Indiana Supreme Court Lets Preliminary Injunction Against Abortion Ban When It Violates Religious Beliefs Stand

Last week, the Indiana Supreme Court, by a vote of 3-2, refused to review at this stage in the litigation a preliminary injunction entered by lower courts in a suit claiming that the state's Religious Freedom Restoration Act is violated when plaintiffs are prohibited by Indiana's abortion law from obtaining an abortion that their religious beliefs direct them to obtain. (See prior posting.) In Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1, (IN Sup. Ct., Dec. 10, 2024), the Order denying the petition to transfer the case to the Supreme Court was not accompanied by a majority opinion. However, Justice Molter joined by Justice Rush filed a concurring opinion saying in part:

This case involves an unusual preliminary injunction—the trial court temporarily enjoined state officials from enforcing the State’s abortion law, but only for a particular group of women who are not pregnant and therefore are not seeking an abortion. The Court of Appeals concluded that the trial court didn’t exceed its discretion by entering a preliminary injunction while the case continues to be litigated. But the panel also directed the trial court to narrow the preliminary injunction on remand. So thus far, this case is not stopping the defendants from doing anything. And we don’t yet know if it ever will, including because the defendants may ultimately prevail in the lawsuit....

I conclude the more prudent course is for the Court to review the case after a final judgment rather than following a preliminary injunction, which remains a work in progress and subject to more deferential appellate review. In essence, it is better that we review the trial court’s final answer rather than its first guess....

Justice Slaughter, joined by Justice Massa, filed a dissenting opinion, saying in part:

Our denial of transfer means the trial court’s “final answer” will lack the benefit of our current thinking. By saying nothing, we may leave the misimpression that the injunction’s only vulnerability is its scope. As my colleagues acknowledge, this case “presents transfer-worthy issues with previously undecided questions of statewide importance”.

Indiana ACLU issued a press release announcing the decision.

7th Circuit Vacates Injunction Against Indiana's Ban on Gender Transition Treatment for Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Nov. 13, 2024), the U.S. 7th Circuit Court of Appeals in a 2-1 decision reversed a federal district court's preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. Rejecting the district court's conclusion that the treatment ban violates the Equal Protection Clause, the 7th Circuit majority held that the law need only meet the rational basis test. The court said in part:

The only way SEA 480 implicates sex at all is that the medical treatment at issue is sex specific—it denies each sex access to the other’s hormones. A physician could, if not for SEA 480, prescribe two medical treatments: one exclusively to girls with gender dysphoria—testosterone; and one exclusively to boys with gender dysphoria—estrogen.....

When a state regulates a “medical procedure that only one sex can undergo,” the courts apply rational-basis review “unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’”...

Bostock does not apply to every use of the word “sex” in American statutory and constitutional law. The case decided an interpretive question about Title VII’s reach. Title VII does not apply here, so neither does Bostock.

The majority also rejected the claim that the Indiana law violates the Due Process right of parents to make medical decisions for their children because it does not carve out an exception for treatment when a parent consents. The majority said in part:

SEA 480 is supported by a rational basis.... [P]rotecting minor children from being subjected to a novel and uncertain medical treatment is a legitimate end. And if Indiana had included a parental-consent provision, the exception would swallow the rule...

Finally the majority rejected the claim that the statute's ban on aiding and abetting violates physicians' free speech rights, saying in part:

... [W]hen the physicians and the state do not see eye-to-eye on treatment—and when the state validly regulates that treatment—the state must be able to preclude its physicians from using their authority to help the state’s citizens access the treatment. Otherwise, the physicians would hold a veto over the state’s power to protect its citizens. SEA 480’s secondary liability provision covers unprotected speech, and it reasonably relates to its primary liability provision, which itself is a reasonable regulation.

Judge Jackson-Akiwumi filed a dissenting opinion focusing primarily on the ban on Indiana physicians assisting minors in obtaining treatment in other states, saying in part:

The majority opinion holds that, insofar as the aiding and abetting provision regulates speech, it reaches only unprotected speech—either speech integral to unlawful conduct or speech incidental to regulated conduct. Our law, however, defies both conclusions....

