Crisis Pregnancy Center Gets Injunction Against Abortion Reversal Ban

In Bella Health and Wellness v. Weiser, (D CO, Aug. 1, 2025), the Colorado federal district court that had previously granted a preliminary injunction in the case now granted a permanent injunction barring enforcement against plaintiffs of Colorado's law that defines providing medication abortion reversal as unprofessional conduct by doctors, nurses and pharmacists. Bella Health operates two faith-based Catholic crisis pregnancy centers. The court said in part:

The parties do not dispute that Plaintiffs’ religious beliefs are sincerely held or that they are substantially burdened by application of Section Three and the Boards’ rules....  And it is not within the province of this Court to second-guess the truth of Bella Health’s religious callings or suggest alternative means of satisfying them.... The only question, therefore, is whether this section’s prohibition against medication abortion reversal is generally applicable to other non-religious uses of progesterone. It is not....

Overall, it is impossible to avoid the conclusion that Plaintiffs’ use of progesterone is not being regulated neutrally—it is being singled out....

ADF issued a press release announcing the decision.

Missouri Sues Planned Parenthood for False Advertising

Missouri Attorney General Andrew Bailey announced last week that the state of Missouri has filed suit against the national Planned Parenthood Association under the Missouri Merchandising Practices Act, the state's consumer protection law.  The complaint (full text) in State of Missouri ex rel Bailey v. Planned Parenthood Federation of America, (MO Cir. Ct., filed 7/23/2025), alleges that representations on Planned Parenthood's website about the safety of mifepristone, the pill used for chemical abortions, is "brazenly false". The complaint says in part:

25. Planned Parenthood’s statements are outright false, and at the very least unlawfully misleading, for a variety of reasons: i. The rate of emergency room visits is much higher for the abortion pill than the drugs Planned Parenthood cites as comparators; ii. Planned Parenthood is comparing a single dose of the abortion pill to overdoses (i.e. misuse) of other drugs, such as Tylenol; and iii. The abortion pill and other drugs have different uses, are administered differently, and are used by individuals who have different underlying comorbidities or risk factors.

The complaint seeks civil penalties of $1.8 million and restitution of $1000 for each woman in the state to whom Planned Parenthood has furnished mifepristone during the past five years. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Cutoff of Funding to All Planned Parenthood Clinics Enjoined

In Planned Parenthood Federation of America, Inc. v. Kennedy, (D MA, July 28, 2025), a Massachusetts federal district court in a 58-page opinion extended a preliminary injunction it had issued a week earlier barring Congress' defunding of Planned Parenthood clinics that do not offer abortions to preliminarily enjoin Congress's cutoff of funds for non-abortion services even to Planned Parenthood clinics that do offer abortions. the court said in part:

To the extent that Section 71113 may be applied to Planned Parenthood Members who do not provide abortion, Plaintiffs are likely to succeed in establishing that the law impermissibly conditions the receipt of Medicaid reimbursements on these Members foregoing their right to associate with Planned Parenthood Federation and other Members...

... Instead of merely prohibiting Planned Parenthood Members that receive Medicaid funds from providing abortions, the statute prohibits them from affiliating with entities that do.... [R]estricting funds based on affiliation with an abortion provider operates only to restrict the associational right of Members that do not provide abortion. ...

... [I]n light of the disconnect between the law and its purported ends on the one hand, and the severe burdens it imposes on Planned Parenthood Federation and its Members on the other, Plaintiffs are likely to establish that Congress singled them out with punitive intent. The legislative context bolsters that conclusion. Plaintiffs have thus demonstrated a substantial likelihood of success on their claim that Section 71113 is an unconstitutional bill of attainder. ...

... Where Defendants have not shown the law is precisely tailored to serve a compelling governmental interest, Plaintiffs have demonstrated a substantial likelihood of success on their equal protection claim.  

Moreover, Plaintiffs are likely to show that there is no rational relationship between the class burdened by Section 71113—comprised of 47 Planned Parenthood Members and two additional entities—and the goal of reducing abortion. As explained above, Section 71113 affects only a small number of abortion providers and leaves every other conceivable category unaffected.

ABC News reports on the decision.

