In Contempt Sanction, Court Orders Attorneys To Attend Religious Liberty Training

In Carter v. Transport Workers of America, Local 556, (ND TX, Aug.7, 2023), a Texas federal district court ordered sanctions against Southwest Airlines for its failing to comply with an earlier Order in the case that found the Airline had violated Title VII when it fired a flight attendant because of  her social media messages about her religiously-motivated views on abortion. Southwest claimed that the flight attendant had violated the company's social media policy regarding civility. In its current Order, The court set out a specifically worded communication that the Airline is required to send to its flight attendants regarding its obligation under Title VII not to engage in religious discrimination. The court also ordered that three of the Airline's attorneys who were responsible for non-compliance with the earlier Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. The court explained, in part:

When a litigant “does not appear to comprehend” a legal concept, training in “the relevant subject area” constitutes a “particularly apropos” sanction.

[Thanks to Joel Taubman for the lead.]

Proposed Regulations Under Pregnant Workers Fairness Act Include Abortion as Pregnancy Related Condition

Yesterday the EEOC filed for publication in the Federal Register Proposed Rules (full text) under the Pregnant Workers Fairness Act. The Act requires employers with 15 or more employees to provide reasonable accommodations for employees and applicants arising out of pregnancy, childbirth or related medical conditions, absent undue hardship on the operation of the business. "Related medical conditions" are defined by the proposed regulations as including "termination of pregnancy, including via miscarriage, stillbirth, or abortion." Anti-abortion advocacy organizations say the proposed regulations will force employers to violate their religious beliefs. (See ADF press release.)

Trial Court Expands Exemptions in Texas Abortion Law; Appeal Suspends Ruling

In Zurawski v. State of Texas, (TX Dist. Ct., Aug. 4, 2023), a Texas state trial court issued a temporary injunction barring enforcement of Texas' abortion ban in more situations than the limited exceptions in the statute.  The court restrained enforcement against any physician who provides abortions where the pregnant person has a complication that poses a risk of infection or makes continuing a pregnancy unsafe, has a condition exacerbated by pregnancy that cannot be effectively treated during pregnancy or where the fetus is unlikely to survive the pregnancy.

The court said in part:

The Court further finds that any official’s enforcement of Texas’s abortion bans as applied to a pregnant person with an emergent medical condition for whom an abortion would prevent or alleviate a risk of death or risk to their health (including their fertility) would be inconsistent with the rights afforded to pregnant people under Article I, §§ 3, 3a, and/or 19 of the Texas Constitution and therefore would be ultra vires.

The state immediately filed a Notice of Accelerated Interlocutory Appeal which apparently has the effect under Texas law of suspending the trial court's temporary injunction pending action by the state Supreme Court. (Attorney General's press release.)  NPR reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Idaho AG's Interpretation of Anti-Abortion Law Is Enjoined

In Planned Parenthood Greater Northwest v. Labrador, (D ID, July 31, 2023), an Idaho federal district court granted a preliminary injunction barring the state attorney general from enforcing an interpretation of a law barring healthcare professionals from assisting in performing an abortion that would cover professionals who merely provide information about or refer patients for legal out-of-state abortions. The court said in part:

... [T]he Medical Providers allege that the Crane Letter interpretation violates the First Amendment, the dormant commerce clause, and the due process clause. The Medical Providers claim they are “overwhelmingly” likely to succeed on the merits of all three claims.... Interestingly, the State did not engage this argument in any way, relying instead entirely on its jurisdictional challenges.... As discussed below, the Court finds that the Medical Providers are likely to succeed on their First Amendment cause of action.

In particular, the Medical Providers contend that the Crane Letter interpretation violates the First Amendment because it impermissibly regulates speech based on content and viewpoint.... because health care providers are silenced on a single topic—abortion—and is viewpoint discretionary because health care providers can provide information and referrals about out-of-state resources like anti-abortion counseling centers or prenatal care....

... Because the State has not opposed the First Amendment claim, and because the Court finds the Medical Providers’ argument persuasive, the Court finds that the Medical Providers have shown that they are likely to succeed on the merits of their First Amendment challenge.

