Denver Archbishop Reflects on How a Catholic Should Vote in 2016

Last week, Denver Archbishop Samuel Aquila posted a lengthy discussion on the Archdiocese's website titled Voting as a Catholic in 2016: How Should a Catholic Vote. Recounting a dinner conversation he had recently had with a group of Catholics, Aquila said in part:

All pretty much agreed that, when it comes to life issues, Catholic politicians on both sides of the aisle have put party ideology before their faith and living their faith in the public square.

The Archbishop's comments focused primarily on issues of abortion, the Obamacare contraceptive coverage mandate and Proposition 106 on the Colorado ballot to legalize physician assisted suicide.

Disclaimer Requirement Violates Pregnancy Center's Free Speech Rights

In Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, (D MD, Oct. 4, 2016), a Maryland federal district court held that a Baltimore ordinance requiring limited purpose pregnancy centers to post specified disclaimers is unconstitutional as applied to the pregnancy center bringing the lawsuit.  The ordinance requires centers to post signs in their waiting rooms stating that they do not provide or make referrals for abortion or birth control services. The court, applying strict scrutiny, held that this compels the pregnancy center to speak, delivering information that it would not otherwise transmit. The court said in part:

The City identifies two interests to support the Ordinance: (1) to protect the public from deceptive business practices, and (2) to promote public health by “ensuring that individuals who seek reproductive health services have access to truthful information about the services available at Pregnancy Centers.”...

[H]ere, even if there had been bountiful evidence of misleading advertising, there is no evidence that women were coming to the Center under false pretenses and suffering harmful health consequences because of it. Thus, the City has not satisfied the “demanding standard” of showing that the Ordinance actually promotes a compelling interest in solving a specific problem.

ADF issued a press release announcing the decision and linking to other pleadings and court decisions in the long-running litigation.

Constitutional Challenge Filed To Illinois Limits on Conscientious Objection By Doctors

A suit was filed this week in an Illinois federal district court by several pro-life pregnancy centers challenging the constitutionality recently enacted amendments to Illinois Health Care Right of Conscience Act. (See prior posting.)  The new amendments require doctors and health care facilities to inform patients of all health care options and, if the patient requests an option to which the physician has conscientious objections, the physician must refer or transfer the patient elsewhere for the procedure. The complaint (full text) in National Institute of Family and Life Advocates v. Rauner, (ND IL, filed 9/29/2016), alleges that the amendments violate their religious freedom rights and require them to engage in compelled speech:

It would violate the religious and moral beliefs and conscience of Plaintiffs and their staff to comply with SB 1564 § 6.1(1)’s requirement that for every pregnant woman they treat, they must “inform” her that abortion as a “legal treatment option,” and that they must describe “benefits” of abortion that they disagree with.

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

Hearing On Hyde Amendment And Born Alive Protection Act

Yesterday the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice held a hearing titled The Ultimate Civil Right: Examining the Hyde Amendment and the Born Alive Infants Protection Act.  The hearing was held as the 40th anniversary of the Hyde Amendment approaches.  A video of the full hearing and transcripts of prepared testimony by witnesses are available on the committee's website. The Born Alive Infants Protection Act (HR 3504) has passed the House but has not been voted on by the Senate.

6th Circuit Dismisses Suit Over Catholic Bishops' Health Care Directives

In Means v. U.S. Conference of Catholic Bishops, (6th Cir., Sept. 8, 2016), the U.S. 6th Circuit Court of Appeals affirmed a Michigan federal district court's dismissal of a suit against the U.S. Conference of Catholic Bishops (USCCB) and against three individuals who served as chairs of the Catholic Health Ministries-- the sponsor of a health care system that includes the Catholic hospital at which plaintiff Tamesha Means claims she was inadequately treated.  Means visited the hospital when she prematurely went into labor at 18 weeks into her pregnancy.  The hospital, complying with the USCCB's  Catholic health care directives, did not give Means the option of terminating her pregnancy, even though her physician suspected she had a serious bacterial infection that can cause infertility and even death.  After the statute of limitations on medical malpractice had run, Means sued the entities responsible for promulgating and adopting the Catholic health care directives, charging them with negligence.

The 6th Circuit dismissed the USCCB from the case for lack of personal jurisdiction.  As to the other defendants, the court said in part:

Means asks us to recognize a duty under Michigan law on the part of a religious organization to a specific patient to adopt ethical directives that do not contradict the medical standard of care. Whether such a duty exists is far from certain, especially if the standard of care violates the organization’s religious beliefs. Nevertheless, even if the CHM defendants had such a duty, Means’s factual allegations do not create the plausible inference that any breach of that duty proximately caused any injury to Means within the strictures of Michigan negligence law.... 

