Transcript of Oral Arguments In June Medical Services Case Now Available

Here is the transcript of today's oral arguments in the U.S. Supreme Court in June Medical Services L.L.C. v. Russo -- the constitutional challenge to Louisiana's abortion law. Vox reports on the oral arguments, headlining it "Abortion rights had a surprisingly hopeful day in the Supreme Court". CNN however headlines its report "Supreme Court appears split after hearing first major abortion case with strong conservative majority".

Supreme Court To Hear Arguments Today In High-Profile Abortion Case

Today, the U.S. Supreme Court hears oral arguments in a high profile abortion case-- June Medical Services v. Russo. At issue is the constitutionality of the Louisiana Unsafe Abortion Protection Act which requires any abortion provider to have admitting privileges at a hospital within 30 miles of the location where abortions are performed. In March 2016, the U.S. Supreme Court summarily upheld a preliminary injunction issued by the district court preventing the Act from going into effect. In September 2018, the U.S. 5th Circuit Court of Appeals reversed the district court and upheld the statute. In January 2019, the full 5th Circuit, by a vote of 6-9, denied en banc review. Plaintiff appealed the substantive holding to the Supreme Court. The state cross-appealed the grant of third-party standing to the abortion clinic plaintiff. (See prior posting.) Meanwhile in February 2019 the Supreme Court stayed the 5th Circuit's decision pending appeal to the Supreme Court, with four justices dissenting. The SCOTUS blog case page has links to all the filings (including dozens of amicus briefs) in the case, as well as to commentary on the case.

I will post a link to the transcript of the oral arguments when they become available later today.

9th Circuit Upholds HHS Family Planning Grant Rules

In a 7-4 en banc decision yesterday, the U.S. 9th Circuit Court of Appeals upheld the Trump Administration's rules that apply to recipients of family planning grants under Title X. In State of California v. Azar, (9th Cir., Feb. 24, 2020),  the majority in an 82-page opinion vacated injunctions that had been entered by three district courts.  The court described the major provisions of the challenged rules:

While referrals for abortion as a method of family planning are not allowed, the Title X project may give a pregnant client a “list of licensed, qualified, comprehensive primary health care providers,” which may include “providers of prenatal care[], some, but not the majority, of which also provide abortion as part of their comprehensive health care services.” .... The Title X project may also provide referrals for abortion when such a procedure is medically necessary....

... [T]he Final Rule ... requires that a Title X project be organized “so that it is physically and financially separate . . . from activities that are prohibited under section 1008 of the Public Health Service Act..... [in order to avoid] the appearance and perception that Title X funds being used in a given program may also be supporting that program’s abortion activities.... 

The dissenters argued that the HHS rules violate Congressional mandates, saying in part:

The majority would return us to an older world, one in which a government bureaucrat could restrict a medical professional from informing a patient of the full range of health care options available to her. Fortunately, Congress has ensured such federal intrusion is no longer the law of the land.

ABC News reports on the decision.

Noise Restrictions On Sidewalk Abortion Counselors Upheld

In Henderson v. McMurray, (ND AL, Feb. 4, 2020), an Alabama federal district court upheld a Huntsville, Alabama special events ordinance and the provision in a permit allowing plaintiffs, pro-life sidewalk abortion counselors, to use amplification only if they cannot be heard in adjacent buildings. The court concluded that the challenged restrictions do not violate plaintiffs' rights to free speech or free exercise of religion.

Trump Addresses March For Life

Yesterday President Trump addressed the 47th Annual March for Life on the National Mall in Washington. (Full text of remarks). He is the first President to attend the March in person.  He said in part:

All of us here today understand an eternal truth: Every child is a precious and sacred gift from God.  (Applause.)  Together, we must protect, cherish, and defend the dignity and sanctity of every human life.  (Applause.)...

We have taken decisive action to protect the religious liberty –- so important.  Religious liberty has been under attack all over the world, and, frankly, very strongly attacked in our nation.  You see it better than anyone.  But we are stopping it, and we’re taking care of doctors, nurses, teachers, and groups like the Little Sisters of the Poor.  (Applause.)  We are preserving faith-based adoption.  (Applause.)

And to uphold our founding documents, we have confirmed 187 federal judges — (applause) — who apply the Constitution as written, including two phenomenal Supreme Court Justices: Neil Gorsuch and Brett Kavanaugh.  (Applause.)

