Establishment Clause Challenge to Pending Abortion and LGBTQ Laws Is Dismissed

 In Pickup v. Biden, (D DC, Nov. 30, 2022), plaintiffs-- including four pastors-- asked the D.C. federal district court to declare two bills pending in Congress unconstitutional and enjoin their passage. At issue are the Women's Health Protection Act which assures the right to abortion and the Equality Act which would add sexual orientation and gender identity to the federal Civil Rights Act. Plaintiffs focused primarily on an Establishment Clause challenge. The court described plaintiffs' claims, saying in part:

In their view, the Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey undermine the Establishment Clause by promoting the religion of “secular humanism.”...  According to Plaintiffs, secular humanism includes a “pro-abortion” denomination and an “LGBTQ” denomination.... Plaintiffs thus argue that the Government violates the Establishment Clause if it promotes abortion or LGBTQ ideology.

The court held that the Constitution's Speech or Debate Clause bars Plaintiffs’ claims against the congressional Defendants, that it lacks jurisdiction to enjoin a President from performing his official duties, and that plaintiffs lack standing.

7th Circuit: Law on Disposal of Fetal Remains Does Not Violate 1st Amendment

In Doe v. Rokita, (7th Cir., Nov. 28, 2022), the U.S. 7th Circuit Court of Appeals rejected 1st Amendment challenges to an Indiana statute that requires abortion providers to dispose of fetal remains either by burial or by cremation. The suit was brought both by two women who raise free exercise claims and by two physicians who oppose the requirement that they inform patients of the law's provisions. The court said in part:

[N]either of the two plaintiffs who has had an abortion contends that a third party’s cremation or burial of fetal remains would cause her to violate any religious principle indirectly. What these two plaintiffs contend is that cremation or burial implies a view—the personhood of an unborn fetus—that they do not hold. They maintain that only human beings are cremated or buried. This is questionable. Dogs, cats, and other pets may be cremated or buried, sometimes as a result of legal requirements not to put animals’ bodies in the garbage,,,,. Indiana’s statute about fetal remains therefore need not imply anything about the appropriate characterization of a fetus. At all events, a moral objection to one potential implication of the way medical providers handle fetal remains is some distance from a contention that the state compels any woman to violate her own religious tenets....

As for the requirement that physicians and other providers tell patients about the statutory options: no one contends that the required notice is false or misleading....

The norm that units of government may require physicians (and other professionals) to provide accurate information to their clients long predates Casey and has not been disturbed since...

Georgia Supreme Court Reinstates Heartbeat Abortion Ban

As previously reported, last week a Georgia state trial court held Georgia's heartbeat abortion ban unconstitutional and enjoined enforcement of two key provisions of the law.  In reaching its conclusion, the trial court invoked Georgia's "void ab initio" doctrine. Today in State of Georgia v. SisterSong Women of Color Reproductive Justice Collective, (GA Sup. Ct., Nove 23, 2022), the Georgia Supreme Court in a brief order granted a stay of the trial court's order. This allows the ban to go back into effect. Seven of the nine justices concurred in the Order. One Justice was disqualified and one did not participate. ACLU issued a press release announcing the decision.

Medical Organizations Challenge FDA's Past Approval of Chemical Abortion Drugs

In a new test of abortion rights, four medical organizations and four doctors filed suit last week in a Texas federal district court challenging the FDA's long-standing approval for use in the United States of the chemical abortion drugs mifepristone and misoprostol. The 113-page complaint (full text) in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, (ND TX, filed 11/18/2022), alleges in part:

3. To date, the FDA’s review, approval, and deregulation of chemical abortion drugs has spanned three decades, correlated with four U.S. presidential elections, and encompassed six discrete agency actions...

7. The only way the FDA could have approved chemical abortion drugs was to use its accelerated drug approval authority, necessitating the FDA to call pregnancy an “illness” and argue that these dangerous drugs provide a “meaningful therapeutic benefit” over existing treatments.

8. But pregnancy is not an illness, nor do chemical abortion drugs provide a therapeutic benefit over surgical abortion....

9. What’s more, the FDA needed to disavow science and the law because the FDA never studied the safety of the drugs under the labeled conditions of use....

10, Since then, the FDA has not followed the science, reversed course, or fixed its mistakes,,,

22...  [A]ll of the FDA’s actions on chemical abortion drugs—the 2000 approval, the 2016 major changes, the 2019 generic drug approval, and the two 2021 actions to eliminate the in-person dispensing requirement—failed to acknowledge and address the federal laws that prohibit the distribution of chemical abortion drugs by postal mail, express company, or common carrier.,,,

ADF issued a press release announcing the filing of the lawsuit.                                                         

Georgia's Heartbeat Abortion Ban Is Held Invalid

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Nov. 15, 2022), a Georgia state trial court enjoined enforcement of two sections of Georgia's Living Infants Fairness and Equality (LIFE) Act which was enacted in 2019.  The court invoked Georgia's "Void Ab Initio" doctrine. Quoting a Georgia Supreme Court case decided in 1900, the court said:

The time with reference to which the constitutionality of an act of the general assembly is to be determined is the date of its passage, and, if it is unconstitutional, then it is forever void.