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

Suit Challenges Illinois Deceptive Practices Law Aimed At Anti-Abortion Pregnancy Centers

Suit was filed last week in an Illinois federal district court challenging Illinois SB 1909 which prohibits limited purpose pregnancy centers from using misrepresentations or concealment to interfere with a person's access to abortion or emergency contraception. The 55-page complaint (full text) in National Institute of Family & Life Advocates v. Raoul, (ND IL, filed 7/27/2023), attacks the legislation on free expression, free exercise, and various 14th Amendment grounds. The complaint alleges in part:

... [S]peaking common pro-life views as part of a pregnancy help ministry, or failing to speak the State’s pro-abortion views on hotly disputed issues, is illegal under state law, on pain of crippling fines, injunctions,  and attorney fees. Meanwhile, abortion facilities (as well as expressly exempted licensed healthcare providers and hospitals) remain free to engage in their own controversial speech about abortion, as they wish.

Thomas More Society issued a press release announcing the filing of the lawsuit. 

Suit Challenges Ohio Reproductive Freedom Amendment Ballot Issue

 A legal action was filed Friday in the Ohio Supreme Court seeking to disqualify from the November ballot a proposed Reproductive Freedom amendment to the state constitution which has been certified for inclusion on the ballot by the state Secretary of State. The complaint (full text) in Giroux v. Committee Representing Petitioners, (OH Sup. Ct., filed 7/28/2023) contends that the initiative petitions failed to comply with the legal requirement to include the text of existing statutes that would be implicitly repealed by the amendment if it is adopted. Cincinnati Enquirer reports on the lawsuit. [Thanks to Thomas Rutledge for the lead.]

Conscience Clause in Health Insurance Mandate Does Not Violate Church's Free Exercise

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, July 25, 2023), a Washington federal district court dismissed a free exercise challenge by a church to a Washington law requiring all health insurance plans that provide maternity coverage to also provide substantially equivalent abortion coverage. Under the law, employers with religious or moral objections to specific services do not have to purchase coverage for those services, but enrollees must still be able to access coverage for the services. The court said in part:

None of the State’s arguments seem to fully address the crux of Cedar Park’s facilitation complaint: that its employees would not have access to covered abortion services absent Cedar Park’s post-SB 6219 plan. This fact is undisputed and undoubtedly true. Because of SB 6219, Cedar Park’s employees gained coverage for abortion services under their employer-sponsored health insurance plan that they would not otherwise have. Even if the “facilitation” is somewhat minimal, SB 6219 requires Cedar Park to facilitate access to covered abortion services contrary to Cedar Park’s religious beliefs....

Because the Court concludes that SB 6219 is neutral and generally applicable, the law is valid if it is rationally related to a legitimate governmental purpose....

The Washington legislature identified multiple legitimate governmental purposes for enacting SB 6219, including promoting gender equity, promoting economic success of women, improving women’s health, and protecting privacy.

Vermont Pregnancy Counseling Centers Sue Over New Restrictions

Suit was filed yesterday in a Vermont federal district court attacking Vermont's recently-enacted SB 37 which, among other things, imposes new regulation on anti-abortion pregnancy counseling centers. The law prohibits advertising of services that is "untrue or clearly designed to mislead the public about the nature of the services provided." It also provides that licensed health care professionals who provide services at such centers are responsible for ensuring that services, information and counseling at the center complies with these requirements. The complaint (full text) in National Institute of Family and Life Advocates v. Clark, (D VT, filed 7/25/2023) contends that these provisions are unconstitutionally vague and also violate the free speech rights of clinics, alleging in part:

111. The Advertising Prohibition provides no guidance as to how it should be applied to advertisements including medical information on which there is no medical consensus.

112. The Advertising Prohibition is also unclear as to whether it requires a disclosure in all advertisements that the pregnancy center does not provide abortions or "emergency contraception."

113. Requiring such a disclosure would compel the centers' speech.

114. The Advertising Prohibition has chilled Plaintiffs' speech.

115. For example, Aspire's medical director created a video about abortion pill reversal that Aspire would like to post on its website....

168. Because Plaintiffs do not charge for their services, the Provider Restriction, 9 V.S.A. § 2493(b), regulates Plaintiffs' non-commercial speech.

169. The Provider Restriction is a viewpoint- and content-based regulation of pure speech because it directly regulates speech about health-care-related" information" and "counseling" by "limited-services pregnancy centers," even when no medical treatment or procedure is involved. 9 V.S.A. § 2493(b).

