Suit Challenges Ordinance Barring Discrimination On Basis of Reproductive Health Services

In February 2017, the St. Louis (MO) Board of Aldermen enacted Ordinance 70459 which added to the city's existing laws against discrimination in employment and housing a prohibition on discrimination "because of ... reproductive health decisions or pregnancy status (including childbirth or a related medical condition)".  Yesterday suit was filed in a Missouri federal district court challenging the Ordinance which the lawsuit says was represented as barring discrimination against those who have had, or are planning to have, an abortion.  The complaint (full text) in Our Lady's Inn v. City of St. Louis, (ED MO, filed 5/22/2017) contends that in fact the Ordinance is much broader, saying in part:

Ordinance 70459 forbids Plaintiffs and others from making adverse employment, housing or realty decisions based on an individual or entity being an abortion activist, advocate or provider....  Thus, the Ordinance forbids Plaintiffs from refusing to sell or rent real property to individuals and corporate organizations that promote or provide abortions....

The complaint alleges that the Ordinance violates the speech and religion clauses of the 1st Amendment,  the due process and equal protection clauses of the 14th Amendment as well as various provisions of state law.  Thomas More Society issued a press release announcing the filing of the lawsuit.

State Department Implements Expanded "Mexico City Policy"

Yesterday the State Department took steps to implement an earlier Memorandum from President Trump that reinstated the "Mexico-City Policy" that bars U.S. foreign aid dollars from going to nongovernmental organizations that offer abortion counseling or  advocate the right to seek abortions in their home countries.(See prior posting).  In a Fact Sheet and a Background Briefing the State Department elaborated on its new plan called "Protecting Life in Global Health Assistance" which expands on the Mexico City Policy as applied in prior Republican administrations.  According to the briefing:

...[G]lobal health assistance includes funding for international health programs, such as those for HIV/AIDS, maternal and child health, malaria, global health security, family planning, and reproductive health. Protecting Life in Global Health Assistance applies to global health assistance to or implemented by foreign NGOs, including those to which a U.S. NGO makes a sub-award with such assistance funds.

Global health assistance to national or local governments, public international organizations, and other similar multilateral entities is not subject to this policy. Also excluded is humanitarian assistance, including State Department migration and refugee assistance activities, USAID disaster and humanitarian relief activities, and U.S. Department of Defense disaster and humanitarian relief. At any time, in consultation with the Secretary of Health and Human Services, the Secretary of State may authorize additional case-by-case exemptions to the policy....

Protecting Life in Global Health Assistance applies to approximately $8.8 billion in funds appropriated to the Department of State, the U.S. Agency for International Development, and the Department of Defense. Previously, the policy applied only to family planning assistance provided by USAID and the Department of State.

.... Departments and agencies will reprogram to other organizations any funding they would have awarded to NGOs that do not agree to the terms of Protecting Life in Global Health Assistance.

New York Times reports on the policy expansion. Liberty Counsel issued a press release with additional information on the new policy.

Arkansas Disorderly Conduct Law Upheld Against Abortion Protesters

In Duhe v. City of Little Rock, Arkansas, (ED AR, April 27, 2017), an Arkansas federal district court upheld the constitutionality of Arkansas' disorderly conduct statute in a suit by two participants in a pro-life event known as Operation Save America. One of the participants was president of a Christian organization, Spirit One. The participants interfered with traffic flow in a clinic parking lot, while using a microphone and loudspeaker to present their views.  Their activity disturbed businesses in the area.  The court held that the disorderly conduct statute under which the two men were charged is neither vague nor overbroad, and is a permissible content-neutral time, place and manner regulation.

Pence Speaks To March For Life

As reported by the New York Times, today Vice President Mike Pence spoke in person to the thousands of marchers in this year's anti-abortion March For Life. (Full text of remarks.)  He said in part:

More than two-hundred and forty years ago, our Founders wrote words that have echoed through the ages. They declared “these truths to be self-evident.” That we are, all of us, “endowed by our Creator with certain unalienable rights,” and “that among these are life, liberty, and the pursuit of Happiness.” Forty-four years ago, our Supreme Court turned away from the first of these timeless ideals....