Means alleges—and we do not doubt—that she suffered physical and mental pain, emotional injuries, a riskier delivery, shock and emotional trauma from making funeral arrangements for her dead child, and other “discomforts and pain.” But these allegations are not sufficient to state an injury under Michigan negligence law. In Michigan, “present physical injury” is necessary to state a claim for negligence.

[Thanks to Tom Rutledge for the lead.] 

Court Refuses To Dismiss Abortion Buffer Zone Challenge, But Denies Preliminary Injunction

In Reilly v. City of Harrisburg, (MD PA, Aug. 31, 2016), a Pennsylvania federal district court refused to grant a preliminary injunction to bar enforcement of a Harrisburg, Pennsylvania ordinance that provides for a 20-foot buffer zone around health care facilities to protect women seeking to access to abortion clinics from picketers and sidewalk counselors.  The court however refused to dismiss some of plaintiffs' challenges to the law.  In particular the court allowed plaintiffs to move ahead with their claims that the ordinance is not narrowly tailored and that it is overbroad.  The court rejected several other challenges including free exercise, vagueness and prior restraint claims.

Pregnancy Resource Center Sues Over Rezoning Denial

In Raleigh, North Carolina on Wednesday a Christian ministry filed suit in federal district court challenging the city's refusal to rezone property adjacent to an abortion clinic for use by the ministry as a pregnancy resource center.  The complaint (full text) in A Hand of Hope Pregnancy Resource Center v. City of Raleigh, (ED NC, filed 8/17/2016), contends that the city's rezoning refusal that prevents the ministry from expanding its services violates plaintiff's rights under RLUIPA as well as under the 1st and 14th Amendments.  WRAL reports on the lawsuit.

Suit Challenges Illinois Amendments To Health Care Right of Conscience Act

On Friday, two pro-life pregnancy care centers and a pro-life physician filed suit in Illinois state court challenging SB 1564, the recently enacted Illinois law amending the state's Health Care Right of Conscience Act. (See prior posting.)  The complaint (full text) in Pregnancy Care Center of Rockford v. Rauner, (IL Cir. Ct., filed 8/5/2016) alleges that the new law violates Illinois' Religious Freedom Restoration Act, as well as plaintiffs' religious freedom, free speech and equal protection rights under the Illinois constitution. The complaint describes the provisions that would require plaintiffs to violate their religious and moral beliefs:

S.B. 1564 requires Plaintiffs and other medical facilities and physicians to choose between referring for abortions, transferring a patient to an abortion provider, or provide a patient asking for an abortion with a list of providers they reasonably believe may perform the abortion.

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

Satanic Temple Challenge To Missouri Abortion Restrictions Dismissed On Standing Grounds

Last month in Satanic Temple v. Nixon. (ED MO, July 15, 2016), a Missouri federal district court dismissed for lack of standing a suit by the Satanic Temple and one of its members challenging on free exercise and establishment clause grounds Missouri's disclosure and waiting period requirements for women seeking an abortion.  Missouri requires the abortion provider to deliver to a woman seeking an abortion a pamphlet that states in part: "The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being"  The Missouri law also requires a 72 hour waiting period and the opportunity to view an ultrasound, Plaintiffs alleged that these requirements are inconsistent with beliefs of the Satanic Temple and are medically unnecessary.  The court concluded: "Plaintiff Doe is not now pregnant, there is no guaranty that she will become pregnant in the future, and that if she does, she will seek an abortion,,,," Last week in Verdict, Prof. Marci Hamilton commented on the decision. In January a Missouri state court dismissed a similar challenge brought under RFRA. (See prior posting.)

Illinois Governor Signs Bill Amending Conscience Protections For Health Care Personnel

In Illinois last week, Republican Governor Bruce Rauner signed SB 1564 (full text), amending the state's Health Care Right of Conscience Act. The new Act requires health care facilities to adopt written protocols that assure conscience-based objections by medical personnel will not impair patients' health. Among the minimum standards for these protocols are the following:

(1) The health care facility, physician, or health care personnel shall inform a patient of the patient's condition, prognosis, legal treatment options, and risks and benefits of the treatment options in a timely manner, consistent with current standards of medical practice or care.

(2) When a health care facility, physician, or health care personnel is unable to permit, perform, or participate in a health care service that is a diagnostic or treatment option requested by a patient because the health care service is contrary to the conscience of the health care facility, physician, or health care personnel, then the patient shall either be provided the requested health care service by others in the facility or be notified that the health care will not be provided and be referred, transferred, or given information in accordance with paragraph (3).

