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State, ACLU debate religious rights and abortion ban

The battle over the state's new abortion restrictions took center stage in court Friday in a preliminary injunction hearing in Marion County.

INDIANAPOLIS — The battle over the state's new abortion restrictions took center stage in court Friday morning during a preliminary injunction hearing in Marion County. 

The ACLU of Indiana is attempting to get a second Indiana judge to say new abortion restrictions should not be enforced until after the courts decide if the law violates religious freedoms or not.

Indiana Solicitor General Thomas Fisher argued there was no need for a preliminary injunction because the law is not currently being enforced.

"If the other injunction isn't enough for them, why would this one be any different?" Fisher said after Monday’s hearing. “Because they would essentially be on the same track in terms of review potentially be subject to reversal."

RELATED: Abortion providers finding stability for care offerings as they await state supreme court decision

The legal director of the ACLU of Indiana disagrees. 

Kenneth Falk said his clients' "lives have been upended" because of the ban. One married couple reports the intimacy in their marriage has decreased because of the fear of getting pregnant. Other plaintiffs report changing their sexual lives and contraception plans.

Credit: WTHR

"I think the plaintiffs all indeed indicated that they would indeed change their behavior if there was a preliminary injunction that would be lasted for a while as the case went on,” Falk said.

He said if the judge in this case also allows abortions to continue, then some of his clients would feel safe trying to start a family.

RELATED: Indiana Supreme Court keeps state abortion ban on hold

"There's more certainty if you can get the additional injunction,” he said.

The first injunction is related to a different lawsuit put forth by the ACLU of Indiana on behalf of Planned Parenthood, other abortion clinics and a doctor. That lawsuit argues the new abortion law is unconstitutional. Owen Circuit Court Judge Kelsey Hanlon granted the ACLU’s request for a preliminary injunction on Sept. 22. Nearly 3 weeks later, on Oct. 12, the Indiana Supreme Court allowed the decision to stand while also agreeing to take on the case.

Falk says the religious freedom case is very different. In this one, he’s representing five women and Hoosier Jews for Choice. The plaintiffs argue their Jewish, Muslim and spiritual beliefs do not say life begins at conception. In some cases, they say abortion is allowed or required to protect the mother.

The ACLU is arguing the new abortion restrictions violates Indiana’s Religious Freedom Restoration Act. The 2015 law “prohibits a governmental entity from substantially burdening a person's exercise of religion, even if the burden results from a rule of general applicability." The argument is that the new law violates RFRA in part because it’s based on the belief that life begins at conception which the plaintiffs say is counter to their religious beliefs.

Indiana University law professor Jody Madeira sat in on Friday’s hearing.

"I think this is important because we're going to resolve for once and for all in Indiana whether, and to what extent, religion bears upon abortion,” she said. “And whether the state does have the ethical responsibility, ability to rule on this matter or whether it is circumscribed by other’s religious liberties.”

She said this lawsuit is also asking the court to weigh in on when life begins.

"These are core questions that that have never been addressed,” Madeira said.

The state compared “embryonic human life” to adults and children. Fisher alluded in the courtroom preventing abortions is possibly more important for the state than stopping child abuse.

"I think what I said was, if the government has a compelling interest in preventing child abuse, then surely it has a compelling interest in preventing the termination of human life,” Fisher said following the hearing. “It's hard to, it's hard to imagine that somehow that interest would be less than it has been to respect to preventing child abuse."

The judge in Friday's case gave both sides until Oct. 28 to submit proposed findings. She also said she planned to submit a decision within 30 days, which means we’ll learn if the request is granted or denied by the end of November.

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