HHS Says California Violated Federal Conscience Protections On Abortion Coverage

The U.S. Department of Health and Human Services (HHS) Office of Civil Rights today issued a Notice of Violation (full text) to the state of California finding that the state violated federal law by making elective abortion coverage mandatory in all policies offered by insurance companies regulated by the state's Department of Managed Health Care. A Christian church and a Catholic religious order filed complaints with HHS saying that California's Mandate Letters to health care plans resulted in the religious organizations being required to offer their employees policies that cover abortions, in violation of the conscience provisions of the federal Weldon Amendment.

The Notice of Violation explains:

... [T]he only exemption California offered (to a health plan issuer) was limited to plans covering a narrow set of “religious employers” under California law. However, the Weldon Amendment protects from discrimination all plans that decline to cover abortion, without requiring any plan issuers, sponsors, or beneficiaries to have a religious character or have a religious reason for not providing or paying for such coverage.... [E]ven a categorical exemption of “religious employers,” as defined by California law, would have only been available to approximately 37% of those employer groups who, prior to the Mandate Letters, had health care coverage that limited or excluded abortion.

The Notice of Violation concludes:

If OCR does not receive sufficient assurance that California will cease requiring all health care plans, as a class, to cover abortion, or that it is willing to negotiate in good faith towards that end, OCR will forward this Notice of Violation and the evidence supporting OCR’s findings in this matter to the appropriate HHS funding components for further action under applicable grants and contracts regulations. Such referral may ultimately result in limitations on continued receipt of certain HHS funds in accordance with the Constitution and applicable Supreme Court case law. 

HHS also issued a press release explaining its action which in part quotes the Director of HHS's Office of Civil Rights:

We are putting California on notice that it must stop forcing people of good will to subsidize the taking of human life, not only because it’s the moral thing to do, but because it’s the law.

Canadian Court Says University Need Not Discipline Abortion Counter-Protesters

In UAlberta Pro-Life v Governors of the University of Alberta, (Alberta Ct. App., Jan. 6, 2020), an appellate court in the Canadian province of Alberta held that the University of Alberta was not required to discipline counter-demonstrators who held signs and banners that blocked the pro-life displays of an anti-abortion student group. Justice Watson, writing the primary opinion, said in part:

The case at bar does not provide an appropriate opportunity to reach any final conclusion about what a ‘positive’ aspect of freedom of expression might mean. It is one thing to provide equal access to opportunities to express. It is quite another to take steps to ensure that the party exercising the freedom has an optimal chance to persuade other people. The University cannot be expected to guarantee that Pro-Life’s message will persuade anybody. More particularly, one thing it does not mean, in my view, is that the University was required to set its face so much against counter protests that it must prosecute without exception any overshoot potentially governed by the Rules of Student Behaviour.

The court however held that the University was not justified in imposing a $17,500 security deposit for the organization to hold a subsequent event.  It held that the University is subject to Canada's Charter of Rights and Freedoms in regulating freedom of expression by students on campus grounds.

Justice Watson then wrote in part:

While I do not agree that victim blaming is what is involved, there appears to be error here by the University in imposing on Pro-Life the exclusive burden of overcoming problems arising from the fact that their expression might attract an adverse response.

... [I]t cannot be said that Pro-Life should be held 100% responsible for costs that future events might generate. Although the University says the concept of the heckler’s veto is misplaced here, the position for the University escalated the status of potential objectors to not merely being on par with the expresser, but above the expresser’s position.

[Thanks to James Phillips for the lead.]

8th Circuit Hears Arguments In Religion Clause Challenge To Missouri Abortion Restrictions

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Doe v. Parson (Docket No. 19-1578). In the case, a Missouri federal district court rejected both Establishment Clause and free exercise challenges to Missouri's abortion law.  The suit, filed by a member of the Satanic Temple, challenges the requirement that health care providers furnish women seeking an abortion in Missouri a state-prepared booklet that states, in part, that life begins at conception. (See prior posting.) Courthouse News Service reports on yesterday's arguments.

Retaliation Suit Over Nursing School Hiring Decision Moves Ahead In Part

In Isabell v. Trustees of Indiana University, (ND IN, Jan. 7, 2020), an Indiana federal district court allowed a nursing school adjunct professor to move ahead with her First Amendment retaliation claim against the chair of the school's hiring committee.  Plaintiff claims that she was not hired for a regular faculty position that was open because of her pro-life views. The court however dismissed plaintiff's claim against the University under Indiana's Conscience Act. because of 11th Amendment immunity. Indiana Lawyer reports on the decision. [Thanks to Steven Coleson for the lead.]

