Jewish Women Lack Standing in Religious Freedom Challenge to Kentucky Abortion Restrictions

In Sobel v. Cameron, (KY Cir. Ct., June 28, 2024), plaintiffs, three Jewish women, alleged, among other things, that the lack of exceptions for complications during pregnancy and lethal fetal anomalies in Kentucky's restrictive abortion laws impinge on their willingness to follow their religious obligations to expand their families in a manner that does not jeopardize their health or the health of their unborn children. Plaintiffs say that "In Judaism, having children is considered a blessing, and the commandment to be fruitful and multiply is paramount." Plaintiffs alleged that the abortion statutes are unconstitutionally vague, violate the Kentucky Religious Freedom Restoration Act and reflect sectarian Christian views that denigrate Jewish practice. A Kentucky state trial court dismissed the case, saying in part:

... [T]he alleged injuries of the three Plaintiffs are hypothetical as none are currently pregnant or undergoing IVF at the present time. Accordingly, the Court simply cannot find that the plaintiffs have shown "the existence of an actual controversy respecting justiciable questions which is a required condition precedent for a declaratory judgment action.... Therefore, the Court must conclude that the Plaintiffs here lack standing to proceed in this action.

NPR reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Iowa Supreme Court Allows 6-Week Abortion Ban to Go into Effect

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup.Ct., June 28, 2024), the Iowa Supreme Court in a 4-3 decision reversed the grant of a temporary injunction against Iowa's 6-week fetal heartbeat abortion ban. The Court said in part:

We have previously held that abortion is not a fundamental right under the Iowa Constitution....  Applying our established tiers of scrutiny, we hold that abortion restrictions alleged to violate the due process clause are subject to the rational basis test. Employing that test here, we conclude that the fetal heartbeat statute is rationally related to the state’s legitimate interest in protecting unborn life. We thus reverse the district court order entering the temporary injunction blocking enforcement of the fetal heartbeat statute....

Chief Justice Christensen, joined by Justices Waterman and Mansfield, filed a dissenting opinion, saying in part:

Today, our court’s majority strips Iowa women of their bodily autonomy by holding that there is no fundamental right to terminate a pregnancy under our state constitution. I cannot stand by this decision. The majority’s rigid approach relies heavily on the male-dominated history and traditions of the 1800s, all the while ignoring how far women’s rights have come since the Civil War era. It is a bold assumption to think that the drafters of our state constitution intended for their interpretation to stand still while we move forward as a society. Instead, we should interpret our constitution through a modern lens that recognizes how our lives have changed with the passage of time.

Justice Mansfield, joined by Chief Justice Christensen and Justice Waterman, filed a dissenting opinion saying in part:

I believe that subjecting a near-total ban on abortion to a rational basis test—the same test we apply to traffic cameras, and a more forgiving test than the one we apply to a law not allowing county auditors to correct defective absentee ballot applications—disserves the people of Iowa and their constitution. The liberty protected by article I, section 9 of the Iowa Constitution includes a woman’s ability to make decisions regarding her own body, just as it includes rights of procreation, parenting, and to use contraception.

Wisconsin Supreme Court: Harassment Injunction Against Anti-Abortion Protester Vacated

In Kindschy v. Aish, (WI Sup. Ct., June 27, 2024), the Wisconsin Supreme Court ordered a trial court to vacate a harassment injunction issued against an anti-abortion protester.  At issue were allegedly threatening statements made to nurse practitioner Nancy Kindschy on three different dates as she left work at a family planning clinic. For example, defendant Brian Aish warned Kindschy that she "had time to repent, that 'it won't be long before bad things will happen to you and your family,' and that 'you could get killed by a drunk driver tonight.' " The court said in part:

We conclude that the injunction is a content-based restriction on Aish's speech, and therefore complies with the First Amendment only if: (1) Aish's statements were "true threats" and he "consciously disregarded a substantial risk that his [statements] would be viewed as threatening violence;" or (2) the injunction satisfies strict scrutiny; that is, it is narrowly tailored to achieve a compelling state interest.... On the record before us, we hold that the injunction fails to satisfy either of these two standards. We therefore reverse the decision of the court of appeals and remand to the circuit court with instructions to vacate the injunction.

