Consent Decree on Preliminary Injunction Signed in Pro-Lifers Suit Against National Archives [CORRECTED]

As previously reported, a suit was filed in D.C. federal district court last week against the National Archives after its security officers required three anti-abortion proponents who were visiting the museum to cover their pro-life t-shirts and remove pro-life buttons and hats.   In a press release yesterday, the American Center for Law and Justice announced that the court has signed a consent decree (full text) in the case.  The decree preliminarily enjoins the National Archives from prohibiting visitors from wearing t-shirts, hats, buttons or other attire that displays religious or political speech. In addition, National Archives will provide personal tours and personal apologies to two of the plaintiffs in the case. The National Archives has already issued a press release apologizing for the incident. The case has been referred to the D.C. Circuit's Mediation Program for 90 days to explore a final settlement. Politico reports on the parties' agreement. [Note: An earlier version of this post incorrectly stated that the case had been finally settled.]

National Archives Sued for Requiring Visitors to Remove Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by three anti-abortion proponents who visited the National Archives on the day of the March for Life in Washington. The complaint (full text) in Tamara R. v. National Archives and Records Administration, (D DC, filed 2/8/2023) alleges in part:

5. While in the National Archives, Plaintiffs were subject to a pattern of ongoing misconduct by federal government officials, specifically National Archives security officers, Defendants John Does and Jane Doe, who targeted Plaintiffs and intentionally chilled their religious speech and expression by requiring Plaintiffs to remove or cover their attire because of their pro-life messages.

6. This case seeks to protect and vindicate Plaintiffs’ fundamental and statutory rights under federal law, the First and Fifth Amendments to the United States Constitution, and the Religious Freedom Restoration Act (“RFRA”).

American Center for Law and Justice issued a press release announcing the filing of the lawsuit. A similar suit was filed against the National Air & Space Museum earlier this week. (See prior posting.)

Catholic School Students Sue Air & Space Museum for Barring Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by or on behalf of eleven South Carolina Catholic high school students against the National Air and Space Museum and seven members of its staff alleging that the students were required to remove their hats which carried a pro-life message during their visit to the Museum. The students visited the Museum after participating in the D.C. March for Life event. The complaint (full text) in Kristi L. v. National Air and Space Museum, (D DC, filed 2/6/2023), alleging violations of the 1st and 5th Amendments and RFRA, states in part:

Plaintiffs were subjected to a pattern of ongoing misconduct ... which included targeting, harassment, discrimination and, ultimately, eviction from NASM simply because they wore blue hats with the inscription, “Rosary Pro-Life.”...

Defendants’ restriction on Plaintiffs’ speech is content and viewpoint-based and demonstrates a concerted effort to single out, embarrass, intimidate, exclude, and ultimately silence the message expressed by Plaintiffs in wearing their “Rosary Pro-Life” hat....

The disparate treatment of Plaintiffs based on their viewpoints was a result of a discriminatory purpose on the part of Defendants...

Defendants’ restriction on Plaintiffs’ expressive religious activity as set forth in this Complaint imposes a substantial burden on Plaintiffs’ religious exercise in violation of RFRA....

American Center for Law & Justice issued a press release announcing the filing of the lawsuit.

Judge Asks for Briefing on Whether 13th Amendment Protects Abortion Rights

 In United States v. Handy, (D DC, Feb. 6, 2023), a D.C. federal district court refused to dismiss a criminal case charging ten defendants with conspiracy to block access to a Washington, D.C. abortion clinic. The court said in part:

In part, Defendant moves to dismiss the Superseding Indictment based on the Supreme Court's statement in Dobbs v. Jackson Women's Health Org. ... that “the Constitution does not confer a right to abortion.”... [I]t appears that Defendant’s constitutional argument is predicated on the false legal premise that the predicate statute at issue in the Superseding Indictment only regulates access to abortion. In fact, it regulates a broad category of “reproductive health services,” including, among other things, “counselling or referral services.” See 18 U.S.C. § 248(5). Nevertheless, to the extent that Defendants seek resolution of this matter via a constitutional holding, the Court will require additional briefing....

Here, the “issue” before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion. Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right....  [I]n consideration of the Supreme Court’s longstanding admonition against overapplying its own precedent, it is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised. However, it was not raised. 

Of those provisions that might contain some right to access to such services, the Thirteenth Amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision. E.g., Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480 (1990); Jane L. v. Bangerter, 61 F.3d 1505, 1514-15 (10th Cir. 1995). Therefore, and to ensure the correct and just disposition of this criminal action, the parties shall address in their forthcoming briefing: (1) whether the scope of Dobbs is in fact confined to the Fourteenth Amendment and (2) whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter....

