Satanic Temple Seeks RFRA Exemption From Texas Abortion Restrictions

In a press release last week, The Satanic Temple announced that it has sent a letter to the FDA arguing that its members should have unrestricted access to the medical abortion-inducing drug Mifepristone.  The move is an attempt to counter the new "heartbeat" abortion restrictions in Texas. As reported by KVUE News:

The Satanic Temple argues its members should have access to the pills under the Religious Freedom Restoration Act, the same law that allows Native Americans to access peyote for use in rituals. SB 8 “imposes an undue burden on the ability of TST members to undergo the Satanic Abortion Ritual” within the first 24 weeks of pregnancy, the group said.

“I am sure Texas Attorney General Ken Paxton – who famously spends a good deal of his time composing press releases about religious liberty issues in other states – will be proud to see that Texas’s robust religious liberty laws, which he so vociferously champions, will prevent future Abortion Rituals from being interrupted by superfluous government restrictions meant only to shame and harass those seeking an abortion,” Satanic Temple spokesperson Lucien Greaves said in a statement.

Suit By Anti-Abortion Protesters Seeking To Chalk Slogan On DC Streets Is Dismissed

In Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, Sept. 1, 2021), the D.C. federal district court faced on a motion to dismiss the nearly identical questions that it decided in the case in March when it denied a preliminary injunction to anti-abortion protesters who wished to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." Now the court dismissed plaintiffs' claims that enforcing ordinances prohibiting the defacing property against them but not against racial-justice protesters violated their free exercise and free speech rights. Discussing plaintiffs' RFRA claim, the court said in part:

Taking as true ... allegations that the individual Plaintiffs hold religious beliefs about abortion that motivate their organizing and other activities, Plaintiffs still do not allege any facts to support the claim that painting or chalking the street is needed to express those beliefs.

Moving to plaintiffs' 1st Amendment free exercise claim, the court said in part:

As with their RFRA claim, the individual Plaintiffs allege only that they “share sincerely held religious beliefs” about the preciousness of life and “engage in pro-life advocacy and witness as part of” those beliefs.... Taken as true, this statement does not establish that the inability to paint or chalk substantially burdened their religious exercise.

Biden Criticizes Supreme Court's Decision On Texas Abortion Ban; Directs Federal Response

Today President Biden issued a Statement (full text) critical of last night's Supreme Court decision refusing to block Texas' heartbeat abortion law. Biden said in part:

By allowing a law to go into effect that empowers private citizens in Texas to sue health care providers, family members supporting a woman exercising her right to choose after six weeks, or even a friend who drives her to a hospital or clinic, it unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts. Complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women.... For the majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts....

... I am directing that Council and the Office of the White House Counsel to launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.

Supreme Court, 5-4, Refuses To Enjoin Texas Heartbeat Abortion Ban

The U.S. Supreme Court yesterday in a 5-4 decision refused to prevent Texas' heartbeat abortion law (S.B. 8) from continuing in effect while its constitutionality is being litigated. The law bans abortions if the physician has detected a fetal heartbeat-- usually at around 6 weeks of a pregnancy. An unusual provision in the law allows it to be enforced only through civil actions by individuals, and not by state officials. The unsigned majority opinion in Whole Woman's Health v. Jackson, (US Sup. Ct., Sept. 1, 2021) states in part:

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example ... it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention...

[T]his order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

Chief Justice Roberts filed a dissenting opinion joined by Justices Breyer and Kagan, saying in part:

The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner....

Justice Breyer, joined by Justices Sotomayor and Kagan filed a dissenting opinion, saying in part:

I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.

Justice Sotomayor, joined by Justices Breyer and Kagan, filed a dissenting opinion, saying in part:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.

Justice Kagan, joined by Justices Breyer and Sotomayor filed a dissenting opinion, saying in part:

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process.

CNN reports on the decision.

Supreme Court Asked To Prevent Texas Heartbeat Abortion Ban From Taking Effect Sept. 1

Yesterday several abortion providers filed an Emergency Application (full text of Application in Whole Woman's Health v. Jackson, (US Sup. Ct., filed 8/30/2021)) with the U.S. Supreme Court seeking to prevent Texas S.B. 8 from going into effect on Sept. 1. The Texas law bans performing or inducing an abortion if the physician has detected a fetal heartbeat. This often occurs at 6 weeks of pregnancy. The law also allows any private person to bring a civil action against a physician who has violated the statute, and against anyone who knowingly aids or abets the abortion. SCOTUSblog has more on the case.

2nd Circuit Upholds Denial Of Preliminary Injunction Against Abortion Protesters

In New York ex rel. James v. Griepp, (2d Cir., Aug. 26, 2021), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court's refusal to grant a preliminary injunction against anti-abortion protesters who had been clashing with volunteer clinic escorts outside a Queens medical center. The decision came after the court earlier vacated its prior opinion in the case. (See prior posting.) The 2nd Circuit now said in part:

[T]he district court concluded that the Attorney General had not demonstrated irreparable harm. Some members of this Court might have reached different conclusions, both as to the existence of violations and as to the appropriateness of a preliminary injunction. But many of the issues are close ones, and we cannot say that the district court abused its considerable discretion in denying a preliminary injunction....

Liberty Counsel issued a press release announcing the decision.

Religious Objections To Medical College's COVID Vaccination Requirement Upheld

In Magliulo v. Edward Via College of Osteopathic Medicine, ((WD LA, Aug. 17, 2021), a Louisiana federal district court issued a temporary restraining order barring a medical college from conditioning plaintiff students' enrollment on their receiving a COVID-19 vaccination. The students had requested an exemption from the college's requirements for religious reasons-- they believed the vaccine was derived from aborted fetal tissue. The college would grant the exemption only if the objecting students complied with extensive restrictions. The court held that Louisiana statutes allow students to assert religious or philosophical objections to the vaccine requirement. It also concluded that the refusal to exempt religious objectors violates the free exercise clause of the Louisiana constitution and the Louisiana Preservation of Religious Freedom Act.  The Louisiana Attorney General had backed the students' position in the case, and the AG's Office issued a press release discussing the decision.

5th Circuit En Banc Upholds Texas "Dismemberment Abortion" Ban

In Whole Woman's Health v. Paxton, (5th Cir., Aug. 18, 2021), the U.S. 5th Circuit Court of Appeals, sitting en banc, by a vote of 9-5 (with 3 judges recused), upheld a Texas law enacted in 2017 that bans abortions performed through the standard dilation and evacuation procedure-- a procedure that the Texas law terms "dismemberment abortions." The majority opinion joined by 7 of the 9 judges said in part:

SB8 refers to the prohibited method as "live dismemberment" because doctors use forceps to separate, terminate, and remove the fetus. SB8 requires doctors to use alternative fetal-death methods. The district court declared SB8 facially unconstitutional. It held that SB8 imposes an undue burden on a large fraction of women, primarily because it determined that SB8 amounted to a ban on all D&E abortions.... Instead, the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.....

The safety, efficacy, and availability of suction to achieve fetal death during abortions in weeks 15 and 16 combined with the safety, efficacy, and availability of digoxin to do the same in weeks 18–22 mean that the plaintiffs have utterly failed to carry their heavy burden of showing that SB8 imposes an undue burden on a large fraction of women in the relevant circumstances.

Chief Judge Owen and Judge Ho each filed a concurring opinion. Judge Dennis filed a dissenting opinion that was joined by Judges Stewart and Graves, saying in part:

Today, in a Sisyphean return to form, our court upholds a Texas law that, under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester. In an opinion that fortunately lacks fully binding precedential effect, the en banc plurality disregards the two major lessons of June Medical. First, it ignores on-point Supreme Court precedent in multiple ways....  [T]he Supreme Court has already decided this exact case, holding that a Nebraska law was unconstitutional because it could be interpreted to be the sort of ban that the Texas statute openly embodies.... Second, ... the en banc plurality fails to defer to the district court’s well-reasoned and well-supported factual findings regarding the burdens and benefits associated with the Texas law... 

Judge Higginson filed a separate dissenting opinion, joined by Judge Costa. Texas Tribune reports on the decision.

Suit Challenges Arizona's New Abortion Law

Suit was filed in an Arizona federal district court yesterday challenging two provisions in an abortion law enacted earlier this year. At issue are (1) a provision (the Reason Ban) which bans abortion whenever the providing physician knows that the abortion is due to “a genetic abnormality” and (2) a provision (the Personhood Provision) which requires Arizona laws to be interpreted to give all fertilized eggs, embryos, and fetuses the same rights as other persons. The complaint (full text) in Isaacson v. Brnovich, (D AZ, filed 8/17/2021), alleges in part:

Any reading of [the Reason] ban violates the Due Process Clause of the Fourteenth Amendment and decades of binding precedent confirming that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”...

Because the Personhood Provision fails to provide adequate notice of prohibited conduct and invites arbitrary and discriminatory enforcement..., it is unconstitutionally vague.

The complaint also alleges that the accomplice liability provisions infringe on physicians' speech rights. Center for Reproductive rights issued a press release announcing the filing of the lawsuit.

Court Enjoins Requirement That Christian Doctors Perform Gender Transition Procedures And Abortions

In Franciscan Alliance, Inc. v. Becerra, (ND TX, Aug. 9, 2021), on remand from the 5th Circuit, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act or implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. The court said in part:

No party disputes that the current [Affordable Care Act] Section 1557 regulatory scheme threatens to burden Christian Plaintiffs’ religious exercise ... by placing substantial pressure on Christian Plaintiffs, in the form of fines and civil liability, to perform and provide insurance coverage for gender-transition procedures and abortions....

In reaching its conclusion, the court rejected mootness and other justiciability arguments that stemmed from shifting regulations while the case wound its way through the courts. 

6th Circuit En Banc Upholds Tennessee Abortion Waiting Period

In a 9-7 en banc decision in Bristol Regional Women's Center, P.C. v. Slatery, (6th Cir., Aug. 5, 2021), the U.S. 6th Circuit Court of Appeals upheld Tennessee's 48-hour waiting period for abortions. Judge Thapar's majority opinion concluded:

Tennessee’s 48-hour abortion waiting period is facially constitutional. The law is supported by a rational basis, and it is not a substantial obstacle to abortion for a large fraction of women seeking previability abortions in Tennessee. And the plaintiffs failed to present any specific evidence to sustain their as-applied challenge. We thus reverse the district court’s decision and remand for entry of judgment in Tennessee’s favor on these claims.

Two judges joined in a concurring opinion.  The primary dissenting opinion was written by Judge Moore, who said in part:

Rather than plunge into the vast pool of evidence compiled in the district court ... the majority dips a toe and recoils. Speaking vaguely of “inconveniences,”... “logistical challenges,” ... and “increased costs,”... but shirking the specifics that the district court explored in exhaustive depth, the majority improvises a sanitized account of the record free of uncomfortable realities. In whitewashing the record, the majority has crystalized what has been clear at least since it agreed to hear this case initially en banc without a principled basis: this case was dead on arrival.... An honest look at the record compels but one conclusion: a law that peddles in stigma, forces women into unnecessary and invasive surgical procedures, and forces low-income women to sacrifice basic necessities for themselves and their families in order to obtain an abortion is nothing if not an undue burden.

Judge Gibbons also filed a dissenting opinion. The Hill reports on the decision. 

9th Circuit: Church Has Standing To Challenge Washington Abortion Coverage Mandate

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (9th Cir., July 22, 2021), the U.S. 9th Circuit Court of Appeals reversed a Washington federal district court's dismissal for lack of standing of a challenge to a Washington statute that requires health insurance plans that cover maternity care to also cover abortions. The court said in part:

The state’s argument that Cedar Park did not suffer an injury because SB 6219 did not prevent Kaiser Permanente from continuing to offer a plan that restricted abortion coverage fails because Kaiser Permanente reasonably understood the plain language of SB 6219 as precluding such restrictions, and it acted accordingly when it removed the restrictions from Cedar Park’s health plan.

The court affirmed the dismissal of the church's equal protection claim. ADF issued a press release announcing the decision.