The court explained further:

In this case, the circuit court's harassment injunction was issued before Counterman [v. Colorado] was decided [by the U.S. Supreme Court]. The circuit court therefore did not evaluate whether Aish's statements were true threats, or whether he "consciously disregarded a substantial risk that his communications would be viewed as threatening violence." ... Because the circuit court failed to make clear findings regarding Aish's subjective mental state as it relates to his statements to Kindschy, we need not decide whether Aish's statements were true threats. Whether they were true threats or not, the injunction cannot be justified on true-threats grounds.,,,

Justice Bradley filed a concurring opinion, saying in part:

On their face, Aish's statements cannot be interpreted as true threats.

Aish uttered words of caution or warnings, not threats of violence....

More importantly, none of the three statements suggested Aish or a co-conspirator would be the one to cause any harm to Kindschy. At most, the statements suggested unaffiliated third parties could cause Kindschy harm, like a "drunk driver."

Thomas More Society issued a press release announcing the decision.

Suit Challenges Michigan Medicaid Ban on Abortion Funding

Suit was filed yesterday in the Michigan Court of Claims challenging the exclusion of abortion coverage from the state's Medicaid program. Plaintiff is a local YWCA which operates a Reproductive Health Fund that provides financial support for county residents for reproductive health care, including abortion services. The complaint (full text) Young Women's Christian Association of Kalamazoo, Michigan v. State of Michigan, (MI Ct. Cl., filed 6/27/2024), alleges that the exclusion violates the state Constitutional Amendment protecting reproductive freedom, the Michigan Reproductive Health Act which implemented the Amendment and the ban on sex discrimination. ACLU issued a press release announcing the filing of the lawsuit.

Supreme Court Backs Off Deciding Whether EMTALA Pre-empts Idaho's Abortion Ban

In Moyle v. United States, (Sup. Ct., June 27, 2024), the U.S. Supreme Court reinstated an injunction that had been issued by an Idaho federal district court (see prior posting) which barred Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The Supreme Court did this in a per curiam order that vacated a previous stay of the injunction issued by the Supreme Court and which returned the case to the 9th Circuit Court of Appeals, finding that certiorari had been improvidently granted.

Justice Kagan, joined by Justice Sotomayor filed an opinion concurring with the dismissal, saying in part: 

Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute....

[Idaho] mainly argues that EMTALA never requires a hospital to “offer medical treatments that violate state law,” even when they are needed to prevent substantial health harms.... In my view, that understanding of EMTALA is not “likely to succeed on the merits,” and so cannot support a stay of the injunction.

Justice Jackson concurred in the portion of Justice Kagan's opinion that responded to Justice Alito's dissenting opinion. 

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh filed a concurring opinion, saying in part:

A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving. The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up...

On top of that, petitioners have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.

Justice Jackson filed an opinion concurring in part and dissenting in part, saying in part:

This Court typically dismisses cases as improvidently granted based on “circumstances . . . which ‘were not . . . fully apprehended at the time certiorari was granted.’” ... This procedural mechanism should be reserved for that end—not turned into a tool for the Court to use to avoid issues that it does not wish to decide.

The reasons that justified our grant of certiorari in these cases still hold true today.... The importance of recognizing Congress’s judgments in EMTALA remains as imperative as ever. The United States is still hamstrung in its ability to enforce federal law while States pass laws that effectively nullify EMTALA’s requirements. And, on the ground, healthcare providers “have been all but paralyzed by legal uncertainties,” placing pregnant patients at risk while they are waiting to be transferred out of State to receive the care they need....

If anything, the need for a clear answer to the Supremacy Clause question has only increased in the intervening months....

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects....

Justice Alito, joined by Justice Thomas and in part by Justice Gorsuch, filed a dissenting opinion, saying in part:

 At no point in its elaboration of the screening, stabilization, and transfer requirements does EMTALA mention abortion. Just the opposite is true: EMTALA requires the hospital at every stage to protect an “unborn child” from harm....