Politico reports on the court's Order.

Idaho Legislature Cannot Intervene in Suit by U.S. Challenging Idaho's Abortion Ban In Emergency Situations

In United States v. State of Idaho, (D ID, Feb. 3, 2023), an Idaho federal district court refused to allow the Idaho legislature to intervene as a matter of right in a suit in which the U.S. Department of Justice is suing on a claim that Idaho's total abortion ban is preempted by federal law to the extent that it is contrary to the Emergency Medical Treatment and Labor Act.  The court concluded that the legislature has failed to show that the state's attorney general is inadequately representing the state's identical interest in defending the abortion ban.  The same court has previously issued a preliminary injunction against enforcing the ban against any medical provider or hospital that performs an abortion that is required as emergency treatment guaranteed by federal law. (See prior posting.) In that suit, the court permitted the legislature to permissively intervene on a limited basis.

20 State AG's Warn Pharmacies Against Mailing Abortion Pills

Missouri Attorney General Andrew Bailey announced on Tuesday that 20 state attorneys general have sent letters to Walgreen's and CVS pharmacies warning that their plan to distribute the abortion pills mifepristone and misoprostol using the mails violates both state and federal law. (Full text of letters to Walgreen's and CVS). The letters contend that distribution of the pills by mail violates 18 USC §1461 and reject an Opinion of the Justice Department's Office of Legal Counsel (full text) to the contrary.

Satanic Temple Opens Reproductive Health Clinic Offering Its Abortion Ritual

In a press release issued this week, The Satanic Temple ("TST") announced that it has set up its first Reproductive Health Clinic in New Mexico. TST has developed an abortion ritual that it claims is protected by the First Amendment. According to the press release:

[A]nyone in New Mexico seeking to perform The Satanic Temple’s abortion ritual will be able to receive free online medical services. Patients undergo a confidential screening and virtual appointment before having their prescriptions sent to the clinic’s pharmacy partner, who will mail the medications in a discreet package. The pharmacy’s fees will fall around $90 USD in order to keep prices at a minimum. TST Health’s licensed medical staff will be available for patient questions and concerns and will initiate follow-up communications with patients. In addition, the clinic has a dedicated patient hotline that is on call 24/7. 

The Satanic Temple hopes to expand operations into other states, including those that do not allow clinicians to perform abortions.

TST's press release added that it has named the facility "The Samuel Alito’s Mom's Satanic Abortion Clinic," and went on to elaborate on that choice. Christian Post reports on TST's actions.

Minnesota Passes Law Guaranteeing Right To Abortions

The Minnesota legislature yesterday gave final passage to HF1, the Protect Reproductive Options Act (full text). It provides in part:

Every individual who becomes pregnant has a fundamental right to continue the​ pregnancy and give birth, or obtain an abortion, and to make autonomous decisions about​ how to exercise this fundamental right.

According to a CBS News report on the bill:

Abortion rights in Minnesota are already protected because a Doe v. Gomez, a 1995 Minnesota Supreme Court decision. Democrats frame the bill as a "secondary" line of defense to that ruling.

The bill now goes to Gov. Tim Walz for his signature. According to MPR News, Gov. Walz has said he will sign the bill into law. [Thanks to Scott Mange for the lead.]

Indiana Supreme Court Hears Arguments on Constitutionality of State's Abortion Ban

On January 19, the Indiana Supreme Court heard oral arguments in Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc. (Video of full oral arguments.) As summarized by the Court:

After a special legislative session, the Indiana General Assembly passed Senate Bill 1 (“S.B. 1”), which criminalizes abortion, with a few limited exceptions. Appellees filed a complaint for declaratory relief and sought a preliminary injunction to enjoin the enforcement of S.B. 1. The trial court granted the preliminary injunction, and Appellants appealed. The Indiana Supreme Court has granted a petition to transfer under Indiana Appellate Rule 56(A) and assumed jurisdiction over the case.

Liberty Counsel issued a press release reporting on the arguments.

South Dakota Will Prosecute Pharmacies That Dispense Abortion Drug

Yesterday, South Dakota Governor Kristi Noem and Attorney General Marty Jackley released a letter (full text) sent to South Dakota pharmacists warning them that despite FDA approval for the abortion drug Mifepristone to be dispensed at pharmacies, it violates South Dakota law to do so.  The letter reads in part:

This side-stepping on the part of the FDA permits dangerous, at-home abortions without any medical oversight. It also violates state law that makes dispensing this medication for abortions a felony.

