Appeals Court Upholds NY Abortion Coverage Requirement

In Roman Catholic Diocese of Albany v Vullo, (NY App.Div., July 2, 2020), a New York state appellate court rejected a challenge by several religious organizations and other plaintiffs to a New York administrative regulation  requiring health insurance policies in New York to provide coverage for medically necessary abortion services. The court held that the case was governed by a 2006 decision of New York's highest court rejecting a challenge to a state statutory requirement that health insurance policies which provide coverage for prescription drugs must include coverage for prescription contraceptives, saying in part:

The overriding reason for such rejection — equally applicable in the instant case — was that the WHWA set forth a neutral directive with respect to prescription medications to be uniformly applied without regard to religious belief or practice, except for those who qualified for a narrowly tailored religious exemption 

The court also rejected the argument that the Superintendent of Financial Services had exceeded his regulatory authority in promulgating the regulation.

Supreme Court Invalidates Louisiana Abortion Law Requiring Clinic Doctors To Have Hospital Admitting Privileges

The U.S. Supreme Court today in June Medical Services L.L.C. v. Russo, (U.S. Sup. Ct., June 29, 2020), by a 5-4 vote, struck down Louisiana's law that requires doctors at abortion clinics to hold active admitting privileges at a hospital within 30 miles of the clinic.  At issue in the case were (1) whether abortion providers have standing to assert their patients' abortion rights, and (2) whether the Louisiana statute is constitutional.  The Court in 2016 in Whole Women's Health v. Hellerstedt struck down a similar Texas statute.

Justice Breyer wrote today's plurality opinion which was joined by Justices Ginsburg, Sotomayor and Kagan.  As to standing, the plurality held:

The State did not mention its current objection until it filed its cross-petition—more than five years after it argued that the plaintiffs’ standing was beyond question.

The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs’ undue-burden claims bars our consideration of it here.

On the merits, the plurality said in part:

The District Court found that enforcing the admitting privileges requirement would “result in a drastic reduction in the number and geographic distribution of abortion providers.” ... In light of demographic, economic, and other evidence, the court concluded that this reduction would make it impossible for “many women seeking a safe, legal abortion in Louisiana . . . to obtain one” and that it would impose “substantial obstacles” on those who could....

The District Court found that there was “‘no significant health-related problem that the new law helped to cure.’” ...

We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion.

Chief Justice Roberts filed a concurring opinion, saying in part:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.....

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

Justice Thomas filed a dissenting opinion, saying in part:

Despite the fact that we granted Louisiana’s petition specifically to address whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients,” ... a majority of the Court all but ignores the question. The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.

Justice Alito filed a dissenting opinion, joined by Justice Gorsuch, and joined in part by Justices Thomas and Kavanaugh, saying in part:

The plurality concludes that the Louisiana law does nothing to protect the health of women, but that is disproved by substantial evidence in the record. And the plurality upholds the District Court’s finding that the Louisiana law would cause a drastic reduction in the number of abortion providers in the State even though this finding was based on an erroneous legal standard and a thoroughly inadequate factual inquiry....

Both the plurality and THE CHIEF JUSTICE hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health. .... [T]he idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.

Justice Gorsuch filed a dissenting opinion, saying in part:

The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.

Today’s decision doesn’t just overlook one of these rules. It overlooks one after another....

Justice Kavanaugh filed a dissent, saying in part:

[I]n my view, additional fact finding is necessary to properly evaluate Louisiana’s law. As JUSTICE ALITO thoroughly and carefully explains, the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors ... cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.

New York Times reports on the decision.

Iowa Abortion Waiting Period Challenged On State Constitutional Grounds

Suit was filed this week in an Iowa state trial court challenging a provision enacted earlier this month requiring women seeking an abortion to first visit a health center to receive an ultrasound and specified information, and then wait at least 24 hours before returning to have an abortion.  The complaint (full text) in Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., filed 6/23/2020) challenges the provision only on state constitutional grounds.  It focuses on the Iowa Constitution's single subject, due process, equal protection and inalienable rights provisions, and alleges in part:

The Amendment will be especially harmful during the current COVID-19 pandemic....

[B]y requiring an additional, medically unnecessary visit for abortion patients, despite the overwhelming consensus that providers should be reducing medically unnecessary medical visits during the pandemic, the Amendment puts patients and medical providers at increased risk of COVID-19 transmission....

