6th Circuit Allows Tennessee "Reason" Abortion Ban

In Memphis Center for Reproductive Health v. Slatery, (6th Cir., Nov. 20, 2020), the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed a district court and allowed the state of Tennessee to continue to enforce its "reason" abortion ban while the constitutionality of the provision is being litigated. At issue is a ban on physicians performing abortions where the physician knows that the abortion is sought because of the sex, race, or Down syndrome diagnosis of the fetus. Challengers contend in part that the ban is unconstitutionally vague.  ACLU issued a press release discussing the decision.

Supreme Court Denies Cert. In Satanic Temple Challenge To Abortion Law

The U.S. Supreme Court today denied review in Doe v. Parson, (Docket No. 20-385, certiorari denied 11/23/2020). (Order List.) In the case the U.S. 8th Circuit Court of Appeals rejected claims by a member of the Satanic Temple that Missouri's abortion informed consent law violates her 1st Amendment rights. (See prior posting.)

Suit Challenges DC's Refusal To Allow "Black Pre-Born Lives Matter" Mural on Street

Suit was filed this week in D.C. federal district court challenging the constitutionality of D.C.'s refusal to allow protesting groups to paint a mural reading "Black Pre-Born Lives Matter" on the street near a Planned Parenthood Clinic. It also barred the chalking of the same message. The complaint (full text) in Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, filed 11/18/2020) points out that murals reading "Black Lives Matter" and "Defund the Police" were permitted to be painted along other D.C. streets. Plaintiffs contend that this differential treatment violates their free speech, equal protection and free exercise rights.  ADF issued a press release announcing the filing of the lawsuit.

New Developments In the Abortion Rights Controversy

The past few days have brought several developments in the battle over abortion rights. In Colorado, an Initiative measure on the ballot that would have banned abortions after 22 weeks of gestation was defeated 59% to 41% (89% of precincts reporting). In Louisiana voters approved by a margin of 62% to 38% an amendment to the state constitution providing "To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."

Meanwhile last week, the Alabama Supreme Court in Magers v. Alabama Women's Center Reproductive Alternatives, LLC, (LA Sup. Ct., Oct. 30, 2020), dismissed a wrongful death action brought by the father of an aborted 6-week old fetus against a clinic that provided the mother with a pill to induce a medication abortion. The trial court dismissed the suit, and the state Supreme Court dismissed because appellant did not comply with the procedural requirements for the type of brief that needs to be submitted for an appeal. However Justice Mitchell, joined by 3 other justices wrote concurring opinion that said in part:

I write separately, however, to state my view that Roe v. Wade ... and Planned Parenthood of Southeastern Pennsylvania v. Casey ... are due to be overruled by the United States Supreme Court....

First, the central holding of Roe -- that there is a constitutional right to have an abortion based on a judicially created trimester framework -- has no grounding in the text of the United States Constitution....

Second, the right to have an abortion has no foundation "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[Thanks to Scott Mange for the lead as to Alabama.]

US Signs Multinational Women's Health Declaration That Rejects Abortion

The U.S. Department of Health and Human Services announced that on Oct. 22, the United States co-sponsored a virtual signing ceremony for the Geneva Consensus Declaration on Promoting Women's Health and Strengthening the Family. The Declaration (full text) which calls for universal health care and supporting the role of the family was signed by 32 countries. It reads in part:

[We] Emphasize that “in no case should abortion be promoted as a method of family planning” and that “any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process”;

... Reaffirm that “the child… needs special safeguards and care… before as well as after birth”....

The signatories agreed to work together to:

Improve and secure access to health and development gains for women, including sexual and reproductive health, which must always promote optimal health, the highest attainable standard of health, without including abortion;

Reaffirm that there is no international right to abortion, nor any international obligation on the part of States to finance or facilitate abortion, consistent with the long-standing international consensus that each nation has the sovereign right to implement programs and activities consistent with their laws and policies...

The primary co-sponsors of the Declaration are Brazil, Egypt, Hungary, Indonesia, Uganda and the United States. The signatories are mostly nations from Africa, the Middle East and Eastern Europe. 

[Thanks to Scott Mange for the lead.]