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

Missouri Supreme Court Orders Steps to Allow Reproductive Rights Initiative Petitions to Be Circulated

In State of Missouri ex rel. Dr. Anna Fitz-James v. Bailey, (MO Sup. Ct., July 20, 2023), the Missouri Supreme Court affirmed a trial court's issuance of a writ of mandamus requiring the state Attorney General to approve the State Auditor's fiscal note summaries to eleven Reproductive Rights initiative petitions. That approval is necessary so that the Secretary of State can certify the ballot language and proponents can begin to circulate the petitions for signatures. (Full text of petitions [scroll to No. 2024-77 through 2024-87]). AP reports on the case. State Attorney General Andrew Bailey-- a gubernatorial appointee in Missouri-- contended that the Auditor's conclusion that the proposed constitutional amendments would have no fiscal impact were inaccurate.  Bailey, an abortion opponent, contended that. if approved by voters, the state could lose $12.5 billion in Medicaid funds and $51 billion in future tax revenues because of fewer births. This earlier report by the Missouri Independent has additional background.

 In its opinion, the Missouri Supreme Court said in part:

The Attorney General’s narrow authority to approve the “legal content and form” of the fiscal note summaries cannot be used as a means of usurping the Auditor’s broader authority to assess the fiscal impact of the proposals and report that impact in a fiscal note and fiscal note summary....

The Attorney General, nevertheless, characterizes his claim as challenging the “legal content and form” of the fiscal notes and their summaries because he contends they use language that is argumentative or likely to prejudice readers in favor of the proposed measure.... [H]e claims the content of the notes is likely to prejudice voters in favor of the proposals by underestimating the fiscal impact. And, because he believes the fiscal notes understate the costs to state and local governments, the Attorney General claims the summaries inevitably do so as well. The Attorney General has no authority under section 116.175 to refuse to approve fiscal note summaries on such grounds....

For more than 40 years, this Court has noted “that procedures designed to effectuate [the rights of initiative and referendum] should be liberally construed to avail voters with every opportunity to exercise these rights” and that “[t]he ability of voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities.”... If the Attorney General had complied with his duty ..., the Secretary would have certified the official ballot titles for Fitz-James’s initiative petitions nearly 100 days ago.

Iowa Trial Court Temporarily Enjoins State's New Heartbeat Abortion Ban

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., July 17, 2023), an Iowa state trial court issued a temporary injunction barring enforcement of Iowa's new heartbeat abortion ban. The court held that a decision of the Iowa Supreme Court in 2022 left the federal undue burden test as the controlling test in Iowa abortion cases. The trial court said in part:

When the undue burden standard is applied, it is readily apparent that the Petitioners are likely to succeed on their claim that H.F.732 violates the Due Process clause, article I, section 9 of the Iowa Constitution.

The court's decision was complicated by the fact that in 2018, Iowa passed a similar heartbeat law which was enjoined by a trial court. That injunction remained in place when last month the Iowa Supreme Court deadlocked 3-3 in an appeal of that decision. In yesterday's decision by the trial court, the temporary injunction had one exception. The court said:

The court believes it must follow current Iowa Supreme Court precedent and preserve the status quo ante while this litigation and adversarial presentation which our Supreme Court has invited moves forward. 

However, as the Governor has now signed H.F. 732 into law, the court should except from that status quo, section 2, paragraph 5 of H.F. 732, directing the Iowa Board of Medicine to adopt rules pursuant to Chapter 17A. Should the injunction entered today ultimately be dissolved, it would only benefit all involved, patients and providers alike, to have rules in place to administer the law.

Iowa ACLU issued a press release announcing the decision.