By imposing a delay on abortion—a delay that the Legislature does not impose on any other medical procedure—the Amendment conveys that the Legislature believes women are not competent to make considered, appropriate medical decisions for themselves and their families, and must instead be forced by the state to reconsider their medical decisions....

[Thanks to Scott Mange for the lead.]

Courthouse News Service reports on the lawsuit.

Abortion Rights Groups Sues For Defamation

A lawsuit was filed last week in a Texas state trial court by an abortion rights group charging Right To Life East Texas and its director with defamation.  The complaint (full text) in The Lilith Fund for Reproductive Equity v. Dickson, (TX Dist. Ct., filed 6/11/2020), alleges that plaintiff has been defamed as part of defendants' successful efforts to get various municipalities to enact ordinances, contingent on the Supreme Court's overturning of Roe v. Wade, declaring abortion to be murder. Defendants have labeled plaintiff a criminal organization. The complaint alleges in part:

To be perfectly clear, Lilith Fund is not arguing it has been defamed because Defendants believe or argue that abortion is murder in some moral sense; instead, Lilith Fund has been defamed because Defendants have falsely accused it of assisting in the commission of the specific crime of murder. Lilith Fund has not been defamed because Defendants hope one day to make abortion a crime, but because Defendants presently state that Lilith Fund is, at this moment, breaking the law. These statements are baseless and provably false, and Defendants knew these statements were false when they were uttered as their own statements and the text of the ordinance itself demonstrates. In Texas, this is enough, on its own, to support a claim of defamation, even in the absence of damages.

[Thanks to Scott Mange for the lead.]

HHS Adopts Final Rule Rolling Back Transgender and Abortion Protections In Health Care

The Department of Health and Human Services today adopted a final rule that rolls back health care anti-discrimination coverage in federally supported activities and programs. In 2016 by the Obama Administration expanded protections for transgender individuals and for those who had accessed abortion services. The 344-page adopting Release (full text) reversing those changes explains:

The 2016 Rule’s definition of discrimination “on the basis of sex” encompassed discrimination on the basis of gender identity (“an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female”). In line with that definition, the 2016 Rule imposed several requirements regarding medical treatment and coverage on the basis of gender identity. The same definition also encompassed discrimination on the basis of “termination of pregnancy” without incorporating the explicit abortion-neutrality language of 20 U.S.C. 1688 (which some commenters referred to as the Danforth Amendment) in Title IX, and it imposed a high burden of proof on providers to justify offering gynecological or other single-sex medical services. All of these are essentially legislative changes that the Department lacked the authority to make.

Responding to comments submitted on the Rule in its proposed form, the Release says in part:

The U.S. government has taken the position in Harris and other relevant litigation that discrimination “on the basis of sex” in Title VII and Title IX does not encompass discrimination on the basis of sexual orientation or gender identity. The Department shares that position and is permitted to issue regulations on the basis of the statutory text and its best understanding of the law and need not delay a rule based on speculation as to what the Supreme Court might say about a case dealing with related issues....

The Department does not condone the unjustified denial of needed medical care to anyone, and believes that everyone, regardless of gender identity or sexual orientation, should be treated with dignity and respect. The Department must interpret Congress’s purpose in passing the ACA by reading that statute’s plain text. The ACA sought to expand access to healthcare and healthcare coverage through some means but not others: in particular, Congress saw fit to incorporate into the ACA certain nondiscrimination protections, and not others. For example, in the unlikely event that a healthcare provider were to deny services to someone based solely on his or her political affiliation, the Department would not be able to address such denial of care under Section 1557. Under this final rule, OCR is committed to no less than full enforcement of the prohibitions on discrimination that Congress included in Section 1557, without exceeding the statutory text. Unlike other bases of discrimination, the categories of gender identity and sexual orientation (as well as political affiliation) are not set forth in those statutes.

Bloomberg Law reports on the new rule.

Suit Challenges Illinois Abortion Coverage Mandate

Suit was filed this week in an Illinois state trial court by a religious organization and two employers challenging the Illinois Reproductive Health Act of 2019.  The Act requires every health insurance plan which provides pregnancy-related benefits to also provide coverage for abortion. The complaint (full text) in Illinois Baptist State Association v. Illinois Department of Insurance, (IL Cir. Ct., filed 6/10/2020), contends that the statute violates the Illinois Religious Freedom Restoration Act and the Illinois Health Care Right of Conscience Act. Thomas More Society issued a press release announcing the filing of the lawsuit.

