Suit Challenges Illinois Requirements for Insurance Policies to Cover Abortions

Suit was filed yesterday in an Illinois federal district court challenging on both constitutional and federal statutory grounds Illinois statutes that requires health-insurance policies to cover elective abortions on the same terms as other pregnancy-related benefits and to cover, without co-pays, abortion inducing drugs. The complaint (full text) in Students for Life of America v. Gillespie, (ND IL, filed 11/20/2024), alleges that these provisions violate free exercise rights, the right of expressive association, the federal Comstock Act, the Coates-Snow Amendment and the Weldon Amendment. Thomas More Society issued a press release announcing the filing of the lawsuit.

Suit Against Church for Negligent Retention of Pastor Can Move Ahead

 In Exum v. St. Andrews-Covenant Presbyterian Church, Inc., (NC App, Nov. 19, 2024), a North Carolina state appellate court held that claims for negligent retention, negligent infliction of emotional distress, and breach of fiduciary duty brought against a church do not need to be dismissed under the ecclesiastical abstention doctrine because they can be decided using neutral principles of law. Plaintiff and his wife attended St. Andrews-Covenant Church.  The church's pastor, Derek Macleod, entered a romantic relationship with plaintiff's wife. After plaintiff and his wife were divorced, Plaintiff sued the church and its parent bodies. The court said in part:

Exum alleges that St. Andrews-Covenant was negligent in allowing Macleod’s tortious conduct to occur because St. Andrews-Covenant knew or should have known that Macleod had engaged in similar misconduct in his capacity as a church leader in prior roles. ...

 “[T]here is no necessity for th[is] [C]ourt to interpret or weigh church doctrine in its adjudication of” Exum’s claims premised on alleged negligence in placing and retaining Macleod at St. Andrews-Covenant....  “It follows that the First Amendment is not implicated and does not bar” Exum’s claims against St. Andrews-Covenant....  As the Court in Smith [v. Privette] explained, a contrary holding “would go beyond First Amendment protection and cloak such [religious] bodies with an exclusive immunity greater than that required for the preservation of the principles constitutionally safeguarded.”....

Court Examines Sincerity and Religiosity of Vaccine Objections

Stynchula v. Inova Health Care Services, (ED VA, Nov. 19, 2024), is another of the dozens of cases working their way through the courts in which employees have asserted religious objections to Covid vaccine mandates, and their employers have refused to accommodate their objections on the ground that the employees' beliefs were either not religious or not sincerely held. Here the court examines objections asserted by two employees (Netko and Stynchula) and says in part:

Inova argues that Netko’s claim fails because his requests for religious exemptions from the COVID vaccine requirement did not assert beliefs that he sincerely held. The Court agrees....

... Netko’s practice with respect to medicines and vaccines developed using fetal cell lines “[was] inconsistent. He puts some medicines in his body, but not others” and thus he has severely contradicted his assertion that he could not receive a COVID-19 vaccine without compromising his religious beliefs.....  

Netko rejects this conclusion in several ways, none of which is compelling. He argues that Inova cannot show that he subjectively knew of the involvement of fetal cells in the medications and vaccinations that he received, when he received them, and because “sincerity is a subjective question pertaining to the party’s mental state,” if Netko received them ignorant of the fact of fetal cell involvement, “that is not behavior that is markedly inconsistent with his stated beliefs.” ... But there is no rule that a subjective mental state cannot be proven by objective circumstantial evidence....

Netko also contends that his failure to consistently raise fetal cell objections is of no consequence because “a finding of sincerity does not require perfect adherence to beliefs expressed by the [plaintiff], and even the most sincere practitioner may stray from time to time.”... But for a self-declared life-long adherent of a belief, like Netko, such a principle does not mean that sincerity is evident when he strays one hundred percent of the time until one day, he ostensibly decides to outwardly manifest his belief.

... Netko’s assertion that his religion prevented him from taking such vaccines “appears to have been newly adopted only in response to the demand that [he] take the COVID-19 vaccine,”... which is consistent with his general hostility to authority with respect to the COVID pandemic as a whole....

Inova asserts that Stynchula’s claim must fail because her vaccine exemption requests reflect beliefs that are secular, rather than religious, in nature....

