Part of Missouri's New Abortion Law Is Preliminarily Enjoined

In Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc. v. Parson, (WD MO, Aug. 28, 2019), a Missouri federal district court granted a preliminary injunction against enforcement of provisions in Missouri law (full text) that wold have gone into effect today that would have banned all abortions (except in cases of medical emergencies) after 8, 14, 18 or 20 weeks of pregnancy. The court ultimately refused to enjoin another section of Missouri's law that bans any abortion if the provider knows that the woman is seeking the abortion because of the sex or race of the child or because of a prenatal diagnosis of Down Syndrome. The court held that while such provisions as they apply to non-viable fetuses are likely unconstitutional, plaintiffs have not shown that a preliminary injunction pending final resolution of the issue is necessary to prevent some demonstrable real-life harm. NPR reports on the decision.

Hung Jury In Pro-Life Tax Objector's Trial

KGW8 News reports that the federal court trial of an Oregon man, Michael Bowman, on misdemeanor charges of willful failure to file a tax return has ended in a mistrial.  Bowman has not filed a return since 1999 because he refuses to have any of his funds go toward funding abortions. Charges were filed against him in 2017. Bowman argues that the 1st Amendment, RFRA and the Oregon Constitution protect his decision on religious grounds to refuse to pay taxes. A jury could not reach a verdict after 11 hours of deliberation.

Challenge To California Order Requiring Health Plan Abortion Coverage Is Unsuccessful

In Missionary Guadalupanas of the Holy Spirit, Inc. v. Rouillard, (CA Ct. App., Aug. 6, 2019), a California state appellate court held that the state's Department of Managed Health Care did not violate the state Administrative Procedure Act when it notified seven health care service plans that they must cover abortions. The state statute does not require compliance with the rule-making process for a  regulation "that embodies the only legally tenable interpretation of a provision of law." A California statute requires insurance plans to cover "basic health care services." The court said in part:

We hold that an abortion is one of two medically necessary options for the treatment of a woman’s pregnancy. A pregnant patient may elect medical services necessary to deliver a baby, or to terminate the pregnancy. Because California law guarantees every woman the right to choose whether to bear a child or obtain an abortion, the only legally tenable interpretation of the law is that abortions are basic health care services, which health care service plans are required to cover.

This case did not present a question of whether requiring abortion coverage violates the religious freedom rights of the Catholic organization filing suit. Los Angeles Times reports on the decision.

3rd Circuit: Abortion Clinic Buffer Zone Challenge Remanded For Trial

In Turco v. City of Englewood, New Jersey, (3d Cir., Aug. 19, 2019), the U.S. 3rd Circuit Court of Appeals held that neither side was entitled to summary judgment in a challenge to Englewood's ordinance creating an 8-foot buffer zone around abortion clinics. The ordinance was enacted in response to aggressive anti-abortion protests that regularly occurred outside one clinic. In reversing the district court's grant of summary judgment to plaintiff and remanding the case for further proceedings, the appeals court said in part:

This record contains a multitude of contradicting factual assertions. Some facts suggest that the buffer zones imposed a significant restraint on the plaintiff’s ability to engage in constitutionally-protected communication. Others support Englewood’s position that the buffer zones hardly affected plaintiff’s ability to reach her intended audience. Some facts support plaintiff’s argument that the City had foregone less restrictive options to address the chaotic environment outside of the clinic. Others show that Englewood considered these options and reasonably rejected them or found them to be ineffective. In short, the record does not conclusively demonstrate that either party is entitled to summary judgment on the narrow tailoring claim.

North Jersey Record reports on the decision. [Thanks to Tom Rutledge for the lead.]

Pro-Life Advocate Nominated For Missouri Federal District Judgeship

On Wednesday the White House announced a number of intended judicial, US Attorney and US Marshall nominations. Among these are the nomination of  Sarah Pitlyk for a judgeship on the U.S. District Court for the Eastern District of Missouri. The St. Louis Post-Dispatch details her past work on pro-life and religious liberty issues:

Pitlyk is special counsel to the Chicago-based Thomas More Society, a not-for-profit law firm "dedicated to restoring respect in law for life, family, and religious liberty." At the society, she worked to defeat an "abortion sanctuary city" ordinance in St. Louis, and on "several landmark pro-life and religious liberty cases." ...

Pitlyk was involved in a dispute over whether a divorced St. Louis County couple's frozen embryos were property or "unborn children" under Missouri law; a civil lawsuit filed against Planned Parenthood by a man acquitted of a bomb threat charge; and the defense of a man accused in California of making a false exposé claiming Planned Parenthood was selling fetal tissue....

