From Anonymous Plaintiff 1 v. Individual Members of Medical Licensing Bd. of Ind., decided yesterday by Marion County (Indiana) Superior Court Judge Heather Welch; Josh Blackman has just posted on the subject, but I thought I'd put up my post as well, because it quotes at greater length from the decision and offers some thoughts of my own. First, my thinking, which I think echoes what I blogged about in May:
[1.] If someone sincerely believes that she is obligated by her religion, or even motivated by her religion, to get an abortion under certain circumstances (which some of the plaintiffs did indeed assert, citing their understanding of Judaism), then she would indeed have a strong claim under a state Religious Freedom Restoration Act, such as Indiana's RFRA. By forbidding her from doing what her religion is telling her to do (or by forbidding others from helping her in this task, when their help is necessary), the state abortion ban is substantially burdening her religious exercise. The government therefore has to show that denying the exemption really is narrowly tailored to a compelling government interest. That's what the statute that the Indiana legislature enacted (RFRA) says, and a court must apply it.
[2.] One way of thinking about this is to consider drug laws. Courts have generally rejected the view that the Constitution includes a right to bodily autonomy that protects the right to use drugs. But when someone feels a sincere religious obligation or motivation to use a particular kind of drug, he can seek an exemption under a RFRA—and might indeed win, if the court concludes that granting the exemption wouldn't unduly undermine a compelling government interest. And indeed the plaintiffs in Gonzales v. O Centro (2006) did win under the federal RFRA as to the hallucinogen hoasca.