Stynchula has not presented facts that show her vaccine-related beliefs are religious....   She states that her fetal cell line objections are grounded in her Catholic upbringing, whereas she joined the Church of Scientology in 2001.... And, the connection between her Scientological beliefs and her vaccination objections is undeveloped except to the extent that she objected to COVID vaccinations as “foreign substances” on the basis of the “axiom” of “Self Determinism” ...  and the idea that “the spirit alone may save or heal the body”... But these simply “seek[] a religious objection to any requirement with which [Stynchula] disagrees” and do not concern religious beliefs.... They are, rather, “isolated moral teaching[s]” in lieu of a “comprehensive system of beliefs about fundamental or ultimate matters.”...

Relatedly, Stynchula’s statements and conduct “only reinforce[] that her opposition stems from her medical beliefs.” ... She believes that her “body is a gift from God” and objects to vaccinations because “[she] do[es] not believe in injecting foreign substances unless there is a therapeutic reason”... and because they would “impact [her] relationship with God” and “would be a sin, as it goes against [her] deeply felt convictions and the answers [she] ha[s] received in prayer”....

... Stynchula does not review medication and vaccine information with an eye towards religious mandates or prohibitions. That is, her search is not to ensure that a specific substance is not present in her medications, or that certain religious procedures have been followed. She simply engages in a cost-benefit analysis of vaccines and medications rooted in her personal concerns over their safety and efficacy. Attaching a gloss of “general moral commandment[s],” such as beliefs in personal liberty or that the body is a temple, to these concerns cannot alone render them religious.

Jury Questions Remain in Suit by Casino Worker Fired for Refusing Covid Vaccine

In Brown v. MGM Grand Casino, ( ED MI, Nov. 18, 2024), a Michigan federal district court refused to grant summary judgment for either party in a suit by a former warehouse manager for MGM Grand Casino who was fired for refusing to comply with his employer's Covid vaccine mandate. Plaintiff, an Orthodox Apostolic Christian, had applied for a religious accommodation. It was refused. According to the court:

Defendant expressed doubt about the sincerity of Plaintiff’s religious belief.... It also expressed doubt about whether Plaintiff’s belief is religious in nature or purely secular.... Nevertheless, Defendant determined that accommodating Plaintiff would impose an undue burden on Defendant’s operations and denied his request on those grounds....

Defendant cites many non-controlling cases from other Circuits for the proposition that Plaintiff’s objection to the vaccination policy based on his opposition to abortion fails to demonstrate a religious belief, because he does not tie it to a wider religious observance, practice, or outlook....However, the Court is not persuaded by the underlying logic of these cases. Of course, a plaintiff claiming a failure to accommodate is required to demonstrate a connection between their belief and some “religious principle” they follow.... But courts “may not question the veracity of one’s religious beliefs.” ... Thus, a plaintiff need not cite specific tenets of his religion that forbid the contested employment policy or explain how those tenets forbid it. ...

While Plaintiff has demonstrated that his beliefs are religious, it is another question whether his beliefs are sincere....  [T]he factfinder need not take a plaintiff at his word.” ... Defendant has raised several reasons to question Plaintiff’s sincerity, such as the fact that his religious reasoning was not consistent throughout his accommodation request process or in his deposition, or the fact that he described medical reasons for wanting to avoid the vaccine....

Therefore, the Court concludes that material questions of fact remain as to whether Plaintiff has a sincerely held religious belief.

The court also concluded that the employer's undue hardship defense posed a jury question since, among other things, large numbers of workers under collective bargaining agreements were not vaccinated.

State Trial Court Strikes Down Wyoming Abortion Bans

In Johnson v. State of Wyoming, (WY Dist. Ct., Nov. 18, 2024), a Wyoming state trial court held that two Wyoming statutes barring abortions violate the Wyoming Constitution. One of the statutes bans all abortions with narrow exceptions. The other is a ban on prescribing or selling medication abortion drugs. The court said in part:

Under the Life Act and the Medication Abortion Ban, the State has enacted laws that impede the fundamental right to make health care decisions for an entire class of people, pregnant women. Wyoming Constitution, article 1, section 38 provides all individuals with the fundamental right to their own personal autonomy when making medical decisions. The Defendants have not established a compelling governmental interest to exclude pregnant women from fully realizing the protections afforded by the Wyoming Constitution during the entire term of their pregnancies, nor have the Defendants established that the Abortion Statutes accomplish their interest. The Court concludes that the Abortion Statutes suspend a woman's right to make her own health care decisions during the entire term of a pregnancy and are not reasonable or necessary to protect the health and general welfare of the people.

The court entered a permanent injunction, thus extending the temporary restraining orders that it had previously issued. Buckrail reports on the decision and reports that Wyoming Governor Mark Gordon has indicated that the decision will be appealed to the state Supreme Court.   [Thanks to Scott Mange for the lead.]