But as it is written, “let your gentleness be evident to all.” Let this movement be known for love, not anger – for compassion, not confrontation. When it comes to matters of the heart, there’s nothing stronger than gentleness.

March For Life Is Today; VP Pence Will Address Marchers

In Washington, D.C., the annual March for Life, protesting the U.S. Supreme Court's Roe v. Wade decision is being held today.  Roe was decided in January of 1973. As reported by ABC News, this year Vice President Mike Pence and counselor to the president Kellyanne Conway will both address the marchers in person.  They are the highest-ranking White House officials to ever address the march in person. Other speakers include Cardinal Timothy Dolan, Sen. Joni Ernst (R-Iowa), Rep. Mia Love (R-Utah), and Rep. Chris Smith (R-New Jersey).

Pro-Life Student Group Sues Over Denial of Recognition

Yesterday a pro-life student group filed a federal lawsuit against officials of Queens College in New York after the organization was denied registered student organization status.  The complaint (full text) in Queens College Students For Life v. Members of the City University of New York Board of Trustees, (ED NY, filed 1/25/2017), contends that the unbridled discretion given to the Campus Affairs Committee to deny registered student organization status (and its associated benefits, including funding from student activity fees) allows discrimination against organizations on the basis of viewpoint. ADF issued a press release announcing the filing of the lawsuit.

Trump Reinstitutes Ban On Foreign Aid To NGOs That Promote Abortion Services

As reported by the New York Times, in a Presidential Memorandum (full text) issued yesterday President Trump reinstated the so-called "Mexico-City Policy."  The policy bars U.S. foreign aid dollars from going to nongovernmental organizations that offer abortion counseling or  advocate the right to seek abortions in their home countries.  Other U.S. law already bans the use of taxpayer dollars to fund actual abortion services, but this policy prohibits funds going to organizations even if they use other funds to promote abortion. The policy, originally instituted in 1984 by President Ronald Reagan has been suspended by Democratic presidents and reinstituted by Republican presidents ever since.

Kentucky Enacts New Abortion Restrictions; Suit Filed Challenging Required Disclosures

In Kentucky yesterday, Gov. Matt Bevin signed into law H.B. 2 (full text), which, as described by CNN:

requires a physician or technician to perform an ultrasound, describe and display the ultrasound images to the mother, and provide audio of the fetal heartbeat to the mother before she may have an abortion. The text of the bill says the pregnant woman may choose to avert her eyes from the images, and request the volume of the heartbeat be turned down or off.

The law frames required disclosures in terms of providing information about the "unborn child."

The state's sole licensed abortion provider and three physicians immediately filed suit challenging the constitutionality of the law.  The complaint (full text) in EMW Women's Surgical Center, P.S.C. v. Beshear (WD KY, filed 1/9/2017), contends that the law violates rights of both physicians and patients. An ACLU press release announced the filing of the lawsuit.

The Governor also signed S.B. 5 which prohibits abortions after 20 weeks of pregnancy, with limited exceptions. Both H.B. 2 and S.B. 5 took effect immediately on signing. [Thanks to Tom Rutledge and Scott Mange for the leads.]

Another Challenge Filed To HHS Rule on Transgender and Pregnancy Termination Discrimination

Another lawsuit has been filed challenging the Department of Health and Human Services rules that bar discrimination on the basis of gender identity or termination of pregnancy in the delivery of medical services by, among others, health facilities receiving federal financial assistance. Plaintiffs in this suit are Catholic organizations, including the entity that administers self-funded health plans for Catholic employers. The complaint (full text) in Catholic Benefits Association v. Burwell, (D ND, filed 12/28/2016) alleges that the rule requires plaintiffs to act in contravention of Catholic teachings:

HHS has taken a little-remarked-upon section of the ACA that prohibits discrimination “on the basis of sex” and turned it into a mandate that coerces Catholic hospitals and other healthcare providers into performing, supporting, and even covering gender transition procedures, and coerces other Catholic employers, even Catholic dioceses, into covering them. The 1557 Rule also prevents Catholic entities from discriminating on the basis of “termination of pregnancy,” a phrase that likely creates an abortion mandate.

