N.C. 20-Week Abortion Ban Partially Enjoined

In Bryant v. Woodall, (MD NC, March 25, 2019), a North Carolina federal district court enjoined enforcement of North Carolina's ban on abortions during or after the 20th week of pregnancy to the extent that the ban covers pre-viability abortions. Washington Post reports on the decision.

Consent Decree Defines Protected Anti-Abortion Activity

A consent decree (full text) was issued last week in Zastrow v. City of Toledo, (ND OH, March 19, 2019), enjoining the city of Toledo, Ohio from enforcing various City Code provisions against anti-abortion demonstrators engaged in non-obstructive, expressive activity on public sidewalks and medians outside a Toledo abortion clinic. The decree included a detailed description of the kind of expressive activities that are protected:

3. The “non-obstructive, expressive activity of pro-life demonstrators” ... includes activity protected by the First Amendment, including, but not limited to unamplified prayer, preaching, worship, singing worship songs, playing worship songs with instruments such as the acoustic guitar and violin, holding pro-life signs, distributing literature, and engaging passersby with their pro-life message.

4. The parties agree that the term “non-obstructive, expressive activity” means activity protected by the First Amendment that does not physically prevent a pedestrian from using a public sidewalk or other public way or that does not physically impede a vehicle from traveling on a public road or street. This does not mean that the person or persons engaging in the First Amendment activity must be moving all the time. Additionally, the First Amendment activity is not “obstructive” because a pedestrian might have to walk around the person engaging in the expressive activity. It is only “obstructive” when the person engaging in the First Amendment activity physically prevents a pedestrian from using the public sidewalk or prevents a vehicle from entering onto the premises....

Christian Post reports on the consent decree.

6th Circuit En Banc Upholds Planned Parenthood Funding Cut-Off

In Planned Parenthood of Greater Ohio v. Hodges, (6th Cir., March 12, 2019), the U.S. 6th Circuit Court of Appeals, sitting en banc, by a vote of 11-6 upheld an Ohio law which cuts off state funding for Planned Parenthood. At issue was the cut-off of funding for two Planned Parenthood health centers because they are affiliated with an "entity that performs or promotes nontherapeutic abortions." The majority explained, in part:

As the district court saw it, the Ohio law imposes two unconstitutional conditions on Planned Parenthood. It denies the organization funding if it continues to perform abortions— what the court perceived to be a due process violation. And the law denies the organization funding if it continues to promote abortion—what the court perceived to be a free speech violation. To prevail, Planned Parenthood must show that both limitations—the conduct and speech requirements—violate the U.S. Constitution. Ohio may deny funding to Planned Parenthood in other words if either limitation satisfies the Constitution. Because the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim.

Judge White's dissent (joined by 5 others) argued:

The majority avoids this straightforward application of the unconstitutional-conditions doctrine primarily by adopting an unprecedented rule that abortion providers—entities that are necessary to ensure a woman’s right to safe abortions—cannot prevail in challenging the Statute. An abortion provider’s constitutional right may be derivative of the patient’s right—but it is a right nonetheless.

Politico reports on the decision. [Thanks to Tom Rutledge for the lead.]

Suit Challenges Washington State's Required Abortion Coverage

Last week, a church in Washington state filed suit in federal district court challenging the constitutionality of Washington Senate Bill 6219 signed into law last March which requires all health care plans in the state to cover contraceptives and sterilization, and to cover abortion to the same extent as they cover maternity care.  The complaint (full text) in Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, filed 3/8/2019), alleges in part:

52. ... [T]his law targets organizations that have religious and moral beliefs against abortion. Washington State has a history of targeting religious and moral pro-life organizations and individuals.

53. The strong statutory language, lack of any church exception, and anticipated evidence that pro-abortion groups assisted in drafting and enacting SB 6219, indicates that Washington and its officials deliberately targeted religious organizations and intentionally violated those organizations’ religious beliefs.

The suit alleges violations of the Free Exercise, Equal Protection and Establishment Clauses. ADF issued a press release announcing the filing of the lawsuit.