2nd Circuit Hears Oral Arguments from Amish Seeking Vaccination Exemptions

The U.S. 2nd Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in Miller v. McDonald. In the case, a New York federal district court upheld New York's removal of religious exemptions from its mandatory requirement for vaccination of school children. It rejected Free Exercise challenges by Amish individuals and schools, finding, in part that the law was both neutral and generally applicable, and thus did not trigger heightened scrutiny. (See prior posting.) Courthouse News Service reports on the oral arguments.

Parents Sue California High School Alleging Long History of Tolerating Antisemitism

Suit was filed last week in a California federal district court by parents of six high school students in the Sequoia Union High School District charging the high school with tolerating antisemitism expressed by students and teachers.  The complaint (full text) in Kasle v. Puttin, (ND CA, filed 11/15/2024), alleges in part:

SUHSD has a long history of tolerating casual antisemitism on its campuses.  Students and faculty have openly joked about Nazis and the Holocaust, while certain teachers have peddled antisemitic falsehoods about Middle East history without facing consequences.  District leadership has consistently turned a blind eye to such behavior.  SUHSD’s antisemitism problem worsened significantly after October 7, 2023, when Hamas—a U.S.-designated terrorist organization—invaded southern Israel and then mutilated, raped, and murdered more than 1,200 people.  Although quick to address other global injustices, SUHSD remained conspicuously silent about this historic massacre of Jews, contradicting the District’s professed commitment to equity....

The 64-page complaint alleges violation of Title VI, of the 1st and 14th Amendments as well as of parallel provisions of California law and asks for an injunction in part:

prohibiting Defendants’ discriminatory and harassing treatment of Plaintiffs in violation of Plaintiffs’ constitutional and statutory rights; 

prohibiting the District, its employees, agents, and representatives from engaging in any form of antisemitic behavior or conduct, including, but not limited to, verbal, written, or physical actions that demean, harass, or discriminate against individuals based on their Jewish identity or their identification with and commitment to Israel;

ordering the District to adopt and implement a clear and comprehensive policy specifically addressing antisemitism, as defined by the International Holocaust Remembrance Alliance’s Working Definition of Antisemitism....

It also asks the court to appoint a Special Master to monitor the district's implementation of policies against antisemitism. 

Ropes & Gray issued a press release announcing the filing of the lawsuit. 

Certiorari Denied in Challenge To West Virginia's Ban on Transgender Girls on Girls' Sports Teams

The U.S. Supreme Court yesterday denied review in West Virginia Secondary School Activities Commission v. B. P. J., (Docket No. 24-44, certiorari denied 11/18/2024). (Order List.)  In the case the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that the West Virginia Save Women's Sports Act violates Title IX on the facts of the case before it and remanded for further findings on whether the Act as applied to transgender girls violates the Equal Protection Clause.

UPDATE: The certiorari petition which the Court acted on here only raised the question of whether the Secondary School Activities Commission is a state actor. A cert. petition raising the Title IX and Equal Protection issues is still pending before the Court.

Oklahoma Education Department Creates Office of Religious Liberty and Patriotism

In a November 12 press release, Oklahoma State Superintendent of Public Instruction Ryan Walters announced the creation of the Office of Religious Liberty and Patriotism at the State Department of Education, saying in part:

[The Office] will serve to promote religious liberty and patriotism in Oklahoma and protect parents, teachers, and students’ abilities to practice their religion freely in all aspects. The office will also oversee the investigation of abuses to individual religious freedom or displays of patriotism. Guidance to schools will be issued in the coming days on steps to be taken to ensure the right to pray in schools is safeguarded....

The new office will be charged with supporting teachers and students when their constitutional rights are threatened by well-funded, out of state groups as happened in Skiatook last year when a school was bullied into removing Bible quotes from a classroom....

The newly established Office of Religious Liberty and Patriotism is in line with one of President Trump’s top education priorities, “Freedom to Pray.”...

KOKH News has more on Walters' promotion of school prayer. [Thanks to Scott Mange for the lead.]

