Two District Courts Refuse To Enjoin California's Reproductive FACT Act

In recent days, two separate California federal district courts have refused to enjoin the Jan. 1 effectiveness of California's new 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. In Livingwell Medical Clinic, Inc. v. Harris, (ND CA, Dec. 18, 2015), the court denied a preliminary injunction, finding that plaintiffs had not shown a likelihood of success on the merits of their claim that the required disclosures violate their free expression rights by interfering with their ability to control their own religious and pro-life messages. In A Woman's Friend Pregnancy Resource Clinic v. Harris, (ED CA, Dec. 21, 2015), the court similarly rejected free expression and free exercise claims in denying a preliminary injunction. In rejecting the free exercise claim, the court found that the Act is a neutral law of general applicability even though it mostly impacts Christian-belief based crisis pregnancy centers. Courthouse News Service reports on the decisions.

CORRECTION: No Injunction Issued Against California's Reproductive FACT Act; Case Still Pending

Based on an error in a report by a news service, Religion Clause incorrectly reported last week that a California federal district court had issued a preliminary injunction barring the state of California from enforcing its recently enacted Reproductive FACT Act against two religiously affiliated pregnancy counseling centers. A proposed order has been filed by plaintiffs in A Woman's Friend Pregnancy Resource Center v. Harris, but a hearing on it will not take place until Dec. 18. Thanks to Stephen Blakeman for alerting me to the error, which the news service caught two days ago.

Supreme Court Grants Review Of Texas Restrictions On Abortion Clinics

The U.S. Supreme Court today granted certiorari in the Texas abortion law case, Whole Woman’s Health v. Cole, (Docket No. 15-274, cert. granted 11/13/2015). (Order List.) Links to the 5th Circuit's opinion in the case, the petition for certiorari, the reply brief and amicus briefs are available at SCOTUSblog. According to USA Today:

The justices will decide whether tough new restrictions placed on abortion clinics and doctors in Texas constitute an "undue burden" on women seeking legal abortions and should be struck down.

The restrictions -- forcing doctors to have admitting privileges at nearby hospitals and requiring clinics to meet standards for outpatient surgery centers -- threaten to leave the state with only 10 clinics clustered in four population centers and along the Mexican border. 

Maine's AG Sues To Enjoin Anti-Abortion Protester

Maine's Attorney General has recently filed a civil suit against an anti-abortion protester, seeking to enjoin him from coming within 50 feet of Portland's Planned Parenthood clinic and seeking to impose a $5000 civil penalty on him.  The complaint (full text) in State of Maine v. Ingalls, (Super Ct., filed 10/30/2015), alleges that Brian Ingalls, a regular protester, violated provisions of Maine law that prohibit interfering with constitutional rights as well as a provision barring intentional interference with the delivery of health services by making noise that can be heard within the building of a health care provider.  Ingalls was arrested after he ignored police warnings and continued to yell toward Planned Parenthood's second floor examination and counseling rooms about murdering babies, aborted babies' blood, and Jesus. The Portland Press-Herald says that this is the first suit of its kind to be filed in the state.

Churches Sue In Challenge To California Mandate For Health Insurance Abortion Coverage

In California yesterday, three churches filed  suit against the California Department of Managed Health Care (DMHC) to prevent enforcement against those who object on religious grounds of a requirement that most health insurance policies issued in California provide coverage for abortions.  The complaint (full text) in Foothill Church v. Rouillard, (ED CA, filed 10/16/2015) focuses on a letter (full text) sent to insurance companies last year reminding them that

the Knox-Keene Health Care Service Plan Act of 1975 ... requires the provision of basic health care services and the California Constitution prohibits health plans from discriminating against women who choose to terminate a pregnancy. Thus, all health plans must treat maternity services and legal abortion neutrally.

ADF issued a press release announcing the filing of the lawsuit and tracing prior administrative complaints about DMHC's action.