Amicus Briefs In Supreme Court's Abortion Cases Now Available

Dozens of amicus briefs have now been filed in this Term's Supreme Court cases on abortion rights. Links to all of the briefs are available at SCOTUSblog's case page on June Medical Services LLC v. Gee.

New HHS Obamacare Rule Requires Separate Bill For Abortion Services

The Department of Health and Human Services last week issued a group of rules (full text) on oversight of state Obamacare exchanges.  One portion of the new rules changes the billing requirements for health insurance policies that cover abortion services. The Affordable Care Act requires a separate payment by the policyholder for the amount of the premium that covers abortions in order to avoid public funds being used to pay for abortions.  The new rules sharpen that requirement.  As explained in the HHS Fact Sheet on the new rules, health plan issuers will now be required to:

(1) send an entirely separate monthly bill to the policy holder for only the portion of premium attributable to coverage of certain abortion services, and (2) instruct the policy holder to pay the portion of their premium attributable to coverage of certain abortion services in a separate transaction....  QHP issuers sending paper bills will be permitted to send the separate paper bill in the same mailing as the separate bill for the rest of the enrollee’s premium. QHP issuers sending bills electronically will be required to send the separate bill in a separate email or electronic communication.... However, if the policy holder fails to pay the separate bill in a separate transaction as instructed by the issuer, the issuer may not terminate the policy holder’s coverage on this basis, provided the amount due is otherwise paid.

5th Circuit Strikes Down Mississippi's Anti-Abortion Law

The U.S. 5th Circuit Court of Appeals yesterday struck down a Mississippi statute that prohibits abortions, with limited exceptions, after 15 weeks' gestational age.  In Jackson Women's Health Organization v. Dobbs, (5th Cir., Dec. 13, 2019), Judge Higginbotham writing for himself and Judge Dennis said in part:

In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.

Judge Ho filed a separate opinion concurring in the judgment, but criticizing the district court's opinion.  He said in part:

[W]hat distinguishes abortion from other matters of health care policy in America—and uniquely removes abortion policy from the democratic process established by our Founders—is Supreme Court precedent. The parties and amici therefore draw our attention not to what the Constitution says, but to what the Supreme Court has held.

A good faith reading of those precedents requires us to affirm..... I am nevertheless deeply troubled by how the district court handled this case. The opinion issued by the district court displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.

UPI reports on the decision.

Supreme Court Denies Review Of Kentucky Ultrasound Informed Consent Law

The U.S. Supreme Court today denied review in EMW Women’s Surgical Center v. Meier, (Docket No. 19-417, certiorari denied 12/9/2019). (Order List). In the case, the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected a 1st Amendment free speech challenge to Kentucky's Ultrasound Informed Consent Law. The law requires a doctor to make the fetal heartbeat audible, and to display and describe ultrasound images, to a woman seeking an abortion. (See prior posting.) CNN reports on the Court's action.

Suit Challenges New York's Ban On Reproductive Health Care Employment Discrimination

A lawsuit was filed last week in a New York federal district court by a pro-life pregnancy care center, a religious pro-life pregnancy care center membership organization and a Baptist church challenging the constitutionality of  New York's SB 660 which was signed into law earlier this month. the new law prohibits employers from taking action against an employee because of reproductive health care decisions by the employee or their dependents.  It bars employers from accessing information about employees' reproductive health decision making or requiring waivers by employees of their right to make such decisions. The complaint (full text) in CompassCare v. Cuomo, ND NY, filed 11/14/2019), alleges in part:

SB 660 is a transparent attempt to meddle in the affairs of religious and pro-life organizations—including but not limited to pregnancy care centers, churches, and schools—by forcing them to employ and associate with those persons who do not share or live by the organizations’ beliefs regarding abortion, contraception, and the impropriety of sexual relations outside the context of a marriage between a man and a woman.....

Taken together, these requirements compromise the very reason for being of these organizations, which is to promote life, oppose abortion, and teach and live a sexual ethic consistent with biblical principles.

The suit claims that the law violates their free speech and free exercise rights. CNA reports on the lawsuit.