Catholic Review reports on the lawsuit.

Last month, a similar challenge was filed in the same North Dakota federal district court by different plaintiffs. (See prior posting). Last week a Texas federal district court issued a nation-wide preliminary injunction against enforcement of the rules being challenged. (See prior posting).

Court Enjoins Health Care Gender Identity and Abortion Non-Discrimination Rule

Today, in a 46-page opinion, a Texas federal district court issued a nationwide preliminary injunction barring enforcement of a regulation 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. In Franciscan Alliance, Inc. v. Burwell, (ND TX, Dec. 31, 2016), a Texas federal district court, in a suit by eight states and three private health care providers, first held that the Department of Health and Human Services exceeded its authority in interpreting the statutory ban on "sex" discrimination to include discrimination on the basis of gender identity, stating:

Title IX and Congress’s incorporation of it in the ACA unambiguously adopted the binary definition of sex.

The court also concluded that the health care providers have shown a substantial likelihood that the challenged Rule violates the Religious Freedom Restoration Act in requiring them to perform and provide insurance coverage for gender transitions and abortions in violation of their religious beliefs. Becket Fund issued a press release announcing the decision.

Judge Reed O'Connor who handed down the decision had previously issued a nationwide injunction baring enforcement of federal guidelines interpreting Title IX as barring discrimination by schools on the basis of gender identity. (See prior posting.)

Preliminary Injunction Issued Against Illinois Conscience Act Amendments

In Pregnancy Care Center of Rockford, Inc. v. Rauner, (IL Cir. Ct., Dec. 20, 2016), an Illinois state trial court granted a preliminary injunction preventing enforcement against conscientious objectors of recently enacted amendments to the Illinois Healthcare Right of Conscience Act.  According to the court:

While the Conscience Act allows medical care providers to decline to participate in medical procedures to which they have moral objections, the amendments to the Act ... require providers to provide information and referral assistance with respect to a patient's "legal treatment options" as a precondition to invoking the Act's protections.

Invoking intermediate scrutiny of regulation of "professional speech" under the Illinois constitution, the court said that the legislature has imposed an obligation to furnish information only on conscientious objectors.  It goes on:

The Court concludes that plaintiffs have raised a "fair question" about whether SB 1564 unnecessarily burdens their right to be free from government compelled speech to a degree more than necessary to serve the state's interest in educating patients.

CatholicCitizens.org provides a lengthier analysis of the decision.

Questions On Abortion and Gay Marriage Violated Rights of Constable Candidate

In Lloyd v. Birkman, (WD TX, Dec. 2, 2016), a Texas federal district court held that members of the Williamson County (TX) Commissioners' Court violated the equal protection rights of plaintiff when, in an interview for appointment as interim County Constable, they asked him his views on same-sex marriage, abortion and religious affiliation.  The Commissioners had argued that the purpose of their questions was to determine whether the appointee was likely to be electable for a full term to the position in the next popular election. KXAN News reports on the decision.

Satanic Temple Will Challenge Texas' New Fetal Remains Rules

As reported yesterday by Jezebel, the Satanic Temple says that it plans to challenge Texas' new rules requiring burial or cremation of fetal remains as a violation of its members' rights under the Texas Religious Freedom Restoration Act.  A spokesman for Satanic Temple said:

Texas health officials are baldly imposing the view that the fetal tissue is elevated to personhood—a religious opinion that conflicts with our own. If Texas is going to treat the disposal of fetal tissue differently from the disposal of any other biological material, in contradiction to our own religious beliefs, they need to present a compelling state interest for doing so. Of course, there is no such state interest, and it’s perfectly clear the demand for fetal tissue burial is a punitive measure imposed by sadistic theocrats. It’s clear these officials deem harassment an acceptable form of pushing their misguided religious agendas.

