California May Proceed With False Advertising Charges Against Abortion Pill Reversal Promoters

In Culture of Life Family Services, Inc. v. Bonta, (SD CA, June 13, 2025), a California federal district court refused to enter a preliminary injunction to prevent California's attorney general from moving ahead with an enforcement action against a Catholic community health clinic that promoted "abortion pill reversal". California claimed that the clinic violated Unfair Commpetition and False Advertising laws. The clinic contended its promotion of abortion pill reversal is speech protected by the First Amendment. The court said in part:

The Court has already found that the challenged laws are not content-based and do not warrant application of a strict scrutiny standard.... But as content-neutral regulations, they are generally subject to heightened scrutiny: the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open....

The court concluded that the clinic was engaged in commercial speech and that, "it would be at the very least potentially misleading to state that supplemental progesterone can “reverse” an abortion." It went on to conclude that a number of other staements that the clinic made regarding abortion pill reversal are, or are potentially, false and misleading. The court went on to say in part:

Although this regulation involves reproductive rights, AG Bonta is not aiming to limit the actual practice of APR. And reproductive choices are not apart from consumer choices: women, in exercising their reproductive rights, are also consumers who must be given the correct information to make knowledgeable decisions for themselves....

In sum, Plaintiff cannot carry its burden of showing likelihood of success. Commercial speech that is inherently false or misleading does not receive First Amendment protection. For potentially misleading speech, the AG has more than carried his burden under Central Hudson.

Cert. Granted In Litigation Over Investigatory Demands

The U.S Supreme Court today granted review in First Choice Women's Resource v. Platkin, (Docket No. 24-781, certiorari granted 6/16/2025). (Order List). The petition for certiorari describes the complex fact situation involved:

New Jersey’s Attorney General served an investigatory subpoena on First Choice Women’s Resource Centers, Inc., a faith-based pregnancy center, demanding that it turn over most of its donors’ names. First Choice challenged the Subpoena under 42 U.S.C. 1983 in federal court, and the Attorney General filed a subsequent suit to enforce it in state court. The state court granted the Attorney General’s motion to enforce the Subpoena but expressly did not decide First Choice’s federal constitutional challenges. The Attorney General then moved in state court to sanction First Choice. Meanwhile, the district court held that First Choice’s constitutional claims were not ripe in federal court.

The Third Circuit affirmed in a divided percuriam decision.. [T]he majority concluded First Choice’s claims were not yet ripe because First Choice could litigate its constitutional claims in state court.... It did not address the likely loss of a federal forum once the state court rules on the federal constitutional issues.

The question presented is: Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?

Court Denies TRO In Challenge To Trump's Executive Orders on Antisemitism

In McClanahan v. Trump, (WD MO, June 9, 2025), a Missouri federal district court refused to grant a temporary restraining order in a challenge to President Trump's Executive Orders directing federal agencies to use the International Holocaust Remembrance Alliance (“IHRA”) definition of antisemitism in enforcing Title VI of the Civil Rights Act and which direct federal agencies to withhold funding from universities that do not bar criticism of Israel.  According to the court:

Plaintiff brings his action challenging the constitutionality of Executive Orders 13899 and 14188 based on alleged violations of his First Amendment Right of free speech, Violation of his Fifth Amendment Right under the Due Process Clause; and violation of the Establishment Clause of the First Amendment....

Plaintiff identifies five constitutional arguments he believes have a likelihood of succeeding on the merits. Those arguments are First Amendment – Viewpoint Discrimination; First Amendment – Chilling Effect; First Amendment – Right to Petition; Establishment Clause; and Fifth Amendment – Due Process and Vagueness. Defendants argue that Plaintiff has alleged not facts indicating a reasonable belief that he will lose his federal benefits and no link betweean y prospective loss of his federal benefits and the challenged executive orders. 

The court concluded that plaintiff's likelihood of success on any of these claims was low.