Applying this, the court concluded that Section 4 which bans most abortions once a fetal heartbeat is detected, and Section 11 which requires physicians to file a justification for any abortions where a fetal heartbeat was detected, both were void when enacted and never became the law of Georgia.  However, Section 10 which requires doctors to determine the presence of a human heartbeat before performing an abortion is valid since even before the Dobbs decision, it could be justified as providing the mother with more information about the state of her pregnancy. The court also refused to dismiss a challenge to a provision of the law that authorizes district attorneys to access medical records relating to abortions. ACLU of Georgia issued a press release announcing the decision. 

EEOC Commissioner, In Unusual Procedure, Targets Abortion Travel Benefits By Employers

 Bloomberg Law reported yesterday:

Republican EEOC Commissioner Andrea Lucas is deploying a rarely used agency procedure to silently initiate targeted discrimination probes against at least three companies providing their employees with abortion travel benefits....

The investigations triggered by Commissioner Charges are based on claims by Lucas that by favoring employees seeking abortions and not furnishing comparable benefits to pregnant workers or disabled workers, employers are violating the pregnancy discrimination ban in Title VII or the Americans with Disabilities Act. Bloomberg Law also reports that the EEOC's former general counsel, even though she no longer held a position with the agency after being fired by the Biden administration, last month sent letters to a number of employers warning them of the possibility of such actions by the EEOC.

Results From Election Day on Ballot Issues of Interest

Here are Tuesday's vote results for the ten ballot issues of interest to those following law and religion developments.  More details and updated information are available at Ballotpedia.

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability." Losing 49.56%- 50.44% with 97% of precincts reporting.

California Proposition 1: Right to Reproductive Freedom Amendment. Passed 65%- 35%.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license. Defeated 39%- 61%.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion. Defeated 48%- 52%.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom. Passed 57%- 43%

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion. Losing 48%- 52% with 85% of precincts reporting.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin. Winning 57%- 43% with 77% of precincts reporting.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly. Passed 63%- 37%.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest. Passed 77%- 23%.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations. Defeated 45%- 55%.

Student Statement Opposing Reproductive Rights Issue Must Be Read During School Announcements

 In Nielson v. Ann Arbor Public Schools, (ED MI, Nov. 4, 2022), a Michigan federal district court issued a temporary restraining order requiring a public high school to read an announcement from the school's Republican Club in opposition to the Reproductive Rights constitutional amendment on the Nov. 8 ballot.  The school contended that reading it would violate the Michigan Campaign Finance Act which bars the school from advocating for ballot issues.  However, the school was permitting students who favor the ballot proposal to take part in a walkout sponsored by the National Organization for Women.  The court said in part:

Plaintiffs have shown a likelihood of success on the merits of their First Amendment claim....

The Court finds that Defendants seek to silence Plaintiffs’ appropriate speech as to Proposal 3 by refusing to broadcast it with their morning announcements, while permitting students in favor of Proposal 3 to cut classes, and to demonstrate on school property in favor of Proposal 3.

Thomas More Law Center issued a press release announcing the decision (with links to pleadings in the case as well).

Tennessee AG: Abortion Ban Does Not Bar Disposal of Excess Embryos Created During IVF Process

Tennessee's Attorney General last month issued Opinion No. 22-12 (Oct. 20, 2022) clarifying that the abortion ban in Tennessee's Human Life Protection Act does not apply to the disposal of embryos which have not been transferred to a woman's uterus. Thus the law would not bar disposal of excess embryos created during the in vitro fertilization procedure. Tennessee Lookout reports on the AG's opinion. [Thanks to Scott Mange for the lead.]

Ten Issues of Interest Are on Today's Ballots Across the Country

Today voters in ten states will be voting on ballot measures that relate to religious institutions, reproductive rights, clergy, religious freedom or religious and LGBTQ discrimination.  Here are summaries of each measure with links to fuller explanations on Ballotpedia:

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability."

California Proposition 1: Right to Reproductive Freedom Amendment.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom.

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations.

Biden Calls For Federal Law Protecting Abortion Rights

In a talk (full text) at a political event at the Howard Theater in Washington, D.C. on Tuesday, President Biden called for a federal law protecting abortion rights.  He said in part:

And I’ve said before: The Court got Roe right nearly 50 years ago, and I believe Congress should codify Roe once and for all....

Right now, we’re short a handful of votes.  If you care about the right to choose, then you got to vote.  That’s why, in these midterm elections, it’s so critical to elect more Democratic senators to the United States Senate and more Democrats to keep control of the House of Representatives....