Pregnancy Centers Sue To Enjoin California's New Mandatory Disclosure Law

Last Friday, California Governor Jerry Brown signed into law AB 775 , the 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.  On Saturday, the Pacific Justice Institute (press release) on behalf of two religiously affiliated non-profit pregnancy counseling centers filed a lawsuit seeking to enjoin enforcement of the new law.  The complaint (full text) in A Woman's Friend Pregnancy Resource Center v. Harris, (ED CA, filed 10/10/2015) contends that the new law infringes plaintiffs' free speech and free exercise rights by mandating speech inconsistent with their religious convictions.  The Sacramento Bee reports on the lawsuit.

ACLU Sues Catholic Hospitals Over Denial of Abortions To Treat Serious Medical Complications

In a federal lawsuit filed last week, the ACLU sued a Michigan-based Catholic health care system charging that its hospitals violate federal law by denying appropriate emergency care to women suffering pregnancy complications, including miscarriages. The complaint (full text) in American Civil Liberties Union v. Trinity Health Corporation, (ED MI, filed 10/1/2015), contends that the hospitals, by following the Conference of Bishops' Ethical and Religious Directives for Catholic Health Care Services ban on terminating a woman's pregnancy under any conditions, violate the Emergency Medical Treatment and Active Labor Act as well as the Rehabilitation Act. In a press release announcing the filing of the lawsuit, the ACLU said in part:

We’re taking a stand today to fight for pregnant women who are denied potentially life-saving care because doctors are forced to follow religious directives rather than best medical practices. Catholic bishops are not licensed medical professionals and have no place dictating how doctors practice medicine, especially when it violates federal law.

Article Explores Barriers To Abortion Rights For Jail Inmates

Truthout yesterday published a lengthy investigative article on the barriers sometimes thrown up by jails to prevent women inmates from obtaining abortions. The article begins:

Should sheriffs and other jail staff be allowed to decide whether a woman can obtain an abortion? When a woman is arrested and incarcerated, should her reproductive rights be stripped from her? Based on their actions against a woman in custody this past month, Rick Singleton, the sheriff of Lauderdale County Jail in Florence, Alabama, and district attorney Chris Connolly seem to think so. They may also have set a precedent for any other law enforcement seeking to prevent women from seeking abortions—throw up enough obstacles and she'll decide to carry the pregnancy to term.

Plaintiff Entitled To Accommodation From Affordable Care Act's Hyde Amendment Arrangement

In Howe v. Burwell, (D VT, July 20, 2015), a Vermont federal district court dealt with yet another permutation of religious objections to provisions in the Affordable Care Act.  Under the ACA, health insurers which offer policies through state exchanges may, but are not required to, cover abortion services.  If they do, in order to comply with the Hyde amendment that bars use of federal funds to pay for abortions, the insurance company is required to segregate at least $1 per month of the premium paid by each individual and use those funds to pay for abortion services. All policies offered through the Vermont exchange have this arrangement for abortion services which plaintiff claims, among other things, violates his free exercise rights under RFRA. He objects on religious grounds to funds he is required to pay in as a premium being used to pay for others' abortions.

The court held that most of plaintiff's RFRA claims against the federal government arise out of decisions third parties, such as private insurance companies, have made. However the federal government could accommodate plaintiff by refraining from enforcement actions against any insurance company that agrees not to comply with the segregation requirement for the policy offered to plaintiff. The court went on:

The Federal Defendants have already agreed not to enforce the segregation requirement against any third party health insurer willing to offer Plaintiff health insurance coverage. Notwithstanding that agreement, because the Federal Defendants have not offered this as an accommodation under RFRA on a permanent basis, Plaintiff retains standing to request it in the form of declaratory relief. ...

Plaintiffs request for a declaratory judgment that he is entitled to non-enforcement of the segregation requirement (and the separate payment) is therefore sufficiently plausible to avoid dismissal at this stage in the proceedings.

