Alabamans Approve 10 Commandments and Right To Life Amendments

Alabama voters yesterday approved two state constitutional amendments. By a margin of 78% to 22%, voters approved Amendment 1, officially described as follows:

First, it provides that a person is free to worship God as he or she chooses, and that a person’s religious beliefs will have no effect on his or her civil or political rights. Second, it makes clear that the Ten Commandments may be displayed on public property so long as the display meets constitutional requirements, such as being displayed along with historical or educational items. Amendment 1 also provides that no public funds may be used to defend this amendment in court.

Voters, by a margin of 59% to 41% approved Amendment 2, officially described as follows:

Amendment 2 provides that it would be the public policy of the state to recognize and support the importance of unborn life and the rights of unborn children, including the right to life; and to protect the rights of unborn children. Additionally, the amendment would make clear that the state constitution does not include a right to abortion or require the funding of an abortion using public funds.

The proposed amendment does not identify any specific actions or activities as unlawful. It expresses a public policy that supports broad protections for the rights of unborn children as long as the protections are lawful.

Ballot Issues To Watch In Tomorrow's Elections

Several ballot measures that may be of interest to Religion Clause readers will be voted on around the country tomorrow:

• Alabama Ten Commandments Amendment, Amendment 1
• Alabama State Abortion Policy Amendment, Amendment 2
• Oregon Ban Public Funds for Abortions Initiative
• West Virginia Amendment 1, the No Right to Abortion in Constitution Measure

Supreme Court Review Sought In Indiana Abortion Restrictions Case

On Oct. 12, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky, Inc., (cert. filed, Oct. 12, 2018).  The petition presents two questions for the Court's review:

1. Whether a State may require health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation.

2. Whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.

The 7th Circuit in an opinion (full text) in April held the provisions of Indiana's abortion laws unconstitutional. Rewire News reports on the petition for review.

Campus Pro-Life Speech Case Settled

An ADF press release reports that a settlement has been reached in Ratio Christi of Kennesaw State University v. Olens.  In the suit, a student group charged that the Georgia college limited its pro-life display to a small area set aside as a "speech zone." (See prior posting).  Under the settlement agreement, the school will eliminate its speech zone and students will be free to speak in all outdoor areas of the campus.  The school will also pay plaintiffs' attorneys' fees in the amount of $20,100.

HHS Grants to Catholic Bishops Conference Upheld

In ACLU of Northern California v. Azar, (ND CA, Oct. 11, 2018), a California federal district court granted summary judgment to the government in the ACLU's Establishment Clause challenge to HHS's choice of the U.S. Conference of Catholic Bishops as a grantee under the Unaccompanied Alien Children Program  (UACP) and the Trafficking Victim Assistance Program (TVAP).  The ACLU focused particularly on the refusal of sub-grantees to directly refer clients for abortion or contraception services. However children in custody in UACP who sought an abortion were transferred to a secular provider that did not have objections, and to an independent medical provider when contraception services were sought. The Bishops' Conference ultimately removed language from its documents that would have prevented TVAP sub-grantees from providing abortion or contraception services. The court held in part:

The government’s grant relationship and interactions with the Bishops Conference in the record in this litigation are not sufficiently likely to be perceived as an endorsement of the Conference’s religious beliefs....

The record here shows that the government’s UACP and TVAP grant money was used to provide general secular care services to unaccompanied minors and that no government money was used for proselytization, religious education, religious facilities, religious items, religious literature, or other religious activity. There is no evidence that the ACLU, or any taxpayer, was forced to monetarily subsidize the Bishops Conference’s religious beliefs. To the extent that the Conference declined to provide unaccompanied minors with access to abortion or contraception services, it did not use any government tax money to do so, and thus its actions are not properly the subject of a taxpayer-standing suit.

Norway's Supreme Court Upholds Doctor's Conscience Rights

According to Irish Legal News, in a decision published last Thursday, Norway's Supreme Court held that the European Convention on Human Rights requires health authorities to respect a doctor's conscientious objection to performing certain medical procedures.  Dr. Katarzyna Jachimowicz had been fired from her position in a medical clinic after she refused an order to insert an IUD in a patient. She claims that the IUD may act as an abortifacient, and her Christian faith opposes abortion.

European Court of Human Rights OKs Injunctions Against Anti-Abortion Activist

In four related Chamber Judgments issued on Sept. 20, the European Court of Human rights upheld injunctions and the award of damages in the cases that doctors brought against an anti-abortion activist for calling doctors who performed abortions aggravated murderers and comparing abortion to the Holocaust. The court issued a press release summarizing the holdings in Annen v. Germany (No. 2 to 5):

The cases concerned a series of complaints by an anti-abortion activist, Klaus Günter Annen, over civil court injunctions on various actions he had taken as part of an anti-abortion campaign. The plaintiffs in the domestic proceedings were four doctors who performed abortions.

