Churches File Complaint With HHS Over California Abortion Coverage Requirement

Following up on a similar complaint filed last month on behalf employees of Loyola Marymount University (see prior posting), two advocacy groups filed a complaint (full text) last week with the Department of Health and Human Services on behalf of seven churches and a church-run school objecting to recent California actions requiring all group health plans to cover elective abortions. The complaint contends that the churches' health plans were changed without their consent to comply with the California Department of Managed Health Care's directive interpreting the scope of "basic health care services."  The churches argue that the California requirement violates the federal Hyde-Weldon Conscience Protection Amendment (Sec. 507 of the 2014 Consolidated Appropriations Act) that prohibits states from discriminating against a health care entity because it does not provide abortion coverage. They say that denying approval of their plans that do not cover abortions amounts to illegal discrimination. Alliance Defending Freedom issued a press release announcing the filing of the Oct. 9 complaint.

Complaint Filed With HHS Over California Requirement That Insurance Policies Cover Elective Abortions

Last week, seven employees of the religiously-affiliated Loyola Marymount University filed a complaint (full text) with the U.S. Department of Health and Human Services objecting to a decision by the California Department of Managed Health Care requiring all private health care plans in the state to cover elective abortions. The complaint contends that the state's decision depriving them of a plan that omits elective abortion coverage violates the Hyde-Weldon Conscience Protection Amendment (Sec. 507 of the 2014 Consolidated Appropriations Act). That provision prohibits states from discriminating against a health care entity because it does not provide abortion coverage. A press release announced the filing of the complaint by Life Legal Defense Foundation and Alliance Defending Freedom.

Satanic Temple Says Its Followers Can Claim Exemption From Informed Consent Abortion Laws Under Hobby Lobby Principles

The Satanic Temple announced yesterday that it was launching a campaign against "informed consent" laws that require abortion providers to furnish women certain informational material when they seek an abortion.  Citing the Supreme Court's recent Hobby Lobby decision, the group argues that women can claim an religiously-based exemption from the informational requirements. It makes available through its website a letter that women may download and present to their physician asking for an exemption. The Temple says that it believes the body is subject to one's will alone, and that the informational statutes require biased and false information to be presented to discourage abortions. It explains:

the Supreme Court has decided that religious beliefs are so sacrosanct that they can even trump scientific fact. This was made clear when they allowed Hobby Lobby to claim certain contraceptives were abortifacients, when in fact they are not. Because of the respect the Court has given to religious beliefs, and the fact that our our beliefs are based on best available knowledge, we expect that our belief in the illegitimacy of state ­mandated ‘informational’ material is enough to exempt us, and those who hold our beliefs, from having to receive them.

Huffington Post has more details.

Lawsuit Challenges Lack of Availability of Plans Without Abortion Coverage On Health Insurance Exchange

The Providence (RI) Journal reports today on a lawsuit with a new twist on free exercise objections to the Affordable Care Act.  Barth Bracy, director of the Rhode Island Right to Life Committee and a resident of Connecticut, along with his wife, filed suit two months ago because the only health care plans available through the Health Insurance Exchange in Connecticut include abortion coverage.  All enrollees must pay a small separate fee for that coverage.

The complaint (full text) in Bracy v. Sebelius, (D CT, filed 5/1/2014), alleges that if the Bracys purchase a plan through the Exchange, they will receive nearly a 100% subsidy for its cost.  But they can only obtain a plan that excludes abortion coverage by purchasing outside the Exchange and receive no subsidy.  The premium on such a plan would be nearly double the $494 per month premium they are now paying. They allege that this violates their rights protected by the Free Exercise Clause, RFRA and the Connecticut Religious Freedom Restoration Act. They also claim that their 1st Amendment right to receive information is infringed by regulations that prohibit insurers or exchanges from advertising whether plans cover abortions, from informing enrollees prior to the time of enrollment whether the plan covers abortion, and prohibits telling enrollees the portion of their total premium that is allocated to abortion coverage.

Supreme Court Strikes Down Massachusetts Abortion-Clinic Buffer Zone Law

The U.S. Supreme Court today in McCullen v. Coakley, (S.Ct., June 26, 2014) struck down the Massachusetts statute that creates a 35-foot buffer zone around abortion clinics. The law prevents anti-abortion sidewalk counselors from entering the buffer zone.  The Court's majority decision written by Chief Justice Roberts struck down the law on narrow free speech grounds. While the state has a legitimate interest in preserving access to clinics, and while this is a neutral statute, it burdens more speech that in necessary to accomplish that purpose.  The Chief Justice explains:

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a tradi­tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment. 