Chemical abortions remain illegal in South Dakota. Under South Dakota law, pharmacies, including chain drug stores, are prohibited from procuring and dispensing abortion-inducing drugs with the intent to induce an abortion, and are subject to felony prosecution under South Dakota law, despite the recent FDA ruling. Their resources should be focused on helping mothers and their babies, both before birth and after.

All abortions, whether surgically or chemically induced, terminate the life of a living human being. South Dakota will continue to enforce all laws including those that respect and protect the lives of the unborn.

Biden Issues Memo On Access To Medical Abortion Drug

 On January 22, President Biden issued a Memorandum on Further Efforts to Protect Access to Reproductive Healthcare Services (full text).   It provides in part:

My Administration remains committed to supporting safe access to mifepristone, consistent with applicable law, and defending women’s fundamental freedoms.  Defending and protecting reproductive rights is essential to our Nation’s health, safety, and progress.  It is the policy of my Administration to protect against threats to the liberty and autonomy of those who live in this country.

Sec. 2.  Continuing to Protect Access to FDA-Approved Medication.  In light of recent developments and consistent with Executive Order 14076, within 60 days of the date of this memorandum:

     (a)  The Secretary of HHS, in consultation with the Attorney General and the Secretary of Homeland Security, shall consider:

(i)   issuing guidance for patients seeking legal access to mifepristone, as well as for providers and entities, including pharmacies, that provide reproductive healthcare and seek to legally prescribe and provide mifepristone; and

(ii)  any further actions, as appropriate and consistent with applicable law, to educate individuals on their ability to seek legal reproductive care, free from threats or violence.

Suit By Clergy Challenges Missouri Abortion Bans

Suit was filed this week in a Missouri state trial court by 13 clergy from several Christian denominations, as well as from Unitarian Universalist and Jewish traditions challenging a series of Missouri abortion restrictions and bans as violating the state constitution's prohibition on favoring any religion and its protection of free exercise of religion.  The 83-page complaint (full text) in Blackmon v. State of Missouri, (MO Cir. Ct., filed 1/19/2023), alleges in part:

8. This open invocation of religion in enacting H.B. 126 marked a departure from earlier legislative efforts to restrict abortion, when the sponsors claimed that their intent was to protect Missouri women. The legislative debate over those provisions reveals that, as with H.B. 126, the true purpose and effect of these laws was to enshrine certain religious beliefs in law. In enacting S.B. 5, for example, legislators spoke repeatedly of their intent to protect “innocent life,” could point as justification for the law only to biased investigations by the Senate “Sanctity of Life” Committee, and ignored the testimony of clergy who warned that targeting providers to limit abortion access impermissibly imposed one religious view on everyone else....

10. Collectively, Plaintiffs, like other clergy and faith communities all across this State, have through their work providing care, counseling, teaching, and preaching, spent decades countering the false but all too common assertion that faith and abortion access are incompatible. Their beliefs and lived experiences stand in stark contrast to the religious dictates that the Total Abortion Ban, Gestational Age Bans, Reason Ban, 72-Hour Delay, Same-Physician Requirement, Medication Abortion Restrictions, and Concurrent Original Jurisdiction Provision (collectively, the “Challenged Provisions”) impose on all Missourians.

NPR reports on the lawsuit. 

Idaho Supreme Court Upholds Abortion Ban

 In Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. State of Idaho, (ID Sup. Ct., Jan. 5, 2023), the Idaho Supreme Court in a 3-2 decision upheld three Idaho statutes banning abortions.  The majority summarized its decision in part as follows:

The Idaho Constitution does not contain an explicit right to abortion. Nevertheless, Petitioners argue that certain provisions implicitly enshrine abortion as a right entitled to heightened protection from the legislature’s broad power to regulate conduct.....

For the reasons discussed below, we cannot read a fundamental right to abortion into the text of the Idaho Constitution. 

The Inalienable Rights Clause in Article I, section 1 of the Idaho Constitution, which lists the rights to life, liberty, and property, provides the textual basis for the recognition of implicit fundamental rights. Indeed, Article I, section 21, while not purporting to be a repository of implicit rights, provides that the listing of rights in the Idaho Constitution “shall not be construed to impair or deny other rights retained by the people.” The Inalienable Rights Clause was framed at Idaho’s constitutional convention in 1889 and ratified by the people of Idaho later that same year. Thus, for us to read a fundamental right into the Idaho Constitution, we must examine whether the alleged right is so “deeply rooted” in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters of the Inalienable Rights Clause intended to implicitly protect that right.