Jury Must Decide Reason for Evangelists' Exclusion from Pride Event

In Cocchini v. City of Franklin, Tennessee, (MD TN, June 3, 2025), in an opinion covering three consolidated cases, a Tennessee federal district court held that because disputed questions of fact remain, the cases must go to trial rather than the court issuing summary judgment for either side.  At issue are claims by five Christian evangelists that they were wrongly removed, asked to leave or denied entrance to the 2023 Franklin Pride Festival in violation of their 1st Amendment free speech rights. Those who entered the Festival particularly spoke with representatives of churches that supported LGBTQ+ rights. The court concluded that plaintiffs were engaged in protected speech that did not constitute "fighting words" and that they were not attempting to make their views part of the Festival's message. The court also concluded that the city park remained a quintessential public forum even though the city had issued it a permit to use the park for the Pride Festival. The court then concluded:

... [T]here is a genuine dispute of fact on the rationale for the City and Officer Spry restricting Plaintiffs’ speech that precludes a finding of summary judgment in any party’s favor.... [A]lthough there is evidence in the record suggesting that the City and Officer Spry restricted Plaintiffs’ speech on account of the Franklin Pride staffers’ disagreement with their religious messages, Defendants present conflicting evidence that they restricted Plaintiffs’ speech based on Franklin Pride’s request that they do so to maintain their use of their permit, prevent Plaintiffs’ disruptive behavior, and enforce Franklin Pride’s ban on distributing outside materials. Any one of these content-neutral reasons for curbing Plaintiffs’ speech ... would satisfy the applicable standard.... Given this critical material dispute of fact in the record, the Court finds that the question of what motivated Plaintiffs’ exclusion from the Park must be decided by a jury.  Accordingly, both Plaintiffs’ and the City’s motions for summary judgment on Plaintiffs’ First Amendment claims must be denied on this ground.

Suit Challenges Refusal to Recognize Ministers Ordained Online

Suit was filed last week in a Virginia federal district court challenging Augusta County and the City of Staunton's refusal to recognize ministers of the Universal Life Church who obtained ordination online as ministers authorized to perform marriage ceremonies under Virginia Code §20-23. Instead, they are required to register under §20-25 as a civil officiant which includes posting a $500 bond. The complaint (full text) in Universal Life Church Monastery Storehouse v. Landes, (WD VA, filed 5/22/2025) alleges that this violates the 1st and 14th Amendment, saying in part:

69. The Clerk defendants violate the Establishment Clause by interpreting and applying Va. Code Ann. §§20-23 and 20-26 to categorically deny ULC Monastery ministers the authority to solemnized marriages as religious officiants, solely because they were ordained by and are in regular communion with the ULC Monastery and not another approved religious society. This conduct impermissibly prefers certain denominations over others.....

77. Many of plaintiff ULC ministers ... choose to exercise their religion by officiating marriage ceremonies.... The Clerk Defendants' interpretation an application of Va. Code Ann. §§20-23 and 20-26 ... accordingly places an impermissible burden on Plaintiffs' religious practice in violation of the Free Exercise Clause....

84. ... The Equal Protection Clause prohibits intentional discrimination against similarly situated individuals and prohibits state action that burdens fundamental rights, including religious freedom.  Discrimination based on religious affiliation must survive strict scrutiny....

91. Defendants' actual and threatened enforcement of Va. Code Ann. §§20-23, 20-26 and 20-28 against ULC Monastery and its ministers burdens speech based on its content and viewpoint, and is accordingly subject to strict scrutiny....

Augusta Free Press reports on the lawsuit. 

[Thanks to Dusty Hoesly for the lead.] 

Teacher's Refusal to Use Student's Preferred Pronouns Justified Her Being Fired

 In Ramirez v. Oakland Unified School District, (ND CA, May 27, 2025), a California federal district court dismissed claims by a former kindergarten teacher that her free speech and free exercise rights were violated by her termination for refusing to refer to a student using male pronouns when the student appeared to be biologically female. Both school officials and the student's parents requested that male pronouns be used. Plaintiff contended that her Catholic faith does not allow her to refer to a person using pronouns that differ from the person’s “divinely-intended gender.” The court held that the school district itself was protected by sovereign immunity and that the individual plaintiffs have qualified immunity as to any action for damages. The court went on to hold that plaintiff also failed to adequately allege either a speech or religious exercise claim, saying in part:

The complaint fails to state a claim because the alleged speech was not protected. Ms. Ramirez agreed to serve as an elementary school teacher at a public school. To do the job, a teacher must address and interact with their students. As other courts have observed, while addressing students is not part of the curriculum itself, “it is difficult to imagine how a teacher could perform [their] teaching duties on any subject without a method by which to address individual students.”,,, 

The plaintiff’s main argument in opposition — that the above analysis does not apply because this case concerns compelled speech — fails both legally and factually. While the Supreme Court has suggested that compelled speech outside of an employee’s official duties warrants heightened protection, the government may insist that the employee deliver any lawful message when the speech is part of the employee’s official duties....