2nd Circuit Remands Two Plaintiffs' Claims for Improper Denial of Religious Exemptions from Vaccine Mandate

New Yorkers for Religious Liberty v. City of New York, (2d Cir., Nov. 13, 2024), is a decision on appeals of two cases challenging denials of religious exemptions from the Covid vaccine mandate imposed by the City of New York on public school teachers and staff.  While affirming the dismissal of many of the claims, the U.S. 2nd Circuit Court of Appeals vacated dismissals of claims by two plaintiffs, Natasha Solon and Heather Clark, and remanded their cases to the district court. The court said in part:

If Solon’s initial, denied exemption application reflected her purely personal religious practices, then she has plausibly pleaded that she was improperly denied an accommodation because the old Arbitration Award Standards only allowed “exemption requests . . . for recognized and established religious organizations,” and did not honor exemptions for those whose “religious beliefs were merely personal.” ...  That could present a First Amendment problem.,,,

... [T]he documents Clark submitted ... describe a religious objection to the vaccine because it is a product of development using fetal cell lines and a “differing substance[]” that she may not ingest consistent with her faith....  Nevertheless, the district court dismissed Clark’s claim because “the [Citywide] panel found that her decision to not receive a vaccin[e] was not based on her religious belief, but rather, on nonreligious sources,” a conclusion the district court deemed “entirely proper . . . under Title VII.”... While such a conclusion could indeed be proper and constitutional if the Citywide Panel had a basis for reaching it, Clark’s allegations support the plausible inference that the Panel denied her request solely on the basis of its characterization of her religious objection as too idiosyncratic rather than as not sincerely held or non-religious in nature. 

Given this possibility, Clark has stated a cognizable as-applied claim at this stage.

Recent Articles of Interest

From SSRN:

• Saroj Shekhar Mallick, The Constitutional Framework of Secularism in India: A Legal and Historical Perspective, (September 30, 2024).
• P. Saliya Sumanatilake, A Universal Philosophy of Law, (August 19, 2023).
• Abubakar Yusuf Mamud, The UMMAH Project: A Comprehensive P/CVE Framework for Countering Violent Extremism in Nigeria, (October 01, 2024).
• Mitchell F. Crusto, Equality, Morality, & Religious Liberty, 77 SMU L. Rev. F. 219 (2024).
• Arhant Kumar, Comprehending Individuals’ Religious Freedom under Indian Secularism, (October 01, 2024).
• Valentino Cattelan, The Making of Law in Islam: Fiqh as Delivery of Verdicts, (March 20, 2024).
• Moritz Schroeder, From Fragmentation to Unity - A Conceptual Approach for Enhanced Transparency, Digitalization, and Coordination in the Donation Market, (October 04, 2024).

From SmartCILP:

• Rabea Eghbariah, Toward Nakba as a Legal Concept, 124 Columbia Law Review 887-992 (2024).
• Bente de Leede & Nadeera Rupesinghe. Registering and Regulating Family Life: The School Thombos in Dutch Sri Lanka, 41 Law & History Review 501-522 (2023).
• Christopher C. Lund, Book Review. Favoritism, Coercion, and the Establishment Clause. Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, by Nathan S. Chapman, Michael W. McConnell, 122 Michigan Law Review 1303-1320 (2024).

Suit Challenges Kentucky Abortion Bans

A class action lawsuit was filed last week in a Kentucky state trial court challenging the constitutionality under the Kentucky state constitution of two separate abortion bans found in Kentucky statutes. The complaint (full text) in Poe v. Coleman, (KY Cir. Ct., filed 11/12/2024), alleges that both the six-week ban, and the near total ban violate the right to privacy and the right to self-determination protected by the individual liberty guarantees of Sections 1 and 2 of the Kentucky Constitution.  The complaint alleges in part:

92. The constitutional right to privacy protects against the intrusive police power of the state, putting personal and private decision-making related to sexual and reproductive matters beyond the reach of the state. The right to privacy thus protects the right of a pregnant individual to access abortion if they decide to terminate their pregnancy. ...

98. The constitutional right to self-determination guards every Kentuckian’s ability to possess and control their own person and to determine the best course of action for themselves and their body. An individual who is required by the government to remain pregnant against her will— a significant physiological process affecting one’s health for 40 weeks and culminating in childbirth—experiences interference of the highest order with her right to possess and control her own person. The right to self-determination thus protects Kentuckians’ power to control whether to continue or terminate their own pregnancies.

The Kentucky ACLU issued a press release announcing the filing of the lawsuit. [Thanks to Thomas Rutledge for the lead.]

Australia's High Court Says Diocese Is Not Vicariously Liable for Sex Abuse by Priest [Corrected]

In Bird v DP (a pseudonym) , (HCA, Nov. 13, 2024), the High Court of Australia in an appeal from the Supreme Court of Victoria held that a Catholic diocese is not vicariously liable for sexual abuse of a five-year old boy by a priest from a parish church within the diocese. Plaintiff at age 49 instituted suit for the psychological injuries he had sustained as a child by two separate sexual assaults by the priest that took place at the child's home. The majority opinion on behalf of five justices held in part:

A diocese, through the person of the bishop of that diocese, appoints priests and assistant priests to parishes within that diocese.... In 1966, Coffey was appointed by the then Bishop of Ballarat to St Patrick's parish church.... Coffey was not employed by the Diocese or engaged by the Diocese as an independent contractor. There was no finding that Coffey was an agent of the Diocese.