When we apply that test to this dispute, there simply is no support for a conclusion that aright to abortion was “deeply rooted” at the time the Inalienable Rights Clause was adopted....

Importantly, nothing about this decision prevents the voters of Idaho from answering the deeply moral and  political question of abortion at the polls....

Additionally, as explained below, we conclude that the Total Abortion Ban, 6-Week Ban, and Civil Liability Law each pass the familiar test for determining the constitutionality of most legislation: “rational-basis” review. Under that form of review, each of these laws is constitutional because it is rationally related to the government’s legitimate interest in protecting prenatal fetal life at all stages of development, and in protecting the health and safety of the mother.

Justice Zahn and Justice Stegner each filed a dissenting opinion. [Thanks to Dusty Hoesly for the lead.]

South Carolina Supreme Court Invalidates Fetal Heartbeat Abortion Ban

In Planned Parenthood South Atlantic v. State of South Carolina, (SC Sup. Ct., Jan. 5, 2023), the South Carolina Supreme Court in a 3-2 decision held that the state's Fetal Heartbeat and Protection from Abortion Act violates a woman's right to privacy protected by Art. I, Sec. 10 of the South Carolina Constitution. Each Justice wrote a separate opinion in the case. The opinions span 147 pages.  Justice Hearn, holding the law unconstitutional, said in part:

We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman's right to privacy. While this right is not absolute, and must be balanced against the State's interest in protecting unborn life, this Act, which severely limits—and in many instances completely forecloses—abortion, is an unreasonable restriction upon a woman's right to privacy and is therefore unconstitutional....

The State unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision, but any such limitation must be reasonable and it must be meaningful in that the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy. Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution's prohibition against unreasonable invasions of privacy.

Chief Justice Beatty concurred in a separate opinion, saying in part:

Although our determination turns on the right to privacy, I believe the Act is also void ab initio and denies state constitutional rights to equal protection, procedural due process, and substantive due process. Therefore, the Act violates our state constitution beyond a reasonable doubt. For the foregoing reasons, I concur with Justice Hearn's lead opinion regarding the right to privacy, and I write separately to address all of Petitioners' issues because our decision today will likely not be the final resolution of the quandary....

When life begins is a theoretical and religious question upon which there is no universal agreement among various religious faiths. In fact, because there are differing views on abortion and when life begins among religious faiths, challenges are already being made to some abortion laws on the basis they violate religious freedom by elevating one faith's views over the views of others. The question of when life begins is distinguishable from the constitutional questions raised here regarding whether a woman has the right to make her own medical decisions regarding her reproductive health (in consultation with her medical provider and based on scientific evidence). At its core, the question the Court faces today is can the government—by force of law—force a woman to give birth without her consent? As will be discussed, for a reasonable period of time, a woman, rather than the government, retains this important right to choose whether to become a mother.

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

Political questions surrounding abortion have produced as much impassioned disagreement as any issue of our time. When those political questions intersect with questions of law, advocates on both sides of the political questions seem to believe that the more fervently they hold their political views, the more likely those views will become someone else's legal views. We have been asked in this case to ignore well-established principles of law in order to uphold the Fetal Heartbeat Act, and to create new and novel principles of law to strike down the Act. The parties who made these requests derive their positions not from sound legal reasoning, but from fervent political advocacy. These well-intentioned parties act on the basis of their politics. The Court must act on the basis of law. The article I, section 10 prohibition on "unreasonable invasions of privacy" is a principle of law. The six-week ban in the Fetal Heartbeat Act violates the provision because—as a matter of law—it is an unreasonable intrusion into a pregnant woman's right of privacy. The Fetal Heartbeat Act is, therefore, unconstitutional.

Justice Kittredge filed a dissenting opinion, saying in part:

Petitioners' due process claim fails. Abortion is not "deeply rooted" in our state's history, and it could not be reasonably suggested that abortion is "implicit in the concept of ordered liberty." To the contrary, it is the regulation and restriction of abortion that is deeply rooted in our state's history....