Here, the plaintiff does not contest that the district’s anti-discrimination policy is facially neutral. Instead, she contends that school officials were impermissibly hostile towards her religious beliefs when enforcing the policy. The argument fails because, even accepted as true, the well-pleaded facts do not plausibly allege hostility. 

Sports Apparel Company Challenges Colorado's Public Accommodation Law Protection of Transgender Athletes

Suit was filed this week in a Colorado federal district court by an online athletic apparel company, "XX-YY Athletics," that promotes banning of transgender women from women's sports through logos on its apparel and through advertisements.  The company claims that Colorado's Anti-Discrimination Act violates the 1st and 14th Amendments when its public accommodation provisions declare that Coloradans have a right to access advertising that is free from discrimination on the basis of gender expression and chosen name. The complaint (full text) in Committee of Five, Inc. v. Sullivan, (D CO, filed 5/27/2025), alleges in part:

191. The most common way that XX-XY Athletics demonstrates why male competition in women’s sports is unfair or unsafe is by reference to specific transgender-identifying male athletes....

206. Although CADA prohibits XX-XY Athletics from speaking consistently with its view that sex is immutable, the law allows other businesses that also qualify as public accommodations to speak according to their view that sex can be changed.  

207. This distinction in treatment is based on a particular view that the business holds about human sexuality and gender identity....

222. The First Amendment’s Free Speech, Press, and Assembly Clauses protect XX-XY Athletics’ ability to speak, create, publish, sell, and distribute speech; to associate with others and with their messages for expressive purposes; to adopt and act on certain speech-related policies; to decline to associate with others and their message for expressive purposes; to decline to create, publish, sell, and distribute speech; to be free from content-based and viewpoint-based discrimination; and to be free from overbroad and vague restrictions on speech that give enforcement officials unbridled discretion....

225. As applied to XX-XY Athletics, CADA impermissibly discriminates against the company’s speech based on content and viewpoint by prohibiting it from referring to individuals by their given name and with pronouns and terminology consistent with their biological sex.  

226.  As applied to XX-XY Athletics, CADA impermissibly inhibits the company’s ability to form expressive associations it desires to form and to avoid expressive associations it desires to avoid by requiring the company to refer to individuals by their preferred name, pronouns, and other terminology and prohibiting the company from referring to individuals by their given name and with pronouns and terminology consistent with their biological sex....

The complaint also alleges that the Colorado law is void for vagueness and violates the Equal Protection clause. ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Cert. In School's Ban on Anti-Transgender T-Shirt

The U.S. Supreme Court yesterday denied review in L.M. v. Town of Middleborough, Massachusetts, (Sup. Ct., certiorari denied May 27, 2025).  In the case, the U.S. 1st Circuit Court of Appeals upheld middle school officials' decision that a student was in violation of school rules by wearing a T-shirt that proclaims: "There Are Only Two Genders." Justice Alito, joined by Justice Thomas filed an opinion dissenting from the denial of certiorari, saying in part:

The First Circuit held that the school did not violate L. M.’s free-speech rights. It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969). 

The First Circuit’s decision calls out for our review....

I would grant the petition for two reasons. First, we should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech. Tinker itself made that clear.... Curiously, however, the First Circuit declined to follow Tinker in this regard, instead cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates.  By limiting the application of our viewpoint-discrimination cases, the decision below robs a great many students of that core First Amendment protection.

Second, we should also grant review to determine whether the First Circuit properly understood the rule adopted in Tinker regarding the suppression of student speech on the ground that it presents a risk of material disruption.

Justice Thomas also filed a separate brief dissenting opinion.  NBC News reports on the Court's action.

Suit Challenges School District's Speech Policy

Suit was filed this week in an Oregon federal district court by a clinical social worker employed by an Oregon school district challenging the application of the district's Speech Policy to his display on a shelf in his office of three books that reject notions of transgender identity. The complaint (full text) in Theis v.  InterMountain Education Service District Board of Directors, (D OR, filed 5/21/2025), alleges in part:

He is He and She is She ... explain how every child should embrace and love herself exactly as God made her to be....

