burdens an individual’s exercise of their religion, then a state law providing heightened protections for religious freedom exempts them from the ban. The judge permanently enjoined the operation of the law as applied to this class of impacted people.

There’s a lot to say about this ruling — which is already being appealed — and an excellent State Court Report analysis by UC Davis Law Professor Mary Ziegler is a good place to start. What strikes me is how this case fits into broader legal developments about the meaning of religious free exercise. It’s an issue that has seen significant (and repeated) interventions by the Supreme Court, Congress, state legislatures, and state courts — along with cameos by the NCAA, Miley Cyrus (I’ll explain!), and many other political, cultural, and business figures. 

For our purposes, the story begins with a 1990 U.S. Supreme Court case called Employment Division v. Smith, in which Oregon sought to apply a law banning peyote to a Native American church that used the drug for sacramental purposes. Breaking with precedent, the Court ruled that the First Amendment offered no protections when a neutral, generally applicable law burdens religious activity. 

Smith prompted rare bipartisan outrage and consensus that the Court had gotten it wrong. In 1993, Congress responded by passing the Religious Freedom Restoration Act (RFRA) with near-unanimous support. The law, which purported to reinstate pre-Smith standards, requires that government actions that burden religious exercise be narrowly tailored to achieve a compelling governmental interest. But in 1997, the Supreme Court ruled in City of Boerne v. Flores that Congress had exceeded its constitutional authority in applying RFRA to the states. 

City of Boerne prompted a wave of activity in state legislatures, codifying RFRA’s protections into state law. Congress also passed another law, the Religious Land Use and Institutionalized Persons Act (RLUIPA), that applied RFRA’s standard to state prisoners and state land use rules as a condition of receiving federal funds. Today, all 50 states are covered by RLUIPA, and 29 states have adopted their own RFRAs. In several other states, like Massachusetts, state supreme courts have interpreted their state constitutions to offer greater free exercise protections than the U.S. Constitution. 

But what began with broad bipartisan consensus had taken a sharp turn by the mid-2010s, as conservatives objecting to protections for LGBTQ+ rights, contraception and abortion access, and more began applying religious liberty arguments with increasing frequency. The Supreme Court entered the fray again in 2014, when it dramatically expanded RFRA’s remit in its Burwell v. Hobby Lobby Stores ruling. The Court determined that Hobby Lobby, a closely held for-profit corporation, could deny its employees health coverage for contraceptives that was otherwise required by the Affordable Care Act, based on the religious objections of the corporation’s owners. 

In this new landscape, Indiana passed its own RFRA in 2015 under a cloud of controversy and boycotts. Critics argued that the law, which included provisions applying its protections to corporations and other businesses, could open the door to religiously motivated LGBTQ+ discrimination. NBA players, the CEO of Apple, the NCAA, Miley Cyrus, and many others spoke out against it, while companies, unions, and a number of cities and states announced boycotts. In the face of broad outrage, Indiana amended its RFRA to add explicit antidiscrimination protections.

In 2022, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization that there is no federal constitutional right to abortion started yet another chapter for state RFRAs. After dozens of states, including Indiana, instituted bans or other abortion restrictions in the wake of Dobbs, several saw lawsuits brought on religious liberty grounds. 

The Supreme Court’s recent jurisprudence, which has extended religious liberty protections under RFRA far beyond the pre-Smith standard, has loomed large in these cases. For example, an Indiana Court of Appeals ruling in an earlier stage of this case relied heavily on the Supreme Court’s reasoning in Hobby Lobby. While Indiana defended its law by arguing that abortion isn’t a mandatory religious ritual, the court pointed out that “procurement of health insurance is not a mandatory religious ritual, either.” 

Both the trial and appellate courts also pointed to other legal exceptions to the state’s abortion ban, arguing that Indiana couldn’t assert a compelling interest in denying an exemption to the plaintiffs while it also providing one to others. “The Abortion Law would allow a plaintiff to seek an abortion if her pregnancy were the result of rape, but not if it were mandated by her religious beliefs,” the trial court observed.

Religious conscience has been given an increasingly wide berth in challenges to generally applicable laws by both the Supreme Court and many states. The Indiana case tests the boundaries of these rulings, while offering a reminder that religious conscience flows in many directions.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Alicia Bannon, Religious Freedom and Abortion, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (March 19, 2026)