Justice Scalia's opinion, joined by Justices Kennedy and Thomas, concurring only in the judgment, criticizes the majority's approach:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.... The ... Court’s analysis today, invalidat­ing the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion­ speech edition of the First Amendment. But think again. This is an opinion that ... continues the onward march of abortion-speech-only jurisprudence. 

Justice Alito also wrote a separate opinion concurring only in the judgment. The New York Times reports on the decision.

Pregnancy Service Center Signage Requirement Held Void-For-Vagueness

In Austin LifeCare, Inc. v. City of Austin, (WD TX, June 23, 2014), a Texas federal district court struck down as void for vagueness an Austin, Texas ordinance that requires unlicensed pregnancy service centers that do not have full-time licensed health care providers on site to post signs to indicate whether the center provides medical services and if the services are provided under supervision of a licensed health care provider. The ordinance covers centers that offer pregnancy testing or perform sonograms and then offer options counseling. The court concluded that neither "full time" nor "medical services" is adequately defined in the ordinance. Austin American-Statesman reports on the decision.

Supreme Court Review Sought In NY Pregnancy Service Center Case

On Friday, the American Center for Law and Justice filed a petition for certiorari (full text) with the U.S. Supreme Court in Evergreen Association, Inc. v. City of New York.  In the case, the 2nd Circuit upheld a portion of a New York City ordinance requiring pregnancy service centers to make certain disclosures to potential clients in waiting rooms, in advertisements and in telephone conversations.  The Second Circuit in its Jan. 17, 2014 opinion (full text) upheld (by a 2-1 vote) the requirement to disclose whether or not there is a licensed medical provider on staff. The circuit court 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.

Catholic Group Criticizes 20 Colleges For Inviting "Scandalous" Commencement Speakers

The Cardinal Newman Society yesterday issued a "Special Report" criticizing 20 Catholic colleges and universities for inviting as commencement speakers this year public figures or politicians who support abortion rights or same-sex marriage.  The detailed list of schools faulted for scheduling "scandalous commencement speakers and honorees" includes Boston College whose commencement speaker is Secretary of State John Kerry, Georgetown University whose commencement speaker is Treasury Secretary Jacob Lew, and Villanova University whose commencement speaker is Dr. Jill Biden.  As is typical, honorary degrees are being awarded by the various universities to their commencement speakers as well.

Supreme Court Denies Review In Case of Disciplinary Sanctions On Former Kansas AG For Abortion Clinic Investigations

The Supreme Court today denied certiorari in Kline v. Kansas Disciplinary Administrator, (Docket No. 13-1104, cert. denied 4/28/2014) (Order List). In the case, the Kansas Supreme Court imposed an indefinite suspension of the right to practice law on former state attorney general Phillip Kline for 11 violations of the rules of professional conduct in his investigation of abortion clinics while he served as Attorney General and for his role with a citizen-requested grand jury while he served as Johnson County District Attorney. (See prior posting.)

6th Circuit, Critical of U.S. Marshals, Still Upholds Qualified Immunity In Seizure For Planned Parenthood Judgment

In Bray v. Planned Parenthood Columbia-Willamette, Inc., (6th Cir., March 21, 2014), the U.S. 6th Circuit Court of Appeals in an opinion highly critical of the U.S. Marshals Service and others nevertheless upheld the dismissal on qualified immunity grounds of a suit against two U.S. Marshals over a raid they conducted.  Planned Parenthood had obtained an $850,000 judgment against Michael Bray, a minister and anti-abortion activist who authored the book A Time To Kill,  and  previously spent 4 years in prison for his connection with bombings of abortion clinics.. (Background.) This lawsuit grew out of the execution of a writ to seize property to satisfy Planned Parenthood's judgment.  The writ specifically authorized seizure of Bray's computers, cameras, books and writings. Representatives of Planned Parenthood went along with the marshals  The 6th Circuit said:

If the facts alleged in the complaint are true, this case involves an incident that is more like home raids by Red Guards during China’s Cultural Revolution than  like what we should expect in the United States of America. A surprise raid was made on a judgment debtor’s home to enforce an order of execution on property of the debtor. The order was ostensibly for the purpose of obtaining property of value to be seized, but was obviously focused instead on all means for the debtor to express ideas....