Planned Parenthood Wins Suit Against Activists Who Released Secret Manipulated Videos

Newsweek reports that a federal district court jury in San Francisco has awarded nearly $2 million in punitive and compensatory damages to Planned Parenthood:

Planned Parenthood won a lawsuit worth $2 million Friday, after a jury found that an anti-abortion group had broken multiple laws by secretly recording and releasing manipulatively edited video footage of doctors and staff.

The Center for Medical Progress and its founder David Daleiden were found guilty of fraud, trespassing and illegal secret recording.... Planned Parenthood says that clandestinely recorded video footage was manipulated and edited to make it appear as though they were attempting to profit off of fetal tissue donations, something they deny has ever taken place.

The videos were taken between 2013 and 2015, and apparently feature Daleiden and co-defendant Sandra Merritt pretending to be representatives of a fake company called "BioMax."

Court Vacates Obama-Era Rule Mandating Gender Transition and Abortion Procedures

In Franciscan Alliance, Inc. v. Azar, (ND TX, Oct. 15, 2019), a Texas federal district court vacated and remanded for further consideration a rule issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. The court relied on reasoning in its earlier preliminary injunction decision (see prior posting) concluding that requiring health care providers to perform and provide insurance coverage for gender transitions and abortions in violation of their religious beliefs violates RFRA.  The court held that vacatur is the proper remedy for an unlawful agency rule, and so refused to also issue a nationwide permanent injunction. In the case the court had allowed the ACLU and the River City Gender Alliance to intervene to defend the Obama administration rule. Becket Law issued a press release announcing the decision.

Supreme Court Grants Certiorari On Louisiana Abortion Law Restriction

The U.S. Supreme Court today agreed to hear appeals involving the constitutionality of Louisiana's abortion law.  The Louisiana Unsafe Abortion Protection Act requires any abortion provider to have admitting privileges at a hospital within 30 miles of the location where abortions are performed. The cases are June Medical Services LLC v. Gee, (Docket No. 18-1323, cert. granted 10/4/2019), and Gee v. June Medical Services, LLC, (Docket No. 18-1460, cert. granted 10/4/2019). (Order list).  In March 2016, the U.S. Supreme Court summarily upheld a preliminary injunction preventing the Act from going into effect. (See prior posting.) In September 2018, the U.S. 5th Circuit Court of Appeals upheld the statute. (Full text of opinion.) In January 2019, the full 5th Circuit, by a vote of 6-9, denied en banc review. (Full text.) Plaintiff appealed the substantive holding to the Supreme Court. (SCOTUSblog case page). The state cross-appealed the grant of standing to plaintiffs. (SCOTUSblog case page). NPR reports on the grant of certiorari.

Northern Ireland's Abortion Restrictions Violate European Human Rights Convention

Yesterday, the High Court in Northern Ireland held that Northern Ireland's abortion law is incompatible with Article 8 of the European Convention on Human Rights insofar as it bars abortions in cases of fatal fetal abnormality. As explained in a Summary of Judgment issued by the court:

In June 2018, the UK Supreme Court ... dismissed an appeal by the Northern Ireland Human Rights Commission... over the legality of the abortion laws in Northern Ireland. A termination is only permitted if a woman’s life is at risk or if there is a risk of permanent and serious damage to her mental or physical health.... The majority of the UKSC held that the abortion law in Northern Ireland was incompatible with Article 8 ECHR [European Convention on Human Rights] in cases of FFA, rape and incest in that it denied women in these situations a lawful termination of their pregnancies for those who wish for it but dismissed the appeal, however, on the procedural issue that the NIHRC did not have the standing to bring the appeal....

Mrs Justice Keegan said she intended to follow the ruling of the UKSC that the law in Northern Ireland is incompatible with human rights in cases of FFA. She declined to follow a course which involved her effectively reopening the arguments already made and decided in relation to Article 8 incompatibility by the UKSC. The judge commented that the decision on substantive compatibility issues was intended by the UKSC to have persuasive force and that any matters of contention in respect of that decision should be corrected by the UKSC itself or by the European Court of Human Rights (“ECtHR”).

A full text of the decision is not yet posted online. The Guardian reports on the decision.