Pitlyk graduated summa cum laude from Boston College before receiving master’s degrees in philosophy from Georgetown University and in applied biomedical ethics from the Katholieke Universiteit Leuven in Belgium, where she was a Fulbright Scholar...

She graduated from Yale in 2008 ... [where she] founded Yale Law Students for Life.

Challenge To Florida Abortion Waiting Period Law Remains In Play

In State of Florida v. Gainesville Woman Care, LLC, (FL App., Aug. 1, 2019), a Florida state appellate court refused to grant summary judgment in a facial challenge to Florida's 24-hour waiting period for abortions. Even though Florida's Supreme Court upheld a temporary injunction against the law's enforcement, the appeals court, in a 2-1 decision, concluded:

Since the temporary injunction phase of this case ... the State has built a case that raises genuine issues of material fact. Among the remaining unresolved issues is the parties’ dispute about the informed consent medical standard of care.

Judge Wolf dissented, saying in part:

Uniquely treating abortions differently from other medical procedures and failing to present evidence that the statute is the least restrictive means to accomplish the purported goals of section 390.0111(3) renders the law unconstitutional. Discouraging people from exercising a constitutionally protected right does not constitute a compelling state interest.

Miami Herald reports on the decision.

TRO Issued Against Arkansas Abortion Restrictions

In a 159-page opinion in Little Rock Family Planning Services v. Rutledge, (ED AR, July 23, 2019), and Arkansas federal district court granted a 14-day temporary restraining order against enforcement of recent Arkansas laws that severely restrict abortions.  The laws at issue ban abortions after 18 weeks of pregnancy, ban abortions when the reason is a pre-natal diagnosis of Down's Syndrome, and bans abortions being performed by anyone other than board-certified OB-GYN physicians. CNA reports on the decision.

6th Circuit: Street Near Planned Parenthood Clinic Is Traditional Public Forum

In Brindley v. City of Memphis, (6th Cir., July 24, 2019), the U.S. 6th Circuit Court of Appeals held that a street adjacent to a Planned Parenthood clinic is a traditional public forum even though the street was originally privately owned.  The court said it is enough that the street looks and functions like a public street. Also the street was dedicated as a public right of way. Thus the court reversed and remanded a district court's denial of a preliminary injunction to a pro-life activist who wanted access to the street. [Thanks to Tom Rutledge for the lead.]

9th Circuit: New Title X Limits Remain In Effect For Now

Earlier this month, the U.S. 9th Circuit Court of Appeals voted to vacate the 3-judge panel's decision in State of California v. Azar, and to grant en banc review of whether the Trump Administration's new regulations on family planning grants may go into effect. The new rules bar recipients of family planning grants under Title X from referring clients for abortions. They also ban clinics that receive Title X funds from sharing office space with abortion providers. Three district courts had enjoined implementation of the new rules, but a 3-judge panel of the 9th Circuit had granted a stay of the injunctions, allowing the new rules to go into effect. (See prior posting.) While it was widely reported that the court's action earlier this month granting en banc review had reinstated the district court injunctions, apparently that was not so because a week later in State of  California v. Azar, (9th Cir., July 11, 2019), the en banc court, in a 7-4 opinion, said:

Pursuant to prior order of the Court upon granting reconsideration en banc, the three-judge panel Order on Motions for Stay Pending Appeal in these cases was ordered not be cited as precedent by or to any court of the Ninth Circuit. However, the order granting reconsideration en banc did not vacate the stay order itself, so it remains in effect. Thus, the motions for administrative stay remain pending and were not mooted by the grant of reconsideration en banc.

After due consideration of the emergency motions, the motions for administrative stay of the three-judge panel order are DENIED.

Liberty Counsel, reporting on the decision, says that the new Title X rules will block $50 to $60 million in grants to Planned Parenthood that would have been used for birth control, testing for sexually transmitted diseases, and cancer screenings.

9th Circuit En Banc Temporarily Reinstates Injunctions On Trump Administration Family Planning Rules

According to an AP report, the U.S. 9th Circuit Court of Appeals yesterday voted to vacate the 3-judge panel's decision in State of California v. Azar, and to grant en banc review of whether the Trump Administration's new regulations on family planning grants may go into effect. The new rules bar recipients of family planning grants under title X from referring clients for abortions. They also ban clinics that receive Title X funds from sharing office space with abortion providers.  Three district courts had enjoined implementation of the new rules, but a 3-judge panel of the 9th Circuit had granted a stay of the injunctions. (See prior posting.) Yesterday's action reinstates the district court injunctions while the full 9th Circuit considers the issue.