Nonetheless, the officers are protected from suit by the doctrine of qualified immunity, because these constitutional rights were not clearly established at the time of the violations.... [T]he legal and factual scenario presented in this action is not identical to any the Sixth Circuit or the Supreme Court has previously addressed....

Suit By Evangelical Family Challenges Abortion Clinic Buffer Zone

The Thomas More Law Center yesterday announced that it has filed a federal lawsuit challenging a Portland, Maine ordinance that creates a 39-foot buffer zone around reproductive health clinics to prevent protests and counseling on sidewalks near the city's single clinic that provides abortions. The complaint (full text) in Fitzgerald v. City of Portland, (D ME, filed 2/12/2014), alleges that plaintiffs, a family who identify themselves as Evangelicals, have been peacefully praying and counseling women outside the clinic for 16 months, passing out literature and Bible tracts. The ordinance prevents their activities. The suit claims that this is a broad, vague content-based prior restraint on their speech. A suit raising similar legal issues was argued before the U.S. Supreme Court last month. (See prior posting.)

4th Circuit: North Carolina May Not Issue Pro-Life Plates And Refuse Pro-Choice Ones

In ACLU v. Tata, (4th Cir., Feb. 11, 2014), the U.S. 4th Circuit Court of Appeals held that North Carolina has engaged in unconstitutional viewpoint discrimination when it specifically authorized a "Choose Life" specialty license plate and refused to issue a pro-choice specialty plate.  The court rejected the state's argument that this was permissible because specialty plates are government speech:

[W]e agree with the district court “that sufficient private speech interests are implicated by the specialty license plates to preclude a finding of purely government speech.”.... 

North Carolina ... laments that if it has created a forum, it “must allow all viewpoints to be heard via specialty plates.” .... This complaint seems at odds with North Carolina’s contention that its vast array of specialty plates “celebrat[es]” the “diversity of its citizen’s interests . . . .”... Apparently, North Carolina wishes to celebrate only some interests of some of its citizens— namely those with which it agrees. This, it may not do.

North Carolina then sounds the death knell for specialty plates, predicting a “flood” of “Kill The Sea Turtles” and “Children Last” plates that will force it to end its specialty plate program.... Melodrama aside, our ruling today “does not render [North] Carolina powerless to regulate its specialty license plate forum.” ... But it must do so in a viewpoint-neutral fashion—which it already does, to some extent, by requiring three hundred applicants before issuing a new specialty plate. Surely such a requirement can filter out “frivolous license plate proposals” and prevent the roads from being inundated with “license plates advocating reckless pet breeding.”

WRAL News reports on the decision.

Supreme Court Hears Oral Arguments In Abortion Clinic Buffer Zone Case

The U.S. Supreme Court this morning heard oral arguments in McCullen v. Coakley, a case challenging on free speech grounds a Massachusetts law creating a 35-foot buffer zone around abortion clinics to shield women entering the clinics from abortion opponents.  The law allows only clinic employees acting within the scope of their employment to be on sidewalks within the buffer zone. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the arguments, as well as well as a case page with links to all the briefs, the lower court opinion and other information.

ACLU Sues Catholic Bishops For Negligence Over Hospital Guidelines That Bar Abortions In All Situations

The ACLU announced yesterday that it has filed a federal lawsuit against the U.S.Conference of Catholic Bishops and the chair and former chair of Catholic Health Ministries on behalf of a woman who was not informed by a Catholic hospital in Muskegon, Michigan of the option to terminate her pregnancy when her water broke after 18 weeks of pregnancy. The complaint (full text) in Means v. U.S. Conference of Catholic Bishops, (ED MI, filed 11/29/2013), alleges negligence "for promulgating and implementing directives that cause pregnant women who are suffering from a miscarriage to be denied appropriate medical care, including information about their condition and treatment options."  The suit, which does not name the Michigan hospital itself a a defendant, was brought in federal court on diversity of citizenship grounds.  It complains that the USCCB's Ethical and Religious Directives for Catholic Health Care Services, which provide that abortion is never permitted, are required to be applied even when doing so places a woman's health or life at risk. The New York Times reports on the case. [Thanks to Scott Mange for the lead.]