Satanist's 1st Amendment Challenge To Missouri Abortion Law Fails

In Doe v. Parson, (8th Cir., June 9, 2020), 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.  Plaintiff argues that the state's informed consent booklet violates the Establishment Clause by promoting "Catholic dogma" about when life begins. The court rejected that argument, saying in part:

Some religions, including Catholicism, embrace the view that life begins at conception. Others, like Doe’s Satanism, do not. Any theory of when life begins necessarily aligns with some religious beliefs and not others. So under Doe’s theory, Missouri’s only option would be to avoid legislating in this area altogether.

The court also rejected plaintiff's argument that the requirement that she certify that she has had an opportunity to view and ultrasound and the informed consent booklet violates her free exercise rights. The court said in part:

Doe makes no argument ... that the informed-consent law is anything other than “neutral” and “generally applicable.”

Court Upholds Most of NY's Statute Barring Employer Reproductive Health Discrimination; Enjoins Notice Provision

In CompassCare v. Cuomo, (ND NY, June 5, 2020), a church and two pro-life organizations challenged the constitutionality of N.Y Labor Law § 203-e which prohibits employers from discriminating or taking retaliatory action against an employee because of the employee's reproductive decision making or use of any drug, device or medical service. It also requires employee handbooks to give notice to employees of their rights under the statute. According to the court:

Plaintiffs’ complaint, then, is that Labor Law § 203-e will alter their appearance and thus undermine their message. People will know that, even though they proclaim a public commitment to a particular message about religion, sexuality, abortion, and contraception, employees may engage in conduct contrary to their professions of faith....

The court, in a 67-page opinion, rejected plaintiffs' free speech and association claims, saying in part:

The limitations here are not on the speech for which the Plaintiffs contend they associate, but instead threaten to create a situation where hearers might perceive that not all employees ... of the Plaintiffs practiced what they preached. The danger that others be able to call the Plaintiffs hypocrites is not a significant limitation on Plaintiffs’ speech or right to associate. 

The court also rejected plaintiffs' free exercise claims, saying in part:

In the end, the Court cannot find that the evidence presented by the Plaintiffs establishes that the legislature’s purpose was “to challenge the plaintiffs’ religious beliefs” and instead finds that “there was a neutral, secular purpose” for Section 203-e: protecting New Yorkers’ right to make their own decisions about reproduction, including whether to have a child and whether to use birth control....

The court, however, did find that the notice provision amounts to unconstitutional compelled speech and enjoined enforcement of this portion of the law, saying in part:

The notice directed by the statute is language that the Plaintiffs would otherwise not use, and they contend that the prohibitions on discrimination because of “reproductive decision making” undermines their message that the only choices that persons should make on such matters are to carry a child to term, not use birth control, and conduct their sexual lives according to the standards Plaintiffs claim the Bible sets out. While the language in Section 203-e’s notice section does not mention abortion by name, does not suggest to anyone that abortion providers are available, and does not direct anyone to use birth control, the Court finds that the statute compels Defendants to use language they otherwise would not. The notice provision, therefore, is subject to strict scrutiny. No issue of professional speech applies here, which could raise an issue concerning some other level of scrutiny.

6th Circuit Strikes Down Kentucky Abortion Law

In EMW Women’s Surgical Center v. Friedlander, (6th Cir., June 2, 2020), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held unconstitutional a Kentucky statute that prohibits  dilation and evacuation abortions after 13 weeks of pregnancy unless fetal demise occurs before removal of the fetus from the uterus. The majority, affirming the grant of a permanent injunction, said in part:

Altogether, H.B. 454 imposes substantial burdens on the right to choose. Because none of the fetal-demise procedures proposed by the Secretary provides a feasible workaround to H.B. 454’s restrictions, it effectively prohibits the most common second-trimester abortion method, the D&E. In the balance against these burdens, we weigh the minimal benefits that H.B. 454 provides with respect to the Commonwealth’s asserted interests. These benefits are vastly outweighed by the burdens imposed by H.B. 454. Thus, H.B. 454 unduly burdens the right to choose, in violation of the Fourteenth Amendment.

