Indiana's near total abortion ban has survived every legal challenge the ACLU has thrown at it.
Now the ACLU is trying a stranger argument in front of the state's highest court.
The ACLU told justices abortion itself can be an act of religious faith.
Indiana's Solicitor General Called the Religious Exemption Case Nothing but Speculation
The ACLU of Indiana walked into the Indiana Supreme Court on Thursday and asked justices to treat abortion as a religious exercise the state cannot touch.
Solicitor General James Barta told the justices there is nothing left to rule on.
"Plaintiffs' entire claim is built on a chain of speculation," Barta said.
He told the court neither woman behind the suit is currently pregnant or trying to get an abortion.
Barta argued the case does not meet the basic legal test for a real dispute, because nobody has actually been denied anything.
Ken Falk, legal director of the ACLU of Indiana, argued his clients are already suffering.
"They're being injured today," Falk told the court. "They're changing their behavior today."
Falk said fear of the ban has already reshaped his clients' marriages and family planning.
The ACLU did not just send lawyers into the courtroom. It organized a rally outside the courthouse that same morning, urging supporters to demand the exemption before a single justice had asked a question.
Two Anonymous Women Have Never Been Pregnant During Four Years of Challenging the Abortion Ban
The ACLU has represented Hoosier Jews for Choice, a pro-abortion group, and two anonymous women in this fight since September 2022.
One plaintiff says her Jewish faith calls for having another child, but she fears pregnancy without a guaranteed way out.
The other cites a personal spiritual belief in bodily autonomy and says anxiety over pregnancy has already strained her marriage.
Neither woman has been pregnant at any point during the four years this case has been in court.
A Marion County judge granted a preliminary injunction in December 2022, and the Indiana Court of Appeals narrowed but upheld it in April 2024.
Judge Christina Klineman made that injunction permanent in March, shielding only the named plaintiffs and their class, not the whole state.
The state appealed directly to the Indiana Supreme Court, and justices agreed in April to take the case.
Chief Justice Loretta Rush asked Thursday whether this case resembles Burwell v. Hobby Lobby, the 2014 ruling letting a corporation cite religious belief to skip covering certain contraceptives.
Indiana's 1836 Abortion Ban Already Answered This Religious Right Question
Indiana outlawed abortion in 1836, fifteen years before the state constitution's religious liberty clause even existed.
The Thomas More Society made that point in an amicus brief filed on behalf of Voices for Life, a South Bend pro-life group, urging the justices to reject the ACLU's theory outright.
"From Cicero to John Locke to the framers of Indiana's Constitution, the natural law tradition that gave us religious freedom has never treated the taking of innocent life as an exercise of religion," said Thomas Olp, the group's executive vice president.
The U.S. Supreme Court faced a version of this same theory back in 1980, and rejected it.
In Harris v. McRae, the Court ruled a woman's religious beliefs did not entitle her to a taxpayer-funded abortion.
She had never alleged, let alone proved, that she sought the abortion "under compulsion of religious belief."
That distinction still matters. Religious freedom law protects conduct religion demands, not conduct religion merely tolerates.
"Conduct must be caused by religion; it must be the reason for the conduct," according to a Heritage Foundation legal analysis of these claims.
None of the women behind Indiana's case, or the plaintiffs in a nearly identical Kentucky lawsuit called Sobel v. Cameron, have ever claimed a specific religious duty required them to end a pregnancy.
Courts in Kentucky and Missouri already threw out nearly identical religious-exemption lawsuits in June 2024.
Indiana's Supreme Court has already beaten back two other challenges to this ban since Roe v. Wade fell.
Back in 2023, that same court said flatly that Indiana's Constitution gives lawmakers the power to protect life before birth, calling the point "undisputed."
That court turned back a separate Planned Parenthood challenge in May by a 4 to 1 vote, leaving the ban's restrictions untouched.
The ACLU is now asking those same seven justices to invent a religious exemption that no plaintiff has ever actually needed.
Four years of motions, hearings, and appeals, and not one pregnancy to show for it.
If Indiana's justices follow their own precedent, this becomes the ACLU's third loss on this exact ban, and the third state where the argument has failed outright.
Sources:
- Steven Ertelt, "ACLU Says There's a 'Religious Right' to Kill Babies in Abortions," LifeNews.com, September 10, 2026.
- "Indiana Supreme Court Weighs Limits of Religious Exemptions to Abortion Ban," Indiana Capital Chronicle, September 10, 2026.
- "Religious Freedoms Tested in Indiana Abortion Ban Case," Courthouse News Service, September 10, 2026.
- "Pro-Life Laws Do Not Threaten Religious Freedom," The Heritage Foundation.
- "Indiana Supreme Court Should End the ACLU's Attempt to Hijack Religious Freedom into Abortion Access," Thomas More Society, June 2026.
- "Lawsuits Challenging Abortion Bans on Religious Freedom Grounds Falter," Religion News Service, July 3, 2024.