The organization plans to file for an injunction as soon as the state attempts to apply the new rules to one of its members. [Thanks to Scott Mange for the lead.]

Brazil's Supreme Federal Court Invalidates Sentences of Abortion Clinic Workers

On Tuesday, a 4-judge panel of the First Chamber of Brazil's Supreme Federal Court overturned the jail sentences of 5 people who were working at an underground abortion clinic near Rio de Janeiro.  Telesur reports:

Judge Luis Roberto Barroso argued in his decision that given that women carry the full burden of reproduction, “there will be full equality only if she is recognized as having the right to decide.”

He argued that women’s health and safety should be ensured without interference, saying, “Having a child determined by the Criminal Code constitutes a serious violation of the physical and psychological integrity of a woman.”

Barroso also noted that criminalization of abortion disproportionately affects poor and marginalized women who face even more restricted access to private services.

Here is the full text in Portuguese of Judge Barroso's opinion. RNS reports that the decision, which is seen as setting precedent "legalizing abortion during the first trimester has caused uproar among politicians with strong ties to Roman Catholic and evangelical faiths, who have gained ground in the current government."

Final Texas Rules On Disposal of Fetal Remains Are Adopted

Texas Tribune reports that yesterday the Texas Health and Human Services Commission filed final rules on disposition of fetal tissue with the Secretary of State's office.  Under the rules, which take effect December 19, hospitals, abortion clinics and other health care facilities may not dispose of fetal remains in sanitary landfills and instead are required to cremate or bury all remains regardless of the period of gestation. Amendments to the proposed rules that appear in the final rules clarify that the requirements do not apply to miscarriages or abortions that occur at home. Also, to protect privacy, birth or death certificates will not be required before disposal. Health care facilities, not patients, will be responsible for the costs of burial or cremation. [Thanks to Scott Mange for the lead.]

Pope Francis Extends Priests' Authority To Forgive Abortion

As reported by Vatican Radio, Pope Francis yesterday issued an apostolic letter, Misericordia et Misera  (“Mercy and Misery”), which extends a number of initiatives begun in the just-ended Jubilee Year of Mercy.  One portion of the Pope's letter may color legal and political debate in the United States:

... [L]est any obstacle arise between the request for reconciliation and God’s forgiveness, I henceforth grant to all priests, in virtue of their ministry, the faculty to absolve those who have committed the sin of procured abortion. The provision I had made in this regard, limited to the duration of the Extraordinary Holy Year, is hereby extended, notwithstanding anything to the contrary. I wish to restate as firmly as I can that abortion is a grave sin, since it puts an end to an innocent life. In the same way, however, I can and must state that there is no sin that God’s mercy cannot reach and wipe away when it finds a repentant heart seeking to be reconciled with the Father. May every priest, therefore, be a guide, support and comfort to penitents on this journey of special reconciliation.

The Washington Post reports that in a press conference a Holy See official, Monsignor Rino Fisichella, said that the pronouncement covers doctors, nurses and others involved in an abortion, as well as the woman obtaining the procedure.

In a separate matter, the Pope's apostolic letter also validated continued hearing of confessions by priests of the controversial right-wing Society of St Pius X. (See prior related posting.)

Donald Trump On His SCOTUS Appointment, Abortion Rights and Marriage Equality

Last night, CBS' "60 Minutes" broadcast an hour-long interview (full text and video) by Leslie Stahl with President-elect Donald Trump and with members of his family. Portions of the interview dealt with the impact of his Supreme Court nomination on abortion rights and marriage equality. Here are excerpts from the interview:

Lesley Stahl: One of the things you’re going to obviously get an opportunity to do, is name someone to the Supreme Court. And I assume you’ll do that quickly?