... [A]n employee at one of Mr. Theis’ schools saw the covers of the Books and complained that they were “transphobic.” IMESD labeled the display as “a hostile expression of animus toward another person relating to their actual or perceived gender identity” and ordered Mr. Theis to remove them. IMESD then warned him that “further conduct of this nature” may result in discipline, including termination of his employment....

2. Plaintiff is ... a professing Christian who bases his beliefs on the Bible and strives to live out his Christian faith at work and in the community.

3. Plaintiff’s sincerely held religious beliefs govern his views about all aspects of life, including human nature, sex, and gender....

217. Defendants’ censorship of Plaintiff’s display of the Books while permitting books and other decorations with different messages on related topics is content and viewpoint discrimination, which is unconstitutional in any type of forum....

220. Defendants’ Speech Policy and practice also impose an unconstitutional heckler’s veto because they permit the restriction of protected employee expression merely because school officials deem an employee’s expression “offensive” to others....

249. Plaintiff’s sincerely held religious beliefs motivated him to display the Books in his office. 

250. Defendants substantially burdened Plaintiff’s religious exercise when they forced Plaintiff to choose between exercising his religious beliefs and being dismissed or violating his conscience.

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

Wedding Photographer Gets Temporary Injunction Excusing Her from Photographing Same-Sex Engagements and Weddings

In Carpenter v. James, (WD NY, May 22, 2025), a New York federal district court granted a preliminary injunction to a wedding photographer who objects to same-sex marriage, enjoining enforcement against her of provisions of New York's public accommodation law that would require her to offer her services for same-sex engagements and weddings and would prevent her from posting her policies on social media. The court said in part:

In light of the Supreme Court’s binding precedent in 303 Creative, and for the reasons discussed below, Plaintiff’s motion is GRANTED.  The Court will issue a narrow injunction barring Defendants from applying New York’s public accommodation laws “peculiarly to compel expressive activity” with which Plaintiff disagrees.... Beyond that “peculiar” circumstance, however, Plaintiff remains fully obligated to comply with New York’s public accommodation laws, and she remains subject to all remedies and penalties for their violation.  Conversely, except to the limited extent directed herein, New York’s public officials remain fully empowered to police the public marketplace to ensure that “gay couples [are not] treated as social outcasts . . . inferior in dignity and worth.”

The case was on remand from the Second Circuit. (See prior posting.)

Religious Broadcasters Win Challenge to FCC Disclosure Requirements

In National Religious Broadcasters v. FCC, (5th Cir., May 19, 2025), the U.S. 5th Circuit Court of Appeals held that the Federal Communications Commission exceeded the authority granted to it by Congress when in 2024 it reinstated the requirement that broadcasters annually file Form 395-B which calls for disclosure of race, ethnicity, and gender data for employees in specified job categories. Co-plaintiff in the case was the American Family Association, a conservative Christian pro-family organization.  Their suit was consolidated with a similar challenge brought by the secular Texas Association of Broadcasters. While the court's opinion does not discuss free exercise rights and avoids adjudicating plaintiffs' free speech arguments, a Press Release by National Religious Broadcasters after the 5th Circuit's decision was handed down focuses on 1st Amendment concerns, saying in part:

NRB has always fought to protect Christian communicators from baseless attempts to restrict their First Amendment liberties which hinder their work of proclaiming the Gospel. This ruling helps ensure that the government cannot create a backdoor to control broadcasters through public intimidation, misuse private data against them, or interfere with the sacred and constitutionally protected mission of religious broadcasters.

Jewish Teacher Claims Anti-Israel Position of Teachers' Union Violates His 1st Amendment Rights

Suit was filed this week in an Oregon federal district court against the Portland school system and the Portland teacher's union by a Jewish teacher who was born in Israel who contends that his First Amendment rights are violated by forcing him to be part of a bargaining unit represented by a union that promotes anti-Israel, pro-Palestinian positions and by the school becoming a one-sided forum for anti-Israel rhetoric. He also claims a hostile working environment has been created. Even though plaintiff chose not to become a dues-paying member of the teacher's union, under Oregon law the union remained his collective bargaining representative.  The complaint (full text) in Doe v. Portland Association of Teachers, (D OR, filed 5/19/2025) alleges in part:

63. [Palestinian] flags and other symbols were in common spaces such as hallways, the library, as well as shared classrooms. The placement was intentional so as to appear to be an expression of the community and school rather than any individual staff person.

