Cert. Denied In Litigation Over Investigatory Demands

The U.S Supreme Court today granted review in First Choice Women's Resource v. Platkin, (Docket No. 24-781, certiorari granted 6/16/2025). (Order List). The petition for certiorari describes the complex fact situation involved:

New Jersey’s Attorney General served an investigatory subpoena on First Choice Women’s Resource Centers, Inc., a faith-based pregnancy center, demanding that it turn over most of its donors’ names. First Choice challenged the Subpoena under 42 U.S.C. 1983 in federal court, and the Attorney General filed a subsequent suit to enforce it in state court. The state court granted the Attorney General’s motion to enforce the Subpoena but expressly did not decide First Choice’s federal constitutional challenges. The Attorney General then moved in state court to sanction First Choice. Meanwhile, the district court held that First Choice’s constitutional claims were not ripe in federal court.

The Third Circuit affirmed in a divided percuriam decision.. [T]he majority concluded First Choice’s claims were not yet ripe because First Choice could litigate its constitutional claims in state court.... It did not address the likely loss of a federal forum once the state court rules on the federal constitutional issues.

The question presented is: Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?

Supreme Court GVR's Battle Over Health Insurance Abortion Coverage

In Roman Catholic Diocese v. Harris, (Sup. Ct., June 16, 2025), the U.S. Supreme Court granted certiorari, vacated the judgment of New York's highest court and remanded the case for further consideration in light of the Supreme Court's recent decision in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission. At issue in the case that was gvr'd today was whether the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow.  The exemption is only available to entities whose purpose is to inculcate religious values and that primarily employ and serve persons who share their religious tenets. (See prior posting.)

HHS Rescinds Prior Administration's Interpretation of Emergency Room Abortion Practices Under EMTALA

 In January 2025, the U.S. 5th Circuit Court of Appeals upheld an injunction issued by a Texas federal district court barring enforcement of a 2022 Guidance Document and related Letter on emergency abortion care issued by the Department of Health and Human Services. HHS had taken the position that under the Emergency Medical Treatment & Labor Act, emergency rooms must sometimes perform abortions as a method of stabilizing pregnant women who have pregnancy complications. HHS also took the position that this federal requirement pre-empts Texas laws barring abortions. The 5th Circuit concluded that EMTALA requires hospitals to stabilize both the pregnant woman and her unborn child and that doctors must comply with state law in balancing those obligations. (See prior posting.) On May 29, 2025, HHS placed a statement on the 2022 Guidance Document that it was being rescinded. However, it went on to apparently limit the rescission to plaintiffs in the 5th Circuit case, saying:

HHS may not enforce the Guidance and Letter’s interpretation of EMTALA—both as to when an abortion is required and EMTALA’s effect on state laws governing abortion—within the State of Texas or against the members of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Association (CMDA).

Then today (June 3, 2025), HHS issued a Statement (full text) saying that it is rescinding the prior policy for all hospitals, not just for parties to the prior litigation.  The Statement said in part that the 2022 Guidance Document and Letter (which has also been stamped "Rescinded"):

do not reflect the policy of this Administration. CMS will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy. CMS will work to rectify any perceived legal confusion and instability created by the former administration’s actions.

Meanwhile, ADF today issued a press release saying that in light of the rescission of this policy it has filed a voluntary dismissal of another lawsuit it had filed challenging the Guidance Document.

Missouri Supreme Court Orders Re-evaluation of Injunction Barring Enforcement of Abortion Clinic Licensing

In State ex rel. Kehoe v. Zhang, (MO Sup. Ct., May 27, 2025) the Missouri Supreme Court held that a state trial court judge who enjoined enforcement of licensing requirements imposed on abortion clinics applied the wrong standard in determining whether preliminary injunctions should be granted. The Court ordered the trial court judge to vacate her orders granting preliminary relief and re-evaluate the requests under the new stricter standard two abortion clinics' requests for preliminary injunctions. St. Louis Public Radio reports on the Court's decision.