Court Enjoins Arkansas Abortion Ban

In Little Rock Family Planning Services v. Jegley, (ED AR, July 20, 2021), an Arkansas federal district court issued a preliminary injunction against enforcing Arkansas Act 309 against pre-viability abortions. The statute bans all abortions, except when necessary to save the life of the pregnant woman.  The court said in part:

The Act thus “prohibit[s] any woman from making the ultimate decision to terminate her pregnancy before viability.”... Defendants do not make any argument to the contrary.... Instead, defendants argue that Roe and Casey were wrongly decided and that there is no constitutional right to abortion.... As a federal district court, this Court “is bound by the Supreme Court’s decisions in Casey.”... Accordingly, the Act is categorically unconstitutional, and plaintiffs have demonstrated that they are likely to succeed on the merits.

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

9th Circuit Remands Churches' Challenge To California Abortion Coverage Mandate

In Foothill Church v. Watanabe, (9th Cir., July 19, 2021), the U.S. 9th Circuit Court of Appeals in a 2-1 decision vacated a California federal district court's rejection of free exercise and equal protection challenges to California's requirement that insurance companies include coverage for abortion services in all health insurance policies. The court remanded for further consideration in light of the U.S. Supreme Court's recent decision in Fulton v. City of Philadelphia. Judge Bress filed a dissenting opinion, saying in part:

We should have decided the appeal that was properly before us and held what the law pre- and post-Fulton plainly requires: the Director’s broad discretionary authority to issue individualized exemptions from the abortion coverage obligation means that we must apply strict scrutiny to California’s requirement that the churches’ health planscover elective abortions.

Separately, in a memorandum opinion issued at the same time, the court unanimously affirmed the dismissal of the churches' Establishment Clause claim, saying that all religious organizations are treated alike, and the Establishment Clause is not violated merely because a rule happens to coincide with the beliefs of some religions.

9th Circuit Hears Oral Arguments In Washington Insurance Coverage Mandate Challenge

On Friday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Cedar Park Assembly of God v. Kreidler. (Video of full oral arguments.) In the case, a Washington federal district court refused to grant a preliminary injunction to a church that objects to Washington's SB 6219 which requires health insurance plans that cover maternity care to also cover abortions. A Washington federal district court had dismissed the suit on standing grounds. (See prior posting.) Washington Examiner reports on the oral arguments.

North Carolina Governor Vetoes Race/ Sex/ Down Syndrome Abortion Ban

On June 25, North Carolina Governor Roy Cooper vetoed HB 453 which banned abortions unless the physician has determined that it is not being sought because of the race or sex of the fetus or because the fetus has Down Syndrome. In his veto message (full text), Cooper said: 

This bill gives the government control over what happens and what is said in the exam room between a woman and her doctor at a time she faces one of the most difficult decisions of her life. The bill is unconstitutional and it damages the doctor-patient relationship with an unprecedented governmental intrusion.

Gibraltar Voters Approve Liberalized Abortion Law

Last week, in a referendum, voters in Gibraltar by a vote of 7,656 to 4,520 approved the coming into force of Parliament's Crimes (Amendment) Act of 2019  The Act creates exceptions to the current near-total ban ban on abortions in the country. (Background on proposal.)  With certain restrictions, the law allows abortions in the first 12 weeks of pregnancy where there is risk to the physical or mental health of the mother. Abortion is allowed at any time where there is graver threat to the mother's life or health, or where the fetus has a fatal abnormality. Medical personnel may assert conscience objections to participating in abortions. AP reports on the referendum. [Thanks to Scott Mange for the lead.]

Catholic Members of U.S. House Confront Bishops Over Possible Denial of Communion To Pro-Choice Democrats

As reported by CNN, the U.S. Conference of Catholic Bishops today voted 168-55 with 6 abstentions to direct its Committee on Doctrine to draft a formal statement on the meaning of the Eucharist in the life of the Church.  Conservative bishops want to deny communion to public officials, including President Biden, who support abortion rights.