Employee Who Refused Work In Unit Performing Abortions Loses Title VII Suit

In Montgomery v. Cook County, (ND IL, July 1, 2015), an Illinois federal district court dismissed a Title VII religious discrimination and retaliation lawsuit brought by a medical center employee who was fired after she refused an assignment change that would require her to spend half her time in the reproductive health unit of the Planned Parenthood facility at which she was employed.  She objected on religious grounds to work in the unit that performed abortions, and said she understood from the time she was hired that this concern would be respected. The court held that plaintiff had not alleged facts showing that she was fired "because of" her religious beliefs.  The court conceded that "even if an employer does not intentionally discriminate against an employee, an employer may still be liable under Title VII for failure to accommodate the religious needs of its employees." However here, according to the court:

[Plaintiff] failed to allege any facts regarding whether a request to accommodate [her] beliefs was made... and whether Defendants tried to accommodate [them].... Based on these allegations, I cannot reasonably infer that Defendants failed to try to accommodate Plaintiff's religious beliefs to keep her employed.

It thus dismissed the discrimination claim without prejudice.

The court also rejected Plaintiff's retaliation claim, holding: "Plaintiff has neither plead that she engaged in protected activity nor alleged a substantial link between any protected expression and her termination."

Satanic Temple Member Files Suit Challenging Missouri's Abortion Restrictions Under State's RFRA

On Friday, after submitting a demand letter (full text), 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. (See prior related posting.)  The complaint (full text) in Doe v. Nixon, (MO Cir. Ct., filed 5/8/2015), alleges 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.  It contends that conditioning her decision to have an abortion on presenting her written materials prepared by the state that outline gestational development and the possibility of the abortion causing pain to the unborn child, the requirement that she view an ultrasound, and the statutory 72 and 24-hour waiting periods contitute restrictions on her free exercise of religion because they are contrary to her beliefs and unduly restrictive of her freedom of choice. Plaintiff also filed a Memorandum of Law in Support of a Temporary Restraining Order (full text).   Orlando Weekly reports on the lawsuit.

Satanic Temple Member Claims State RFRA Exemption To Missouri's Abortion Waiting Period

Friendly Atheist reports this week on plans by a member of the Satanic Temple to challenge Missouri's requirement for a 72-hour waiting period for abortions by asserting a religious freedom claim.  Missouri has a Religious Freedom Restoration Act (MO Rev. Stat Section 1.302.1).

Missouri law (MO Rev. Stat. Section 188.027.1)  requires that: "The physician who is to perform or induce the abortion or a qualified professional shall provide the woman with the opportunity to view at least seventy-two hours prior to the abortion an active ultrasound of the unborn child and hear the heartbeat of the unborn child if the heartbeat is audible." Using an exemption form developed by the Satanic Temple, the Missouri native identified as "Mary" claims that her sincerely held Satanic Temple beliefs are that her body is inviolable and subject to her will alone, and that inviolable body includes any fetal tissue so long as it is unable to survive outside her body as an independent human being.

Planned Parenthood of St. Louis is the only abortion provider in Missouri, and Mary lives hundreds of miles away from it, making a 72 hour wait after her initial appointment difficult. The head of the Satanic Temple says it will pursue litigation if Mary's exemption claim is not honored. Last year, using similar arguments, the Satanic Temple launched a campaign against "informed consent" laws that require abortion providers to furnish women certain informational material when they seek an abortion. (See prior posting.)

FOIA Lawsuit Will Seek Documents On Religious Organizations Care For Imigrant Minors

The ACLU announced last Friday that it plans to file a Freedom of Information Act lawsuit to obtain documents relating to HHS Administration for Children and Families' contracts with Catholic Charities and other religious organizations for care of refugee and undocumented minors.  ACLU claims that these organizations are restricting refugee and undocumented immigrant teenagers' access to reproductive health services, including contraception and abortion. An ACLU staff attorney said:

We believe deeply in religious freedom. But religious freedom does not include the right to take a government contract that requires providing access to health care, and then refuse to provide a teen who has been raped the health care she needs.

The ACLU added:

Recently, the federal government released proposed regulations requiring federal contractors who care for unaccompanied minors to provide access to contraception, emergency contraception, and abortion if a teen has been raped. In response, the United States Conference of Catholic Bishops, one of the groups that received a government-funded contract to provide care to these teens, said any requirement that they provide information about contraception or abortion, even a referral or the arrangement for such services, would violate their religious freedom.

[Thanks to Will Esser via Religionlaw for the lead.]