2nd Circuit Gives Broad Reading To Allow Late Filing of Asylum Application

Normally an application for asylum must be filed within one year of an alien's arrival in the United States. However, an application filed later than that may be considered if the alien demonstrates changed circumstances that materially affect his or her eligibility for asylum.  In Yang v. Barr, (2d Cir., July 2, 2019), a woman born in China applied for asylum ten years after entering the United States on a tourist visa.  The application was filed less than a month after she converted to Christianity, and asserted two grounds for asylum-- fear of persecution because of her Christian religion and a forced abortion in China eight years before she entered the United States. In a 2-1 decision, the U.S. 2nd Circuit Court of Appeals held that the change of circumstances-- her religious conversion-- means that an immigration judge may now consider both her bases for asylum, not just the one related to the conversion.

Supreme Court Denies Review In Abortion Case, But Thomas Urges Future Action

Last Friday, the U.S. Supreme court denied certiorari in Harris v. West Alabama Women's Center, (Docket No. 18-837, certiorari denied 6/28/2019). In the case, the U.S. 11th Circuit Court of Appeals struck down Alabama's ban on dilation and evacuation abortions (referred to in the Alabama statute as "dismemberment abortions").  Justice Thomas filed a separate opinion concurring in the denial of review, but making a strong plea for the Court to revisit its abortion decisions.  He said in part:

The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible. But under the “undue burden” standard adopted by this Court, a restriction on abortion—even one limited to prohibiting gruesome methods—is unconstitutional if “the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” ...

This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control....  Although this case does not present the opportunity to address our demonstrably erroneous “undue burden” standard, we cannot continue blinking the reality of what this Court has wrought.

9th Circuit Lifts Injunctions On Title X Abortion Counseling Ban

In State of California v. Azar, (9th Cir., June 20, 2019), the U.S. 9th Circuit Court of Appeals granted a stay of the injunctions that had been issued by three district courts that had prevented Trump Administration regulations on family planning grants from going into effect. As described by the court:

Under the Final Rule, Title X grantees are prohibited from providing referrals for, and from engaging in activities that otherwise encourage or promote, abortion as a method of family planning.... Providers are required to refer pregnant women to a non-abortion prenatal care provider, and may also provide women with a list of other providers (which may not be composed of more abortion providers than non-abortion providers). 

Relying on a 1991 Supreme Court decision the 9th Circuit concluded that the Final Rule is a reasonable interpretation of Title X, and that two intervening laws did not change that conclusion. CBS News, reporting on the decision, points out that the new regulations also ban clinics that receive federal funds from sharing office space with abortion providers-- a provision apparently aimed at Planned Parenthood which says it will seek reconsideration of the decision by the 9th Circuit.

Cert. Petition Filed In Challenge To Restrictions On Abortion Clinic Sidewalk Counseling

Last week (June 7), a petition for certiorari (full text) was filed in Price v. City of Chicago. In the case, the U.S. 7th Circuit Court of Appeals (full text of decision) upheld Chicago's floating "bubble zone" ban on sidewalk counseling outside abortion clinics. The 7th Circuit relied on a 2000 U.S. Supreme Court decision which has not been overruled. However the 7th Circuit said that the 2000 case has been "unsettled" by later Supreme Court decisions. Thomas More Society issued a press release announcing the filing of the petition seeking Supreme Court review.

Administration Limits Research Using Fetal Cells

Politico reports:

The Trump administration Wednesday imposed new restrictions on federal use of fetal tissue obtained from abortions, barring government scientists at NIH from doing such research, and canceling an existing HIV research contract with the University of California, San Francisco....

“Promoting the dignity of human life from conception to natural death is one of the very top priorities of President Trump’s administration,” HHS said in a statement. “[NIH internal] research that requires new acquisition of fetal tissue from elective abortions will not be conducted.”

Supreme Court Upholds Part of Indiana Abortion Law; Denies Review On Injunction For Part

The U.S. Supreme Court Monday in Box v. Planned Parenthood of Indiana and Kentucky, (May 28, 2019), handed down a per curiam opinion on a petition for certiorari before briefing on the merits, but with several amicus briefs having been filed, The court upheld Indiana's law prohibiting fetal remains from abortions being disposed of as medical waste. However the Court denied certiorari as to Indiana's law prohibiting sex-, race- or disability selective abortions, leaving in effect the permanent injuinction approved by the 7th Circuit. (Full text of 7th Circuit opinion.) Justice Thomas filed a separate concurring opinion, but wrote at length criticizing the use of abortion for eugenics purposes. Justices Sotomayor and Ginsburg would have denied review on both issues, with Justice Ginsburg writing a short opinion expressing her views. AP reports on the decision.