And, folks, if we do that, here is the promise I make to you and the American people: The first bill that I will send to the Congress will be to codify Roe v. Wade....  And when Congress passes it, I’ll sign it in January, 50 years after Roe was first decided the law of the land.,,,

European Court: Suspended Prison Sentence For Protest In Catholic Church Violated Rights Of Abortion Rights Activist

In Bourton v. France, (ECHR, Oct. 13, 2022) (full text of decision in French), the European Court of Human Rights in a Chamber Judgment held that a French court's imposition of a suspended one-month prison sentence on a 39-year feminist activist charged with "sexual exposure" violated her rights of freedom of expression under the European Convention on Human Rights. The French court had also ordered defendant to pay damages and costs totaling 3500 Euros.  According to the English language press release from the European Court:

On 20 December 2013 [Eloise Bouton] staged a protest in the church of La Madeleine in Paris, but not during mass, by standing in front of the high altar while exposing her breasts, revealing slogans daubed across her body, and pretending to carry out an abortion using raw beef liver as a prop. Her performance was brief and she left the church when so requested by the choirmaster. The protest received media coverage, about ten journalists having been present....

The purpose of the applicant’s mise en scène had been to convey, in a symbolic place of worship, a message relating to a public and societal debate on the positioning of the Catholic Church on a woman’s right to free disposal of her body, including the right to have an abortion.

In these circumstances, the [European] Court [of Human Rights] took the view that the applicant’s freedom of expression should have been afforded a sufficient level of protection since the content of her message related to a matter of public interest....

The Court reiterated that the imposition of a prison sentence for an offence in the area of political speech would be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, as, for example, in the case of hate speech or incitement to violence....

The Court found that the grounds given by the domestic courts had not been sufficient for it to consider that they had weighed up the interests at stake in an appropriate manner and in accordance with the criteria established in its case-law....

Anti-Abortion Sidewalk Counselor Challenges Sign Permit Requirement

Suit was filed this week in a Maryland federal district court alleging that Baltimore's sign permit ordinance violates plaintiff's free speech and free exercise rights. The complaint (full text) in Roswell v. City of Baltimore, (D MD, filed 10/10/2022), seeks a preliminary injunction to prevent the city from requiring plaintiff to obtain permits in order to use A-frame signs when engaging in religiously-motivated sidewalk anti-abortion counseling at a Planned Parenthood facility. Thomas More Society issued a press release announcing the filing of the lawsuit.

Certiorari Denied In Fetal Personhood Case

The U.S. Supreme Court today denied review in Doe v. McKee,  (Docket No. 22-201, certiorari denied 10/11/2022) (Order List). The certiorari petition  asked the Supreme Court to review a decision of the Rhode Island Supreme Court that held unborn fetuses do not have due process and equal protection rights under the U.S. Constitution and do not have standing to challenge Rhode Island's Reproductive Privacy Act which granted the right to abortions consistent with Roe v. Wade. CNN reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Suit Challenges Kentucky Abortion Bans As Violating Jewish Religious Beliefs

Suit was filed last Thursday in a Kentucky state trial court by three Jewish women who contend that Kentucky's strict abortion bans violate their religious freedom rights. The complaint (full text) in Sobel v. Cameron, (KY Cir. Ct., filed 10/6/2022), alleges that Kentucky law might be read to make it a capital offense to discard excess embryos created in the process of in vitro fertilization. The complaint alleges in part:

35. Under Jewish law, a fetus does not become a human being or child until birth. Under no circumstances has Jewish law defined a human being or child as the moment that a human spermatozoon fuses with a human ovum.

36. The question of when life begins for a human being is a religious and philosophical question without universal beliefs across different religions....

39. Plaintiff’s religious beliefs demand that they have more children through IVF, yet the law forces Plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges. This dilemma forces Plaintiffs to abandon their sincere religious beliefs of having more children by limiting access to IVF and substantially burdens their right to freely exercise these sincerely held religious belief....

51. Kentucky's contemporary Abortion Law is focused on preservation of ova and blastocysts on the basis of a religious understanding of fetal personhood.....

The complaint alleges that Kentucky abortion laws are void for vagueness and unintelligibility; violate the Kentucky Religious Freedom Restoration Act; and violate the Kentucky Constitution by giving preference to sectarian Christianity and diminishing Plaintiffs' privileges, rights, and capacities on account of their Jewish faith and beliefs. Los Angeles Times reports on the lawsuit.

Physicians Ask Arizona Court To Reconcile Competing Abortion Laws

In Arizona, a physician and the Arizona Medical Association have filed a declaratory judgment action in an Arizona trial court asking the court to clarify which of two competing laws on abortion is in effect in the state. The complaint (full text) in Isaacson v. State of Arizona, (AZ Super. Ct., filed 10/3/2022), explains:

3. Most recently, the Legislature passed, and Governor Ducey signed, a law permitting physicians to provide abortions through 15 weeks of pregnancy.... 