Courts Rule On Virginia and Georgia Abortion Statutes

In Falls Church Medical Center, LLC v. Oliver, (ED VA, Sept. 30, 2019), a Virginia federal district court upheld some parts of Virginia's statute regulating abortions, but invalidated other parts, saying in part:

[E]nforcement of the ... Guidelines with respect to first trimester abortion procedures, and the requirement that non-surgical second trimester abortion procedures-up to the point of viability-be performed in outpatient surgical hospitals, present a substantial obstacle to women seeking an abortion and impose an undue burden on that right, in violation of the Due Process Clause of the Fourteenth Amendment.... On the other hand, evidence of the heightened potential for complications warrant the requirement that surgical abortion procedures during the second trimester should be performed in a hospital setting.

... [B]ased on a seamless line of authority, this Court cannot conclude that the Physician-Only law ... is either unduly burdensome or improvident when weighed against the State's well-recognized responsibility for ensuring safe abortion care.

... Plaintiffs have failed to demonstrate by a preponderance of the evidence that ... requiring a mandatory ultrasound and waiting period, amount to a substantial obstacle preventing a woman's access to abortion care in Virginia. Plaintiffs have further failed to show that the statute's informed consent requirement imposes an undue burden.

Undoubtedly, the requirement that abortion clinics submit to biennial inspection ... is burdensome for clinic personnel. However, it is no more burdensome than inspection requirements for other medical facilities that provide similar services....

AP reports on the decision.

In SisterSong Women of Color Reproductive Justice Collective v. Kemp, (ND GA, Oct. 1, 2019), a Georgia federal district court issued a preliminary injunction against enforcement of Georgia's statute that prohibits abortions after detection of a fetal heartbeat.  The court said in part:

Plaintiffs have therefore met their burden of showing that H.B. 481, in prohibiting abortions after a fetal heartbeat is detectable, would operate as “a substantial obstacle to a woman’s choice to undergo an abortion” in “a large fraction” of relevant cases.....

Furthermore, as discussed above in detail, the Supreme Court has repeatedly and unequivocally held that a State may not ban abortion prior to viability.

Center for Reproductive Rights issued a press release announcing the decision.

At the United Nations: Trump's Religious Liberty Forum; Report on Antisemitism; and Abortion Rights Concerns

Yesterday, on the first of his three day visit to the United Nations, President Donald Trump hosted a forum titled Global Call to Protect Religious Freedom. CBN and the New York Post reported on the event. Vice President Mike Pence opened the forum with remarks (full text) and an introduction of the President. President Trump, in an eleven-minute address (full text), said in part:

As we speak, Jews, Christians, Muslims, Buddhists, Hindus, Sikhs, Yazidis, and many other people of faith are being jailed, sanctioned, tortured, and even murdered, often at the hands of their own government, simply for expressing their deeply held religious beliefs.  So hard to believe.

Today, with one clear voice, the United States of America calls upon the nations of the world to end religious persecution.

Trump also announced that the U.S. is creating a coalition of U.S. businesses that will encourage the private sector to protect people of all faiths in the workplace. Others speakers at the forum included U.N. Secretary General António Guterres and Secretary of State Mike Pompeo (video of their remarks).

In another development at the United Nations, the Secretary General on Friday released an interim report (full text) on Combatting Antisemitism. The 19-page report, from the U.N.'s Special Rapporteur on Freedom of Religion or Belief, says in part:

The Special Rapporteur is alarmed by the increase in antisemitism in many countries driven by sources including individuals motivated by white supremacist and radical Islamist ideologies.... He is also concerned at the apparent increase in expressions of antisemitism emanating from sources on the political left as well as with discriminatory laws, regulations and policies of States.

Jerusalem Post covers the recently released report.

Also yesterday at the United Nations, world leaders reached agreement on the UN Political Declaration on Universal Health Coverage. (UN News report.) At the High Level Meeting on Universal Health Coverage, U.S. Health and Human Services Secretary Alex Azar spoke (full text of statement). On behalf of the U.S. and 18 other nations, he noted one area of concern:

The United States joins consensus on today’s political declaration, in recognition of the importance of better health for all, but we wish to state clearly that we disassociate from paragraph 68 of the Declaration.

We do not accept the terms “sexual and reproductive health” and “sexual and reproductive health and reproductive rights” in this Declaration....

These terms must always include language, which some countries blocked, to remind U.N. agencies that each nation has the sovereign right to implement related programs and activities consistent with their laws and policies, and that these terms in no way imply that there is an international right to abortion.

CNN reports on Azar's remarks.