Judge Bush dissented, arguing in part:

[T]here is a potential conflict of interest between Plaintiffs and their patients: for whatever reason—be it financial, litigation strategy, or otherwise—EMW’s physicians have refused to obtain the necessary training to perform fetal demise, even though uncontroverted studies presented at trial show that many, and perhaps a substantial majority, of women would choose fetal demise before undergoing a D&E procedure.... EMW’s doctors simply do not want to provide fetal demise before a D&E procedure, and their opposition to fetal demise creates a potential conflict of interest that deprives them of standing to bring this facial challenge against H.B. 454.

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

Christian Group Challenges England's Liberalization of Abortion Rules In COVID-19 Crisis

On March 30, Britain's Secretary of State for Health and Social Care, as part of the country's COVID-19 restrictions, approved a temporary rule allowing women seeking a non-surgical, medical abortion to take both Mifepristone and Misoprostol at home, following a remote consultation, instead of having to go to a clinic. Christian Concern filed a challenge to the new rule.  After the challenge was rejected, Christian Concern sought to have the High Court of Justice to allow judicial review of the challenges to the new rule. In The Queen v. Secretary of State for Health and Social Care, (High Ct., May __, 2020), a two judge panel, after a May 19 hearing, in a draft opinion refused permission to bring the claim for judicial review. Christian concern is appealing the ruling. Christian Concern has more information on the case. [Thanks to Law & Religion UK for the lead.]

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

In Skyline Wesleyan Church v. California Department of Managed Health Care, (9th Cir., May 13, 2020), the U.S. 9th Circuit Court of Appeals reversed a California federal district court's ruling on standing and ripeness in a challenge to the mandate that insurance policies cover legal abortion services.  The appeals court held that the church plaintiff has standing to challenge the requirement on free exercise grounds and that the claim is ripe for review. Courthouse News Service reports on the decision.

Suit Against Community College Challenges Campus Speech Restrictions

Suit was filed in an Oregon federal district court last week by a pro-life group and two Christian students challenging a community college's policies that require advance approval for speech activities on campus as well as limiting speeches and leafleting to certain speech zones.The complaint (full text) in Chemeketa Students for Life v. Members of the Chemketa Board of Education, (D OR, filed 5/5/2020) challenges the school's policies on free speech and vagueness grounds. ADF issued a press release announcing the filing of the lawsuit.

8th Circuit Upholds Arkansas COVID-19 Ban On Surgical Abortions

In In re Rutledge, (8th Cir., April 22, 2020), the U.S. 8th Circuit Court of Appeals issued a writ of mandamus ordering an Arkansas federal district court to dissolve its temporary restraining order that had invalidated the Governor's COVID-19 related ban on surgical abortions as part of a ban on non-medically necessary surgeries. The appeals court said in part:

Here, the ADH directive, pursuant to the Governor’s Executive Order, was issued in response to the impact of the COVID-19 pandemic in Arkansas. Accordingly, even assuming, arguendo, that the district court correctly interpreted the directive to be an outright ban on all pre-viability surgical abortions in Arkansas, the directive is not subject to constitutional challenge unless it “has no real or substantial relation to” the public health crisis, or “is, beyond all question, a plain, palpable invasion of” a woman’s right to elective abortion. Jacobson, 197 U.S. at 31.... Aside from summarily stating that its conclusion is consistent with Jacobson, the district court failed to apply that requisite framework and, thus, abused its discretion.

Daily Item reports on the decision.

Status of Temporary Abortion Bans

Catholic News Agency reviews the status of legal challenges to temporary bans on abortion in COVID-19 orders in various states, saying in part:

Eight states that have enacted temporary bans on abortion during the coronavirus pandemic are contending with legal challenges, and judges have prevented many of the temporary bans from coming into effect.

Judges have so far intervened to allow abortions in some form in Alabama, Arkansas, Oklahoma, Ohio, Texas, Iowa, Louisiana, and Tennessee, after the leaders of those states attempted to classify elective abortions as non-essential procedures.

In Iowa, abortion advocates had filed a lawsuit against the state’s order, but reached an agreement with the state outside of court before the lawsuit could progress.

In Alaska, a move by state officials to “delay” abortions until June has not been legally challenged; and in Mississippi, the state’s order banning all “elective” medical procedures also has not been challenged. Louisiana’s order to stop elective abortions is facing a lawsuit but has not been blocked.