So, Indiana can realize its objectives by enacting a law and punishing those who violate it; it cannot accomplish its objectives by punishing speech that somehow relates to the purpose of a state law, yet amounts to no criminal or civil primary violation.

ADF issued a press release announcing the decision.

7th Circuit Hears Arguments on Standing to Challenge Indiana Abortion Law

Last week (Oct. 24) the U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Satanic Temple, Inc. v. Rokita, (Docket No. 23-3247). In the case, an Indiana federal district court dismissed The Satanic Temple's challenge under Indiana's Religious Freedom Restoration Act to the state's ban on abortions. The court dismissed for lack of standing, finding that TST failed to identify any of its members who are pregnant and has no clinic of its own operating in Indiana. (See prior posting.)

Indiana Trial Court Rejects "As Applied" Challenge to State Abortion Restrictions

Last year, Indiana's Supreme Court rejected a facial challenge to the state's 2022 abortion law. In that case, the Indiana Supreme Court held:

Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. (See prior posting.)

Plaintiffs then filed an "as applied" constitutional challenge to the Indiana law. In Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc. v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., Sept. 11, 2024), an Indiana state trial court now rejected that challenge.  The court said in part:

Plaintiffs have not shown a that S.B.1 materially burdens the rights of any specific patient or well-defined class of patients to access constitutionally protected abortion care. Significant and compelling evidence regarding the policy implications of S.B. 1-- and its effect on medical professionals in particular-- was presented. However, the Court cannot substitute its own policy preferences for that of the Indiana General Assembly and the Court limits its examination to the General Assembly's constitutional authority post-Planned Parenthood. Plaintiffs have not shown an instance where an abortion is necessary to treat a serious health risk but would also fall outside of the Health and Life Exception.  Additionally, Plaintiffs have not demonstrated that the Hospital Requirement is materially burdensome to constitutionally protected abortion access, nor that it fails rational basis review as to statutorily authorized (but not constitutionally protected) abortions.

Liberty Counsel issued a press release announcing the decision.

Teaching of Evolution Does Not Violate Establishment Clause

In Reinoehl v. Penn-Harris-Madison School Corporation, (SD IN, Aug. 30, 2024), an Indiana federal district court held that teaching the theory of evolution in public schools does not violate the Establishment Clause. The court said in part:

We find that Plaintiffs have failed to allege an Establishment Clause violation here because "it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause." ...

Nonetheless, according to Plaintiffs, "[e]volution promotes positions taken by advocates of Atheism," embodies "all the tenets of atheistic religious belief[,] and fail[s] to follow scientific laws . . . ." Plaintiffs thus "perceive" that the teaching of evolution in public schools "convey[s] a governmental message that students should subscribe to Atheism."... Despite Plaintiffs' assertions to the contrary, the purported similarities between evolution and atheism do not render the teaching of evolution in public schools violative of the Establishment Clause, which has never been understood to prohibit government conduct that incidentally "coincide[s] or harmonize[s] with the tenets of some or all religions."...

Christian Released-Time Education Provider Sues Foe for Copyright Infringement

LifeWise, Inc. is a Christian nonprofit organization that provides released-time religious education to public school students where state law permits. It uses a copyrighted curriculum which it has developed.  Last week it filed a copyright infringement suit in an Indiana federal district court against Fort Wayne parent Zachary Parrish who was a creator of a Facebook group and a website opposing use of the LifeWise curriculum.  Parrish's website contends that "Lifewise Academy is spreading Evangelical Christianity, Purity Culture, Christian Nationalism, homophobic beliefs, transphobia, and hateful rhetoric to the youngest of our children."  The complaint (full text) in LifeWise, Inc. v. Parish, (ND IN, filed 7/2/2024), alleges in part:

30. ... Mr. Parrish signed up online to volunteer for LifeWise. 