For those who find it appropriate to look beyond the statutory text, the context in which EMTALA was enacted reinforces what the text makes clear. Congress designed EMTALA to solve a particular problem—preventing private hospitals from turning away patients who are unable to pay for medical care.... And none of many briefs submitted in this suit has found any suggestion in the proceedings leading up to EMTALA’s passage that the Act might also use the carrot of federal funds to entice hospitals to perform abortions. To the contrary, EMTALA garnered broad support in both Houses of Congress, including the support of Members such as Representative Henry Hyde who adamantly opposed the use of federal funds to abet abortion.....

EMTALA is an exercise of Congress’s spending power. And when Congress relies on its authority to attach conditions to the receipt of federal funds, special rules apply....

The potential implications of permitting preemption here are far-reaching. Under the Government’s view, Congress could apparently pay doctors to perform not only emergency abortions but also third-trimester elective abortions or eugenic abortions. It could condition Medicare funds on hospitals’ offering assisted suicide even in the vast majority of States that ban the practice....

NBC News reports on the decision.

Pro-Life Pregnancy Centers May Move Ahead with Challenges to Vermont Regulations

 In National Institute of Family and Life Advocates v. Clark, (D VT, June 14, 2024), a Vermont federal district court allowed three pro-life pregnancy centers to move ahead with free speech challenges to Vermont's regulation of limited-service pregnancy centers. At issue is a prohibition on disseminating misleading information about the services offered by such pregnancy centers as well as a provision making health care professionals at these pregnancy centers responsible for the conduct and speech of non-licensed individuals.  The statute also provides that offering services to reverse a medication abortion constitutes unprofessional conduct by health care workers at the centers. The court rejected the state's claim that the speech being regulated is commercial speech or is regulation of professional conduct that merely incidentally regulates speech. It allowed plaintiffs to move ahead with their claims that the statutes discriminate on the basis of the viewpoint. However, the court dismissed plaintiffs' vagueness claims. ADF issued a press release announcing the decision.

Michigan Court Enjoins Abortion Restrictions Including 24-Hour Waiting Period and Consent Form

 In Northland Family Planning Center v. Nessel, (MI Ct. Cl., June 25, 2024), the Michigan Court of Claims issued a preliminary injunction against enforcement of three restrictions on abortion procedures found in Michigan law.  The enjoined provisions impose a 24-hour mandatory waiting period, require a uniform informed consent for women seeking an abortion, and bar advanced practice clinicians from performing abortions. The court held that the provisions are unconstitutional under a state constitutional amendment adopted by referendum in 2022 which grants every individual a fundamental right to reproductive freedom and provides that an "individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means." The court said in part:

... [T]he Court is convinced that the [24-hour] mandatory delay exacerbates the burdens that patients experience seeking abortion care, including by increasing costs, prolonging wait times, increasing the risk that a patient will have to disclose their decision to others, and potentially preventing a patient from having the type of abortion that they prefer....

The informed-consent provisions, read as whole, are designed to force a patient to consider the alternative of not having an abortion. The manner in which the information is presented is not neutral; it is designed to eschew abortion in favor of completing a pregnancy. This forced deliberation, through the mandatory informed-consent process, burdens and infringes upon a patient’s right to make and effectuate decisions about abortion care. The State is metaphorically putting its finger on the scale, thereby infringing upon a patient’s deliberative process.

The court however refused to enjoin provisions calling for oral counseling against coercion and providing resources to victims of domestic violence. Bridge Michigan reports on the decision.

Court Says States Lack Standing to Challenge EEOC's New PWFA Abortion-Accommodation Rule [CORRECTED]

In States of Tennessee et. al. v. EEOC, (ED AR, June 17, 2024), an Arkansas federal district court held that 17 states that are plaintiffs in the case lack standing to challenge an EEOC Final Rule implementing the Pregnant Workers Fairness Act.  At issue is the Rule's requirement that employers provide reasonable accommodation for employees' elective abortions. The court said in part:

[The states] press dual theories of injury -- sovereign harms and economic harms. The sovereign harms, the States say, are twofold: the rule will abridge their ability to regulate abortions and their interests in maintaining a pro-life message in dealing with state employees. The economic harms are the rule-related compliance costs the States say they will incur in response to potential enforcement....

The sovereign harms are not imminent because there is no credible threat of enforcement. ...