In response to these developments, today 60 Catholic Democratic members of the House of Representatives issued a Statement of Principles which reads in part:

We envision a world in which every child belongs to a loving family and agree with the Catholic Church about the value of human life. Each of us is committed to reducing the number of unintended pregnancies and creating an environment with policies that encourage pregnancies to be carried to term and provide resources to raise healthy and secure children. We believe this includes promoting alternatives to abortion, such as adoption, improving access to children's healthcare and child care, and creating a child benefit through the expanded and improved Child Tax Credit.

In all these issues, we seek the Church's guidance and assistance but believe also in the primacy of conscience.... [W]e acknowledge and accept the tension that comes with being in disagreement with the Church in some areas. We recognize that no political party is perfectly in accord with all aspects of Church doctrine. This fact speaks to the secular nature of American democracy, not the devotion of our democratically elected leaders. Yet we believe we can speak to the fundamental issues that unite us as Catholics and lend our voices to changing the political debate ... that often fails to reflect ... the depth and complexity of these issues....

We believe the separation of church and state allows for our faith to inform our public duties and best serve our constituents. The Sacrament of Holy Communion is central to the life of practicing Catholics, and the weaponization of the Eucharist to Democratic lawmakers for their support of a woman’s safe and legal access to abortion is contradictory. No elected officials have been threatened with being denied the Eucharist as they support and have supported policies contrary to the Church teachings, including supporting the death penalty, separating migrant children from their parents, denying asylum to those seeking safety in the United States, limiting assistance for the hungry and food insecure, and denying rights and dignity to immigrants.

We solemnly urge you to not move forward and deny this most holy of all sacraments ... over one issue....

UPDATE: After the June 17 Conference of Bishops, the USCCB clarified the Conference resolution on drafting a document on the meaning of the Eucharist: " The question of whether or not to deny any individual or groups Holy Communion was not on the ballot."

Challenge To "Sanctuary City for Unborn" Dismissed On Standing And Abstention Grounds

In Planned Parenthood of Greater Texas Surgical Health Services v. City of Lubbock, (ND TX, June 1, 2021), a Texas federal district court dismissed on standing and Pullman abstention grounds a pre-enforcement challenge to a Lubbock, Texas ordinance declaring the city a "sanctuary city for the unborn." The ordinance includes a private enforcement provision that comes into effect only upon certain future events, such as the overruling of Roe v. Wade. The court said in part:

 Although the Court assumes that plaintiffs can show injury that stems from the city's passage of the ordinance's private-enforcement provision, they fail to show that an order from the Court would redress the injury. Plaintiffs admit that this Court cannot force the city to revoke or amend its ordinance.... They also concede that any order from this Court regarding the ordinance's constitutionality or validity would not bind the state courts that would hear the private-enforcement suits.... Instead, plaintiffs claim that a declaration of invalidity from the Court may deter lawsuits and may help convince state courts of plaintiffs' arguments.... But this potential relief is too speculative to show, as they must, that the Court's order would likely redress their injury....

"[U]nder the Pullman doctrine, a federal court should abstain from exercising its jurisdiction 'when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.'"...

Therefore, even if the Court had jurisdiction, the Court would dismiss the case without prejudice so that the state courts could resolve whether Texas law prohibits cities from enacting private rights of action or whether state law preempts any component of the ordinance.

2nd Circuit Panel Grants Rehearing In New York Abortion Protest Case

As previously reported, in People of the State of New York v. Griepp, (ED NY, July 20, 2018), a New York federal district court, in a 103-page opinion, refused to grant the New York Attorney General a preliminary injunction against anti-abortion protesters who had been clashing with volunteer clinic escorts outside a Queens medical center.  The suit alleged that the protesters violated the federal Freedom of Access to Clinic Entrances Act (FACES), the New York Clinic Access Act (NYSCAA) and a similar New York City provision. On appeal, a 3-judge panel of the 2nd Circuit (March 10, 2021) (full text of opinions) in 3 opinions spanning 172 pages disagreed with most of the district court's conclusions. Now in an Order (full text) issued May 28, the panel vacated its opinion and granted a rehearing. The Order provides that in the meantime, the decision of the district court remains in place.