Justice Few and I have a fundamental difference of opinion on the reach and meaning of the state constitutional privacy provision. Justice Few views the privacy provision expansively; I view the privacy provision in line with its understood meaning at the time it was adopted, along with caselaw interpreting the provision. Yet Justice Few and I agree on a person's general privacy interest in his or her medical autonomy. It is the source of that privacy interest where we part company. Justice Few finds the source of the privacy interest in article I, section 10—the privacy provision. I believe this privacy interest in healthcare decisions is embedded in the due process concept of liberty from our nation's and state's foundings. That is why I find the source of that interest in article I, section 3—due process. This position aligns with my view that the most basic forms of privacy arise from natural law....

Justice James filed a dissenting opinion, agreeing in part with Justice Kittredge, saying in part:

Like Justice Kittredge, I would uphold the Act. However, I disagree with Justice Kittredge on one point: I would hold the privacy provision in article I, section 10 provides citizens with heightened Fourth Amendment protections, especially protection from unreasonable law enforcement use of electronic devices to search and seize information and communications. It goes no further.

CNN reports on the decision.

6th Circuit: Healthcare Buffer Zone Law Violates Pro-Lifer's Free Speech Rights

In Sisters for Life, Inc. v. Louisville-Jefferson County, KY Metro Government, (6th Cir., Dec. 21, 2022), the U.S. 6th Circuit Court of Appeals held that an ordinance imposing a 10-foot buffer zone around the entrance of any healthcare facility abridges the free speech rights of pro-life groups and individuals who wish to hand out leaflets and speak with women entering abortion clinics. The court said in part:

Even though caselaw permits a city to enact access laws focused on abortion facilities, ... the County sought to advance its interests by imposing a buffer zone on all medical facilities in Louisville. And why? The record does not reveal access problems beyond EMW.... Yet the ordinance covers every single hospital, clinic, and dentist’s office in the area.... Because the County may not “burden substantially more speech than is necessary” to further the County’s order and access interests,..., and because the County has not made any showing that all medical facilities need this kind of regulation, the ordinance lacks any tailoring, to say nothing of narrow tailoring.... 

The second problem is that the County has not shown that it “seriously undertook to address” its concerns “with less intrusive tools.”... [T]he County offers no tenable... explanation why the first prohibition in the law—that no one shall “knowingly obstruct, detain, hinder, impede, or block another person’s entry to or exit from a healthcare facility,”... will not work.

FDA Approves Label Change for Plan B Emergency Contraceptive: Not an Abortifacient

The U.S. Food and Drug Administration announced on Friday that it has approved a labeling change for the emergency contraceptive Plan B One-Step, sometimes known as the morning-after pill.  The labeling change states clearly that the medication is not an abortifacient.  The FDA says in part:

Plan B One-Step will not work if a person is already pregnant, meaning it will not affect an existing pregnancy. Plan B One-Step prevents pregnancy by acting on ovulation, which occurs well before implantation. Evidence does not support that the drug affects implantation or maintenance of a pregnancy after implantation, therefore it does not terminate a pregnancy.

The original label had been required to say in part: "this product works mainly by preventing ovulation (egg release). It may also prevent fertilization of a released egg (joining of sperm and egg) or attachment of a fertilized egg to the uterus (implantation)."

The FDA supports its conclusion that it does not affect implantation with a detailed Decisional Memorandum discussing more recent studies of the drug.

In the extensive litigation challenging rules under the Affordable Care Act that mandated health insurance policies cover contraceptive methods for women, religious objectors had pointed to Plan B as one of the medications that they considered an abortifacient because it could prevent implantation of a fertilized egg.  Also, since the Supreme Court's Dobbs case, abortion bans in some states might possibly be broad enough to cover medication that prevents implantation.

In a 2015 Memorandum, relying on research available at that time, the Catholic Medical Association rejected the use of Plan B even after a rape. AP reports on the FDA's approval of the labeling change.

Head of Priests for Life Defrocked by The Vatican

A letter and statement (full text) from the Apostolic Nuncio to the United States to U.S. Catholic bishops reports:

Rev. Frank Pavone, the founder of the organization, Priests for Life, Inc., was dismissed from the clerical state by the Holy See on 9 November 2022. This action was taken after Father Pavone was found guilty in canonical proceedings of blasphemous communications on social media, and of persistent disobedience of the lawful instructions of his diocesan bishop. 

Father Pavone was given ample opportunity to defend himself in the canonical proceedings, and he was also given multiple opportunities to submit himself to the authority of his diocesan bishop. It was determined that Father Pavone had no reasonable justification for his actions. 

Since Priests for Life, Inc. is not a Catholic organization, Mr. Pavone’s continuing role in it as a lay person would be entirely up to the leadership of that organization.