Even assuming an injury in fact, though, the States' sovereign-injury theory still fails for lack of causation and redressability. ...

Unlike in situations involving private employers, the EEOC cannot bring enforcement actions against state employers....  If an agreement isn't reached within thirty days after a charge is filed, the EEOC "shall take no further action and shall refer the case to" the Department of Justice"....

That leaves the alleged economic harms. The States don't claim any sunk costs. They only say that their compliance costs are imminent.. This economic-harm theory fails for two reasons.

First, the challenged costs-- those resulting only from rule-related compliance activities associated with illegal, elective abortions are neither concrete nor particularized. ...

Second, even assuming some concrete and particularized compliance costs related to illegal, elective abortions, these costs are not fairly traceable to any threat of enforcement....

Beyond the intense controversy surrounding abortion, there are no signs that this is a major questions case. Chevron's general rule applies.

CORRECTION: An earlier version of this post incorrectly said this was decided by a Tennessee federal district court. 

A Louisiana federal district court has just reached the opposite conclusion (see prior posting.) [Thanks to Thomas Rutledge for the lead.]

Court Says EEOC Exceeded Its Authority in New Rules Under Pregnant Workers Fairness Act

In State of Louisiana v. EEOC, (WD LA, June 17, 2024), a Louisiana federal district court granted a preliminary injunction to the states of Louisiana and Mississippi, as well as to the U.S. Conference of Catholic Bishops and two Louisiana dioceses, postponing the effectiveness of new EEOC rules under the Pregnant Workers Fairness Act that require employers to accommodate employees' elective abortions. The court said in part:

If Congress had intended to mandate that employers accommodate elective abortions under the PWFA, it would have spoken clearly when enacting the statute, particularly given the enormous social, religious, and political importance of the abortion issue in our nation at this time (and, indeed, over the past 50 years).  The Court is therefore not persuaded, on the record before it, that Congress could reasonably be understood to have granted the EEOC the authority to interpret the scope of the PWFA in a way that imposes a nationwide mandate on both public and private employers – irrespective of applicable abortion-related state laws enacted in the wake of Dobbs – to provide workplace accommodation for the elective abortions of employees.

In this sense, EEOC’s use of its regulatory power to insert the issue of abortion into a law designed to ensure healthy pregnancies for America’s working mothers squarely implicates the “major questions doctrine” as enunciated by the Supreme Court....  The major questions doctrine applies when an “agenc[y] assert[s] highly consequential power beyond what Congress could reasonably be understood to have granted.”...

Clearly, EEOC failed to include a broad religious exception in the Final Rule, and... EEOC’s interpretation of the PWFA religious exception – inasmuch as it mirrors the religious exception in Title VII, an antidiscrimination statute – does not square with the PWFA.

See prior related posting.

Missouri Abortion Bans Do Not Violate State Constitution's Establishment Clauses

In Blackmon v. State of Missouri, (MO Cir. Ct., June 1, 2024), a Missouri trial court held that Missouri's various statutory provisions banning abortion do not violate the Establishment Clauses of the Missouri Constitution. Plaintiffs focused particularly on the mention of God in one of the statutory provisions and the legislative determination that life begins at conception in other provisions. The court concluded that the language mentioning God was similar to that in the Preamble to the Missouri Constitution, and that finding that language problematic would call into question whether the state Constitution's Preamble itself violates the Constitution.  In rejecting plaintiffs' other challenges, the court said in part:

Large portions of the parties' arguments centered around comments made by legislators concerning their religious motivations for supporting the Challenged Provisions. However, the court finds that individual comments by legislators should be given little to no consideration when determining the constitutionality of the Challenged Provisions....

The court does not accept Petitioners' argument that the determination that life begins at conception is strictly a religious one. The plain language of the Challenged Provisions stating that life begins at conception do not do so in religious terms.... While the determination that life begins at conception may run counter to some religious beliefs, it is not itself necessarily a religious belief. As such, it does not prevent all men and women form worshiping Almighty God or not worshipping according to the dictates of their own consciences....

Americans United issued a press release responding to the decision.