64. These symbols ... cause severe emotional distress to Plaintiff because of his experiences growing up in Israel, including personal exposure to acts of terrorism committed to destroy the State of Israel, and because of his deeply held religious beliefs....

97. When Plaintiff reached out to PAT for support, PAT assigned him a union representative who publicly shared anti-Zionist views on social media, thus the Plaintiff did not receive fair or unbiased representation from PAT....

121. Oregon’s statutory requirement of exclusive representation, placing the Plaintiff in a bargaining unit exclusively represented by PAT, violates the Plaintiff’s free association by forcing him to associate with expression with which he disagrees, and which betrays his deeply held religious and moral beliefs....

127. Oregon’s exclusive representation laws compel Plaintiff ... to tacitly affirm beliefs that violate his deeply held religious beliefs and personal convictions as a condition of employment....

140. ... [C]urricula put forward in the District’s classrooms purports to define aspects of Plaintiff’s faith, which includes the belief in a Jewish homeland, in ways that are inconsistent with his beliefs, but that are consistent with the religious teachings of other faiths, including the beliefs of some Muslims.

141. The District allows displays of overtly anti-Israel messaging, including maps that fail to display the nation of Israel....

144. By these actions, the District prefers and promotes religious views and practices in violation of the Establishment Clause of the First Amendment,,,,

The Oregonian reports on the lawsuit.

Colorado Law Banning Deadnaming and Misgendering Challenged as Free Speech Violation

Suit was filed this week in a Colorado federal district court challenging on free speech and vagueness grounds provisions in recently enacted Colorado HB25-1312. The lawsuit focuses on provisions that define deadnaming and misgendering as discriminatory acts under Colorado's Anti-Discrimination Act. The complaint (full text) in Defending Education v. Sulivan, (D CO, filed 5/19/2025), alleges in part:

5. ... H.B. 25-1312 amends the definition of “gender expression,” a protected category under the Colorado Anti-Discrimination Act, to include the use of a “chosen name” and other words by which an individual “chooses to be addressed.”...

30. Under H.B. 25-1312, then, someone who operates in a public accommodation commits a discriminatory act when they refer to a transgender-identifying individual using the individual’s birth name or biological pronouns instead of their chosen name or preferred pronouns ... because that speech supposedly denies the transgender individual the “full and equal enjoyment” of the place of public accommodation based on their “gender expression.” ...

86. ... Colorado’s public accommodation laws as amended by H.B. 25-1312 make it impossible for [plaintiffs} ... to effectively exercise their constitutionally protected right to speak in a manner that reflects their sincere belief that sex is immutable and fixed at birth....

122. That H.B. 25-1312 does not literally require Coloradans to speak is of no consequence. Even if Plaintiffs and their members could avoid the law’s penalties by holding their tongues, compelled silence is compelled speech..... In any event, using pronouns and names is a “‘virtual necessity’” for engaging in any conversation....

136. The Unwelcome Provision clearly prohibits speech based on content and viewpoint. It prohibits all speech that makes someone feel “unwelcome, objectionable, unacceptable, or undesirable.” But “[g]iving offense is a viewpoint.”... It also compels speech by, for example, requiring published speech to be “[w]elcom[ing]” and “[un]objectionable.” Even assuming this provision only regulated speech based on content, Defendants have no compelling interest for prohibiting this type of speech....

The Lion reports on the lawsuit.

Montana Court Strikes Down Ban on Gender-Affirming Care for Minors

In Cross v. State of Montana, (MT Dist. Ct., May 13, 2025), a Montana state trial court in a 59-page opinion held that Montana Senate Bill 99 that bars hormonal or surgical treatment of minors for gender dysphoria is unconstitutional. The court said in part:

First, concerning the right to privacy, Plaintiffs have met their burden ... by providing evidence that the major medical organizations in the United States endorse gender-affirming medical care as a safe, effective way to treat gender dysphoria. Defendants ... fail to demonstrate a medically acknowledged, bona fide health risk with respect to the care banned by SB 99....