Many states have suspended medical procedures deemed non-emergency or non-essential in an attempt to stem the spread of the virus among healthcare professionals, and to free up medical resources and hospital capacity.

Suit Challenges Enforcement of COVID-19 Orders Against Pro-Life Activists

Suit was filed today in a North Carolina federal district court seeking to enjoin city of Greensboro and Guilford County officials from applying COVID-19 orders to prevent anti-abortion activists from walking and praying in front of abortion clinics.  The complaint (full text) in Global Impact Ministries, Inc. v. City of Greensboro, (MD NC, filed 4/14/2020) contends:

The County has passed, and the City is enforcing, regulations limiting the operations of certain businesses and activities, and imposing social distancing requirements in response to the recent pandemic, but those requirements have been applied in an inconsistent and unconstitutional manner with respect to peaceful conduct and charitable religious activities in Greensboro. 

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

5th Circuit Upholds Part of TRO Issued Against Texas COVID-19 Abortion Ban

As previously reported, on April 7, the US. 5th Circuit Court of Appeals permitted Texas Gov. Gregg Abbott's COVID-19 related ban on elective abortions to go into effect. After additional skirmishing that led to a new temporary restraining order by the district court, on April 9 in In re Abbott, the 5th Circuit by a 2-1 vote upheld the TRO insofar as it permitted abortions for patients who would be past the 22-week limit for abortions by April 22, but otherwise stayed the TRO pending consideration of the case by the 5th Circuit.  Judge Dennis dissented saying he would not have stayed any part of the district court's TRO.  AP reports on these developments.

5th Circuit: Texas Elective Abortion Ban During COVID-19 Emergency Is Upheld

In In re Greg Abbott, (5th Cir., April 7, 2020), the U.S. 5th Circuit Court of Appeals issued a writ of mandamus that allowed the portion of Governor Greg Abbott's COVID-19 emergency order limiting elective abortion procedures to go into effect. All abortions other than those medically necessary to preserve the life or health of the mother are banned in order to preserve medical resources and limit the spread of coronavirus. Relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts, the court said in part:

The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” ... Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive.... At the same time, however, courts may not second-guess the wisdom or efficacy of the measures....

Properly understood, GA-09 merely postpones certain non-essential abortions, an emergency measure that does not plainly violate Casey in the context of an escalating public health crisis.... Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may constitute an undue burden under Casey, if they prove that, “beyond question,” GA-09’s burdens outweigh its benefits in those situations.

Judge Dennis filed a dissenting opinion. Texas Tribune reports on the decision.

Courts Grapple With State Abortion Bans In COVID-19 Responses

As previously reported, Texas and Ohio have included abortions as non-essential medical procedures which are banned to preserve resources for treatment of COVID-19 patients. Alabama has also imposed a similar ban. Wall Street Journal reports that district court judges in each of those states have blocked the bans. However yesterday in In re Abbott, (5th Cir., March 31, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision temporarily stayed the Texas federal district court's injunction, allowing the ban on abortions to remain, at least for the time being. The state however was directed to file an initial response by 8:00 a.m. today.

Cert. Filed In Pittsburgh Abortion Clinic Buffer Zone Ordinance

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Bruni v. City of Pittsburgh. In the case, the U.S. 3rd Circuit Court of Appeals upheld a Pittsburgh ordinance that creates a 15-foot buffer zone outside any health care facility, including a Planned Parenthood clinic. In Bruni v. City of Pittsburgh, (3d Cir., Feb. 6, 2019), the court upheld the ordinance by interpreting it to not cover sidewalk anti-abortion counseling. ADF issued a press release announcing yesterday's filing of the petition for review.

Texas and Ohio COVID-19 Limits On Elective Medical Procedures Include Elective Abortions

Texas Tribune reports:

Citing the need to preserve health care capacity for COVID-19 patients, Texas Attorney General Ken Paxton said Monday that abortions should not be performed unless the mother's life is in danger.

The warning comes one day after Gov. Greg Abbott ordered health care facilities and professionals to postpone all procedures that are deemed “not medically necessary” as the state gears up for an influx of patients with COVID-19, the disease caused by the new coronavirus.

The attorney general said that the order, set to expire April 21, should also be interpreted to cover abortion clinics in the state.

Here is the Attorney General's press release.

New York Times reports that Ohio imposed a similar ban last week.