Supreme Court Says Plaintiffs Lack Standing To Challenge FDA's Rules on Abortion Drugs

In Food and Drug Administration v. Alliance for Hippocratic Medicine, (Sup. Ct., June 13, 2024), the U.S. Supreme court today held unanimously that plaintiffs who are challenging the FDA’s rules on prescribing and distributing the abortion drug mifepristone lack standing to bring the lawsuit.  The Court said in part:

Here, the plaintiff doctors and medical associations are unregulated parties who seek to challenge FDA’s regulation of others. Specifically, FDA’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone. But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And FDA has not required the plaintiffs to do anything or to refrain from doing anything….

The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone. But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court. Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions. The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes. 

“No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”

Justice Kavanaugh wrote the Court’s opinion, and Justice Thomas filed a concurring opinion.

AP reports on the decision.

Catholic Bishops Sue EEOC Over Rules Implementing Pregnant Workers Fairness Act

Suit was filed last month in a Louisiana federal district court by the U.S. Conference of Catholic Bishops, Catholic University of America and two Louisiana Catholic dioceses challenging rules adopted in April of this year by the Equal Employment Opportunity Commission implementing the Pregnant Workers Fairness Act.  The Act requires employers to provide reasonable accommodation for employees in connection with pregnancy, childbirth or related medical conditions. At issue in the recent lawsuit is the EEOC's inclusion of abortion as a related medical condition. The complaint (full text) in United States Conference of Catholic Bishops v. Equal Employment Opportunity Commission, (WD LA, filed 5/22/2024) alleges in part:

The PWFA is not an abortion accommodation mandate. Rather, it fills a gap in federal employment law by ensuring pregnant women receive workplace accommodations to protect their pregnancies and their preborn children. Plaintiff United States Conference of Catholic Bishops (USCCB) enthusiastically supported the law’s bipartisan passage. That support reflected the PWFA’s uncontroversial and laudable purpose, which is fully consistent with the Catholic Church’s belief that all human life is imbued with innate dignity and its goal of ensuring a fairer workplace for women. But EEOC has now shoehorned a mandate that employers across the country knowingly support abortion into a statute explicitly designed to protect the health and safety of preborn babies and their mothers.  

Worse, at the same time that it expands federal law into fraught areas, EEOC also insists on nullifying the explicit religious exemption that Congress wrote into the PWFA. In the PWFA, Congress imported Title VII’s religious exemption, which expressly allows employers to make employment decisions based on sincere religious beliefs. See 42 U.S.C. § 2000gg-5(b). Of course, since the PWFA concerns only pregnancy in the workplace, this makes clear that Congress meant to allow religious exemptions from pregnancy-accommodation claims. Yet now EEOC claims the exemption bars only religious discrimination claims—which aren’t authorized by the PWFA in the first place. That renders the exception a nullity, protecting employers from PWFA claims that don’t exist.

National Review yesterday reported on the lawsuit.

5th Circuit Stays Contempt Order Requiring 3 Attorneys Take Religious Liberty Training

In Carter v. Local 556, Transport Workers Union of America, (5th Cir., June 7, 2024), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a controversial contempt sanction imposed by a Texas federal district court against three attorneys for Southwest Airlines. (See prior posting.) Southwest had failed to adequately comply with a remedial Order imposed on it for firing a flight attendant because of her social media posts and private messaging featuring aborted fetuses to illustrate her religious objections to abortion.  The district court, among other things, ordered that the attorneys responsible for non-compliance with the prior Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. In staying the contempt sanction, the Court of Appeals said in part:

[T]here is a strong likelihood that the contempt order exceeded the district court’s civil contempt authority....

Civil contempt sanctions are “remedial” and “designed to compel future compliance with a court order” by either “coerc[ing] the defendant into compliance with the court’s order” or “compensat[ing] the complainant for losses sustained” as a result of the noncompliance.... Criminal contempt sanctions, by contrast, are used to “punish defiance of the court and deter similar actions.”... Generally, “criminal [contempt] penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.”...

At bottom, it appears that the district court sought, at least in part, to punish Southwest for what the district court viewed as conduct flouting its holding that Southwest had violated Title VII. But its punitive sanctions likely exceed the scope of the court’s civil-contempt authority.