4. Since the Dobbs decision was issued on June 24, overturning Roe v. Wade, ... there has been significant confusion around the status of Arizona’s abortion laws, and specifically whether a near total criminal ban on abortion, A.R.S. § 13-3603 (the “Territorial Law”), that was enacted in 1901 but can be traced back to 1864, preempts dozens of existing abortion laws, including the 15-Week Law, and criminalizes otherwise legal, physician-provided abortion care. State officials with enforcement power have either refused to state which abortion laws take precedence or have taken inconsistent positions on the matter.

5. On July 13, 2022, the Arizona Attorney General filed a Rule 60(b) motion in the Pima County Superior Court seeking to lift an injunction of the Territorial Law that had been in place since 1973. On September 23, 2022, the Pima County Superior Court granted the Attorney General’s motion solely based on the decision in Dobbs overruling Roe v. Wade. The court declined to reconcile how the Territorial Law is to operate in harmony with Arizona’s more recent and much more robust statutory scheme governing physician-provided abortion care....

[Thanks to Courthouse News Service for the lead.]

DC Circuit Hears Oral Arguments From Abortion Protesters

On Wednesday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments (audio of full oral arguments) in Frederick Douglass Foundation, Inc. v. DC.  In the case, a D.C. federal district court dismissed claims that enforcing ordinances prohibiting the defacing property against anti-abortion protesters but not against racial-justice protesters violated free exercise and free speech protections.  The abortion protesters sought to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." (See prior posting.) An ADF press release has more on the case.

California Governor Signs New Laws Protecting Abortion Rights

Yesterday California Governor Gavin Newsom signed a package of 13 additional bills to strengthen abortion rights in the state.  According to a press release from his office, these laws will:

further protect people from legal retaliation and prohibit law enforcement and corporations from cooperating with out-of-state entities regarding lawful abortions in California, while also expanding access to contraception and abortion providers in California.

The press release details each of the new laws.

Satanic Temple Files Novel Challenges To Indiana Abortion Law

Earlier this week, The Satanic Temple filed suit in an Indiana federal district court challenging on somewhat novel grounds Indiana's recently enacted restrictive abortion ban. The complaint (full text) in The Satanic Temple v. Holcomb, (SD IN, filed 9/21/2022) not only alleges that the ban violates Indiana's Religious Freedom Restoration Act because it outlaws the Satanic Abortion Ritual, but also alleges other constitutional defects. It contends in part:

59. The property right of an Involuntarily Pregnant Woman to exclude or remove a Protected Unborn Child from her uterus cannot be taken by the State of Indiana without just compensation pursuant to the Takings Clause of the Fifth Amendment to the U.S. Constitution.

60. The property right to exclude or remove a Protected Unborn Child from a woman’s uterus has substantial commercial value as established by over twenty-five years of experience with gestational surrogacy in Indiana.

It alleges a 13th Amendment violation, contending:

68. The Indiana Abortion Ban causes each Involuntarily Pregnant Woman to provide the services necessary to sustain the life of a Protected Unborn Child that occupies and uses her uterus.

The suit also alleges unconstitutional discrimination between women who become pregnant by accident and those who become pregnant by rape or incest, as well as unconstitutional discrimination between women who become pregnant by accident and those who become pregnant by in vitro fertilization. Courthouse News Service reports briefly on the lawsuit.

Arizona Judge Reinstates Pre-Roe Abortion Ban

Arizona §13-3603, a statute that originally was passed in 1864 and subsequently reenacted, criminalizes abortion unless it is necessary to save the life of the mother. Persons who procure of perform abortions are subject to imprisonment for not less than two or more than five years. In 1973, in a suit brought by Planned Parenthood, Arizona courts held that the statute was unconstitutional because of the U.S. Supreme Court's ruling in Roe v. Wade.  Now that Roe has been overruled, Arizona's Attorney General and an intervenor in the case filed a Motion for Relief From the 1973 Judgment.  In Planned Parenthood Center of Tucson, Inc. v. Brnovich, (AZ Super., Sept. 22, 2022), an Arizona trial court judge granted the motion, saying in part:

The Court finds that because the legal basis for the judgment entered in 1973 has now been overruled, it must vacate the judgment in its entirety.

In March of this year, Arizona enacted a law banning abortions after 15 weeks, except in a medical emergency. BBC News reporting on this week's decision allowing §13-3603 to go into effect, says:

It is now unclear whether the 15-week ban or the near-total ban will take precedence.

Governor of Arizona Doug Ducey said it would be the 15-week ban, but his fellow Republican Attorney General Mark Brnovich said it should be the older ban.