New Poll Shows Americans Favor Same-Sex Marriages, But Want To Protect Religious Objectors

Yesterday AP-GfK announced the release of their latest poll (full poll results) which asks respondents about their views on same-sex marriage and abortion rights. In the poll, 35% favor same-sex marriage, while 31% oppose. Respondents are divided 48% to 48% on how the Supreme Court should rule in its pending same-sex marriage cases. By 50% to 46%, respondents favor religious exemptions to the requirement to issue same-sex marriage licences for officials who object to doing so.  By 57% to 39%, respondents favor exemptions for wedding related businesses who object to providing services for same-sex couples. Finally poll showed a 51% to 45% margin favoring legalized abortion in most or all cases.

Former NY Governor Mario Cuomo Remebered For His Speech On The Complexity of Being A Catholic Politician

The New York Times reports that former New York Governor Mario Cuomo died today at age 82.  Among many other things, Cuomo is remembered for a groundbreaking speech given at Notre Dame University in 1984 titled Religious Belief and Public Morality: A Catholic Governor's Perspective (full text) in which he said:

I protect my right to be a Catholic by preserving your right to believe as a Jew, a Protestant or non-believer, or as anything else you choose.  We know that the price of seeking to force our beliefs on others is that they might some day force theirs on us....

Cuomo used the speech to make a forceful argument in defense of Catholic public officials who do not support anti-abortion legislation.  He said in part:

As Catholics, my wife and I were enjoined never to use abortion to destroy the life we created, and we never have..... But not everyone in our society agrees with me and Matilda.

And those who don't -- those who endorse legalized abortions -- aren't a ruthless, callous alliance of anti-Christians determined to overthrow our moral standards. In many cases, the proponents of legal abortion are the very people who have worked with Catholics to realize the goals of social justice set out in papal encyclicals: the American Lutheran Church, the Central Conference of American Rabbis, the Presbyterian Church in the United States, B'nai B'rith Women, the Women of the Episcopal Church. These are just a few of the religious organizations that don't share the Church's position on abortion....

I repeat, there is no Church teaching that mandates the best political course for making our belief everyone's rule, for spreading this part of our Catholicism. There is neither an encyclical nor a catechism that spells out a political strategy for achieving legislative goals....

This latitude of judgment is not something new in the Church, not a development that has arisen only with the abortion issue. Take, for example, the question of slavery. It has been argued that the failure to endorse a legal ban on abortions is equivalent to refusing to support the cause of abolition before the Civil War.....

But the truth of the matter is, few if any Catholic bishops spoke for abolition in the years before the Civil War....  They weren't hypocrites; they were realists. At the time, Catholics were a small minority, mostly immigrants, despised by much of the population, often vilified and the object of sporadic violence. In the face of a public controversy that aroused tremendous passions and threatened to break the country apart, the bishops made a pragmatic decision. They believed their opinion would not change people's minds.... [S]o they were silent. As they have been, generally, in recent years, on the question of birth control. And as the Church has been on even more controversial issues in the past, even ones that dealt with life and death.

... The decision they made to remain silent on a constitutional amendment to abolish slavery or on the repeal of the Fugitive Slave Law wasn't a mark of their moral indifference: it was a measured attempt to balance moral truths against political realities. Their decision reflected their sense of complexity, not their diffidence....

Britain's Supreme Court Punts On Whether Narrow Abortion Law Conscience Rights Violate Religious Freedom

In Greater Glasgow Health Board v. Doogan, (UK SC, Dec. 17, 2014), the United Kingdom's Supreme Court gave a narrow interpretation to the conscience clause in Britain's Abortion Act 1967, but left open the question of whether that interpretation violates religious freedom rights or amounts to religious discrimination.  Section 4(1) of the Abortion Act provides that, with certain exceptions:

no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection....

In a suit by two Catholic midwives who worked as labor-ward coordinators, the Court held that "participate in" should be read narrowly:

It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital..., the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. “Participate” in my view means taking part in a “hands-on” capacity.

However, in an important qualification, the Court said:

So, even if not protected by the conscience clause in section 4, the petitioners may still claim that, either under the Human Rights Act or under the Equality Act, their employers should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs. This will, to some extent at least, depend upon issues of practicability which are much better suited to resolution in the employment tribunal proceedings (currently sisted pending the resolution of this case) than in judicial review proceedings such as these.