Law dork reports on the decision.

Obstructing Police Clearing Abortion Clinic Demonstrators Not Protected as Free Exercise

In People of the State of Michigan v. Connolly, (MI App., May 30, 2024), a Michigan state appellate court upheld convictions of four anti-abortion activists. Defendants had conducted a "red rose" rescue-- entering an abortion clinic, handing each client in the waiting room a rose and attempting to convince them not to proceed with abortions. When ordered by police to leave, defendants instead fell limp to the floor, and officers had to carry them out of the building. Defendants were convicted of resisting or obstructing a police officer, trespass and disturbing the peace. Defendants contended in part that the obstructing police conviction violated their First Amendment rights to the Free Exercise of religion because their actions were motivated by their Catholic faith. The court responded:

Defendants do not dispute that MCL 750.81d(1) is facially neutral because it does not refer to religion in any manner.  However, “[f]acial neutrality is not determinative.”... While a law plainly targeting a religion obviously is not neutral, “if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law [also] is not neutral[.]” ...

...  The language of MCL 750.81d is facially neutral, and defendants have not identified any possible legislative intent directed at individuals who practice Catholicism, or even those who oppose abortion on religious grounds.  Indeed, even a brief review of recent caselaw from this Court reveals MCL 750.81d is regularly used to prosecute individuals for reasons completely unrelated to religious beliefs.

The court also rejected vagueness and equal protection defenses.

Texas Supreme Court Rejects Expansion of Medical Exceptions to Abortion Ban

 In State of Texas v. Zurawski, (TX Sup. Ct., May 31, 2024), the Texas Supreme Court vacated a temporary injunction entered by a state trial court which had broadened the medical exception to Texas' abortion ban. The trial court had relied on the Due Course of Law and Equal Protection clauses of the Texas Constitution. The Supreme Court said in part:

Under the Human Life Protection Act, a woman with a life-threatening physical condition and her physician have the legal authority to proceed with an abortion to save the woman’s life or major bodily function, in the exercise of reasonable medical judgment and with the woman’s informed consent. As our Court recently held, the law does not require that a woman’s death be imminent or that she first suffer physical impairment. Rather, Texas law permits a physician to address the risk that a life-threatening condition poses before a woman suffers the consequences of that risk. A physician who tells a patient, “Your life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,” and in the same breath states “but the law won’t allow me to provide an abortion in these circumstances” is simply wrong in that legal assessment. 

Given this construction, we conclude that Dr. Karsan has not demonstrated that the part of the Human Life Protection Act that permits life-saving abortion is narrower than the Texas Constitution allows.

Justice Lehrmann filed a concurring opinion. Justice Busby also filed a concurring opinion which Justice Lehrmann joined.

CBS News reported on the decision.

Louisiana Legislature Bans Fraudulently Giving Women Abortion Pills; Reclassifies Abortion Pills as Dangerous Drugs

The Louisiana legislature yesterday gave final passage to Senate Bill 276 (full text). The bill creates the crime of "coerced criminal abortion by means of fraud", defined as "knowingly and intentionally engag[ing] in the use of an abortion-inducing drug on a pregnant woman, without her knowledge or consent, with the intent to cause an abortion."  The bill also categorizes the abortion drugs Mifepristone and Misoprostol as Schedule IV controlled substances which it is illegal to possess except pursuant to a valid prescription. It goes on to provide, however, that it is not a violation for a woman to possess these drugs for her own consumption.

AP reports on the bill in greater detail and explains:

[The bill's sponsor, Sen. Thomas] Pressly said both the bill and the amendment were motivated by what happened to his sister Catherine Herring of Texas. In 2022, Herring’s husband slipped her seven misoprostol pills in an effort to induce an abortion without her knowledge or consent.

The bill now goes to Governor Jeff Landry who is expected to sign the bill.