Poland's Top Court Invalidates Law Permitting Abortion In Cases of Fetal Defects

Amnesty International and AP report that yesterday Poland's Constitutional Court has held unconstitutional the provision in Poland's Act on Family Planning, Human Embryo Protection, and Conditions of Legal Pregnancy Termination that permits abortion in cases of  "severe and irreversible fetal defect or incurable illness that threatens the fetus’ life." In an 11-2 decision, Poland's top court further narrowed Poland's strict abortion law. According to AP:

The ruling came in response to a motion from right-wing lawmakers who argued that terminating a pregnancy due to fetal defects — the most common reason cited for legal abortions in Poland — violates a constitutional provision that calls for protecting the life of every individual.

The challenged law was introduced in 1993 as a hard-won compromise that also allows abortions when a pregnancy endangers a woman’s health or life, or results from rape or other illegal act. Even before Thursday’s ruling, many Polish women have sought abortions abroad.

In justifying its decision, the court said there can be no protection of the dignity of an individual without the protection of life. The verdict was announced by the court’s president, Julia Przylebska, a loyalist of the right-wing government.

[Thanks to Scott Mange for the lead.]

Tennessee 48-Hour Abortion Waiting Period Struck Down

 In Adams & Boyle, P.C. v. Slatery, (MD TN, Oct. 14, 2020), a Tennessee federal district court struck down Tennessee's requirement that women seeking an abortion must receive specified information in person and then wait 48 hours before undergoing the procedure. The court, in a 136-page opinion, said in part:

The Court finds and concludes that the mandatory waiting period required by § 39-15-202(a)-(h) substantially burdens women seeking an abortion in Tennessee. Plaintiffs have demonstrated conclusively that the statute causes increased wait times, imposes logistical and financial burdens, subjects patients to increased medical risks, and stigmatizes and demeans women. These burdens are especially difficult, if not impossible, for low-income women to overcome, and the evidence clearly shows that the vast majority of women seeking abortions in Tennessee are low income. Further, plaintiffs have shown that the statute undermines the doctor-patient relationship and imposes operational and financial burdens on abortion providers....

Defendants have failed to show that the challenged mandatory waiting period protects fetal life or the health of women in Tennessee. It is apparent that this waiting period unduly burdens women’s right to an abortion and is an affront to their “dignity and autonomy,” “personhood” and “destiny,” and “conception of . . . [their] place in society.”

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Supreme Court Sends Case On Medical Abortion Access Back To District Court

In Food and Drug Administration v. American College of Obstetricians and Gynecologists, (Sup. Ct., Oct. 8, 2020), the U.S. Supreme Court decided to hold in abeyance pending further District Court review the FDA's motion to stay an injunction that had been issued against it.  In the case, a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of Maryland's in-person requirements that bar women seeking a medical abortion from obtaining mifepristone through a mail-order or retail pharmacy or to receive the medication by mail from their healthcare provider. The 4th Circuit refused to stay the injunction pending appeal. (See prior posting.) The Supreme Court said: 

The Government argues that, at a minimum, the injunction is overly broad in scope, given that it applies nationwide and for an indefinite duration regardless of the improving conditions in any individual State. Without indicating this Court’s views on the merits of the District Court’s order or injunction, a more comprehensive record would aid this Court’s review. The Court will therefore hold the Government’s application in abeyance to permit the District Court to promptly consider a motion by the Government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed. ...  The District Court should rule within 40 days of receiving the Government’s submission.

Justice Alito, joined by Justice Thomas, dissented, saying in part:

In response to the pandemic, state and local officials have imposed unprecedented restrictions on personal liberty, including severe limitations on First Amendment rights. Officials have drastically limited speech, banning or restricting public speeches, lectures, meetings, and rallies. The free exercise of religion also has suffered previously unimaginable restraints, and this Court has stood by while that has occurred.

SCOTUSblog reports on the decision.

Satanic Temple Sues Ad Agency For Refusing Abortion Billboards [UPDATED]

The Satanic Temple ("TST") announced last week that it has filed suit against Lamar Billboard Company for religious discrimination and breach of contract after the company refused to put up billboards promoting The Satanic Temple's "religious abortion ritual."  TST said in part:

Sincere performance of this ritual exempts members from complying with many state regulations, such as mandatory waiting periods and compulsory counseling, that are not medically necessary and violate TST's religious beliefs.

TST wanted to place billboards near eight crisis pregnancy centers in Arkansas and Louisiana. TST puzzlingly said:

TST claims that Lamar's actions violate the Accounting and Corporate Regulatory Authority's (ACRA's) nationally-applicable laws that prohibit religious discrimination.

ACRA appears to be an agency of the government of Singapore.