Churches' Challenge To Required Abortion Health Care Coverage Rejected

In Foothill Church v. Rouillard, (ED CA, March 7, 2019). a California federal district court dismissed a suit brought by three churches challenging a ruling by the California Department of Managed Health Care that requires health insurance companies to include coverage for abortion services in all health insurance policies.  Rejecting the churches' Free Exercise claim, the court held that the churches have not alleged sufficient facts to call into question the defense that the ruling is a neutral law of general applicability. It also rejected the churches' equal protection claim saying that there was no showing that the state acted with the intent to adversely affect plaintiffs' religious beliefs.

Pence To CPAC On Religious Liberty

On Friday, Vice President Pence addressed the 2019 CPAC Convention (full text of remarks). A portion of his 30-minute speech addressed religious liberty.  The Vice President said in part:

You know, the freedom of religion is not just enshrined in our Constitution; it’s enshrined in the hearts of the American people.  But make no mistake about it: Freedom of religion is under attack in our country.  Lately, it’s actually become fashionable for media elites and Hollywood liberals to mock religious belief.

My own family recently came under attack just because my wife Karen went back to teach art to children at a Christian school....

But let me be clear on this point: This is not about us.  It’s about all of you.  It’s about the sincerely held belief of millions of Americans who cherish their Christian faith and Christian education.  And so I’ll make you a promise: Under this President and this administration, we will always stand with people of faith.  We will always defend the freedom of religion of every American of every faith, so help us God.  (Applause.)

And as we reflect on our God-given liberties, I got to tell you, I couldn’t be more proud to serve as Vice President to the most pro-life President in American history.  (Applause.)

Since the first days of this administration, President Donald Trump has stood without apology for the sanctity of human life.  In one of his very first acts, the President reinstated the Mexico City Policy, preventing taxpayer dollars from funding abortion or abortion providers around the world.  And here at home, President Trump signed a law to allow all 50 states to defund Planned Parenthood.  (Applause.)  Life is winning in America once again.

But for all the progress we’re making — tragically, at the very moment that more Americans than ever before are embracing the right to life, leading members of the Democratic Party are embracing a radical agenda of abortion on demand.

HHS Issues Final Rule Changes For Title X Family Planning Programs

In a 312-page release (full text) issued on Friday, the Department of Health and Human Services issued final rules revising regulation of its Title X family planning program. The new rules are scheduled to take effect 60 days after their publication in the Federal Register.  According to the release:

This rule ... will ensure compliance with, and enhance implementation of, the statutory requirement that none of the funds appropriated for Title X may be used in programs where abortion is a method of family planning, as well as related statutory requirements.....  The rule also clarifies that provision of family planning services under Title X may be available under the good reason exception at the discretion of the project director for women denied coverage for contraceptives if the sponsor of their health plan exercises a religious or moral exemption recognized by the Department.

The new rules, according to Politico:

could effectively cut off tens of millions of federal family planning dollars to Planned Parenthood and steer some of that funding towards anti-abortion, faith-based care providers....

It would ... bar Planned Parenthood and other health care providers that accept the funding from making any abortion referrals or performing abortions — regardless of the funding source — at the same facilities where they provide Title X services like birth control, mammograms and cancer screenings.

One of the rule changes eliminates the requirement that Title X programs provide abortion referral if requested.  The release says that this requirement conflicted with statutes protecting conscience in health care. [Thanks to Scott Mange for the lead.]

Federal District Court Rejects Satanic Temple Follower's Challenge to Missouri Abortion Restrictions

In Doe v. Parson, (ED MO, Feb. 21, 2019), 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.  The woman must also be given an opportunity to view an active ultrasound, must sign a certification that she has received the booklet and ultrasound opportunity, and must wait 72 hours before the procedure can be performed.  The court held that

Even though [statements in the booklet] are harmonious with some religious beliefs, they are a permissible expression of the State’s secular interest in protecting the unborn.

The court went on to reject plaintiff's free exercise claim, holding that the Missouri requirements are neutral laws of general applicability.  Earlier this month, the Missouri Supreme Court rejected a similar challenge to Missouri's requirements. (See prior posting.)