The Court held in particular that the injunctions had interfered with Mr Annen’s freedom of expression, but had been necessary in a democratic society. When examining whether there had been a need for such interferences in the interests of the “protection of the reputation or rights of others”, namely of the doctors, the Court’s role was only to ascertain whether the domestic courts had struck a fair balance when protecting the freedom of expression guaranteed by Article 10 and the right to respect for private life protected by Article 8 of the [European] Convention [on Human Rights].

The press release contains links to the full text of each of the four decisions. [Thanks to Paul deMello Jr. for the lead.]

Ball State Settles Suit By Pro-Life Student Group

The Muncie Star Press reported last week on the recent settlement of a lawsuit (see prior posting) against Ball State University by "Students for Life at BSU." The suit alleged viewpoint discrimination in distribution of student activity fees. The pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology." Under the Settlement Agreement (full text), the University will adopt new rules that require that student activity fees be allocated in a viewpoint-neutral manner The school will also pay $300 in damages to the student group and pay the group's $12,000 in attorneys' fees to Alliance Defending Freedom.

8th Circuit: Satanic Temple Member Lacks Standing To Challenge Abortion Restrictions

In Satanic Temple v. Parson, (8th Cir., Aug. 28, 2018), the U.S. 8th Circuit Court of Appeals affirmed the dismissal (see prior posting) of a challenge to Missouri's abortion restrictions. The court said in part:

Mary Doe is a member of The Satanic Temple and a resident of the state of Missouri. After becoming pregnant, she sought an abortion in St. Louis, Missouri. She complied with certain state-mandated procedures, which the complaint alleges constituted direct and unwelcome personal contact with religion, in violation of the Free Exercise and Establishment Clauses. After receiving the abortion, she filed this lawsuit....

Here, Mary Doe was not pregnant at the date the action was initiated and seeks only prospective relief.... Mary Doe therefore lacks constitutional standing. Additionally, although “[p]regnancy provides a classic justification for a conclusion of nonmootness,” the doctrine does not apply here because she did not first establish standing.

Courthouse News Service reports on the decision.

Conservative Christian Groups Oppose Arkansas Tort Reform Ballot Measure

AP reports that Arkansas' proposed constitutional amendment on tort reform (full text) is receiving surprising opposition from conservative Christian anti-abortion groups:

A Christian group has begun rallying churches and abortion opponents against the measure, saying that limiting damage awards in lawsuits sets an arbitrary value on human life, contrary to anti-abortion beliefs, and conflicts with biblical principles of justice and helping the poor....

The Family Council, which championed Arkansas’ ban on gay marriages, is organizing meetings with church leaders to call for the measure’s rejection.

“The Bible is full of references to justice, and [the proposal] creates an environment where the powerful can tip the scales of justice against everybody else, but especially the poor,” Jerry Cox, the Family Council’s head, said at a recent breakfast meeting with pastors.

Pastors were handed informational booklets emblazoned with the words “Don’t Put A Price Tag On Human Life.” Flyers left on each table offered attendees inserts for their church bulletins.

Abortion Protesters Sue City For Violating Their Rights

A suit was filed yesterday in an Ohio federal district court by abortion protesters who claim that Toledo, Ohio police have violated their free speech, free exercise and equal protection rights by enforcing or threatening to enforce various provision of Ohio law against them.  The complaint (full text) in Zastrow v. City of Toledo, (ND OH, filed 8/1/2018), contends in part:

The City’s pattern of conduct, which includes arresting, citing, prosecuting and threatening to arrest, cite, and prosecute, pro-life demonstrators, including Plaintiffs, for engaging in expressive religious activity on the public fora adjacent to the Capital Care abortion center, has had, and continues to have, a chilling effect on Plaintiffs’ expressive religious activity, thereby causing irreparable harm.

Courthouse News Service reports on the lawsuit.

New York AG Denied Injunction Against Anti-Abortion Protesters

In People of the State of New York v. Griepp, (ED NY, July 20, 2018), a New York federal district court, in a 103-page opinion, refused to grant the New York Attorney General a preliminary injunction against anti-abortion protesters who have been clashing with volunteer clinic escorts outside a Queens medical center.  The suit alleged that the protesters violated the federal Freedom of Access to Clinic Entrances Act (FACES), the New York Clinic Access Act (NYSCAA) and a similar New York City provision. The court describes the coverage of the statutes:

Using essentially identical language, both FACE and NYSCAA provide penalties for those who (1) by force, threat of force, or physical obstruction, (2) intentionally injure, intimidate, or interfere with a person, or attempt to do the same, (3) “because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” 18 U.S.C. § 248(a)(1); see N.Y. Penal Law § 240.70(1)(a)–(b). NYCCAA prohibits a host of similar activities that prevent access to reproductive health care facilities. N.Y.C. Admin. Code § 8-803(a).