31. ... Mr. Parrish does not support LifeWise’s mission. Instead, his goal was to gather information and internal documents with the hope of publishing information online which might harm LifeWise’s reputation and galvanize parents to oppose local LifeWise Academy chapters in their communities. 

32. ... [A]fter submitting his fraudulent volunteer application, Mr. Parrish improperly gained access to LifeWise’s information storage systems, downloaded internal LifeWise documents, and posted them to his Website. He also improperly obtained and posted a digital copy of the entire LifeWise Curriculum.

33. On April 9, 2024, LifeWise’s attorney sent Mr. Parrish a cease and desist letter informing him of his infringement and requesting he remove LifeWise’s internal documents, which are currently unregistered works, from the Website. 

34. Mr. Parrish responded by emailing a meme stating: “it’s called fair use bitch.”

WOSU Public Media and Cleveland.com report on the lawsuit.

6 More States Fend Off Enforcement of Title IX Transgender Discrimination Rules

Four days after a Louisiana federal district court enjoined the Department of Education from enforcing its new sex-discrimination rules under Title IX against Louisiana, Mississippi, Montana and Idaho (see prior posting), a Kentucky federal district court issued an opinion barring enforcement against Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia which were plaintiffs in the case. DOE's new rules interpret the Title IX ban on sex discrimination to include discrimination against transgender students and faculty by institutions receiving federal financial assistance. Intervenors in the Kentucky case are an organization of Christian educators and a cisgender high school girl who objects to a transgender female who was on her Middle School track team. In State of Tennessee v. Cardona, (ED KY, June 17, 2024), the court in a 93-page opinion said in part:

The Department’s new definition of “discrimination on the basis of sex” wreaks havoc on Title IX and produces results that Congress could not have intended....

For purposes of Title IX, “sex” is unambiguous.  Therefore, there is no “implicit delegation from Congress” to the Department to change or expand its meaning.... But even if the word were ambiguous, there would be significant reason for pause before assuming that Congress “had intended such an implicit  delegation.”...  Education is one of the most important functions of state and local governments and is an area where states “historically have been sovereign.” ...  Accordingly, it is unlikely that Congress would have intended to delegate the authority to deviate from Title IX’s original purpose “in so cryptic a fashion.”...

The major questions doctrine assumes that Congress speaks clearly when it delegates to an agency the authority to make “decisions of vast economic and political significance.”...

The court also concluded that the new rules violate teachers' free speech rights, saying in part:

... [P]rivate and public institutions, as well as the students, faculty, and staff therein, will be forced to convey a particular message that may contradict moral or religious values....  For example, the Final Rule’s definition of harassment will likely compel “students and teachers to use ‘preferred’ rather than accurate pronouns.” ...

It is unclear how the Government’s articulated position can be seen as anything less than a tacit endorsement of a content-based heckler’s veto So long as the offended individuals complain with sufficient vigor, the refusal to abide by preferred pronouns can be deemed harassment and exposes a recipient of Federal funds to liability under Title IX....

The court also focused on parental rights and privacy rights, saying in part:

Although the Final Rule gestures at retaining a certain role for parents, it does not provide that parental opposition to their child’s selective gender identity requires schools to exempt that student from Title IX’s new mandate.  To the contrary, it implies that Title IX could supersede parental preferences about a child’s treatment depending on the case.

... [D]espite society’s enduring recognition of biological differences between the sexes, as well as an individual’s basic right to bodily privacy, the Final Rule mandates that schools permit biological men into women’s intimate spaces, and women into men’s, within the educational environment based entirely on a person’s subjective gender identity.  This result is not only impossible to square with Title IX but with the broader guarantee of education protection for all students.

ADF issued a press release announcing the decision.

Indiana Suit Seeks Release of Reports from Abortion Providers

Suit was filed last week in an Indiana state trial court by an anti-abortion organization objecting to the state Health Department's new policy of releasing only aggregate data from Termination of Pregnancy Reports filed by abortion providers. The organization seeks continued release of individual reports (which do not contain information identifying patients) in order to identify violations of health or safety standards by providers.  The complaint (full text) in Voices for Life v. Indiana Department of Health, (IN Super. Ct., filed 5/1/2024), alleges in part:

On April 11, 2024, Indiana Attorney General Todd Rokita issued an Official Opinion 2024-2. Exhibit 14. In it he rejected the Public Access Counselor’s informal opinion (23-INF-15) asserting that TPRs are patient medical records exempt from disclosure under I.C. § 5-14-3-4(a)(9), and set forth reasons why TPRs are not exempt from disclosure under the APRA on the theory they are patient records....

IDOH’s refusal to provide access to TPRs deprives private citizens of their role in petitioning the Attorney General to investigate cases that suggest a termination of pregnancy was unlawful. Complaints by members of the public are a condition precedent to the Attorney General’s exercise of his lawful authority....

Because it frustrates needed investigation into potentially unlawful abortions, IDOH’s refusal to disclose TPRs to Plaintiffs places human lives at risk. It also frustrates Voices For Life’s mission to protect the lives of mothers and the unborn. These results of the Public Access Counselor’s Informal Opinion are the opposite of what the statute intends in mandating creation and filing of TPRs. The Court must not allow this situation to continue.

Thomas More Society issued a press release announcing the filing of the lawsuit.

Accommodating Teacher's Anti-Transgender Beliefs Created Undue Hardship for School Under Title VII

In Kluge v. Brownsburg Community School Corporation, (SD IN, April 30, 2024), an Indiana federal district court in a 46-page opinion that sets out extensive factual background information, dismissed an orchestra teacher's Title VII claim that the school had failed to reasonably accommodate his religious objections to referring to transgender students by their preferred names and pronouns. The school had initially permitted the teacher to refer to students by their last names only, but later withdrew that accommodation and forced the teacher's resignation. A primary issue in the case was whether continuing to allow a last-names-only accommodation would create an "undue hardship" for the school under the Supreme Court's definition of that term in its 2023 decision in Groff v. DeJoy. Finding that it would, the court said in part:

BCSC's business is "educating all students," which it achieves by "fostering a learning environment of respect and affirmation."...  Part of that is BCSC's mission to "afford[] dignity and empathy toward transgender students."...  Parents, medical professionals, administrators, and many students all agree that pursuing that mission would require transgender students to be addressed by their preferred names and pronouns....

Lest there be any doubt about disruption, Mr. Kluge himself believed that the Last Names Only Accommodation would result in disruption and indeed was encouraged by it.  He explained to Dr. Daghe that far from resigning, he was "encouraged all the more to stay." ...  After all, he believed, his "persecution" was "a sign that [his] faith as witnessed by using last-names-only . . . was being effective."...  Faced with Mr. Kluge's own statements—"pleading" with the school to avoid going down the "transgender path," seeking to discuss with students their "eternal destination," and hoping to stay because his "persecution" surrounding the Last Names Only Accommodation was being "effective"—complaints from others were hardly necessary.  While the Last Names Only Accommodation might have been intended as neutral, it ultimately was perceived as intentional....

As the Supreme Court held in Groff, undue hardship is to be viewed within the context of a particular business, not a particular employee.  The Court compares the cost to BCSC's mission, not Mr. Kluge's.  BCSC could either support its transgender students in pursuit of its mission and comply with the law, or accede to Mr. Kluge's accommodation and risk harm to students and the learning environment and/or substantial and disruptive litigation.... The law of Title VII does not require BCSC to continue an accommodation that actually resulted in substantial student harm, and an unreasonable risk of liability, each sharply contradicting the school's legally entitled mission to foster a supportive environment for all.  The Last Names Only Accommodation was an undue burden to BCSC as a matter of law.....