Court Says HHS Used "Smurfing" To Avoid Review of Guidance To Pharmacies

In State of Texas v. U.S. Department of Health & Human Services, (WD TX, July 12, 2023), a Texas federal district court refused to dismiss a challenge by the state of Texas and a pharmacy company to the Department of Health & Human Service's July 14, 2022, Guidance to Nation's Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services.  Texas claims that the Guidance is an attempt to pre-empt Texas' abortion bans. Plaintiffs contend that the Guidance exceeds HHS's statutory authority and violates the Administrative Procedure Act. HHS alleges the plaintiffs lack standing. According to the court:

Plaintiffs’ standing in this case turns on the answer to a single question: does the Pharmacy Guidance require pharmacies to dispense drugs for abortion purposes? Defendants argue now that the Pharmacy Guidance only “addresses situations in which a pharmacy would fail to fill a prescription for non-abortion purposes.” What’s more, Defendants argue that “Texas cannot point to any language in the guidance that purports to require pharmacies to dispense drugs for abortion purposes.” Thus, in Defendants’ view, because the Pharmacy Guidance is not about abortion, it “does not conflict with, or purport to preempt, Texas laws that restrict abortion.” But that argument perfectly evidences agency smurfing—an executive branch breaking up a policy goal into silos, hoping to sever the threads that link the compartmentalized pieces to the executive’s goal....

This administration has, before and since Dobbs, openly stated its intention to operate by fiat to find non-legislative workarounds to Supreme Court dictates. This Court will not play along with such a breach of constitutional constraints.

Earlier in its opinion, the court set out at greater length its concern about "smurfing":

A recent trend among federal agencies appears to be borrowing a technique common among money launderers to avoid judicial review. The technique known as “smurfing” in the financial arena occurs when the launderer divides a large transaction—which might otherwise trigger a bank’s reporting requirements—into various smaller transactions to avoid detection....

Agency smurfing, similar to financial smurfing, occurs when the executive branch smurfs one policy goal into multiple, supposedly “unreviewable” and “unchallengeable” pieces. Consider an executive branch, who, immediately following a Supreme Court decision, seeks to achieve a policy goal contrary to the Court’s holding. The executive branch knows, however, that courts will likely view that policy goal as incompatible with the Supreme Court’s reasoning. In its efforts to avoid scrutiny, and eventual discovery of their true purpose, the executive branch breaks up the policy goal into separate, seemingly unrelated and innocent pieces—an executive order here, a press release and guidance there.

Mayo Pharmacy, a co-plaintiff, also alleged violation of its free exercise rights under RFRA. The court held that the case was brought in the wrong venue to assert that claim, and it transferred that claim to the District of North Dakota where venue lies. ADF issued a press release announcing the decision.

Iowa Passes Fetal Heartbeat Abortion Ban

In a one-day special legislative session on Tuesday, the Iowa legislature passed HF732 (full text), a ban on most abortions if a fetal heartbeat can be detected (usually after 6 weeks of pregnancy). The law has exceptions for medical emergencies, and for rape or incest if reported to law enforcement or health authorities. "Medical emergency" is defined in Iowa Code §146B.1 as where necessary to preserve the life of the pregnant woman or where the pregnancy poses a serious risk of substantial and irreversible impairment of a major bodily function. AP in its coverage of the bill reports that Governor Kim Reynolds, who called the special session of the legislature, says she will sign the bill on Friday. Earlier this year, the Iowa Supreme Court was evenly divided, thereby affirming a state trial court's holding that a previous fetal heartbeat law violates the Iowa constitution.

Court Says Dobbs Decision Does Not Undercut Freedom of Access To Clinic Entrances Act

In United States v. Gallagher, (MD TN, July 3, 2023), a Tennessee federal district court became the first court to rule on whether the Supreme Court's Dobbs decision affects the constitutionality of the Freedom of Access to Clinic Entrances ("FACE") Act.  In the case, eleven co-defendants sought dismissal of their indictments for violating FACE. They first argued that since Dobbs held abortion is not entitled to heightened protection under the 14th Amendment, Congress' reliance in enacting the law on its 14th Amendment Section 5 enforcement powers is undercut. The court responded in part:

While the question of how section 5 applies to the FACE Act may be of some abstract or academic interest, however, it is of limited practical importance, given that section 5 is only one of two powers on which Congress relied in enacting the FACE Act, the other of which—the power to regulate interstate commerce—was not at issue in Dobbs.

Later in its opinion, the court rejected defendants' argument that Dobbs effectively created a carveout of abortion services from commerce clause coverage. It also rejected defendants' argument that they could not be prosecuted under 18 USC §241 for conspiring to prevent the exercise of a federal right. The court said "§ 241 does not require that the right in question be constitutional, only that it be federal. FACE is, of course, a federal statute...."