After a lengthy review of the evidence, the court concluded that protesters had not violated any of these provisions. For example, it said:

[T]he OAG has introduced evidence that the protestors sometimes continued attempting to engage with a person who asked to be left alone and that the protestors sometimes attempted to engage people who were not receptive to a different protestor’s overtures. Although such conduct can be circumstantial evidence of an intent to harass, annoy, or alarm, it does not establish that intent here. The interactions on the sidewalk outside Choices were generally quite short, and there is no credible evidence that any protestor disregarded repeated requests to be left alone over an extended period or changed his or her tone or message in response to requests to be left alone in a way that suggested an intent to harass, annoy, or alarm. The OAG has failed to show that any defendant had the intent to harass, annoy, or alarm a patient, companion, or escort; thus, it has failed to show that any defendant has violated NYCCAA, as interpreted by the OAG.

A word of caution—this decision should not embolden the defendants to engage in more aggressive conduct. In a few instances noted, several of the defendants’ actions came close to crossing the line from activity protected by the First Amendment to conduct prohibited by NYCCAA. Engaging in concerted activity that suggests an intent to annoy rather than to persuade not only violates the law, but also would seem to be contrary to defendants’ stated objectives. Voluntarily discontinuing the practice of speaking to patients who have affirmatively asked to be left alone not only would evidence the defendants’ good will, but also would lessen the likelihood of future litigation directed toward their protest activities.

Courthouse News Service reports on the decision.

5th Circuit: Subpoena To Catholic Bishops Should Have Been Quashed

In Whole Woman's Health v. Smith, (5th Cir., July 15, 2018), 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 directed at the Texas Conference of Catholic Bishops.  The discovery order came in a case in which several health care providers are challenging the state's fetal remains regulations which they contend burdens women's right to abortion. The majority opinion said in part:

The [district] court’s analysis of the free exercise and establishment clause claims begs the fundamental, novel issues presented under these circumstances. The court’s rejection of the free speech, association, and petition claims too narrowly construes the nature of chilling effects on those rights while overbroadly interpreting the importance to the plaintiffs of the discovery sought here....

[T]he claim of religious organizations to maintain their internal organizational autonomy intact from ordinary discovery should be at least as secure as the protection constitutionally afforded other associations. Supreme Court decisions have protected religious organizations’ internal deliberations and decision-making in numerous ways.... Although none have spoken directly to discovery orders in litigation, the importance of securing religious groups’ institutional autonomy, while allowing them to enter the public square, cannot be understated and reflects consistent prior case law.

The majority however, pointing to the rule of constitutional avoidance, decided the case on the basis of Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden.

Judge Ho also filed a brief concurring opinion.  Judge Costa filed a dissenting opinion.  Becket issued a press release announcing the court's decision.

Supreme Court Issued Clean-Up Orders In Other Pregnancy Clinic and Travel Ban Cases

In light of Tuesday's Supreme Court decisions in the travel ban and the pro-life pregnancy center cases, yesterday the Supreme Court issued clean-up orders, remanding for consideration in light of those decisions several similar cases in which petitions for review were pending. (Order List (June 28, 2018)):

In Woman's Friend Clinic v. Becerra (Docket No. 16-1146); Livingwell Medical Clinic v. Becerra (Docket No. 16-1153); Mountain Right to Life v. Beccera  (Docket No. 17-211); the court granted certiorari, vacated 9th Circuit judgments below, and remanded for further consideration in light of National Institute of Family and Life  Advocates v. Becerra.

In International Refugee Assistance v. Trump (Docket No. 17-1194) and Trump v. International Refugee Assistance (Docket No. 17-1270), the Court granted certiorari, vacated 4th Circuit judgments below, and remanded for further consideration in light of Trump v. Hawaii.

Supreme Court Holds California's FACT Act Violates Speech Rights of Pro-Life Clinics

The U.S. Supreme Court this morning, in a victory for pro-life pregnancy centers, decided National Institute of Family and Life Advocates v. Becerra, (US Sup. Ct., June 26, 2018).  At issue was California's FACT Act which requires licensed pregnancy counseling clinics to post and distribute a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed.  Justice Thomas, writing for the majority (Thomas, Roberts, Kennedy, Alito, Gorsuch) held that these disclosure requirements likely violate 1st Amendment free speech rights of the clinics. The Court concluded that the disclosures required of licensed clinics are content-based regulations:

... licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option— the licensed notice plainly “alters the content” of petitioners’ speech.

The majority then went on to largely reject the 9th Circuit's conclusion that  strict scrutiny does not apply because the regulation deals with "professional speech," saying in part:

... this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.”...

This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” ... Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.... But neither line of precedents is implicated here....

As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”

Turning to the required disclosures for unlicensed centers, the Court said in part:

California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.”