Cert. Denied In Attempt To Subpoena Bishops' Documents

The U.S. Supreme Court today denied review in Whole Woman's Health v. Texas Catholic Conference of Bishops, (Docket No. 18-622, certiorari denied 2/19/2019) (Order List).  In the case, the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order in a case in which several health care providers challenged the state's fetal remains regulations. (See prior posting). While discussing the Bishops' constitutional claim that internal deliberations of religious organizations should be protected, the 5th Circuit ultimately relied on  Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden. Becket issued a press release discussing the Supreme Court's denial of certiorari.

Satanic Temple Adherent Loses Challenge To Missouri Abortion Restrictions

In Doe v. Parson, (MO Sup, Ct., Feb. 13, 2019), the Missouri Supreme Court rejected a challenge by a member of the Satanic Temple to the state's informed consent abortion law. Rejecting both an Establishment Clause and a religious freedom challenge, the court said in part:

Ms. Doe alleges by offering her a booklet containing what she refers to as legislative findings constituting the “Missouri tenet,” Missouri is violating her religious beliefs by forcing her to read the contrary religious belief contained in the booklet. But the informed consent law does not purport to make any sort of legislative findings. It simply requires the noted statements be included in a booklet offered to a woman seeking an abortion. § 188.027....

This Court need not determine whether requiring Ms. Doe to have an ultrasound, to listen to the fetal heartbeat, or to read the booklet offered by Planned Parenthood would have constituted a restriction on her religious freedom, for the statute imposes no such requirements. Nothing in the informed consent law requires a woman seeking an abortion to have an ultrasound, much less to pay for the ultrasound or to listen to the fetal heartbeat. The informed consent law solely requires an abortion provider or another qualified professional to present a woman seeking an abortion with the opportunity to have or to view an ultrasound and, if she chooses to have one, an opportunity to listen to the heartbeat. Ms. Doe and any other woman is free to decline both opportunities.

Two justices also joined in concurring opinion. St. Louis Public Radio reports on the decision.

Supreme Court Keeps Injunction Against Louisiana Abortion Law In Effect

In June Medical Services, L.L.C. v. Gee, (US Sup. Ct. Feb. 7, 2019), a case involving Louisiana's new abortion law, the U.S. Supreme Court by a 5-4 vote prevented the law from going into effect pending the filing of a petition for certiorari.  A 5th Circuit Court of Appeals decision  had stayed a district court's injunction against the law.  Now the Supreme Court has stayed the 5th Circuit's action. At issue is a facial challenge to Louisiana's law that requires doctors at abortion clinics to have admitting privileges at nearby hospitals.  Challengers had argued that this would leave only one abortion clinic operating in the state.  In allowing the law to go into effect, the 5th Circuit questioned that conclusion.  In the Supreme Court, Justices Thomas, Alito, Gorsuch and Kavanaugh would have denied the application so that the law could take effect.  Justice Gorsuch, writing only for himself, filed an opinion saying that:

I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.

NBC News reports on the decision.

Excerpts of Interest From President Trump's State of the Union Address

President Trump delivered his State of the Union address to Congress last night. (Full text). Here are some excerpts that are of interest to those concerned with religious liberty and church-state issues:

We can make our communities safer, our families stronger, our culture richer, our faith deeper, and our middle class and more prosperous than ever before...

To help support working parents, the time has come to pass school choice for America’s children....

There could be no greater contrast to the beautiful image of a mother holding her infant child than the chilling displays our nation saw in recent days. Lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb moments before birth. These are living, feeling, beautiful babies who will never get the chance to share their love and dreams with the world. And then, we had the case of the governor of Virginia where he stated he would execute a baby after birth. To defend the dignity of every person, I am asking the Congress to pass legislation to prohibit the late-term abortion of children who can feel pain in the mother’s womb. Let us work together to build a culture that cherishes innocent life.

And let us reaffirm a fundamental truth — all children — born and unborn — are made in the holy image of God....

And last fall, we put in place the toughest sanctions ever imposed on a country. We will not avert our eyes from a regime that chants death to America and threatens genocide against the Jewish people. We must never ignore the vile poison of anti-semitism, or those who spread its venomous creed. With one voice, we must confront this hatred anywhere and everywhere it occurs.

Just months ago, 11 Jewish-Americans were viciously murdered in an anti-semitic attack on the tree of life synagogue in Pittsburgh. Swat officer timothy Matson raced into the gunfire and was shot seven times chasing down the killer. And he was very successful. Timothy has just had his 12th surgery and he is going in for many more, but he made the trip to be here with us tonight. Officer Matson, please.