Donald Trump: Yes. Very important.

Lesley Stahl: During the campaign, you said that you would appoint justices who were against abortion rights. Will you appoint-- are you looking to appoint a justice who wants to overturn Roe v. Wade?

Donald Trump: So look, here’s what’s going to happen-- I’m going to-- I’m pro-life. The judges will be pro-life. They’ll be very—

Lesley Stahl: But what about overturning this law--

Donald Trump: Well, there are a couple of things. They’ll be pro-life, they’ll be-- in terms of the whole gun situation, we know the Second Amendment and everybody’s talking about the Second Amendment and they’re trying to dice it up and change it, they’re going to be very pro-Second Amendment. But having to do with abortion if it ever were overturned, it would go back to the states. So it would go back to the states and--

Lesley Stahl: Yeah, but then some women won’t be able to get an abortion?

Donald Trump: No, it’ll go back to the states.

Lesley Stahl: By state—no some --

 Donald Trump: Yeah.

Donald Trump: Yeah, well, they’ll perhaps have to go, they’ll have to go to another state.

Lesley Stahl: And that’s OK?

Donald Trump: Well, we’ll see what happens. It’s got a long way to go, just so you understand. That has a long, long way to go....

***

Lesley Stahl: Well, I guess the issue for [the LGBTQ community] is marriage equality. Do you support marriage equality?

Donald Trump: It-- it’s irrelevant because it was already settled. It’s law. It was settled in the Supreme Court. I mean it’s done.

Lesley Stahl: So even if you appoint a judge that--

Donald Trump: It’s done. It-- you have-- these cases have gone to the Supreme Court. They’ve been settled. And, I’m fine with that.

Priest's Anti-Abortion Video Raises Questions On Limits For Advocacy

On Sunday just ahead of Tuesday's presidential election, Rev. Frank Pavone, national director of the activist anti-abortion group Priests for Life, posted a live video on Facebook which, as reported by the Washington Post, "raised questions for some about what is appropriate antiabortion and political activism in the church."  The video in which Pavone endorsed Donald Trump for president because of the anti-abortion Republican platform showed an actual aborted fetus on the altar. Pavone said the fetus was given to him for burial by a pathologist. In a post on the blog of the Archdiocese of New York, a spokesman strongly criticized Pavone, saying in part:

A human being has been sacrificed and the altar of God has been desecrated, all for politics. Everyone who respects the dignity of every human person should reject and disavow this atrocity.

A post on Friendly Atheist blog includes a link to Pavone's full 44 minute video.

Brazilian Court Awards Damages Against Priest Who Prevented An Abortion

Life Site News reported yesterday that Brazil's appellate court, the Superior Tribunal de Justiça, has ruled in favor of a couple that brought suit against an activist Catholic priest who in 2005 convinced a court to halt an abortion sought by the couple.  The parents had sought a court order to permit the abortion when it became clear that the fetus suffered a severe deformity. Fr. Luiz Carlos Lodi da Cruz, at the time a law student, intervened and successfully sought habeas corpus on behalf of the fetus. Ultimately the child died eight days after birth. The appellate court, in awarding the parents damages equivalent to $18,537 (US), held that the priest had recklessly abused the legal process, causing useless suffering and intense moral damage to the parents.

9th Circuit Upholds Required Disclosures By Pregnancy Clinics

In National Institute of Family and Life Advocates v. Harris, (9th Cir., Oct. 14, 2016, the 9th Circuit Court of Appeals upheld California's FACT Act which requires licensed pregnancy counseling clinics to disseminate 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. The court affirmed the district court's denial of a preliminary injunction to three religiously-affiliated non-profits, rejecting free speech and free exercise objections. The court concluded that the required notice by licensed facilities is professional speech subject to intermediate scrutiny. UPI reports on the decision. [Thanks to Scott Mange for the lead.]