The court also rejected defendants' argument that the government is engaged in impermissible selective enforcement because it has not brought enough prosecutions under the FACE Act against individuals who have interfered in the operation of anti-abortion “crisis pregnancy centers.”

It went on to reject defendants' free speech arguments, saying in part:

Nor is the FACE Act being applied in an unconstitutional manner to these particular defendants based on their viewpoints or participation in First Amendment-protected activities, as would be required for a so-called “vindictive prosecution” defense. “...

Because there is no actual evidence of any such improper motive, the defendants engage in a sleight of hand, whereby they have treated any statement by the Department of Justice indicating a desire to safeguard access to abortion as evidence of a desire to punish these defendants for Dobbs. The defendants, though, are not the center of the moral or political universe. A desire to safeguard access to abortion is a desire to safeguard access to abortion—not an affront directed at them. More importantly, safeguarding access to abortion is, particularly under Dobbs, an entirely appropriate thing for legislatures and executives to do, if that is the course they choose. Indeed, it is harder to imagine a more fulsome endorsement of the elected branches’ power to set abortion policy than Dobbs...

Moving to defendants' Free Exercise/ RFRA claims, the court said in part:

The boundaries of the Free Exercise Clause are a topic of much disagreement.... The defendants’ argument, however, goes to something much more fundamental. Although the defendants go to great lengths to make this issue more complicated than it is, they ultimately ask a straightforward question: Does the Free Exercise Clause grant individuals who are acting out of religious motivations freedom to commit actions that otherwise would be crimes against the person or property of others through physical invasion, intimidation, or threat? The answer is similarly straightforward: No, it does not....

The defendants argued that RFRA requires that the state have a compelling interest to substantially burden religious exercise, and that after Dobbs there cannot be a compelling interest in protecting access to abortion. The court responded in part:

... [T]he Supreme Court has never held that a “compelling interest” depends upon something being considered a fundamental right. They are different constitutional concepts, performing different jurisprudential functions.

Court Strongly Criticizes Performance of Counsel for The Satanic Temple

In March 2021, The Satanic Temple and one of its members filed suit in a Texas federal district court challenging Texas' requirement that a woman have a sonogram prior to an abortion. The complaint alleged that in light of the Satanic Temple's Satanic Abortion Ritual, the Texas requirement violated plaintiffs' free exercise, substantive due process and equal protection rights. (See prior posting.) After the U.S. Supreme Court's Dobbs decision, The Satanic Temple filed a Third Amended Complaint.  In The Satanic Temple, Inc. v. Young, (SD TX, July 3, 2023), the Texas district court then dismissed the suit for lack of standing and on sovereign immunity grounds.  The court added:

Without any supporting detail, Plaintiffs assert two causes of action under the First Amendment, one being a claim swirling together the Free Speech and Free Exercise Clauses, and the other pertaining to the Establishment Clause. Young argues that these claims are so inadequately pleaded as to deprive her of fair notice as to what exactly this suit is about in the wake of Dobbs....

The court also refused to grant plaintiffs leave to replead their claims.  In doing so, the court set out an unusually strong criticism of the performance of plaintiffs' counsel, saying in part:

Given the detail of the prior complaints and these substantial changes in the law, the deficiencies in the operative complaint are no doubt intentional. And indeed, the filing of a willfully deficient amended complaint is of a piece with the mulish litigation conduct by counsel for Plaintiffs, Attorney Matt Kezhaya, in this and other actions representing The Satanic Temple. Recently considered in this regard was whether to revoke his permission to proceed pro hac vice in light of sanctions entered against him in other federal courts after his appearance here. For example, [in one of those cases:]

He ... filed a second motion for TRO containing negligible legal analysis, with six pages of the main analysis dedicated to presentation of what’s purported to be a five-act play.....

Litigation of constitutional claims is a serious matter. Such issues deserve serious attention from counsel desiring to be taken seriously. As it turns out, Plaintiffs might have been better served by proceeding pro se, as applicable standards would dictate that their filings would be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.”...

And any repleading at this stage would manifest undue prejudice to a range of current and former Defendants who still have little clue as to the exact nature of the claims brought in this case. The Court is also of the firm belief that any further attempt at repleading would be futile, given that Attorney Kezhaya’s filings become more conclusory, reductive, and intemperate over time, in line with his performative and obstinate conduct to date.