Court Vacates EEOC Rule Requiring Accommodation of Employees' Abortions

In State of Louisiana v. Equal Employment Opportunity Commission, (WD LA, May 21, 2025), a Louisiana federal district court set aside an EEOC rule that interprets the Pregnant Workers Fairness Act to require employers to provide reasonable accommodation for abortions. The court had previously issued a preliminary injunction ("PI") in the case. In setting the rule aside, the court said in part:

Given the political, social, and religious significance of the abortion issue in this country, the PI Ruling explained that EEOC must point to “clear congressional authorization” for the power it claims in the Final Rule....  And as the PI Ruling emphasized, “[n]ot only is the EEOC unable to point to any language in the PWFA empowering it to mandate the accommodation of elective abortions, but there can be little doubt in today’s political environment that any version of the PWFA that included an abortion accommodation requirement would have failed to pass Congress.”...  That finding remains true today, and the Court concludes that the EEOC has failed to point to clear congressional authorization for the inclusion of abortion protection in a statute intended only to accommodate and protect female employees during pregnancy.

The case was consolidated with U.S. Conference of Catholic Bishops v. EEOC.

AP reports on the decision.

South Carolina Supreme Court Interprets State's Fetal Heartbeat Abortion Ban

In Planned Parenthood South Atlantic v. State of South Carolina, (SC Sup. Ct., May14, 2025), the South Carolina Supreme Court interpreted the state's ban on abortion after a fetal heartbeat has been detected to mean the time at which:

electrical impulses are first detectable as a "sound" with diagnostic medical technology such as a transvaginal ultrasound device and the medical professional observes those electrical impulses as a "steady and repetitive rhythmic contraction of the fetal heart" during any stage of the heart's development "within the gestational sac."

This point is generally at the end of six weeks of pregnancy. Planned Parenthood had argued for a different definition of "fetal heartbeat" that would have placed it approximately after nine weeks of pregnancy.

Justice Hill filed a concurring opinion focusing on the language of the 2023 Fetal Heartbeat Act and the Woman's Right to Know Act, rather than on legislative history of the law.

AP reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Michigan Court Invalidates 3 Abortion Restrictions

In Northland Family Planning Center v. Nessel, (Ct. Cl., May 13, 2025), the Michigan Court of Claims held that three abortion restrictions currently in Michigan law are unconstitutional under the Reproductive Freedom for All amendment to Michigan's Constitution that was approved in 2022.  The court invalidated the 24-hour mandatory waiting period, the informed consent requirement and the ban on nurse practitioners, midwives and physician assistants performing abortions.  The court said in part:

The Court agrees with intervening defendant that the ostensible goal of the challenged laws is to protect patient health.  The inquiry, however, does not stop there.  In order to survive the constitutional challenge, the challenged laws must achieve the purpose of protecting patient health, by the least restrictive means, and be consistent with accepted clinical standards of practice and evidence-based medicine.  This is where intervening defendant’s argument unravels.   

Against the mountain of expert opinions and citation of accepted clinical standards and medical literature submitted by plaintiffs establishing that the challenged laws do not protect patient health and are contrary to accepted clinical standards..., intervening defendant has produced two witnesses deeply entrenched in the national anti-abortion movement who have frequently and widely testified in favor of complete abortion bans.  These witnesses believe abortion is murder and an offense to God.  Dr. Wubbenhurst’s testimony was based on theologically skewed studies from journals known to support anti-abortion views.  Dr. Wubbenhurst’s testimony also made clear that she interpreted the findings of studies in ways the studies’ authors cautioned against.

However, the court upheld the coercion screening requirements of Michigan law, finding that they do not burden a patient's access to abortion care.

South Carolina Abortion Law Does Not Violate Free Exercise Rights

In Bingham v. Wilson, (D SC, May 7, 2025), a South Carolina federal district court refused to dismiss claims by five physicians that the health and fetal anomaly exceptions to South Carolina's abortion ban are unconstitutionally vague.  The court however dismissed plaintiffs' free exercise challenge. The court said in part:

Plaintiffs’ theory is that “South Carolina has made a value judgment that secular (e.g., procreative) motivations for ending a potential life are important enough to overcome its asserted general interest in preserving it, but that religious motivations are not.”... Accepting Plaintiffs’ argument would require this Court to accept that the performance of abortions is a religious practice protected by the Free Exercise Clause of the First Amendment....

... Plaintiffs’ argument hinges on a finding that the Abortion Ban favors “secular conduct” over “religious conduct” by permitting limited exceptions (with the effect of undermining the State’s interest in preserving life), but prohibiting such exceptions in unenumerated circumstances where the Abortion Ban infringes upon their free religious exercise.  The Court finds this argument unpersuasive.  The State has a legitimate interest in both fetal and maternal health and exercised its plenary authority in enacting legislation that considers these interests....

5th Circuit: Religious Liberty Training Order Against Attorneys in Title VII Case Was Improperly Punitive

In Carter v. Local 556, Transport Workers Union of America, (5th Cir., May 8, 2025), the U.S. 5th Circuit Court of Appeals reversed portions of a Texas federal district court's judgment against Southwest Airlines and its employee union that found violations of Title VII of the 1964 Civil Rights Act. At issue was the airline's firing of a flight attendant for posting on Facebook and privately sending to the president of the flight attendants’ union images and videos of aborted fetuses. The flight attendant opposed the union's support for abortion rights. The appellate court held that a judgement in favor of Southwest should have been entered on the flight attendant's claim that she was fired because of her religious beliefs. It concluded that there was insufficient evidence to support a judgment against Southwest on belief-based intentional discrimination. The court however affirmed the jury's verdict that found Southwest had violated Title VII by firing the employee for her religious practices. Southwest failed to convince the jury that accommodating the flight attendant by granting an exception to its social media, bullying and harassment policies would create an undue hardship for Southwest.

The 5th Circuit held that the district court's injunction entered in the case was overbroad and vague. The court also vacated a contempt order that had been issued against Southwest, and which subsequently became the center of much press attention. (See prior posting.) As explained in part by the 5th Circuit:

... [A]s part of its judgment, the district court ordered Southwest to “inform Southwest flight attendants that, under Title VII, [Southwest] may not discriminate against Southwest flight attendants for their religious practices and beliefs, including—but not limited to—those expressed on social media and those concerning abortion.” The notice that Southwest distributed to its flight attendants, however, stated a court “ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs.”...

Carter moved the district court to hold Southwest in contempt, arguing the email merely stated that Southwest “does not discriminate,” rather than “may not discriminate,” a material deviation from the court’s language... The district court agreed with Carter and held Southwest in contempt. As a sanction, the district court ordered Southwest to circulate a statement—verbatim—to its flight attendants “to set the record straight,” and ordered three of Southwest’s in-house attorneys to attend religious-liberty training with the Alliance Defending Freedom....

... We ... cannot say the district court abused its discretion in holding the airline in contempt....

... [B]ut religious-liberty training would do little to compel compliance with the order or to compensate Carter. The attorneys ordered to attend training were not involved in the decision to terminate Carter, and no evidence offered at trial suggests they demonstrated animus against Carter or her religious beliefs.... Additionally, the training would not be limited to Title VII training but instead was to encompass topics irrelevant to securing compliance with a Title VII judgment. It was plainly not the least-restrictive means of remedying Southwest’s non-compliance....

Punitive sanctions exceed the scope of a federal court’s civil contempt authority.

Reuters reports on the decision.

Catholic Employers Get Permanent Injunction Against EEOC

In Catholic Benefits Association v. Lucas, (D ND, April 25, 2025), a North Dakota federal district court converted a preliminary injunction granted last September to a Catholic diocese and a Catholic employers' organization (see prior posting) into a permanent injunction. At issue are rules and guidance documents issued under the Pregnant Workers' Fairness Act and Title VII of the Civil Rights Act.  The permanent injunction provides in part:

(1) The EEOC and its agents are permanently enjoined from interpreting or enforcing the Pregnant Workers Fairness Act and any implementing regulations ... against the Diocese of Bismarck and the CBA, including present and future members, in a manner that would require them to accommodate abortion or infertility treatments that are contrary to the Catholic faith, speak in favor of the same or refrain from speaking against the same.  

(2) The EEOC and its agents are permanently enjoined from interpreting or enforcing Title VII of the Civil Rights Act of 1964, any implementing regulations or guidances, including the Enforcement Guidance on Harassment in the Workplace, against the Diocese of Bismarck and the CBA, including present and future members, in a manner that would require them to speak or communicate in favor of abortion, fertility treatments, or gender transition when such is contrary to the Catholic faith; refrain from speaking or communicating against the same when such is contrary to the Catholic faith, use pronouns inconsistent with a person’s biological sex; or allow persons to use private spaces reserved for the opposite sex.

ABC News reports on the decision.

Broad Compelled Discussion of Abortion with Patients Violates Doctors' Free Speech Rights

In Schroeder v. Treto, (ND IL, April 4, 2025), an Illinois federal district court held that one amendment to the state's Health Care right of Conscience Act violates free speech protections but upheld another provision.  The provision struck down requires pregnancy care centers and doctors who have religious objections to abortions to inform pregnant patients of the risks and benefits of childbirth and abortion in order to claim a shield from liability. The court held that the provision compels speech in violation of the First Amendment. The court said in part:

Section 6.1(1) demands a wide ranging, hypothetical conversation unrelated to any procedure or other medical conduct.  Indeed, Section 6.1(1) requires a wide-ranging conversation that might be completely divorced from the reality of the situation; for example, the thrilled patient who is not reasonably likely to encounter medical difficulties because of the pregnancy.  What’s more, that compelled speech isn’t necessary to further future conduct....

... Under strict scrutiny, the State carries the burden of establishing the provision is narrowly tailored; it falls far short in this case.  So, Section 6.1(3) unconstitutionally compels speech, and therefore the State can’t demand such speech in exchange for a liability shield.

The court, however, upheld another provision that requires as a condition of claiming a shield from liability, that physicians and clinics, if requested by the patient, transfer or refer them or furnish a list of other providers to them who offer abortion services, saying in part:

This provision narrowly applies when a patient expressly asks a medical provider for information regarding potential abortion providers.  Stated differently, Section 6.1(3) contains an explicit and mandatory trigger that is directly linked to the action.  And even then, the provider need only comply if he intends to use the HCRCA as an affirmative defense.

From this narrow and purposeful drafting, the Court deduces that Section 6.1(3) doesn’t target speech...

The court found that this provision also does not violate providers' free exercise rights, saying in part: 

Two providers—one a conscientious objector and the other secular—both fail to provide a woman with requested information about abortion providers.  The conscientious objector refuses because of his sincerely held beliefs.  The secular provider doesn’t provide the requested information because he’s too busy.  Both patients sue.  Before the HCRCA, both suits could’ve gone forward, requiring the plaintiff in both cases to show that the health care providers fell below the standard of care. After the HCRCA’s enactment, the conscientious objector—but not the secular provider—is wholly protected, regardless of whether the provider’s actions fell below the standard of care.     

Along comes Public Act 99-690—partially restoring the pre-HCRCA universe. Now, as before, all health care providers are amenable to suit for failure to refer, transfer, or provide written information about potential abortion providers.  Relative to each other, the secular provider isn’t in any better position than before the HCRCA and the conscientious objector isn’t any worse for the wear.  

As this hypothetical shows, the latest Amendments to the HCRCA don’t impose additional burdens on conscientious objectors because of their beliefs....

Christian Post reports on the decision.

AG May Not Threaten Prosecution of Those Who Assist Women Seeking Out-of-State Abortions

In Yellowhammer Fund v. Attorney General of Alabama, (MD AL, March 31, 2025), an Alabama federal district court in a 131-page opinion issued a declaratory judgment holding unconstitutional the Alabama Attorney General's threat to prosecute those who assist women seeking to travel out-of-state to obtain a legal abortion.  The court found that the threat violated both the right to interstate travel and free expression rights.  The court said in part:

The right to travel includes both the right to move physically between two States and to do what is legal in the destination State.  The Supreme Court has held that States cannot punish their residents for traveling to another State and engaging in conduct that is lawful there....

This principle extends to people who enter a State to procure medical services, including abortions....

If a State cannot outright prohibit the plaintiffs’ clients from traveling to receive lawful out-of-state abortions, it cannot accomplish the same end indirectly by prosecuting those who assist them. ...

The Attorney General’s threatened enforcement of Alabama’s criminal laws imposes a content- and viewpoint-based restriction on speech.  It restricts information and discussion about a specific subject--abortion-- to forbid encouraging a specific viewpoint-- access to a legal out-of-state abortion....

... Yellowhammer Fund’s act of pledging and providing funds on behalf of pregnant Alabamians who seek a legal abortion outside Alabama is expressive conduct, and, therefore, subject to First Amendment protection....

It is one thing for Alabama to outlaw by statute what happens in its own backyard.  It is another thing for the State to enforce its values and laws, as chosen by the Attorney General, outside its boundaries by punishing its citizens and others who help individuals travel to another State to engage in conduct that is lawful there.... For example, the Alabama Attorney General would have within his reach the authority to prosecute Alabamians planning a Las Vegas bachelor party, complete with casinos and gambling, since casino-style gambling is outlawed in Alabama....  As the adage goes, be careful what you pray for. 

AP reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Supreme Court Will Hear Oral Arguments Today on Challenge to Planned Parenthood Funding Cutoff

The U.S. Supreme Court today will hear oral arguments in Medina v. Planned Parenthood South Atlantic. In the case, the U.S. 4th Circuit Court of Appeals held that Congress conferred an individually enforceable right for Medicaid beneficiaries to freely choose their healthcare provider. It thus affirmed the district court's enjoining of South Carolina's attempted cutoff of Medicaid funds to Planned Parenthood. Links to pleadings and briefs in the case are available on the Supreme Court's docket for the case. Background on the case is discussed by SCOTUSblog. Today's oral arguments will be broadcast live at 10:00 AM at this link. A transcript and audio of the arguments will be posted here by the Supreme court later today.

New York County Clerk Refuses to File Texas Default Judgment Against Doctor Who Sent Abortion Pills to Texas Woman

New York state's Shield Law (EXECUTIVE 837-x) provides in part:

No state or local government employee ... shall cooperate with ... any out-of-state individual or out-of-state agency or department regarding any legally protected health activity in this state, or otherwise expend or use time, moneys, facilities, property, equipment, personnel or other resources in furtherance of any investigation or proceeding that seeks to impose civil or criminal liability or professional sanctions upon a person or entity for any legally protected health activity occurring in this state... 

Invoking this provision, an Ulster, New York County Clerk yesterday refused a request by Texas Attorney General Ken Paxton to enforce in New York a Texas default civil judgment against a New York physician charged with providing abortion medication to a woman in Texas. Ulster County Clerk Taylor Bruck's statement (full text) reads in part:

Today, I informed Texas State Attorney General Ken Paxton that the Ulster County Clerk’s Office will not be filing a summary judgment against a New Paltz physician who is facing charges in Texas for providing mifepristone via telehealth to a Texas resident. The judgment in question seeks a civil penalty exceeding $100,000 due to the doctor’s failure to appear in court. 

As the Acting Ulster County Clerk, I hold my responsibilities and the oath I have taken in the highest regard. In accordance with the New York State Shield Law, I have refused this filing and will refuse any similar filings that may come to our office...

The case will provide an interesting test of the extent of exceptions to the federal Constitution's "full faith and credit" clause which generally requires one state to enforce judgments of another state's courts.

Texas Tribune Reports on these developments.

Diocese and Pregnancy Center Challenge Illinois Ban on Employment Discrimination Because of Reproductive Health Care Choices

Suit was filed last week in an Illinois federal district court by a Christian Pregnancy Care Center and a Catholic diocese challenging the requirement that they comply with recent amendments to the Illinois Human Rights Act that prohibit discrimination against employees based on their reproductive health care decisions. The complaint (full text) in Pregnancy Care Center of Rockford v. Bennett, (ND IL, filed 3/20/2025), alleges in part:

198. Because they wish to carry out their respective missions and spread their pro-life messages successfully, Plaintiffs hire and retain employees who avoid reproductive decisions that undermine their identity, mission, and message. For Plaintiffs, the credibility of their messengers is as important as the message. 

199. The Act’s Employment, Offensive Speech, and Notice Clauses severely burden Plaintiffs’ freedom of expressive association by forcing them to form associations and assemblies with employees whose reproductive decisions undermine their mission and message....

209. The Act substantially burdens Plaintiffs’ right to the free exercise of religion by prohibiting faith-based speech and conduct related to reproduction, interfering with their faith-based employment decisions, and forcing Plaintiffs to revise their statements of faith, positional statements, codes of conduct, employee handbooks, and other policy documents....

235. [The] right to religious (or “church”) autonomy safeguards a religious organization’s decision about which officers, board members, employees, and volunteers are best suited to advance its religious mission and purpose. 

236. This freedom extends to Plaintiffs’ ability to hire and employ only those who believe—and live out—the beliefs of their organizations about reproductive health decisions such as abortion, sterilization, and contraception....

259. The Act also restricts Plaintiffs’ right to free speech because it compels them to speak a message contrary to their beliefs not only to their current employees but also to prospective employees and the public in general....

281. Defendants’ application of the Act’s provisions about reproductive decisions to Plaintiffs’ religious speech and conduct violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Catholic Vote reports on the lawsuit. 

EEOC Enjoined from Enforcing Pregnant Workers Fairness Act Against Christian Nonprofit Organization

In Stanley M. Herzog Foundation v. EEOC, (W.D. Mo. Oct 04, 2024), a Missouri federal district court issued a preliminary injunction barring the EEOC from enforcing the Pregnant Workers Fairness Act and rules implementing it against plaintiff, a nonprofit Christian educational organization, where enforcement would require plaintiff to accommodate abortions that are contrary to its sincere religious beliefs. The court said in part:

... [T]he EEOC has not established that it used the least restrictive means to advance its interests at this stage. The Final Rule’s approach requires employers to provide accommodations for employees who obtain abortions and permits a religious employer to assert a religious defense only after an employee brings a complaint against it for refusing to provide accommodations. There is no way for a religious employer to ensure it will not face investigation or prosecution ahead of time. The Foundation suggests a number of alternatives the EEOC could have taken, which are less restrictive of its free exercise rights....  The EEOC argues these alternatives are not feasible because the PWFA does not give it authority to predetermine religious exemptions or defenses. Ultimately, the burden is on the EEOC to “prove with evidence” that its policies are the least restrictive means “to achieve its compelling interest, including alternative forms of regulation.”

... [T]he Foundation is likely to succeed on the merits of its RFRA claim.....

The Heartlander reports on the decision.

Most Challenges to Law Protecting Access to Abortion Clinics Are Rejected; One Section Violates 1st and 14th Amendments

In Hulinsky v. County of Westchester, (SD NY, March 14,2025), two women who have engaged in sidewalk counseling at abortion clinics challenged a Westchester County, New York, law that was designed to assure safe access to reproductive health care facilities. The court described the challenged legislation:

Sections 425.31(a) prohibits forms of “physically obstructing or blocking” that amount to interfering with and/or intimidating persons obtaining access at a reproductive health care facility. Sections 425.31(e) and (f) prohibit interfering with and/or intimidating persons obtaining access at a reproductive health care facility “[b]y force or threat of force, or by physically obstructing or blocking[.]” Section 425.31(c) prohibits “knowingly follow[ing] and harass[ing] another person within twenty-five (25) feet of” a “reproductive health care facility.” Section 425.31(h) prohibits “knowingly interfer[ing] with the operation of a reproductive health care facility.”

A New York federal district court found that Sec. 425.31(h) "burden[s] substantially more speech than is necessary to further the government’s legitimate interests." It also concluded that the section "is vague because it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct is prohibited." However, the court dismissed plaintiffs' free exercise challenge to the section as well as their free speech and free exercise challenges to other parts of the law. 