According to Catholic News Agency:

Pavone has been at odds with Bishop Patrick J. Zurek in Amarillo since the latter became bishop there in 2008. In 2011, Zurek publicly suspended Pavone, though Pavone later had the suspension overruled by the Vatican....

Pavone’s political activism played a role in his problems in Amarillo.

An outspoken supporter of former president Donald Trump, Pavone served on official Trump campaign outreach positions in 2016 and was originally a co-chair of Trump’s 2020 pro-life coalition, as well as an advisory board member of Catholics for Trump. Canon law forbids clerics from having an active role in political parties unless they receive the permission of their bishop. 

In November 2016, Pavone filmed a video at the Priests for Life headquarters, urging support for Trump. The video was staged with the body of an aborted baby laid before Pavone on what appeared to be an altar....

On his website, Pavone details his version of what happened in the video.... "[T]his was a table in our office, not a consecrated altar in a chapel"....

UK Supreme Court Upholds Northern Ireland Abortion Clinic Buffer Zone Law

In Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill, (UK SC, Dec. 7, 2022), the United Kingdom Supreme Court held that Northern Ireland legislation creating a safe access zone of 100 meters from abortion clinic entrances that is off limits to abortion protesters does not violate the European Convention on Human Rights. The Court said in part:

156. The right of women in Northern Ireland to access abortion services has now been established in law through the processes of democracy. That legal right should not be obstructed or impaired by the accommodation of claims by opponents of the legislation based, some might think ironically, on the liberal values protected by the Convention. A legal system which enabled those who had lost the political debate to undermine the legislation permitting abortion, by relying on freedom of conscience, freedom of expression and freedom of assembly, would in practice align the law with the values of the opponents of reform and deprive women of the protection of rights which have been legislatively enacted.

A press release by the Court summarizes the 56-page opinion.  Catholic World Report discusses the decision.

New Resource on Abortion Litigation

The Brennan Center for Justice at NYU Law and the Center for Reproductive Rights today announced its State Court Abortion Litigation Tracker, a website that tracks pending and completed state court litigation against abortion bans that were, or would have been, unconstitutional under Roe. v. Wade. The site has been added to the Religion Clause sidebar.  Information on the site will be updated monthly.  This site supplements the Center's Abortion Laws By State website that tracks the current status of abortion laws in each state.

Indiana Court Enjoins Abortion Restrictions as Violating State's RFRA

In Anonymous Plaintiff 1 v. Individual Members of the Medical Licensing Board of Indiana, (IN Super. Ct., Dec. 2, 2022), an Indiana state trial court preliminarily enjoined the state from enforcing Indiana's law restricting abortions against plaintiffs whose religious beliefs permit or require abortions in situations not allowed under Indiana law.  Plaintiffs were Jewish and Muslim, and one plaintiff of no specific denomination. The court, invoking Indiana's Religious Freedom Restoration Act, said in part:

26. This Court finds that the Plaintiffs practices regarding abortion are religious in nature: they have established that, under circumstances that would be prohibited by S.E.A. 1, their religious beliefs would compel them to have abortions....

43. The undisputed evidence establishes that the Plaintiffs do not share the State’s belief that life begins at fertilization or that abortion constitutes the intentional taking of a human life. To the contrary, they have different religious beliefs about when life begins, and they believe that under certain circumstances not permitted by S.E.A. 1, they would be required to receive abortions. Under the law, the Court finds these are sincere religious beliefs.

44. The State has not asserted a compelling interest in refusing to provide an exception to the Plaintiffs if the law were otherwise enforceable. Indiana has no interest in violating the sincere religious beliefs and exercise of the Plaintiffs....

49. The Plaintiffs argue that S.E.A. 1 is not narrowly tailored and is underinclusive, in that it provides exceptions for some abortions—though not religious exceptions—in circumstances that directly contravene the State’s purported interest. 

50. The State argues that abortion, regardless of gestational age of the zygote, embryo, or fetus, is the killing of an innocent human being, and its interest is in preventing that killing....

51. However, the statute explicitly allows abortions in circumstances that the State acknowledges constitute the “killing” of an “innocent human being”: for example, where the pregnancy is the result of rape or incest and where the fetus is viable but will not live beyond three months after birth.

A different state trial court has previously enjoined enforcement of the Act on state constitutional grounds. (See prior posting.)

Indianapolis Star reports on the decision. [Thanks to Daniel Conkle via Religionlaw for the lead.]