Indiana Supreme Court Rejects Facial Challenge to State's Abortion Law

In Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., (IN Sup. Ct., June 30, 2023), the Indiana Supreme Court rejected a facial challenge under the Indiana Constitution to Indiana's 2022 abortion law. The law bans abortions except when necessary to save a woman’s life or to prevent a serious health risk, or during limited time periods when there is a lethal fetal anomaly or when the pregnancy results from rape or incest. Interpreting the broad language of Art. I, Sec, 1 of the Indiana Constitution, the court said in part: 

... Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. So this appeal does not present an opportunity to establish the precise contours of a constitutionally required life or health exception and the extent to which that exception may be broader than the current statutory exceptions....

We do not diminish a woman’s interest in terminating a pregnancy because, for starters, it is a privately held interest—informed by privately held considerations. Moreover, we recognize that many women view the ability to obtain an abortion as an exercise of their bodily autonomy. Yet, and however compelling that interest is, it does not follow that it is constitutionally protected in all circumstances....

In sum, our State’s history and traditions, as reflected in our Court’s precedents, indicate that the common understanding of Section 1 among those who framed and ratified it was that it generally left the General Assembly with broad legislative discretion to limit abortion....

Justice Slaughter filed an opinion concurring only in the judgment, saying in part:

For the first time in our state’s history, the Court holds that the Indiana Constitution protects a woman’s right to terminate her pregnancy. The Court’s unprecedented conclusion is both momentous and unnecessary on this record. The only issue before us is the propriety of the trial court’s preliminary injunction. That narrow issue can, and thus should, be resolved without reaching any of the constitutional questions upon which the Court opines gratuitously...

Justice Goff filed an opinion concurring in part and dissenting in part, saying in part:

To be sure, Senate Bill 1 itself recognizes a woman’s liberty interest, if only in part, by allowing time-limited exceptions for victims of rape and incest and pregnancies involving a lethal fetal anomaly. But by holding that the legislature retains the discretion “to prohibit abortions which are unnecessary to protect a woman’s life or health,” the Court puts these exceptions at risk, effectively inviting the legislature to repeal even the most basic protections to a woman’s liberty....

It seems to me that reproductive liberty is too personal and too important for the General Assembly to set at naught when weighed in the balance against the protection of fetal life.

Indy Star reports on the decision.

Teachers May Move Ahead with Suit Challenging Denial of Exemption from Covid Vaccine Mandate

 In Brandon v. Board of Education of the City of St. Louis, (ED MO, June 21, 2023), a Missouri federal district court refused to dismiss Free Exercise and Equal Protection claims, as well as Missouri Human Rights Act and Title VII claims by 41 of the 43 teachers and staff, in a suit challenging the denial of religious exemptions from the school district's Covid vaccine mandate. Discussing plaintiffs' First Amendment claim, the court said in part:

[Eighth Circuit precedent] instructs district courts to apply Jacobson to laws passed and enforced while an emerging public-health emergency is “developing rapidly, poorly understood, and in need of immediate and decisive action,.., but the tiers of scrutiny when “time [was] available for more reasoned and less immediate decision-making by public health officials” and “the immediate public health crisis [had] dissipated,”.... Again, which standard applies depends upon a “factual determination,”..., and the Court must at this point accept Plaintiffs’ well-pleaded factual allegations as true.... Because Plaintiffs have pleaded the existence of a late-2021 policy apparently lacking the urgency that characterized the regulations and executive orders issued early in the pandemic, [precedent] compels the Court—at least for now—to apply the ordinary tiers of scrutiny to the District’s Policy as alleged.

Among the claims dismissed by the court was the claim that refusal to grant the religious exemptions violated a Missouri statute that prohibits discrimination for refusal to participate in abortions.

2nd Circuit Rejects Challenge to Abortion Clinic Bubble Zone Law

In Vitagliano v. County of Westchester, (2d Cir., June 21, 2023), the U.S. 2nd Circuit Court of Appeals held that plaintiff, who the court describes as "an aspiring pro-life sidewalk counselor who wishes to approach women entering abortion clinics and engage them in peaceful conversation about abortion alternatives," has standing to challenge Westchester County's recently-enacted 8-foot "bubble-zone" law. The court concluded that plaintiff has standing.  She had demonstrated a credible threat of enforcement of the law against her. Plaintiff conceded that the bubble-zone law survived constitutional attack under existing Supreme Court precedent.  She brought suit hoping to convince the Supreme court to overrule its 2000 decision that upheld a similar law. The 2nd Circuit thus affirmed the district court's dismissal of the challenge to Westchester County's ordinance, opening the way for appellant to seek Supreme Court review. Becket has background on the case.