Ontario Court Upholds Requirement That Objecting Doctors Refer Patients to Others

In Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, (Ont. Ct. App., May 15, 2019), the Ontario Court of Appeal rejected a constitutional challenge to two policies of the College of Physicians and Surgeons of Ontario.  At issue is the requirement that physicians who object to providing any medical procedure or pharmaceuticals on the basis of religion or conscience must refer the patient to a non-objecting, available and accessible physician, health care professional or agency.  Physicians challenging the policies claimed they infringe their freedom of conscience and religion under Sec. 2(a) of the Canadian Charter of Rights and Freedoms by requiring them to be complicit in procedures such as abortion or aid in dying that violate their religious beliefs. In a 74-page opinion, the court held while the policies infringe religious liberty, the infringement is justified under Sec. 1 of the Charter, because they are reasonable limits, demonstrably justified in a free and democratic society. The Globe & Mail reports on the decision.

Kansas Supreme Court Strikes Down D&E Abortion Ban

In Hodes & Nauser MDs, P.A. v. Schmidt, (KA Sip. Ct., April 26, 2019), the Kansas Supreme Court by a 6-1 vote upheld the trial court's injunction against the enforcement of S.B. 95 which bans, with limited exceptions, dilation and evacuation abortions in Kansas. The per curiam opinion of five justices said in part:

We hold today that section 1 of the Kansas Constitution Bill of Rights protects all Kansans' natural right of personal autonomy, which includes the right to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy.

Under our strict scrutiny standard, the State is prohibited from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest. The Doctors have shown they are substantially likely to prevail on their claim that S.B. 95 does not meet this standard. So the trial court's temporary injunction enjoining the enforcement of S.B. 95 is appropriate.

On remand to the trial court for a full resolution of the issues on the merits, the State is certainly free to assert any interests it believes compelling and show how S.B. 95 is narrowly tailored to those interests. We are aware that the evidentiary record is sparsely developed because of the narrow issue previously before that court: simply whether a temporary injunction should be granted. We, thus, decline the concurring opinion's invitation to guess at what the arguments and evidence might be in order to provide guidance on remand.

Justice Biles filed a concurring opinion and Justice Stegall filed a dissent. The 3 opinions span 199 pages. NPR reports on the decision.

Pro-Life Pregnancy Center Challenges City's Required Disclosures

Suit was filed in a Connecticut federal district court yesterday challenging the constitutionality of a Hartford (CT) Ordinance that requires pregnancy resource centers to make required disclosures on signs, websites and when patients make appointments.  Facilities must make the disclosures if they do not have licensed medical providers on the premises to directly supervise all services.  The complaint (full text) in Caring Families Pregnancy Services, Inc. v. City of Hartford, (D CT. filed 4/18/2019), alleges that the Ordinance is drafted to cover only pro-life pregnancy resource centers, and requires statements that incorrectly imply that the facilities are not qualified to provide the services they offer. The complaint contends:

The practical result of enforcing the Ordinance’s Compelled Speech provision would be not only to inhibit a religious ministry from furthering its mission and message but also to force religious speakers to speak messages with misleading, confusing and negative implications....

Hartford is intent on interfering with certain views about life, pregnancy, and motherhood. Hartford has thus crafted a speaker-based, viewpoint-based law targeting the speech only of speakers espousing certain pro-life moral, religious, and philosophical beliefs.

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

6th Circuit Upholds Kentucky's Abortion Informed Consent Law

In EMW Surgical Women's Center, P.S.C. v. Beshear, (6th Cir., April 4, 2019), 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. According to the court:

... Kentucky directs a doctor, before performing an abortion, to auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient.

The majority concluded:

H.B. 2—The Ultrasound Informed Consent Act—is an informed-consent statute like the statute in Casey because it provides truthful, non-misleading, and relevant information related to an abortion. The statute incidentally burdens speech only as part of Kentucky’s regulation of professional conduct. Therefore, H.B. 2 is not subject to any heightened scrutiny with respect to the doctors’ First Amendment rights, and it does not violate those rights....

Judge Donald dissented, saying in part:

The Commonwealth has coopted physicians’ examining tables, their probing instruments, and their voices in order to espouse a political message, without regard to the health of the patient or the judgment of the physician....  [T]he majority 1) conflates the undue burden and First Amendment standards, while misreading the explicit language of Casey; 2) ignores the national standards of medical care; and 3) disregards the evidence showing that H.B. 2 is not consistent with the medical practice of informed consent.

[Thanks to Tom Rutledge for the lead.]