UPDATE: Here is the full text of the complaint in The Satanic Temple, Inc. v. Lamar Advertising of Louisiana, LLC, (AR Cir. Ct., filed 9/27/2020).  The complaint alleges, among other things, violation of the Arkansas Civil Rights Act, abbreviated ACRA. Whoever wrote TST's press release apparently Googled ACRA and came up with Accounting and Corporate Regulatory Authority. [Thanks to Eugene Volokh via Religionlaw for access to the complaint.]

Court Temporarily Halts Enforcement of Tennessee's Mandated Abortion Reversal Disclosures

 In Planned Parenthood of  Tennessee and North Mississippi v. Slatery, (D TN, Sept. 29, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of a Tennessee law scheduled to take effect Oct. 1 which requires abortion providers to tell patients that medication abortions, once started, can be reversed. Plaintiffs claim that this violates their 1st Amendment rights by forcing them to provide patients with inaccurate information. In temporarily restraining enforcement of the law, the court said in part:

The Court is unable to assess fully the competing expert opinions as to whether the mandated message is “truthful and not misleading,” in the absence of the experts’ testimony, adduced through direct and cross examination. That assessment must await the preliminary injunction hearing....

Nevertheless, the Court does not need to await the hearing to determine that another aspect of the mandated message is “misleading.” The statute gives the Department of Health a period of up to 90 days in which to publish information, on its website and in printed materials, about the possibility of reversing the effects of a chemical abortion.... Section 218 requires abortion providers to tell patients that “information on and assistance with reversing the effects of a chemical abortion” is available on the Department of Health website, when in fact, such information and assistance may not be available.

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Trump and Barr Speak At National Catholic Prayer Breakfast

Yesterday both President Trump (in a pre-recorded address-- full text) and Attorney General William Barr spoke at the National Catholic Prayer Breakfast, held online this year (video of entire breakfast). In his remarks, President Trump said in part:

Today I am announcing that I will be signing the Born Alive Executive Order to ensure that all precious babies born alive, no matter their circumstances, receive the medical care that they deserve. This is our sacrosanct moral duty. We are also increasing federal funding for the neonatal research to ensure that every child has the very best chance to thrive and to grow.

Attorney General Barr was presented the Christifideles Laici Award. In his acceptance speech (full text), he said in part:

That crucial link between religion and liberty, so well understood at the Founding, is all too often forgotten today.  In American public discourse, perhaps no concept is more misunderstood than the notion of “separation of church and state.”  Militant secularists have long seized on that slogan as a facile justification for attempting to drive religion from the public square and to exclude religious people from bringing a religious perspective to bear on conversations about the common good.

Yet as events like this one remind us, separation of church and state does not mean, and never did mean, separation of religion and civics... 

Unfortunately, in the last half century, that foundation of our free society has increasingly been under siege.  Traditional morality has eroded, and secularists have often succeeded not only in eliminating religion from schools and the public square, but in replacing it with new orthodoxies that are actively hostile to religion.  The consequences of this hollowing out of religion have been predictably dire....

Wherever we are in life, it is never too late to work in the Lord’s vineyard.  Our spiritual renewal, and the renewal of our national character, depend on it.

Court Denies Summary Judgment In Attempt To Permanently Enjoin Disclosure Requirements By Pro-Life Pregnancy Centers

 In National Institute of Family and Life Advocates v. Rauner, (ND IL, Sept. 3, 2020), an Illinois federal district court denied summary judgment to two pro-life crisis pregnancy centers that are seeking to permanently enjoin enforcement of an Illinois statutory provision conditioning immunity for health care providers on their disclosure of medical options, including those that conflict with their religious beliefs. They must also facilitate patients' obtaining such services from others. In 2017, a different federal district court judge issued a preliminary injunction against enforcement of the Act. (See prior posting.) In refusing at this stage of litigation to make the injunction permanent, the court said in part:

In this litigation, Plaintiffs allege that the CPCs’ ability to promote their religiously motivated pro-life messaging ... are threatened by changes to the Illinois Healthcare Right of Conscience Act adopted in 2016....The law will compel them, Plaintiffs assert, to discuss the benefits of treatments they deem objectionable: abortion, contraception, or sterilization. Likewise, under the law, Plaintiffs must facilitate those treatments by providing patients with lists of doctors who provide those services or by transferring or referring patients to them. Both requirements violate Plaintiffs’ First Amendment Speech and Free Exercise rights, they claim....

Starting with the requirement to discuss the benefits of abortion, the court agrees with Defendant that as in Casey, this is a regulation of professional conduct that only incidentally burdens speech....

The court is mindful that from Plaintiffs’ perspective, the law compels speech on a message antithetical to their beliefs and thereby contradicts this Free Speech principle. But the court too recognizes that Plaintiffs’ patients are no less deserving of this right to decide for themselves what ideas are worth considering and adhering to, and the state may be well within its powers to protect this principle in a context involving “matters of the highest privacy and the most personal nature.”...

If the law does no more than bring the regulations of conscience objectors into conformity with that of other medical professionals (again, still a disputed issue), then the amended HCRCA may not be characterized as discriminating against religious medical professionals. The law’s text and history ... suggest instead that the legislature adopted the changes due to legitimate concerns about patient access to healthcare and not out of a desire to stifle religiously-motivated conduct.

Suit Challenges Tennessee's Abortion Reversal Disclosure Requirement

Suit was filed in a Tennessee federal district court this week challenging a recently enacted Tennessee abortion law (Tenn. Code Sec. 39-15-218, effective Oct. 1, 2020)  that requires doctors to tell their patients that it may be possible to reverse the effects of the first drug given to induce a medical abortion if the woman acts quickly. The complaint (full text) in Planned Parenthood of Tennessee and North Mississippi v. Slatery, (MD TN, filed 8/31/2020) alleges in part:

By forcing Plaintiffs to communicate a government-ordered message with which they and the overwhelming consensus of the medical profession disagree, and to present abortion patients with untruthful, misleading, and irrelevant information, the Act violates the First Amendment right of Plaintiffs and their staff and physicians against compelled speech, as well as their patients’ privacy rights under the Fourteenth Amendment. The Act likewise violates the Fourteenth Amendment’s guarantee of equal protection, singling out abortion providers and patients for adverse treatment not imposed on any other medical providers or patients in the State.

Courthouse News Service reports on the lawsuit. [Thanks to Scott Mange for the lead.]

FDA Asks SCOTUS To Stay Injunction On Medical Abortion Access

Yesterday the federal government filed with the U.S. Supreme Court an Application For A Stay of An Injunction (full text) in American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration. In the case, a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of Maryland's in-person requirements that bar women seeking a medical abortion from obtaining mifepristone through a mail-order or retail pharmacy or to receive the medication by mail from their healthcare provider. The 4th Circuit refused to stay the injunction pending appeal. (See prior posting.) In its Application, the FDA argued in part:

Given that surgical methods of abortion remain widely available, the enforcement of longstanding safety requirements for a medication abortion during the first ten weeks of pregnancy does not constitute a substantial obstacle to abortion access, even if the COVID-19 pandemic has made obtaining any method of abortion in person somewhat riskier.

 The Hill reports on the Application. [Thanks to Scott Mange for the lead.]

5th Circuit Denies Stay of Decision Invalidating Texas Abortion Restrictions

In Whole Woman's Health v. Paxton, (5th Cir., Aug. 21, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision refused to stay a district court decision handed down nearly 3 years ago which struck down a Texas abortion law banning  the standard dilation and evacuation procedure. The majority explained:

[W]e address our dissenting colleague’s [Judge Willett's] view that the motion should be granted, and this case remanded, because the governing legal standards have supposedly changed in light of the Supreme Court’s decision in June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020).  Respectfully, this is not so. June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020), has not disturbed the undue-burden test, and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), remains binding law in this Circuit.

The State’s stay motion is also patently procedurally defective.... [T]he problem here is that the State does not even attempt to explain why it would be “pointless” to move first in the district court.

[Thanks to Scott Mange for the lead.] 

4th Circuit Refuses To Stay Injunction Allowing Mifepristone By Mail

Last month, a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of Maryland's in-person requirements that bar women seeking a medical abortion from obtaining mifepristone through a mail-order or retail pharmacy or to receive the medication by mail from their healthcare provider. (See prior posting.) Now in American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (4th Cir., Aug. 13, 2020), the U.S. 4th Circuit Court of Appeals refused to grant a stay of the injunction pending appeal. Courthouse News Service reports on the court's order. [Thanks to Scott Mange for the lead.]