New Indiana Law Strengthens Parents' Right to Have Children Attend Released-Time Religious Instruction

Last week, Indiana Governor Eric Holcomb signed House Bill 1137 (full text) which strengthens parents' rights to have their children attend up to two hours per week of released-time religious instruction. Previously Indiana law permitted, but did not require, a public school to honor parents' requests for their children to attend up to two hours per week of religious instruction provided by a church or other religious educational organization. As amended, the law now requires the principal to allow attendance at up to two hours of religious instruction when a parent has requested it. The law calls for the principal, the parent and the religious school to work cooperatively in finding the least disruptive time for the religious instruction. ADF issued a press release on the new legislation.

Indiana Governor Vetoes Antisemitism Bill for Omitting Examples in Widely-Adopted Definition

As previously reported, earlier this month the Indiana legislature passed House Enrolled Act 1002 which would amend the state Education Code to specifically protect against antisemitism in public schools and colleges. The bill adopts the International Holocaust Remembrance Alliance's Working Definition of Antisemitism, but, in a controversial compromise, excludes examples given by IHRA that, among other things, indicate when criticism of Israel amounts to antisemitism. As reported by JNS, that exclusion led Jewish groups to encourage Governor Eric Holcomb to veto the bill, which he did on Monday. His veto message (full text) said in part:

While I applaud the General Assembly's effort to address and define antisemitism, I cannot agree with the outcome. The language that emerged in the final days of the session fails to incorporate the entire International Holocaust Remembrance Alliance ("IHRA") definition and its important contemporary examples. Additionally, the confusing language included in the bill could be read to exclude those examples....

However, I also refuse to leave a void as to Indiana's stance on antisemitism. That is why I am happy to share that I have also signed a proclamation reiterating that Indiana condemns all forms of antisemitism and ensures we join numerous states and countries by supporting the entire IHRA definition with its inextricable examples....

The Governor's lengthy Proclamation (full text) says in part:

Whereas, the Working Definition provides a clear, comprehensive and non-legally binding definition that can be used to determine contemporary manifestations of antisemitism.... 

The State of Indiana condemns antisemitism and stands in solidarity with the Jewish community in the face of this pernicious and insidious hatred.

While the Proclamation makes clear that its embrace of the IHRA Working Definition includes its examples, the Proclamation makes no explicit mention of criticism of Israel.

Certiorari Denied in Case of Anorexic Transgender Teen Placed Under State's Care

The U.S. Supreme Court today denied review in M.C. v. Indiana Department of Child Services, (Docket No. 23-450, certiorari denied, 3/18/2024) (Order List). In the case, an Indiana state appellate court upheld the removal to state custody of a 16-year-old transgender child who was suffering from anorexia. The teen's parents, because of their Christian religious beliefs, refused to accept their child's transgender identity. The appellate court also upheld an order barring the parents from discussing the child's transgender identity during visitation.  (See prior posting.)  USA Today reports on the Supreme Court's action.

Custody Order Barring Father from Taking Child to His Church Upheld

In Bardonner v. Bardonner, (IN App., March 12, 2024), the Indiana Court of Appeals held that a father's free exercise rights were not infringed in any way by a provision in a custody order that gives his former wife custody of their child and the sole right to determine the child's religious training.  At issue is a trial court order that provides in part:

Father shall NOT permit the child to attend any All Saints Orthodox Church service, Sunday school, social event, any event located at the church, any event sponsored in whole or in part by All Saints Orthodox Church; nor any private events hosted by a member of All Saints Orthodox Church....

The court said in part:

The bottom line is that Mother has the exclusive authority to dictate Child’s religious training, and she has decided that Child shall not participate in Father’s church. Mother does not need to explain her reasons or justify her decision in any way.

Finally, we note that it was Father’s own violations of previous court orders, which were less restrictive on this issue, that led the trial court to impose the current prohibition against taking Child to even private functions hosted by members of Father’s church. Given the trial court’s broad discretion in family matters, we decline Father’s invitation to find an abuse of that discretion here. 

In sum, the trial court’s order does not violate Father’s First Amendment rights; nor is it erroneous for other reasons.