The Court also issued a press release summarizing the decision, and BBC News reports on the decision. [Thanks to Scott Mange for the lead.]

Suit Challenges Vote Counting On Tennessee Pro-Life Amendment

Tennessee voters this month voted on a proposed state constitutional amendment providing:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.

In preliminary results, state election officials reported that the measure passed 728,751 in favor and 656,427 opposed.  However, the Memphis Flyer reports that in an attempt to prevent the measure from taking effect, a group of pro-choice voters have filed suit in federal district court challenging the state's vote-counting procedure.

Tennessee Constitution, Art. XI, Sec. 3, provides that amendments need to be approved "by a majority of all the citizens of the state voting for governor, voting in their favor."  Plaintiffs claim that this is more than a requirement for a certain number of total votes.  They say election officials must actually match ballots and count only votes from voters who also voted for Governor. Supporters of the ballot measure this year had urged their backers to vote for the Amendment, but not vote for governor, in order to magnify the effect of their vote.  Apparently many did this because some 32,500 more votes in total were cast for or against the amendment that in the governor's race.

Certiorari Denied In NYC Pregnancy Center and Texas Episcopal Church Property Cases

The U.S. Supreme Court today (Order List) denied review in two groups of cases of interest to Religion Clause readers.

The first involved a challenges to the New York City ordinance requiring pregnancy service centers to disclose various items to potential clients. The 2nd Circuit upheld (by a 2-1 vote) the requirement to disclose whether or not there is a licensed medical provider on staff. It unanimously struck down the requirements to disclose whether or not the center provides or refers out for abortion, emergency contraception and prenatal care, and a requirement to disclose that the New York health department encourages women who may be pregnant to consult a licensed medical provider. (See prior related posting.) The cases are Evergreen Association, Inc.  v. New York, NY, Docket No. 13-1462, cert. denied 11/3/2014) and Pregnancy Care Center v. New York, NY, (Docket No. 13-1504, cert. denied 11/3/2014). Reuters reports on the denial of review.

The Supreme Court also denied review in Episcopal Church v. Episcopal Diocese of New York, (Docket No. 13-1520, cert. denied 11/3/2014).  The petition involved related decisions by the Texas Supreme Court in two cases holding that the neutral principles approach must be used in deciding ownership of property of the break-away Fort Worth diocese. (See prior posting.) AP reports on the Supreme Court's action.

Issues of Interest on Tomorrow's State Ballots

Tomorrow is election day. Here are some of the ballot issues in various states that may be of interest to Religion Clause readers:

• Alabama- Statewide Amendment 1: Alabama Foreign Laws In Court.
• Colorado- Amendment 67: Definition of Personhood.
• Illinois- Advisory Question: Birth Control in Prescription Drug Coverage.
• North Dakota- Measure 1: Life Begins At Conception Amendment.
• Tennessee- Amendment 1: Legislative Powers Regarding Abortion.

Supreme Court Temporarily Stays Texas Abortion Clinic Restrictions

The U.S. Supreme Court this evening issued an Order (full text) in Whole Women's Health v. Lakey preventing portions of Texas' new regulation of abortion clinics from taking effect while a challenge to them is pending in the 5th Circuit. The 5th Circuit (full text of decision) had stayed the district court's injunction against enforcement of certain of the law's provision. As reported by SCOTUSblog, under the Supreme Court's ruling:

The state may not now enforce a requirement that all clinics in the state upgrade their facilities to be hospital-like surgical centers, even when they perform abortions only through the use of drugs, not surgery.  And it may not enforce, against the clinics in McAllen and El Paso, a requirement that all doctors performing abortions have privileges to admit patients to a hospital within thirty miles of the clinic.  That requirement can continue to be enforced elsewhere in Texas, the Court indicated.

Those two provisions, together, had reduced the number of clinics still operating in the state to seven, with an eighth soon to open.  At one time recently, Texas had forty-one clinics.  The Supreme Court’s action Tuesday will allow the reopening of thirteen closed clinics on Wednesday, lawyers for the clinics said.

Justices Scalia, Thomas and Alito dissented.