Thank you. We are forever grateful. Thank you very much. Tonight, we are also joined by Pittsburgh survivor Judah Samet. He arrived at the synagogue as the massacre began. But not only did Judah narrowly escape death last fall — more than seven decades ago, he narrowly survived the Nazi concentration camps. Today is Judah’s 81st birthday....

A second holocaust survivor who is here tonight, Joshua Kaufman, was a prisoner at Dachau. He remembers watching through a hole in the wall of a cattle car as American soldiers rolled in with tanks. “to me,” Joshua recalls, “the American soldiers were proof that God exists, and they came down from the sky.” they came down from heaven. I began this evening by honoring three soldiers who fought on d-day in the second world war. One of them was Herman Zeitchik. But there is more to Herman’s story. A year after he stormed the beaches of Normandy, Herman was one of those American soldiers who helped liberate Dachau.

Michigan's New AG Withdraws From Amicus Briefs In 8 Controversial Cases

Detroit News reports that Michigan's Democratic Attorney General Dana Nessel who last month replaced Republican Attorney General Bill Schuette has withdrawn Michigan's support of amicus briefs in eight high profile lawsuits. According to the paper:

The state’s newly appointed solicitor general Fadwa Hammoud filed the motions to withdraw from the cases Tuesday, noting in each motion that the amicus briefs filed in support of the cases by Republican former Attorney General Bill Schuette “no longer represents the legal position of the State of Michigan.”...

The four cases related to reproductive rights included litigation challenging a Kentucky law requiring a doctor to perform an ultrasound before an abortion; an Ohio law that criminalized abortions performed because of a fetal indication of Down syndrome; a federal case that required permission from the Office of Refugee Resettlement before an unaccompanied minor could have an abortion at a Texas holding facility; and an Ohio law that banned government funding for Planned Parenthood non-abortion health care programs and education programs because the agency provided abortion services.

Another case that Nessel withdrew from alleged a geriatric management facility in Missouri had discriminated against a gay man when the facility allegedly withdrew an offer of employment....

Three other cases ... were filed by ... Freedom of Religion Foundation. One case challenged the presence of a Latin cross on the Lehigh County, Pennsylvania, seal and flag; another in Wisconsin challenged laws that allowed for income tax exemptions for religious clergy, but not for members of the Freedom of Religion Foundation; and a third challenged the U.S. House chaplain’s unwillingness to allow the co-president of Freedom From Religion Foundation to deliver an invocation on the House floor.

Despite Urging, No Excommunication For Gov. Cuomo Over Abortion Rights Law

On Jan. 22, New York's Gov. Andrew Cuomo signed A00021, the Reproductive Health Act (full text) which protects abortion rights.  As reported by the Washington Post on Friday, "some prominent Catholics have urged Cardinal Timothy Dolan of New York to declare Cuomo excommunicated." CNN Religion Editor Daniel Burke received this reaction from a spokesman for Cardinal Dolan:

I will not discuss any individual. Anything that follows is a statement of some general principles, and should not be considered a comment on any specific person.

First, excommunication should not be used as a weapon.  Too often, I fear, those who call for someone's excommunication do so out of anger or frustration.

Second, notable canon lawyers have said that, under canon law, excommunication is not an appropriate response to a politician who supports or votes for legislation advancing abortion.

Third, from a pastoral perspective, if a pastor-- and a bishop is certainly a pastor of a diocese-- knows of a grave situation involving a parishioner, it is his duty to address that issue personally and directly with the parishioner.  That was the approach of Cardinal O'Connor and Cardinal Egan (both of whom I served), and it is Cardinal Dolan's approach as well.

Fourth, and finally, from a strategic perspective, I do not believe that excommunication would be effective as many politicians would welcome it as a sign of their refusal to be "bullied by the Church", thinking it would therefore give them a political advantage. (See, for example, the case of Bishop Leo Maher and Lucy Killea).