Iowa Supreme Court, 3-3, Affirms Invalidation Of Heartbeat Abortion Law

As previously reported, in 2019 an Iowa state trial court judge held that Iowa's "fetal heartbeat" abortion law violates the Iowa state constitution. The case was not appealed. However, in 2022 the state filed a motion to dissolve the injunction and revive the law. The trial court refused to do so, and that decision was appealed to the Iowa Supreme Court.  Now in Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup. Ct., June 16, 2023), the Iowa Supreme Court announced that it was evenly divided, 3-3, on the case (with one Justice recused), so that by operation of law the trial court's decision stands. However individual Justices filed opinions in the case. 

The newly decided case was made more complicated by a decision of the Iowa Supreme Court last year in which it rejected subjecting a different abortion regulation to strict scrutiny under the state Constitution, but did not decide what level of scrutiny should apply.  This left the standard to be the undue burden test imposed by federal law. (See prior posting.)

Now in last week's decision on the fetal heartbeat law, Justice Waterman (joined by Chief Justice Christensen and Justice Mansfield ) wrote that they would not grant the discretionary writ of certiorari, thus refusing to review the trial court decision. He went on to indicate that even if review were granted, they would affirm the trial court, saying in part:

The law as of today has not changed in a way that removes the “constitutional defect” in the fetal heartbeat bill. The undue burden test remains the governing standard under the Iowa Constitution, and the State concedes, as it must, that the fetal heartbeat bill is unconstitutional under that test. The State therefore has failed to establish that the district court acted illegally. There is no basis for certiorari relief.

Justice McDonald filed a separate opinion, joined by Justices McDermott and May, saying in part:

Because there was no controlling decision from this court..., the district court should have applied this court’s other controlling precedents to constitutional claims of this type. Under this court’s controlling precedents, where there is no fundamental right at issue, statutes are subject only to rational basis review.

Justice McDermott filed a separate opinion, joined by Justices McDonald and May, saying in part:

Last year, we were presented with an appeal challenging the constitutionality of a different statute regulating abortion, yet we failed to declare the constitutional standard that applied. This case again presented that same basic task. And for the second time in as many years, we’ve ducked it. It isn’t for us to dictate abortion policy in the state, but simply to interpret and apply the law as best we can in cases that come before us. We fail the parties, the public, and the rule of law in our refusal today to apply the law and decide this case. 

Des Moines Register reports on reactions to the decision.

New York Sues Anti-Abortion Group That Physically Obstructs Clinics

New York Attorney General Letitia James announced last week that she has filed suit against the anti-abortion group Red Rose Rescue and various of its members seeking to enjoin them from physically interfering with persons seeking abortions or providing abortion services. The complaint (full text) in People of the State of New York v. Red Rose Rescue, (SD NY, filed 6/8/2023), alleges in part:

8. Red Rose Rescue is an anti-abortion group whose members conspire to illegally trespass into private medical facilities that perform abortions and shut down or physically obstruct the provision of all reproductive health services, refusing all requests to leave by staff and law enforcement. 

9. Criminal trespass at reproductive health facilities is not incidental to Red Rose Rescue members’ activism, but rather is the core mission of their group.

The complaint alleges violations of the federal Freedom of Access to Clinic Entrances Act and New York's Clinic Access Act. In addition to injunctive relief, the suit also seeks damages and civil penalties. Catholic News Agency reports on the lawsuit.

3rd Circuit Hears Oral Arguments In Abortion Clinic Buffer Zone Challenge

The U.S. 3rd Circuit Court of Appeals yesterday heard oral arguments in Reilly v. City of Harrisburg (audio of full oral arguments). In the case below (MD PA, March 28, 2022) (full text), the court dismissed a suit by anti-abortion sidewalk counselors to Harrisburg's ordinance creating a 20-foot buffer zone designed to exclude protesters around health-care facilities, including abortion clinics. Liberty Counsel issued a press release previewing its arguments for appellants in the case.