8th Circuit Vacates Injunction Against Arkansas Abortion Regulations

 In Hopkins v. Jegley, (8th Cir., Aug. 7, 2020), the U.S. 8th Circuit Court of Appeals in a 7-page per curiam opinion vacated an Arkansas federal district court's preliminary injunction against four Arkansas statutory provisions restricting abortions. At issue were 2017 enactments: (1) the Arkansas Unborn Child Protection from Dismemberment Abortion Act; (2) the Sex Discrimination by Abortion Prohibition Act, (3) requirements regarding the disposition of fetal remains, and (4) a requirement to maintain forensic samples from abortions performed on a child. The court remanded the case for consideration in light of Chief Justice Roberts’s separate opinion in June Medical Services v. Russo. The court said in part:

According to Chief Justice Roberts, the appropriate inquiry under Casey is whether the law poses “a substantial obstacle” or “substantial burden, not whether benefits outweighed burdens.”...

Here, the district court—without the benefit of Chief Justice Roberts’s separate opinion in June Medical—applied the Whole Woman’s Health cost-benefit standard to the challenged laws....

In addition, the district court relied on Whole Woman’s Health’s “holding that the ‘statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with this Court’s case law.’” ... Chief Justice Roberts, however, emphasized the “wide discretion” that courts must afford to legislatures in areas of medical uncertainty.

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

23 States Sue HHS Over Rollback of Anti-Discrimination Protections In Health Care

Attorneys general representing 22 states and the District of Columbia filed suit yesterday challenging the Trump Administration's recently-adopted rules under the Affordable Care Act and under Title IX which roll back anti-discrimination provisions protecting, among others, transgender individuals and those who have accessed abortion services. The complaint (full text) in State of New York v. U.S. Department of Health and Human Services, (SD NY, filed 7/20/2020), contends that the new rules deny equal protection of the laws and that their adoption was in violation of various provisions of the Administrative Procedure Act. Courthouse News Service reports on the lawsuit. New York's Attorney General issued a press release announcing the filing of the lawsuit.

Abortion Rights Proponents Win In 4 Cases

A series of abortion rights rulings were handed down in the last few days:

In Sistersong Women of Color Reproductive Justice Collective v. Kemp, (ND GA, July 13, 2020), a Georgia federal district court permanently enjoined enforcement of Georgia's Living Infants Fairness and Equality (“LIFE”) Act which prohibits abortions after detection of a fetal heartbeat and recognizes unborn children as "natural persons."  Courthouse News Service reports on the decision.

In Memphis Center for Reproductive Health v. Slatery, (MD TN, July 13, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of two bans on pre-viability abortions. One bans abortions when a fetal heartbeat is detectable. The other bans pre-viability abortions sought because of the race or sex of the fetus, or because of a Down syndrome diagnosis. ACLU issued a press release announcing the decision.

In American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (D MD, July 13, 2020), a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of in-person requirements that barred women seeking a medical abortion from obtaining mifepristone through a mail-order or retail pharmacy or to receive the medication by mail from their healthcare provider. The court concluded:

in light of the COVID-19 pandemic, the In-Person Requirements cause an undue burden in violation of the Constitution, imposing a substantial obstacle on a large fraction of the relevant women seeking a medication abortion.

AP reports on the decision.

In Planned Parenthood of Maryland, Inc. v. Azar, (D MD, July 10, 2020), a Maryland federal district court enjoined implementation of HHS' "separate billing rule" which would have complicated the billing for abortion coverage in health insurance policies offered through state exchanges. As explained by the court:

HHS proposed that issuers would need to send two separate bills to the policyholder to comply with § 1303 (one bill for the portion of the premium attributable to non-Hyde abortion coverage and one for the rest of the premium), and instruct the policyholder to pay the premium attributable to non-Hyde abortion coverage in a separate transaction.

Health Affairs reports on the decision.

Supreme Court Clears Docket In Light of Two Recent Major Decisiions.

In orders released yesterday (Order List), the U.S. Supreme Court cleared its docent of a number of abortion cases in light of its decision earlier this week in June Medical Services v. Russo.  The court granted certiorari and summarily vacated the judgment below and remanded to the 7th Circuit two appeals in Box v. Planned Parenthood of Indiana and Kentucky (Docket No. 18-1019 and 19-816). The Court also denied certiorari in Yost v. Planned Parenthood, (Docket No. 19-677) and Hill v. Whole Woman's Health, (Docket No. 19-743).

In light of its school aid decision earlier this week in Espinoza v. Montana Department of Revenue, the Court granted certiorari, summarily vacated the judgment below and remanded to the 7th Circuit the appeal in St. Augustine School v. Stand.