New York's Top Court Says That Religious Employer Exemption from Abortion Coverage Mandate Is Not Too Narrow

In Roman Catholic Diocese of Albany v Vullo, (NY Ct. App., May 21, 2024), New York's highest appellate court rejected a claim that the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow.  The exemption is available only to an employer that meets 4 criteria-- it is a non-profit organization whose purpose is the inculcation of religious values and it primarily employs and serves persons who share the entity's religious tenets. Plaintiffs, which are religiously affiliated entities, contend that their free exercise rights are infringed because they do not meet the criteria for the exemption, The court said in part:

... [B]oth the regulation itself and the criteria delineating a "religious employer" for the purposes of the exemption are generally applicable and do not violate the Free Exercise Clause. Neither the existence of the exemption in the regulation nor the defined criteria allow for "individualized exemptions" that are standardless and discretionary, nor do they allow for comparable secular conduct while discriminating against religious conduct.

Reuters reports on the decision.

New Report Finds 63% of Americans Support Legalized Abortion

Yesterday, the Pew Research Center released a new report on public attitudes toward legal abortion. The Report (full text) is titled Broad Public Support for Legal Abortion Persists 2 Years After Dobbs. The Center's Summary of the Report says in part:

About six-in-ten (63%) say abortion should be legal in all or most cases. This share has grown 4 percentage points since 2021 – the year prior to the 2022 decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe....

A narrow majority of Americans (54%) say the statement “the decision about whether to have an abortion should belong solely to the pregnant woman” describes their views extremely or very well. Another 19% say it describes their views somewhat well, and 26% say it does not describe their views well.

... About a third of Americans (35%) say the statement “human life begins at conception, so an embryo is a person with rights” describes their views extremely or very well, while 45% say it does not describe their views well....

Americans say medication abortion should be legal rather than illegal by a margin of more than two-to-one (54% vs. 20%). A quarter say they are not sure.

A second report concludes:

Seven-in-ten adults say IVF access is a good thing. Just 8% say it is a bad thing, while 22% are unsure.

Indiana Suit Seeks Release of Reports from Abortion Providers

Suit was filed last week in an Indiana state trial court by an anti-abortion organization objecting to the state Health Department's new policy of releasing only aggregate data from Termination of Pregnancy Reports filed by abortion providers. The organization seeks continued release of individual reports (which do not contain information identifying patients) in order to identify violations of health or safety standards by providers.  The complaint (full text) in Voices for Life v. Indiana Department of Health, (IN Super. Ct., filed 5/1/2024), alleges in part:

On April 11, 2024, Indiana Attorney General Todd Rokita issued an Official Opinion 2024-2. Exhibit 14. In it he rejected the Public Access Counselor’s informal opinion (23-INF-15) asserting that TPRs are patient medical records exempt from disclosure under I.C. § 5-14-3-4(a)(9), and set forth reasons why TPRs are not exempt from disclosure under the APRA on the theory they are patient records....

IDOH’s refusal to provide access to TPRs deprives private citizens of their role in petitioning the Attorney General to investigate cases that suggest a termination of pregnancy was unlawful. Complaints by members of the public are a condition precedent to the Attorney General’s exercise of his lawful authority....

Because it frustrates needed investigation into potentially unlawful abortions, IDOH’s refusal to disclose TPRs to Plaintiffs places human lives at risk. It also frustrates Voices For Life’s mission to protect the lives of mothers and the unborn. These results of the Public Access Counselor’s Informal Opinion are the opposite of what the statute intends in mandating creation and filing of TPRs. The Court must not allow this situation to continue.

Thomas More Society issued a press release announcing the filing of the lawsuit.

NY Sues Crisis Pregnancy Centers for False Advertising

New York's Attorney General filed suit this week in a New York state trial court against eleven crisis pregnancy centers and their parent organization alleging that they have violated the state's deceptive business practices and false advertising laws in promoting abortion pill reversal. The complaint (full text) in People of the State of New York v. Heartbeat International, Inc., (NY County Sup. Ct., filed 5/6/2024), alleges in part:

There is no competent and reliable scientific evidence to substantiate Defendants’ claims about APR’s efficacy and safety, including the central promise that APR can “reverse” the “abortion pill.”  The process has never been FDA approved, and researchers and major medical professional associations in the United States and abroad, including the American College of Obstetricians and Gynecologists (“ACOG”), have warned that it is unproven and unscientific. 

New York Attorney General Letitia James issued a press release announcing the filing of the lawsuit.