Human Sacrifice Is Now Legal in Indiana
Quite a headline, I know. We try not to be the clickbaity sort here at Secular Pro-Life. But an Indiana court has, in fact, opened the door to religiously motivated legal homicides.
A little background: We are talking about a RFRA challenge to Indiana’s abortion law. RFRA (short for the Religious Freedom Restoration Act) is a law adopted by the federal government and numerous states, including Indiana. It governs when people can obtain religious exceptions to generally applicable laws. For example, a prison may have a generally applicable policy requiring inmates to be clean-shaven, but a Muslim inmate with a sincere religious belief that he must grow his beard can obtain an exception.
In the Dobbs era, pro-abortion activists got creative and brought RFRA lawsuits against pro-life laws in several states. They argued that since some religious groups support abortion, adherents of those religions should be able to disregard pro-life legislation.
There are limits, however, and one of them is that RFRA won’t apply if the state has a “compelling interest” in the law. A prisoner’s beard length is really not that important in the grand scheme of things. But when a human life is on the line, the state’s compelling interest will prevail. Jehovah’s Witnesses have filed unsuccessful lawsuits to avoid giving medically necessary blood transfusions to their children. Since the state has a compelling interest in saving a child’s life, those challenges were doomed. Abortion laws are also motivated by compelling interest in children’s lives, which Dobbs allows. So case closed, right? I certainly thought so.
The Court of Appeals of Indiana begs to differ. It issued an opinion enjoining Indiana’s abortion law (that is, putting it on hold) while the pro-abortion RFRA case proceeds. A court of appeal will only do that if it believes the plaintiffs are likely to win. And the reasoning it used should horrify every American, whether pro-life or pro-choice.
The opinion first addresses various procedural issues, including standing and class certification. The heart of the opinion begins at paragraph 120, and the most worrisome passage starts at paragraph 141:
The State has not shown that its claimed compelling interest in protecting the potential for life is satisfied by denying Plaintiffs’ religious-based exception that prioritizes a mother’s health over potential life, given that other exceptions are allowed based on the same prioritization—that is, the exceptions applicable when the pregnancy poses a “serious health risk” or termination would “save the pregnant woman’s life.” [. . .]
This weakness in the State’s argument is even more apparent when the Abortion Law’s other exceptions are considered. First, the Abortion Law does not apply to in vitro fertilization. See Ind. Code § 16-34-1-0.5. That suggests the Abortion Law does not criminalize zygote destruction, although the State is claiming a compelling interest that begins the moment an egg is fertilized.
The Abortion Law also allows abortions when the pregnancy resulted from rape or incest or when the fetus has been diagnosed with a lethal fetal anomaly so long as other statutory conditions are met. Ind. Code §§ 16-34-21(a)(1)(A)(ii), (2)(A), (3)(A). The State does not explain why a victim of rape or incest is entitled to an abortion, but women whose sincere religious beliefs direct an abortion are not. The State also does not explain how allowing an abortion of a “fetus diagnosed with a lethal fetal anomaly”—as is conditionally permitted by the Abortion Law—advances the State’s alleged compelling interest in protecting potential life.
In conclusion, because the Indiana legislature allowed some “hard case” exceptions, its interest in protecting prenatal human life is not truly compelling, so it must grant RFRA exceptions too. This decision completely undermines the incentive for legislators to compromise on the most hotly debated issue of our era. If a state permits a single legal abortion, by this logic, it must permit abortions for anyone who claims a religious motivation. It’s an abolitionist’s dream.
And here’s the kicker: they forgot that Indiana has similar exceptions to homicide.
Indiana Criminal Code § 35-41-3-2 permits the use of “deadly force” if “the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony” or “reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.” Those individuals are exempt from murder charges. So are executioners, since Indiana is a death penalty state.
Because Indiana has legislated at least two exceptions to its homicide law, Indiana does not have a compelling interest in enforcing that law against religiously motivated murderers. Let the legal human sacrifices and honor killings begin!
If you happen to be a criminal defense attorney in Indiana, with a murder defendant whose case is open-and-shut, give this argument a try. “Your Honor, my client had to kill his wife when she threatened to leave him; divorce is against his religion.” What do you have to lose? Until the state supreme court weighs in or the state legislature repeals RFRA, it’s open season.
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