Indiana Legislature Passes Bill Barring Antisemitism in Public Schools and Colleges

On Friday, the Indiana legislature gave final passage to House Bill 1002 (full text) which amends the state Education Code to specifically protect against antisemitism in public schools and colleges.  The bill, as finally enacted, defines antisemitism by adopting the text of the International Holocaust Remembrance Alliance's definition, but, in a compromise, excludes examples given by IHRA that, among other things, indicate when criticism of Israel amounts to antisemitism.  AP reports on the bill's passage, discussing the compromise in greater detail. The bill now goes to Governor Eric Holcomb for his signature.

7th Circuit Reinstates Indiana Ban on Gender Affirming Care For Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Feb. 27, 2024), the U.S. 7th Circuit Court of Appeals stayed a preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. The preliminary injunction was granted by an Indiana federal district court in June 2023 (full text of district court opinion). The 7th Circuit issued its Order lifting the injunction, saying that an opinion will follow. In a press release, the ACLU called the 7th Circuit's action "a heartbreaking development for thousands of transgender youth, their doctors, and their families." Indiana Attorney General Todd Rokita, in a post on X (formerly Twitter) said in part: "We are proud to win this fight against the radicals who continue pushing this horrific practice on our children for ideological and financial reasons." Indy Star reports on the case.

Certiorari Denied In Transgender Bathroom Case

Yesterday, the U.S. Supreme Court denied review in Metropolitan School District v. A.C., (Docket No. 23-392, certiorari denied 1/16/2024) (Order List). In the case (A.C. v. Metropolitan School District, (7th Cir., Aug. 1, 2023)) the U.S. 7th Circuit Court of Appeals-- invoking Title IX and the Equal Protection Clause-- affirmed an injunction issued by an Indiana federal district court ordering a school to grant a transgender boy access to boys' rest rooms. ACLU issued a press release on the Supreme Court's action.

Appeals Court Hears Religious Challenges to Indiana Abortion Restrictions

On Wednesday, the Indiana Court of Appeals heard oral arguments in Individual Members of the Medical Licensing Board of Indiana et al. v. Anonymous Plaintiff 1. (Video of full oral arguments.) In the case, an Indiana state trial court preliminarily enjoined the state from enforcing Indiana's law restricting abortions against plaintiffs whose religious beliefs permit or require abortions in situations not allowed under Indiana law. (See prior posting.) The trial court also certified the case as a class action. (See prior posting.) Indy Star reports on the oral arguments.

Satanic Temple Lacks Standing to Challenge Indiana Abortion Ban

 In The Satanic Temple, Inc. v. Rokita, (SD IN, Oct. 23, 2023), an Indiana federal district court dismissed The Satanic Temple's challenge under Indiana's Religious Freedom Restoration Act to the state's ban on abortions. The court dismissed for lack of standing, finding that TST failed to identify any of its members who are pregnant and has no clinic of its own operating in Indiana. Indiana's Attorney General issued a press release announcing the decision. Indiana Capital Chronicle reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Indiana Man Indicted for Sending Death Threats to ADL Staff

The Department of Justice announced last week that a federal grand jury has indicted an Indiana man for making telephone death threats to offices of the Anti-Defamation League in New York, Houston, Denver and Las Vegas. The Indictment (full text) in United States v. Boryga, (SD IN, Oct. 3, 2023), charges defendant with four counts of transmitting in interstate commerce a threat to injure. It charges that defendant chose the threat targets because of the actual and perceived religion of ADL employees and members. According to DOJ:

If convicted on all counts, Boryga faces a maximum penalty of 20 years in prison, three years of supervised release and a fine of up to $250,000.

Church Autonomy Doctrine Does Not Shield Criminal Conduct

 In Hochstetler v. State of Indiana, (IN App., July 27, 2023), an Indiana state appellate court held that criminal conduct is not shielded by the church autonomy doctrine. In the case, three Old Order Amish bishops were convicted of misdemeanor intimidation for threatening to place an Amish wife under a bann if she did not remove herself from a protective order she had obtained to protect her and her children from her husband.