A concurring opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch emphasizes a viewpoint discrimination argument, saying in part:

... here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

Justice Breyer filed a dissenting opinion, joined by Justices Ginsburg, Sotomayor and Kagan, saying in part:

Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation....

If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?

5th Circuit: Bishops Win Temporary Stay of Subpoena For E-Mails

The U.S. 5th Circuit Court of Appeals in Whole Woman's Health v. Smith, (5th Cir., June 18, 2018), has granted an emergency stay of a district court's order (see prior posting) refusing to quash a subpoena issued to the Texas Catholic Conference of Bishops.  The subpoena, in a suit challenging the constitutionality of a Texas law that requires health providers to bury or cremate fetal remains after an abortion, sought e-mails relating to burial, cremation, or disposition of fetal or embryonic tissue.  The Catholic Bishops' emergency motion for a stay (full text) argued that enforcement of the subpoena would violate their 1st Amendment rights and RFRA. Becket issued a press release announcing the 5th Circuit's action.

Court Enforces Document Subpoena Against Texas Catholic Bishops

Last year a suit was filed in Texas federal district court challenging the constitutionality of a Texas law that requires health providers to bury or cremate fetal remains after an abortion. (See prior related posting.) A preliminary injunction against enforcement of the law was issued in January.  Now, as the case moves toward trial, a federal district court has rejected a motion filed by the Texas Catholic Conference of Bishops attempting to quash a subpoena for documents.  In Whole Woman's Health v. Smith, (WD TX, June 13, 2018), the court rejected a free exercise challenge to a subpoena for e-mails relating to burial, cremation, or disposition of fetal or embryonic tissue.  The court said in part:

The documents requested do not address religious doctrine or church governance, but instead relate directly to a factual issue that will be central at trial: precisely what burial services are available, and will remain available, to abortion providers in Texas. That the primary organization presently offering to make those services available is a church does not make the relevant facts immune from discovery....

...  [E]ven if there would be some chilling effect on the members of the TCCB if the subpoenaed documents are produced—and that is doubtful—the Plaintiffs’ interest in obtaining the documents is sufficient to outweigh any such impact.

Suit Alleges Viewpoint Discrimination In Distribution of Student Activity Fees

A suit was filed yesterday against officials at Ball State University by "Students for Life at BSU" alleging, among other things, viewpoint discrimination in distribution of student activity fees.  The complaint (full text) in Students for Life at Ball State University v. Hall, (SD IN, June 13, 2018), alleges that the pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology."  The suit alleges that the refusal violates plaintiffs' 1st and 14th Amendment rights.  ADF issued a press release announcing the filing of the lawsuit.

Iowa Legislature Passes Heartbeat Abortion Bill

As reported by the Washington Post, the Iowa legislature yesterday gave final passage to SF 359 (full text), one of the most restrictive abortion laws in the country. The bill has been sent to Gov. Kim Reynolds for her signature.  The bill prohibits a physician from performing an abortion if a fetal heartbeat is detectable.  Exempted from the prohibition are cases of rape or incest if they were reported to authorities withing specified time periods.  The bill also exempts abortions performed to preserve the life of the pregnant woman whose life is endangered by a physical disorder, illness, or injury, but not if endangered by life-threatening psychological, emotional or familial conditions, or the woman’s age, or "when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman." The bill also prohibits receiving or transferring fetal body parts.  Gov. Reynolds has not said whether she will sign the bill into law.

UPDATE: As reported by AP, he bill was signed by the governor on May 4.

Abortion Protester's Bomb Prophecy Was Not A "True Threat"

Thames v. City of Westland, (ED MI, April 20, 2018) is a suit by a pro-life advocate who was arrested and held over the weekend on charges of making a terrorist threat while protesting at an abortion clinic.  Kimberly Thames, while picketing the clinic, allegedly said "I prophesy bombs, I prophesy bombs. There is going to be a bombing in the near future."  A Michigan federal district court concluded that an issue of fact exists as to whether officers had probable cause to arrest Thames:

Mich. Comp. Laws § 750.543m only criminalizes “true threats” which involve a “serious expression of an intent to commit an act of unlawful violence,”.... In the vague context allegedly used by Thames, at least a jury question exists as to whether it amounts to a true threat.

The evidence suggests that Defendant Officers did not consider the statement to be a true threat as they did not direct evacuation of the clinic, did not request the assistance of a bomb squad, did not request the assistance of a bomb sniffing dog, did not search the clinic for a bomb, did not search the surrounding area for a bomb, did not search the adjacent parking lot for a bomb, did not search the dumpster for a bomb, and did not impound Thames’ vehicle for fear that a bomb might be planted in it.

The court denied motions for summary judgment on wrongful arrest, retaliatory arrest (as to some defendants) and equal protection claims.