Cutoff of Medicaid Funds to Planned Parenthood Clinics That Do Not Offer Abortions Is Unconstitutional

In Planned Parenthood Federation of America, Inc. v. Kennedy, (D MA, July 21, 2025), a Massachusetts federal district court granted a preliminary injunction barring the federal government from cutting off Medicaid funding to Planned Parenthood members that do not offer abortion services, but whose Medicaid funding was cut off by recent Congressional legislation.  The court concluded that this cutoff likely violated the expressive association and equal protection rights of these Planned Parenthood clinics. The court said in part:

To the extent that Section 71113 may be applied to Planned Parenthood Members who do not provide abortion, Plaintiffs are likely to succeed in establishing that the law impermissibly conditions the receipt of Medicaid funding on these Members foregoing their right to associate with Planned Parenthood Federation and other Members. Members who do not provide abortions cannot escape the law’s burden except by disassociating from Members that do. And because Section 71113 may be applied to Members who are affiliates of each other via the structure, governance, and membership requirements of Planned Parenthood Federation, disassociating with other Members requires disassociating from Planned Parenthood Federation itself.  

While Defendants contend that Section 71113 does not regulate speech, the record demonstrates that Members’ affiliation via their membership in Planned Parenthood Federation is expressive. Planned Parenthood Federation advocates before Congress, provides education and information about sexual and reproductive health, and through Planned Parenthood Action Fund, communicates with the public regarding lawmakers’ voting records, supports campaigns for ballot initiatives, and supports candidates for federal, state, and local officials who will support reproductive freedom in furtherance of its mission....

Congress may set conditions “that define the limits” of a spending program by “specify[ing] the activities Congress wants to subsidize,” but Congress may not set “conditions that seek to leverage funding to regulate speech outside the contours of the program itself.”...

... Instead of merely prohibiting Planned Parenthood Members that receive Medicaid funds from providing abortions, the statute prohibits them from affiliating with entities that do.... Therefore, restricting funds based on affiliation with an abortion provider operates only to restrict the associational right of Members that do not provide abortion....

... Section 71113 ... declines Medicaid funding on the basis of affiliation, and thus draws a classification that burdens a fundamental First Amendment right. Where Defendants have not shown the law is precisely tailored to serve a compelling governmental interest, Plaintiffs have demonstrated a substantial likelihood of success on their equal protection claim....

Planned Parenthood League of Massachusetts posted an update explaining the court's holding. Fox News reports on the decision.

Tennessee Law Barring Recruitment of Minor to Obtain an Abortion Is Unconstitutional

In Welty v. Dunaway, (MD TN, July 18, 2025), a Tennessee federal district court enjoined enforcement of a Tennessee statute that prohibits "recruiting" an unemancipated minor to obtain an out-of-state abortion that is legal where performed. The court said in part:

... [P]laintiffs have established that §39-15-201(a) unconstitutionally regulates speech based on content and is facially overbroad.

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

One Plaintiff Has Standing to Challenge Kentucky Abortion Ban on Religious Grounds

In Sobel v. Coleman, (KY App., July 11, 2025), a Kentucky state appeals court partially reversed a trial court's decision and held that one of the plaintiffs challenging Kentucky's abortion ban has standing to pursue her claim that the law violates her rights under Kentucky's Religious Freedom Restoration Act. The court said in part:

The primary argument of this case revolves around the embryos created with IVF.  During IVF, multiple eggs of a woman are fertilized.  This can lead to excess embryos that are not implanted in the woman.  These extra embryos are either frozen and stored, disposed of, or donated.  Appellants claim that the destruction of any unviable or unused embryos could lead to criminal charges relating to the death of an unborn child....

Appellants ... claim that their Jewish faith requires them to increase their family and multiply.  They argue that restricting their access to IVF due to the unclear notion of unborn child and unborn human being violates their religion.  They also claim that their faith prioritizes the life of a mother over the life of a fetus; therefore, restrictions on abortion violate their faith.  Further, they claim that their faith does not support the idea that life begins at conception, rather that a fetus becomes a child only once it exits the mother’s body.  They claim that the laws in Kentucky surrounding abortion are Christian in nature and do not take into consideration their faith....

Ms. Kalb has taken active steps to get pregnant.  She has nine embryos in frozen storage ready for her use and she scheduled, but ultimately canceled, an embryo implantation in 2022.  Ms. Kalb’s actions show imminence in a potential injury sufficient to satisfy standing for her religious-based claims.

The Forward reports on the decision.

4th Circuit: FDA Regulation of Mifepristone Does Not Pre-Empt West Virginia's Abortion Ban

In GenBioPro, Inc. v. Raynes, (4th Cir., July 15, 2025), the U.S. 4th Circuit Court of appeals in a 2-1 decision, held that federal law regulating the abortion drug mifepristone does not pre-empt West Virginia's Unborn Child Protection Act which bans almost all abortions. The suit was brought by a manufacturer of generic mifepristone. The majority said in part:

We begin by addressing GenBioPro’s field preemption theory. GenBioPro argues that the FDAAA “occupied the field of regulating access to REMS drugs with safe-use elements.”... In its view, West Virginia’s abortion law intrudes into this field by restricting access to mifepristone.  

We disagree. West Virginia’s abortion law and the FDAAA operate in different fields. West Virginia’s law regulates the incidence of abortion. It determines whether an abortion may be performed at all, prohibiting the procedure in all but a few specific circumstances. In contrast, the FDAAA permits the FDA to regulate how mifepristone must be prescribed and dispensed if and when a medication abortion is performed....

And even were we to assume the state and federal laws regulate the same field, that field is not one that Congress has occupied....

We last address GenBioPro’s contention that the West Virginia law conflicts with the FDAAA....

The company claims that it cannot comply with both federal and state law because the FDA has authorized the sale of mifepristone while the state has banned its use. It likewise argues that the West Virginia law poses an obstacle to the FDAAA’s goal of ensuring drug access. In its view, Congress struck a careful balance between drug safety and access, and West Virginia’s abortion law disrupts this balance by burdening access to mifepristone. 

Both of these theories rely on the same flawed premise: that Congress intended to guarantee nationwide access to mifepristone when it enacted the FDAAA. We see no indication that it did....

Judge Benjamin dissented, saying in part:

By criminalizing medical providers and prohibiting medication abortions, then, West Virginia has exceeded the ability to regulate abortion as established in Dobbs and has trespassed on the FDA’s authority to regulate the safe use of and unburdened access to mifepristone.  

Stated simply, the majority’s conclusion on this point focuses on regulation of abortion generally, despite the issue here being the state regulation of an otherwise federally approved drug—a much narrower focus.  The federal government has clearly occupied the drugs with REMS and elements to assure safe use field, and West Virginia overreaches by seeking to add additional regulations to the same.  Accordingly, field preemption applies....

Because the UCPA burdens patients and healthcare systems and imposes inconsistent regulation of mifepristone in ways not intended by Congress, conflict preemption also precludes the state law.

Metro News reports on the decision.

Planned Parenthood Fights New Medicaid Funding Cutoff

Planned Parenthood filed suit this week in a Massachusetts federal district court challenging Section 71113 of H.R. 1, One Big Beautiful Bill Act which denies federal Medicaid funds for non-abortion services for one year to any non-profit that provides abortions, and which received in 2023 Medicaid funds exceeding $800,000. (Use of Medicaid funds for abortions is already prohibited under other laws.) The complaint (full text) in Planned Parenthood Federation of America, Inc. v. Kennedy, (D MA, filed 7/7/2025), alleges that the provision was drafted to target and retaliate against Planned Parenthood. The complaint reads in part:

10. There is no legitimate justification for the statute; rather, the true design of the Defund Provision is simply to express disapproval of, attack, and punish Planned Parenthood, which plays a particularly prominent role in the public debate over abortion and (if Planned Parenthood’s Members are treated collectively) is the only nationwide abortion provider. Supporters of the Defund Provision, including President Trump and members of Congress, have made this point unmistakably clear. 

11. For these reasons, the Defund Provision’s exclusion of Planned Parenthood Members from a program designed to provide high-quality medical care to the Nation’s neediest patients—care that Planned Parenthood Members have delivered for decades—is unconstitutional as to all Planned Parenthood Members as a Bill of Attainder and it also violates Plaintiffs’ Equal Protection and First Amendment rights.

On the day the complaint was filed, the court issued a 14-day Temporary Restraining Order (full text) requiring that Medicaid funding continue to be furnished to plaintiffs. After the government responds, the court will decide whether to issue a temporary injunction in the case. Jurist and The Hill report on these developments.

UPDATE: On July 11, the court extended the Temporary Restraining Order through July 21 in a 9-page opinion and Order.  Daily Caller reports on this development.

Wisconsin Supreme Court: Legislature Impliedly Repealed 1849 Abortion Ban

 In Kaul v. Urmanski, (WI Sup. Ct., July 2, 2025), the Wisconsin Supreme Court in a 4-3 decision held that 1849 state law criminalizing abortions has been impliedly repealed by later legislation. The majority said in part:

We conclude that comprehensive legislation enacted over the last 50 years regulating in detail the “who, what, where, when, and how” of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion. Accordingly, we hold that the legislature impliedly repealed § 940.04(1) as to abortion, and that § 940.04(1) therefore does not ban abortion in the State of Wisconsin....

Chief Justice Karofsky filed a concurring opinion, saying in part:

I agree with the majority’s decision and its analysis. In deciding that the legislature impliedly repealed WIS. STAT. § 940.04(1), the women and children of our state are shielded from the brutal consequences this statute wrought. Yet I write separately because when courts are called upon to arbitrate significant issues in turbulent times such as these, it is incumbent that we pause to reflect on the import of our decisions in the arc of history....

I conclude by elevating the accounts of four women to illustrate the real-world consequences of severe abortion restrictions. I hold these tragedies up to the light in the hope that Wisconsin’s legacy may remain on the side of history that values the health and well-being of all people....

Justice Ziegler filed a dissenting opinion, saying in part:

The majority opinion is a jaw-dropping exercise of judicial will, placing personal preference over the constitutional roles of the three branches of our state government and upending a duly enacted law. In this dangerous departure from our constitutional design, four members of the court make up and apply their own version of implied repeal, failing to hew to any semblance of traditional judicial decision-making or jurisprudence....

Justice Bradley filed a dissenting opinion, saying in part:

Not content with effacing the law, Chief Justice Jill Karofsky rewrites history, erases and insults women by referring to mothers as “pregnant people,” slanders proponents of the pro-life perspective, and broadcasts dangerously false narratives about laws restricting abortion. Laden with emotion, steeped in myth, and light on the law, the concurrence reads as a parody of progressive politics rather than the opinion of a jurist....

With no apparent sense of irony, the concurrence claims abortion restrictions amount to “death warrants” for women, ignoring the people who feel just as passionately that abortion kills innocent human lives—more than 1,000,000 in each of the last two years. The resolution of this divisive question does not belong with the judiciary. The question of abortion belongs with the People....

Justice Hagedorn, joined by Justice Bradley, filed a dissenting opinion, saying in part:

The Wisconsin Constitution vests the lawmaking power of the people in the state legislature. But today, the Wisconsin Supreme Court effectively deletes a law from the books, taking this power unto itself. Sure, the majority opinion is laden with legal jargon a reader might think reflects a reasoned judicial opinion. Don’t be fooled. This is pure policymaking, driven by antagonism toward a law the majority does not like. The end result is that the policies enacted by the people’s representatives are gone—scratched out with a giant judicial eraser.

Based on its decision in this case, the Wisconsin Supreme Court also dismissed an original action that had asked the Court to interpret the 1849 law as applying only to feticide. Planned Parenthood of Wisconsin v. Urmanski, (WI Sup. Ct., July 2, 2025). See prior posting.

NPR reports on the decisions.

In Britain, Commons Passes Bill Removing Prosecution of Women for Their Own Abortion; Extending Time Sue for Child Sex Abuse

On June 18, Britain's House of Commons by a vote of 312-95 passed and sent to the House of Lords the Crime and Policing Bill. Among the provisionsin the 444-page bill are Section 82 which removes the limitation period in damage actions claiming child sexual abuse and Section 191 which provides:

For the purposes of the law related to abortion, including sections 58 and 59 of the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929, no offence is committed by a woman acting in relation to her own pregnancy.

Discussing Section 191, WGBH reports:

In a landslide vote late Tuesday, lawmakers in the lower house of British parliament, the House of Commons, endorsed new legislation that bars women in England and Wales from ever being investigated, arrested, prosecuted or imprisoned for terminating their own pregnancies — no matter what term or trimester they’re in. The vote was 379 to 137.

Abortion is allowed up to 24 weeks of pregnancy, and beyond that in certain cases, if the woman’s life is in danger. But abortions have to be approved by two doctors, except for those that are terminated at home within 10 weeks....

The bill now goes to the House of Lords for its approval.

California May Proceed With False Advertising Charges Against Abortion Pill Reversal Promoters

In Culture of Life Family Services, Inc. v. Bonta, (SD CA, June 13, 2025), a California federal district court refused to enter a preliminary injunction to prevent California's attorney general from moving ahead with an enforcement action against a Catholic community health clinic that promoted "abortion pill reversal". California claimed that the clinic violated Unfair Commpetition and False Advertising laws. The clinic contended its promotion of abortion pill reversal is speech protected by the First Amendment. The court said in part:

The Court has already found that the challenged laws are not content-based and do not warrant application of a strict scrutiny standard.... But as content-neutral regulations, they are generally subject to heightened scrutiny: the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open....

The court concluded that the clinic was engaged in commercial speech and that, "it would be at the very least potentially misleading to state that supplemental progesterone can “reverse” an abortion." It went on to conclude that a number of other staements that the clinic made regarding abortion pill reversal are, or are potentially, false and misleading. The court went on to say in part:

Although this regulation involves reproductive rights, AG Bonta is not aiming to limit the actual practice of APR. And reproductive choices are not apart from consumer choices: women, in exercising their reproductive rights, are also consumers who must be given the correct information to make knowledgeable decisions for themselves....

In sum, Plaintiff cannot carry its burden of showing likelihood of success. Commercial speech that is inherently false or misleading does not receive First Amendment protection. For potentially misleading speech, the AG has more than carried his burden under Central Hudson.

Cert. Granted 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.