(3) If requested by the patient or the legal representative of the patient, the health care facility, physician, or health care personnel shall: (i) refer the patient to, or (ii) transfer the patient to, or (iii) provide in writing information to the patient about other health care providers who they reasonably believe may offer the health care service the health care facility, physician, or health personnel refuses to permit, perform, or participate in because of a conscience-based objection.

Reporting on the governor's action, the State Journal-Register says that the Illinois Catholic Health Association and Catholic Conference of Illinois took a neutral stand on the bill. However in a press release this week, Liberty Counsel complains that the new law forces "Christian and pro-life doctors and pregnancy centers to participate in human genocide."

Another Court Refuses To Enjoin California's Reproductive FACT Act

In Mountain Right to Life v. Harris, (CD CA, July 8, 2016), a California federal district court denied a preliminary injunction against enforcement of California's Reproductive FACT Act. The Act requires medical clinics that offer family planning or pregnancy related services to furnish clients a notice that California has public programs that provide free or low-cost access to family planning, pre-natal care and abortion services. Clinics offering pregnancy-related services that do not have licensed medical personnel on staff must provide notice of that fact. In the case, a faith-based crisis pregnancy center argued that the Act violates its free speech and free exercise rights. The court found that the center did not show a likelihood of success on the merits.  The court concluded that the state has a compelling interest in ensuring that people know whether or not they are receiving care from licensed professionals. The statute's other notice requirement is a constitutionally permissible regulation of professional speech to protect the government's substantial interest in its residents knowing the health care resources that are available. Two other federal district courts have reached similar conclusions. (See prior posting.)

2016 Republican Platform on Abortion

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the third in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpt continues after the jump. Here is the lengthy Platform section titled The Fifth Amendment: Protecting Human Life:

The Constitution’s guarantee that no one can “be deprived of life, liberty or property” deliberately echoes the Declaration of Independence’s proclamation that “all” are “endowed by their Creator” with the inalienable right to life. Accordingly, we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.

Court Rejects Churches' Challenge To California's Abortion Coverage Requirement

In Foothill Church v. Rouillard, (ED CA, July 11, 2016), a California federal district court rejected challenges brought by three churches to letters issued by the California Department of Managed Health Care to seven health insurance companies informing them that under California law they cannot exclude abortion services from coverage when they cover maternity services.  Initially finding that the churches have standing to challenge the directive, the court dismissed with leave to amend plaintiffs' free exercise and equal protection challenges.  The court concluded that the directive was a neutral law of general applicability that survives the rational basis test.  The court dismissed without leave to amend the churches' free speech and establishment clause claims. (See prior related posting.)

Texas Proposes Rule Change On Handling of Fetal Tissue

As reported by Catholic News Agency, on July 1 the Texas Health and Human Services Commission proposed rule amendments (full text) that would change the way in which health care facilities dispose of fetal tissue from an abortion or miscarriage.  Fetal tissue, regardless of how early in a pregnancy, would need to be disposed of by cremation or burial, instead of being treated in the same way as other pathological waste. The proposed change comes less than one week after the U.S. Supreme Court struck down Texas' restrictive regulation of abortion clinics. (See prior posting.)

Court Strikes Down Indiana's So-Called Anti-Discrimination Ban on Abortions

In Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health, (SD IN, June 30, 2016), an Indiana federal district court issued a preliminary injunction against enforcing new regulation of abortions and abortion practices that were scheduled to take effect today.  One new prohibition (the so-called anti-discrimination provisions) bars abortion even before viability if the reason is the sex of the fetus, the fetus has been diagnosed with Down's syndrome or any other disability, or because of the race, color, national origin or ancestry of the fetus. The second provision requires abortion providers to inform their patients of these restrictions. The third provision alters the way in which healthcare providers must dispose of fetal tissue.  The court concluded:

nothing in Roe, Casey, or any other subsequent Supreme Court decisions suggests that a woman’s right to choose an abortion prior to viability can be restricted if exercised for a certain reason. The right to a pre-viability abortion is categorical.

Focusing on the fetal tissue disposal requirements, the court said that it:

can find no legal support for the State’s position that it has a legitimate state interest in “promoting respect for human life by ensuring proper disposal of fetal remains."

Chicago Tribune reports on the decision.

Supreme Court Denies Review In Two Abortion Cases

As reported by the New York Times, yesterday in the wake of its opinion in Whole Women's Health v. Hellerstedt striking down Texas' restrictions on abortion clinics (see prior posting), the Court denied review in cases from Mississippi and Wisconsin in which Courts of Appeal had similarly struck down restrictive state abortion laws.  The Court in its June 28 Order List denied certiorari in Currier v. Jackson Women’s Health Organization, (Docket No. 14-997) (SCOTUSblog case page) and Schimel v. Planned Parenthood of Wisconsin, (Docket No. 15-1200) (SCOTUSblog case page).

Supreme Court Invalidates Texas Abortion Access Law

In a 5-3 decision today in Whole Women's Health v. Hellerstedt, (Sup. Ct., June 27, 2016), the U.S. Supreme Court struck down key provisions in Texas' controversial statute regulating access to abortions.  The majority opinion, written by Justice Breyer, held that both the requirement for a physician performing an abortion to have admitting privileges in a near-by hospital and for abortion clinics to meet standards that apply to ambulatory surgical centers place a substantial obstacle in the path of women seeking a pre-viability abortion and place an undue, unconstitutional burden on abortion access. Justices Kennedy, Ginsburg, Sotomayor and Kagan joined Justice Breyer's opinion. Justice Ginsburg also filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Alito also filed a dissenting opinion which Chief Justice Roberts and Justice Thomas joined.

HHS Sued Over Allowing Catholic Agencies To Limit Health Services To Unaccompanied Immigrant Minors

The ACLU today filed suit in a California federal district court alleging that officials in the U.S. Department of Health and Human Services have violated the Establishment Clause in allowing the U.S. Conference of Catholic Bishops and its sub-grantees to impose religiously based restrictions on the use of taxpayer funds to aid unaccompanied immigrant minors.  The complaint (full text) in ACLU of Northern California v. Burwell, (ND CA, filed 6/24/2016) alleges in part:

1. There are currently thousands of unaccompanied immigrant minors ... in the legal custody of the federal government.... Many have come to the United States fleeing abuse and torture in their home countries; many have been sexually abused or assaulted ....; some have also been trafficked for labor or prostitution....

2. The federal government is legally required to provide these young people with basic necessities, such as housing, food, and access to emergency and routine medical care, including family planning services, post-sexual assault care, and abortion.

3. To provide young people with these necessities, the government ... issues grants to private entities, including a number of religiously affiliated organizations.

4. ... Defendants authorize a few of these religiously affiliated organizations—such as the United States Conference of Catholic Bishops ... and its subgrantees across the country ... to refuse on religious grounds to provide information about, access to, or referrals for contraception and abortion, even if the young person in their care has been raped.

New York Times reports on the lawsuit.

7th Circuit: Bus Company Wrongly Refused Ad From Pro-Life Health Link

In Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp., (7th Cir., June 22, 2016), the U.S. 7th Circuit Court of Appeals held that Fort Wayne's Citilink wrongly refused to accept an ad that Women's Health Link wanted to place on city buses. Citilink's rules bar ads that "express or advocate opinions or positions upon political, religious, or moral issues."  The proposed ad did not express any such opinion or position, but the health care referral service it advertised is pro-life and so urges alternatives to abortion.  The court held that Citilink's rules are limited to ad content, and do not relate to the advertiser's underlying policies or material that may be on the advertiser's website. It concluded: "Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech." Reuters reports on the decision.

HHS Rules That California Did Not Violate Weldon Amendment

Yesterday the Office for Civil Rights of the Department of Health and Human Services (OCR) issued a letter (full text) responding to complaints that the California Department of Managed Health Care violated the Weldon Amendment when it directed several health insurance companies to amend their plan documents to remove coverage limitations and exclusions for elective abortions. Subsequently California granted an exemption to one of the companies to allow it to offer plans that exclude abortion coverage to religious employers. The complaints were filed by churches, a religious organization, a church-run school and employees of a religiously-affiliated university.  In its Findings, OCR said in part:

By its plain terms, the Weldon Amendment's protections extend only to health care entities and not to individuals who are patients of, or institutions or individuals that are insured by, such entities.... Here none of the seven insurers that received the CDMHC letter ... objected to providing coverage for abortions..... As a result, there is no health care entity protected under the statute that has asserted religious or moral objections to abortion and therefore there is no covered entity that has been subject to discrimination within the meaning of the Weldon Amendment.

... A finding that CDMHC has violated the Weldon Amendment might require the government to rescind all funds appropriated ... to the State of California.... HHS' Office of General Counsel, after consulting with the Department of Justice, has advised that such a rescission would raise substantial questions about the constitutionality of the Weldon Amendment.

Los Angeles Times reports on OCR's ruling.