... [A] relationship of employment has always been a necessary precursor in this country to a finding of vicarious liability and it has always been necessary that the wrongful acts must be committed in the course or scope of the employment. There is no solid foundation for expansion of the doctrine or for its bounds to be redrawn.

The majority explained its conclusion in part as follows: 

... [T]he Victorian Parliament enacted the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) and amended the Wrongs Act 1958 (Vic) in response to the Redress and Civil Litigation Report of the Royal Commission into Institutional Responses to Child Sexual Abuse...  and, in so doing, adopted the recommendation in the Royal Commission report of the imposition of a new duty of care to operate prospectively only and not retrospectively....

Taken as a whole, the terms of the Victorian Parliament's legislative reforms ... weigh heavily against any expansion of the common law doctrine of vicarious liability. The "genius of the common law" includes that the "the first statement of a common law rule or principle is not its final statement", but its genius also includes many self-imposed checks and balances against "unprincipled, social engineering on the part of the common law judges". It is one thing to accept that the common law should not stand still merely "because the legislature has not moved" to adapt to changing social conditions, but another to change a common law principle in circumstances where the legislature has responded to a comprehensive review of the common law's inadequacies by the enactment of statutory provisions which make no change to that common law principle.

Justice Jagot filed a concurring opinion.

Justice Gleeson filed an opinion concurring only in the result, saying in part:

Government attention to historical child abuse by members of religious and other non-government organisations, and subsequent legislative reform to extend liability for personal injury suffered because of child abuse, reflect an evolution of attitudes to the treatment of children in our society. That evolution has produced a general intolerance of physical, sexual and psychological abuse of children, and increased recognition of societal responsibility for setting and maintaining appropriate standards of care for children, especially in institutional settings. The evolution has also been accompanied by reduced deference towards religious and charitable organisations and a commensurate preparedness to impose legal liability upon religious and other non-government organisations, including for harms inflicted by persons associated with such organisations. These changes in social conditions are not unique to Australia and can be observed across the common law world and beyond.

This case is a missed opportunity for the Australian common law to develop in accordance with changed social conditions and in tandem with developments in other common law jurisdictions. For the reasons given below, I do not agree with the plurality that relationships that are akin to employment do not attract vicarious liability in Australia.

In my view, the relationship between the Diocese of Ballarat ...,  and Father Bryan Coffey ..., an assistant parish priest appointed to that role in the parish of Port Fairy, is capable of attracting vicarious liability. Nevertheless, the Diocese is not vicariously liable for the sexual assaults that Coffey inflicted upon DP because those torts occurred in circumstances where Coffey opportunistically took advantage of his role to commit them. The torts were therefore not committed in the course of Coffey's performance of his role as assistant parish priest. Accordingly, I agree with the orders proposed by the plurality.

Law and Religion Australia reports on the decision.

[An earlier version of this post incorrectly attributed some quotes from Justice Gleason to Justice Jaggot.]

Court Asks Parties for More Information on Whether Vaccine Mandate Was Generally Applicable

In Rodriguez v. Santa Clara Valley Transportation Authority, (ND CA, Nov. 12, 2024), a California federal district court refused to dismiss a suit brought by employees of a public transportation provider who were denied religious exemptions from their employer's Covid vaccine mandate. The court ordered the parties to submit supplemental briefs on whether or not the vaccine mandate exemption process was generally applicable in order to determine whether to apply strict scrutiny in evaluating plaintiffs' Free Exercise claim. The court said in part:

Although the VTA’s exemption review process did not involve the entirely unfettered discretion that the Supreme Court rejected in Fulton, a reasonable factfinder could conclude that this process contained enough individualized discretion to “permit discriminatory treatment of religion or religiously motivated conduct.” ...

Conversely, a reasonable factfinder could conclude that the exemption process was “tied directly to limited, particularized, business-related, objective criteria” such that it was generally applicable.....  Unlike Fulton, no individual here exercised “sole discretion.”....  Instead, the committee rendered decisions as a group based on set criteria.... A reasonable jury could find that the VTA committee exercised a degree of discretion that preserved the policy’s general applicability.

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.