Friend of the Court Brief Supporting Indiana's Abortion Law Filed

Indianapolis, Indiana - On Monday, Notre Dame Law School Professors Stephanie Barclay and Richard Garnett filed an amicus (or “friend of the court”) brief in support of Indiana's current abortion law. The brief they wrote supports the Indiana Attorney General's efforts to ask the Indiana Supreme Court to review a court of appeals decision which prevents enforcement of Indiana's abortion law against plaintiffs requesting a religious exemption from the law.

The Indiana abortion law at issue would prohibit most abortions. However, this law provides some exceptions—permitting abortions when the mother's life or health is at risk or in the case of rape, incest, or a lethal fetal anomaly. The abortion law also does not prevent in vitro fertilization. Indiana's legislature sought to protect and preserve human life through these abortion restrictions, while providing limited exceptions for relatively rare or life threatening situations.

Indiana's abortion law had been previously upheld by the Indiana Supreme Court. But in this case, several people argued that their religious beliefs directed them to obtain abortions that the law prohibited. Indiana's Religious Freedom Restoration Act prevents the government from “substantially burdening” a person's exercise of religion unless the government can show that the burden furthers a “compelling government interest” and is the “least restrictive means” to further that interest. The plaintiffs argued that Indiana would violate RFRA if it enforced its abortion law against them.

The court of appeals agreed—finding that these abortions qualified as a “religious exercise,” and that the state did not establish a “compelling interest”nor did it show that the abortion law was the “least restrictive means” to further the state's interest.

Professors Barclay and Garnett are legal scholars whose work focus on religious liberty and how courts should interpret religious exemption claims. Professors Barclay and Garnett argued that the court of appeals misunderstood the law applicable to its analysis of whether the abortion law violates religious liberties. First, the professors argued that the court of appeals misapplied the relevant law because Indiana's abortion law would indisputably result in fewer human lives saved if religious exemptions were granted.

Second, the professors disputed the court of appeals finding that the exceptions to the abortion law required the state to also grant religious exemptions. The court's failed logic would guarantee that no law with exceptions could ever survive a constitutional challenge—this circular logic cannot be supported under the law.

Finally, the professors argued that the court of appeals' decision would lead to other absurd results. For instance, the court's bad reasoning would support an argument that a self-defense exception to homicide would mean that religious exemptions for honor killings could not be prohibited.

“Indiana's abortion law is designed to protect as many human lives as possible, while still recognizing very limited exceptions,” stated James Bopp, Jr., counsel for Professors Barclay and Garnett. “As a long-time advocate for pro-life legislation and for religious liberty, I was honored to support the professors' efforts to demonstrate the flawed legal reasoning exhibited by the court of appeals.”