DOJ Dismisses Suit Claiming Idaho's Abortion Restrictions Conflict With EMTALA

On Wednesday, both parties filed a Stipulation of Dismissal (full text) in United States v. State of Idaho, (D ID, filed 3/5/2025). According to the Stipulation, filing of this with the federal district court in which the suit was brought automatically dissolves the preliminary injunction which the court issued in August 2022.  In the case, the district court had enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The case then worked its way to the U.S. Supreme Court which initially granted review and then instead returned the case to the 9th Circuit, finding that certiorari had been improvidently granted. (See prior posting.)  Most recently, the parties argued the case before the 9th Circuit. Idaho's Attorney General Raúl Labrador announced this week's dismissal of the case, saying in part that: "It has been our position from the beginning that there is no conflict between EMTALA and Idaho’s Defense of Life Act." Liberty Counsel issued a press release discussing these developments and pointing out:

Idaho’s abortion law continues to face a separate legal challenge. In January 2025, St. Luke’s Hospital System in Idaho brought a nearly identical lawsuit as to Biden’s claiming the state’s abortion ban prevents women from getting abortions as part of emergency medical care. In St. Luke’s Health System v. Labrador, U.S. District Judge B. Lynn Winmill, who had previously levied the injunction in Biden’s lawsuit, issued a temporary restraining order against Idaho’s attorney general’s office blocking it from enforcing the “Defense of Life Act” pending the results of a later proceedings.

9th Circuit: Church Lacks Standing to Challenge Washington's Health Insurance Coverage Requirements

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (9th Cir., March 6, 2025), the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a church which opposes abortion and some forms of contraception lacks standing to challenge Washington's Reproductive Parity Act which requires health insurance carriers to provide coverage for contraceptives and abortions. A second state statute allows insurance companies to offer employee plans that accommodate a church's religious objections, so long as employees can separately access coverage for such services from the insurer. However, plaintiff church has been unable to find a plan that accommodates its objections. The court said in part: 

Nothing in the challenged law prevents any insurance company ... from offering Plaintiff a health plan that excludes direct coverage for abortion services. Therefore, an insurance company’s independent business decision not to offer such a plan is not traceable to the Parity Act....

Nothing in the record suggests that Plaintiff’s alleged injury would be redressed if we struck down the Parity Act....

Plaintiff contends, in the alternative, that an employer purchasing a no-abortion plan in Washington still “indirectly facilitates” the provision of abortion services to its employees.  Plaintiff relies on but-for reasoning.  As noted above, under the conscientious-objection statute, employees can obtain coverage for abortion services through their insurance carrier, whether or not the employer has a religious objection....  So, Plaintiff’s argument goes, employees receive coverage that they would not have but for the existence of the health plan provided by their employer, even if the employer’s plan does not itself provide that coverage.... We reject this theory as well.  The general disapproval of the actions that others might decide to take does not create standing, even when some tenuous connection may exist between the disapproving plaintiff and the offense-causing action.

Judge Callahan filed a dissenting opinion.  She agreed with plaintiff's "facilitation" argument. She added in part:

Cedar Park also has standing because the Parity Act caused Kaiser Permanente to stop providing a health plan that excludes abortion coverage and the church cannot procure a comparable replacement.

Certiorari Denied in Abortion Buffer Zone Challenge

Yesterday, the U.S. Supreme Court denied review in Coalition Life v. City of Carbondale, Illinois, (Docket No. 24-57, certiorari denied 2/24/2025) (Order List.) In the case, the U.S. 7th Circuit Court of Appeals upheld a city ordinance creating a buffer zone around abortion clinics in which sidewalk counselors may not approach closer than 8 feet to those accessing the clinic. The 7th Circuit said it was bound by the Supreme Court's 2000 decision in Hill v. Colorado.  Justice Thomas filed a dissenting opinion saying in part:

Following our repudiation in Dobbs, I do not see what is left of Hill. Yet, lower courts continue to feel bound by it.  The Court today declines an invitation to set the record straight on Hill’s defunct status.  I respectfully dissent.