Iowa's "Fetal Heartbeat" Abortion Law Held Unconstitutional

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., Jan. 22, 2019), an Iowa state trial court judge held that Iowa's "fetal heartbeat" abortion law violates the Iowa state constitution.  Relying in large part on a 2018 Iowa Supreme Court decision which held that any limit on a woman's right to choose must meet the strict scrutiny test, the court said in part:

[I]t is undisputed that the threshold for the restriction upon a woman’s fundamental right to terminate a pregnancy (the detection of a fetal heartbeat) contained within Iowa Code chapter 146C constitutes a prohibition of previability abortions.  As such, it is violative of both the due process and equal protection provisions of the Iowa Constitution as not being narrowly tailored to serve the compelling state interest of promoting potential life.  Accordingly, this court grants the petitioners’ motion for summary judgment and declares Iowa Code chapter 146C unconstitutional and therefore void.... The petitioners’ request for injunctive relief will also be granted.

Townhall reports on the decision.

NYT Explores Implications of Fetal Personhood

The New York Times has posted an 8-part series on the legal and societal implications of fetal personhood. In an introduction to the series, Times editors write in part:

The creation of the legal scaffolding for the idea that the fetus is a person has been the steady work of the anti-abortion movement, at the national level and in every state. Today, at least 38 states and the federal government have so-called fetal homicide laws, which treat the fetus as a potential crime victim separate and apart from the woman who carries it.

The movement has pressed for dozens of other measures to at least implicitly affirm the idea that a fetus is a person, such as laws to issue birth certificates for stillborn fetuses or deny pregnant women the freedom to make end-of-life decisions for themselves. Some of these laws are also intended to create a basis for challenging and eventually overturning Roe.

In the hands of zealous prosecutors, cautious doctors and litigious attorneys, these laws are creating a system of social control that polices pregnancy, as the editorials in this series show. Because of the newly fortified conservative majority on the Supreme Court, such laws are likely to multiply — and the control to become more pervasive — whether or not Roe is overturned.

In the concluding part of the series, Times editors opine:

A society that embraces a legal concept of fetal personhood would necessarily compromise existing ideals of individual freedom. Americans — even many who oppose abortion — have not considered the startling implications of this idea, even as it has steadily gained strength in the law and in social norms. If a fetus is granted equal rights, women who become pregnant may find their most personal decisions coming under state control.

Ohio Governor Signs One Abortion Restriction, Vetoes Another

CNN Wire reports that Ohio Gov. John Kasich signed a bill into law last Friday that bans the commonly used  dilation and evacuation (D&E) procedure for abortions (Sub. S.B. 145). The new law labels such abortions "dismemberment abortions". Meanwhile, Kasich vetoed a bill that would have banned abortions where the fetus has a detectable heartbeat-- generally at 6 weeks of gestation. (Sub. H.B. 258). A press release from the Governor's office reports on the actions. [Thanks to Scott Mange for the lead.]

Canada's Youth Job Program Changes Attestation Requirement After Objections By Pro-Life Groups

Global News reports that this year the Canada Summer Jobs program is changing its grant application process after objections last year from religious organizations to the requirement that they attest, in applying for funds, that "both the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights."  The rights covered included reproductive rights and non-discrimination on the basis of sexual orientation or gender identity. Anti-abortion groups sued arguing that the required attestation violated their freedom of expression and religious freedom. (See prior posting.) This year, no attestation is required. Instead the burden is on Service Canada to determine whether grant funds will be used to hire young people for work that will restrict reproductive right or promote prejudice or discrimination.

Court Invalidates Mississippi's Restrictive Ban On Abortions

In Jackson Women's Health Organization v. Currier, (SD MS, Nov. 20, 2018), a Mississippi federal district court held unconstitutional a recently enacted Mississippi statute that prohibits most abortions after 15 weeks gestation.  The court said in part:

[T]he real reason we are here is simple. The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.

This Court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.

Bustle reports on the decision.

Abortion Measures Defeated In Oregon; Approved In West Virginia

Oregon voters yesterday apparently defeated, by a vote of 37% yes and 63% no, a proposed state constitutional amendment (Oregon Measure 106) that would have prohibited the expenditure of public funds directly or indirectly for abortion, except when medically necessary or required by federal law. These figures are based on tabulation of 68% of the votes.

Voters in West Virginia yesterday approved, by a vote of 51.7% yes and 48.3% no, Amendment 1 which amends the state constitution to add language providing "nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion."