9th Circuit Hears Oral Arguments In Pregnancy Center Disclosure Law Challenge

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in  A Woman's Friend Pregnancy Resource Clinic v. Harris. (Video of full oral arguments).  In the case, a California federal district court refused to enjoin the effectiveness of California's Reproductive FACT Act which requires reproductive health clinics to disseminate a notice to all clients stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. (See prior posting.)

3rd Circuit: Challenge To Abortion Clinic Buffer Zones May Move Ahead

In Bruni v. City of Pittsburgh, (3d Cir., June 1, 2016), the U.S. 3rd Circuit Court of Appeals reversed the dismissal of a challenge to Pittsburgh's law creating a 15-foot buffer zone around abortion clinics in which demonstrators and pickets are barred.  The majority held:

the First Amendment claims are sufficient to go forward at this stage of the litigation. The speech at issue is core political speech entitled to the maximum protection afforded by the First Amendment, and the City cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve the City’s legitimate, substantial, and content-neutral interests.

Judge Fuentes concurred in the judgment, but filed an opinion disagreeing with the majority's reasoning, arguing that requiring governments that place significant burdens on speech to prove that less restrictive means either failed or were seriously considered and rejected distorts the "narrow-tailoring" doctrine by eliminating the government's latitude to adopt regulations that are not the least intrusive means of serving the government's interest. Pittsburgh Post-Gazette reports on the decision.

Court Issues TRO Against Ohio's Cutoff of Funding For Planned Parenthood

In Planned Parenthood of Greater Ohio v. Hodges, (SD OH, May 23, 2016), an Ohio federal district court issued a two-week temporary restraining order barring the Ohio Department of Health and the Hamilton County Public Health Commission from enforcing Ohio Rev. Code § 3701.034.  That section requires the state department of health to ensure that funds it receives under six specific federal programs are not used to contract or affiliate with an entity that performs or promotes non-therapeutic abortions. The effect of the law is to cut off funding for Planned Parenthood to use for various women's health programs that do not involve abortion services in order to pressure Planned Parenthood to end performing or promoting abortions using other funding. The court concluded that it is likely plaintiffs will succeed in their claim that the statute imposes unconstitutional conditions on the receipt of federal funds:

Section 3701.034 allows ODH to leverage its control over government funds to prevent recipients of government funds from engaging in constitutionally protected speech and association, even if that speech is undertaken with private funds.

The court also found a likelihood of success on plaintiffs' claims that the law imposes an undue burden on a woman's right to have an abortion and denies equal protection.  Cleveland Plain Dealer reports on the decision.

Oklahoma Governor Vetoes Abortion Ban

As reported by the Washington Post, Oklahoma Governor Mary Fallin today vetoed SB 1552, a bill that, with narrow exceptions, would have subjected doctors who perform abortions to felony prosecution as well as to loss of their licenses. (See prior posting.)  In her veto message (full text), Gov. Fallin said that the bill's exclusion for abortions that are "necessary to preserve the life of the mother" is unconstitutionally vague. She added:

While I consistently have and continue to support a re-examination of ... Roe v. Wade, this legislation cannot accomplish that re-examination.  In fact, the most direct path to a re-examination ... is the appointment of a conservative pro-life justice to the United States Supreme Court.

Oklahoma Legislature Purports To Outlaw Almost All Abortions In Statute Raising Many Questions

The Oklahoma legislature gave final passage yesterday (legislative history) to Senate Bill No. 1552 (full text), purporting to outlaw almost all abortions in the state.  The bill makes it a felony punishable by not less than one nor more than three years in prison for anyone to "perform or induce an abortion upon a pregnant woman."  The bill also requires revocation of the license of any physician performing an abortion, and prohibits any physician participating in the performance of an abortion from obtaining or renewing a medical license in the state. The only exclusion is for "an abortion necessary to preserve the life of the mother...." However this does not include the situation in which the physician determines "that the woman may engage in conduct which she intends to result in her death."

As reported by Huffington Post, it is unclear whether or not Governor Mary Fallin will sign the law which is clearly unconstitutional under current U.S. Supreme Court precedent. It should be noted that, besides the constitutional concern, the language of the bill creates a number of questions.  While the bill does not explicitly prescribe punishment for the woman who has procured the abortion, existing law, Oklahoma Statutes, Title 21, Sec. 172, provides that "All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission ... are principals." Also, it is unclear whether the bill's ban on licensure of any physician who participates in performing an abortion would apply to those who while in medical training in other states participate in the procedure there.

Religious Organizations Challenge NY Regulator's Required Abortion Coverage

In a May 10 press release, the Roman Catholic Diocese of Albany, New York announced that it, along with the Episcopal Diocese and several other religious groups has filed suit in New York state court challenging the constitutionality of Model Language adopted by the New York State Department of Financial Services that requires individual and small group employers offering health insurance to their employees to include in renewal contracts coverage for therapeutic abortions, and for non-therapeutic abortions in the case of rape, incest or fetal malformation. The complaint (full text) in Roman Catholic Diocese of Albany v. Vullo, (NY Sup. Ct. Albany Cty., filed 5/4/2016), contends that the abortion mandate violates religious freedom and liberty of conscience in violation of various provisions of the state and federal constitutions as well as of New York law. [Thanks to Jeff Pasek for the lead.]

Challenge To Catholic Hospitals' Ethical Directives Dismissed On Standing and Ripeness Grounds

A Michigan federal district court has dismissed on standing and ripeness grounds a challenge to the Ethical and Religious Directives for Catholic Health Care Services followed by Catholic hospitals.  In ACLU v. Trinity Health Corp., (ED MI, April 11, 2016), the ACLU sued claiming that provisions in the Directives that prevent terminating a pregnancy to stabilize a woman's condition when emergency complications occur violate the federal Emergency Medical Treatment and Active Labor Act and the Rehabilitation Act.  The court held that allegations of past injury because of the hospital's compliance with the Directives does not give standing for future-looking declaratory and injunctive relief, and allegations regarding one woman who is currently pregnant do not show a substantial risk of pregnancy complications or likelihood of future treatment at defendant's hospitals.  A report from Michigan Radio has reactions of the parties to the decision.

Suit Challenges Pennsylvania City's Abortion Clinic Buffer Zone

Last week, three women who regularly act as pro-life "sidewalk counselors" outside two abortion clinics filed suit in a Pennsylvania federal district court challenging the constitutionality of Harrisburg's "Interference With Access To Health Care Facilities" Ordinance.  The ordinance bars congregating, patrolling, picketing or demonstrating within 20 feet of any health care facility entrance, exit or driveway.  The complaint (full text) in Reilly v. City of Harrisburg, (MD PA, filed 3/24/2016) contends that the ordinance violates freedom of expression, free exercise of religion, freedom of assembly, equal protection and due process rights. Liberty Counsel announced the filing of the lawsuit.

Supreme Court Preserves Abortion Status Quo In Louisiana While It Considers Similar Case

Th U.S. Supreme Court today issued an order preserving the status quo in Louisiana while the Court considers Whole Woman's Health, the abortion case from Texas that was argued this week. (See prior posting.) The 5th Circuit had stayed a district court's preliminary injunction against enforcement of a Louisiana law requiring abortion providers to have admitting privileges at a local hospital. The 5th Circuit's stay had the effect of allowing Louisiana's contested law to go into effect. Today in June Medical Services LLC v. Gee the U.S. Supreme Court issued the following order:

Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated.

Justice Thomas would deny the application.

This order was in response to June Medical's Emergency Application to Vacate Stay of Preliminary Injunction Pending Appeal (full text).

SCOTUS Hears Oral Arguments In Texas Abortion Regulation Case

The U.S. Supreme Court today heard oral arguments in one of the most important abortion cases to reach it in some time, Whole Women's Health v. Hellerstedt.  The full transcript of  today's oral arguments is now available. The case page from SCOTUSblog provides links to the cert. petition, all the briefs, the lower court decision and commentary on the case. Lyle Denniston at SCOTUSblog also has an analysis of this morning's argument. At issue in the case are provisions in a 2013 Texas law requiring physicians who perform abortions to have admitting privileges at a nearby hospital, and requiring abortion clinics to meet standards for ambulatory surgical centers.

Abortion Restrictions In Latin America Remain Despite Zika Virus Spread

With the Zika virus spreading fast in a number of Latin American countries and the disease's link to microcephaly in newborns, the debate over loosening abortion restrictions is increasing. Reuters reported last week that in Brazil-- which has one of the most restrictive abortion laws-- change is unlikely:

Vandson Holanda, head of health for the Catholic Church in Brazil’s northeast, said there was no chance the Church would shift its position on abortion because of Zika.

Suspected cases of microcephaly have topped more than 4,000 – with more than 400 of those confirmed so far – since Zika was first detected in April....

Women’s rights groups in Brazil ... plan to appeal to the Supreme Court to relax Brazil’s abortion laws. They hope to build on a successful case in 2012 that legalized abortion for anencephaly, where the fetus develops without a major part of its brain and skull.

Given the difficulty of identifying microcephaly before the final weeks of pregnancy, Sinara Gumieri, a legal advisor to Anis, said the group would petition the court to legalize abortion for women diagnosed with Zika whose child was at risk of the condition, even if it is not diagnosed in the fetus. She admitted it would be difficult.

The doctors who led the anencephaly campaign in 2012 do not expect its success to be repeated.

The New York Times last week had more on the Catholic Church's unchanged position.  Meanwhile, the Huffington Post reported that the U.S. Agency for International Development has recommended that the U.S. offer contraceptive and family planning assistance to Latin America.  U.S. law prohibits foreign aid funds being used to pay or advocate for abortion.  At a Feb. 10 House subcommittee hearing on the global Zika epidemic (video of hearing), subcommittee chairman Rep. Jeff Duncan (R-SC) said that the push in Latin American countries for greater access to abortion "is heartbreaking, especially since there are different degrees of microcephaly."

Church's State Court Suit Challenges California Mandate For Health Insurance Abortion Coverage

A La Mesa, California church last week filed suit in state court against the California Department of Managed Health Care challenging a state requirement that all health insurance policies sold in California cover elective abortions, without exceptions.  The complaint (full text) in Skyline Wesleyan Church v. California Department of Managed Health Care, (Super. Ct., filed 2/4/2016), alleging violations of several state and federal constitutional provisions, contends:

the Mandate has created an inconsistent and untenable situation where Skyline Church and other religious employers do not have to provide health insurance coverage for contraceptives and infertility treatments but must pay for voluntary and elective abortions....

Defendants substantially burden Skyline Church's religious exercise when they force Skyline Church to choose between following its religious beliefs and suffering debilitating penalties under federal law or violating its conscience in order to avoid those penalties.

A similar challenge was filed in federal court by three other  churches last October. (See prior posting.)  ADF issued a press release announcing last week's state court lawsuit.

Arkansas Board of Health Rejects Legislature's Description of Abortion

The Northwest Arkansas Democrat reports today that the Arkansas state Board of Health is setting up a confrontation with the state legislature.  The Board voted 12-6 (with 5 abstentions) to avoid using the phrase "death of the unborn child" in final regulations it is adopting, even though that language appears in statutes it is implementing.  The Board substituted the phrase "termination of the pregnancy" in the regulations that implement six abortion laws passed last year and parts of an older statute. The governor and the state Department of Health director expect the legislature to reject the new language in the rule review process that follows.

Texas County Grand Jury Clears Planned Parenthood, Indicts Sting Videographers

Houston Chronicle and the New York Times report that a Harris County, Texas grand jury that was investigating a Planned Parenthood clinic in Houston has cleared the clinic of charges of illegal conduct and instead indicted two of the anti-abortion activists involved in making widely publicized, highly-edited videos involving the clinic. (Press release by Harris County District Attorney.)  Yesterday the grand jury handed down no indictments against Planned Parenthood Gulf Coast that had been charged by the anti-abortion group Center For Medical Progress with illegal sale of fetal tissue to researchers. However it indicted undercover videographers David Daleiden and Sandra Merritt on charges of tampering with a governmental record.  Apparently these charges stem from their use of false government identifications (false documents resembling California drivers' licenses) to obtain access to private areas and record private conversations.  Daleiden was also charged on a misdemeanor count under the law prohibiting the purchase and sale of human organs.  Apparently the grand jury found that he likely crossed the line into offering to buy fetal tissue in his efforts to get Planned Parenthood personnel to admit to selling fetal tissue.

Daleiden said that they were merely using the same techniques that investigative journalists have typically used.  In a statement reacting to the grand jury's action, Texas governor Greg Abbott said:

The Health and Human Service Commission’s Inspector General and the Attorney General’s office have an ongoing investigation into Planned Parenthood’s actions. Nothing about today’s announcement in Harris County impacts the state’s ongoing investigation. The State of Texas will continue to protect life, and I will continue to support legislation prohibiting the sale or transfer of fetal tissue.

Earlier this month, Planned Parenthood filed a civil RICO action against Center for Medical Progress. (See prior posting.) [Updated]

Supreme Court Denies Review In North Dakota Fetal Heart Beat Abortion Ban

The U.S. Supreme Court today denied certiorari in Stenehjem v. MKB Management Corp., (Docket No. 15-627, cert. denied 1/25/2016). (Order List.)  In the case, the U.S. 8th Circuit Court of Appeals (full text) held unconstitutional North Dakota's ban on abortions from the time the fetus possesses a detectable heartbeat. ABC News reports on the denial of review.

Satanist's RFRA Challenge To Missouri Abortion Restrictions Dismissed

As previously reported, last May a member of the Satanic Temple filed a lawsuit in state court in Missouri challenging as a violation of Missouri's Religious Freedom Restoration Act the state's waiting period and informed consent requirements imposed before a woman may obtain an abortion. The complaint in Doe v. Nixon, (MO Cir. Ct., filed 5/8/2015), alleged that plaintiff has deeply held religious beliefs that her body is inviolable and subject to her will alone and that she alone decides whether to remove a non-viable fetus. Now the St. Louis Post-Dispatch reports that last month the court dismissed the case, holding that plaintiff's "pleadings fail to allege facts, which if true, state a claim for relief under the Religious Freedom Restoration Act."

Kansas Appeals Court Splits Evenly Over State Constitution's Protection of Abortion Rights

In Hodes & Nauser, MDs, P.A. v. Schmidt, (KA App., Jan. 22, 2016), the Kansas Court of Appeals sitting en banc split evenly, 7-7, on whether the Kansas state Constitution provides a right to abortion.  A decision for 6 judges, written by Judge Leben, held that:

sections 1 and 2 of the Kansas Constitution Bill of Rights provide the same protection for abortion rights as the Due Process Clause of the Fourteenth Amendment to the United States Constitution...

 Judge Atcheson, in a concurring opinion, also concluded that the state Constitution protects the right to abortion, but  through language § 1 of the Constitution "prohibiting undue government interference with those inalienable rights, including reproductive freedom, that compose self-determination."

Judge Malone writing a dissenting opinion on behalf of 7 judges rejected the assertion that the Kansas Constitution protects abortion rights, saying in part:

We conclude that the plain language of §§ 1 and 2 of the Kansas Constitution Bill of Rights is not similar enough to the language of the Fourteenth Amendment to find that the corresponding provisions must be applied in the same manner..... Simply put, there is nothing within the text or history of §§ 1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion.

The effect of the even split was to affirm the trial court's grant of a preliminary injunction preventing the Kansas Unborn Child Protection from Dismemberment Abortion Act from taking effect. AP reports on the decision, noting that it was released on the 43rd anniversary of the U.S. Supreme Court's Roe v. Wade decision.

Planned Parenthood Files RICO Lawsuit Over Videos

On Thursday, Planned Parenthood filed a wide ranging lawsuit against the Center for Medical Progress over heavily edited widely-publicized videos purporting to show that Planned Parenthood was illegally selling fetal tissue to researchers.  The videos led to federal and state legislative investigations and efforts to cut off government funding.  The complaint (full text) in Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, (ND CA, filed 1/14/2016) alleges violation of the Racketeer Influenced and Corrupt Organization statute, as well as invasion of privacy, conspiracy, breach of contract, trespass and wiretapping. The 65-page complaint alleges in part:

This complaint details a complex criminal enterprise conceived and executed by anti-abortion extremists. The express aim of the enterprise— which stretched over years and involved fake companies, fake identifications, and large-scale illegal taping— was to demonize Planned Parenthood, harass and intimidate its dedicated staff, and interrupt its operations, all with the ultimate goal of interfering with women’s access to legal abortion....

Defendants ... went public with a vicious online video smear campaign, releasing a series of YouTube videos purporting to show that Planned Parenthood violated federal law related to tissue donation. In fact, these videos were heavily manipulated, with critical content deliberately deleted, and disconnected portions sewn together to create a misleading impression.

TPM reports on the lawsuit.

Unusual Amicus Brief In SCOTUS Challenge To Texas Abortion Regulation

The U.S. Supreme Court has set March 2 for oral argument in Whole Woman’s Health v. Cole, a challenge to Texas regulations that could result in 75% of the state's abortion clinics being forced to close. (Case page from SCOTUblog). National Law Journal reports on an unusual amicus brief (full text) filed in the case this week.  The brief was submitted by 107 women lawyers, as well as 6 current law students, with the aim of demonstrating the importance of abortion rights to members of the legal profession.  According to the brief:

Amici are lawyers who have obtained abortions and who have participated in a wide variety of different aspects of the legal profession, including at private law firms, corporations, multinational governmental organizations, nonprofit organizations, and law schools....

Amici obtained their abortions at different ages and life stages, under a variety of circumstances, and for a range of reasons both medical and personal, but they are united in their strongly-held belief that they would not have been able to achieve the personal or professional successes they have achieved were it not for their ability to obtain safe and legal abortions.

Suit Challenges Maine's Restriction On Loud Preaching Outside of Abortion Clinic

In Portland, Maine this week, a Christian pastor filed suit in federal district court challenging the constitutionality of a Maine statute designed to protect abortion facilities.  The law essentially prohibits demonstrating outside an abortion clinic with noise loud enough to be heard inside.  The complaint (full text) in March v. Mills, (D ME, filed 12/21/2015), contends that the statute violates plaintiff's 1st and 14th Amendment rights by targeting his religious, Christian, Pro-Life messages. He alleges in part:

Plaintiff considers it his vocation to encourage women to avoid the sin of abortion and to help them repent from their previous sins.... Plaintiff preaches outside of the abortion facility in order to better reach these women and to give women a last-chance alternative to their life-ending decision.

The suit claims that the restriction on his speech is a content-based prior restraint.  Thomas More Law Center issued a press release announcing the filing of the suit.