Second, Plaintiffs have met their burden ... on their equal protection claim by demonstrating that SB 99 classifies based on similarly situated classes, infringes on several fundamental rights, and denies minors equal protection of the laws on the basis of sex and transgender status because it prohibits health care providers from administering certain care when sought to treat adolescents with gender dysphoria, but it allows the same providers to administer the same care to all other adolescent patients for all other purposes....

Finally ... Plaintiffs successfully demonstrate that SB 99 unconstitutionally regulates medical providers' speech based on content and viewpoint discrimination, and that it is presumptively invalid.... Moreover, Plaintiffs successfully demonstrate that SB 99 prohibits minors with gender dysphoria and their parents from hearing from health care providers....

The Hill reports on the decision. [Thanks to Scott Mange for the lead.]

Church's Removal of Congregant from Services Did Not Violate 1st Amendment

 In Devi v. Sacramento Bhartiya Sabha, (ED CA, May 2, 2025), a California federal magistrate judge recommended dismissal of a suit against a church and the city by plaintiff who was removed from a church service by police serving her with a trespass notice at the request of church board members. The court said in part:

Plaintiff alleges that the Board of Trustees and the President of the Church defendant prohibited her from entering the Church and “exercising her rights to freely practice her religious beliefs and to her rights to free speech” under the First Amendment....  She alleges that she was removed from the Church because the Church defendant did not approve of plaintiff’s opinions and questions and was attempting to stop her from stating these opinions....  She alleges the Church defendant retaliated against her by preventing her from attending services because she expressed her opinions and concerns about the Church’s finances....

To state a claim for a violation of the First Amendment, plaintiff must allege facts sufficient to show that defendants acted under the color of state law....

In order to successfully bring her claim, plaintiff has to show that there is significant state involvement in the private party’s actions.  Plaintiff has made no allegations that the Church defendant’s alleged decision to exclude her from the Church is a “traditionally and exclusively governmental” function.  She also still has not demonstrated that there was “significant” state involvement in the Church defendant’s decision to remove her from the Church.  Based on plaintiff’s allegations, the Church decided to call the police to remove plaintiff from the Church premises because she was trespassing.  To the extent plaintiff is alleging that the Church defendant was a state actor because it had plaintiff removed by the City of Sacramento Police Department, “merely complaining to the police does not convert a private party into a state actor.”

Court Refuses to Dismiss Megachurch Pastor's Defamation Suit Against Sex Offender

In Jakes v. Youngblood, (WD PA, April 25, 2025), a Pennsylvania federal district court refused to dismiss under Pennsylvania's anti-SLAPP law a defamation suit brought by megachurch pastor T.D. Jakes against convicted sex offender Duane Youngblood.  Jakes sued after Youngblood in a podcast accused Jakes of grooming and sexually abusing him some 40 years earlier when Youngblood was 18 to 19 years old. Anti-SLAPP laws are designed to allow rapid dismissal of suits filed to suppress protected speech. The court, applying the Erie doctrine, held that the Pennsylvania anti-SLAPP law is procedural and thus does not apply to diversity cases in federal court. Instead, dismissal is governed by Federal Rules of Civil Procedure, Rules 12 and 56.  The court said in part:

The Court does not believe that a procedural rule protecting a substantive right is, by virtue of the right it is protecting, transformed into a substantive law. The statute exists to spare those who exercise their free speech rights from unwarranted and harassing litigation. However, §8340.15 pursues this policy goal through procedural means.

Christian Post reports on the decision.

Broad Compelled Discussion of Abortion with Patients Violates Doctors' Free Speech Rights

In Schroeder v. Treto, (ND IL, April 4, 2025), an Illinois federal district court held that one amendment to the state's Health Care right of Conscience Act violates free speech protections but upheld another provision.  The provision struck down requires pregnancy care centers and doctors who have religious objections to abortions to inform pregnant patients of the risks and benefits of childbirth and abortion in order to claim a shield from liability. The court held that the provision compels speech in violation of the First Amendment. The court said in part:

Section 6.1(1) demands a wide ranging, hypothetical conversation unrelated to any procedure or other medical conduct.  Indeed, Section 6.1(1) requires a wide-ranging conversation that might be completely divorced from the reality of the situation; for example, the thrilled patient who is not reasonably likely to encounter medical difficulties because of the pregnancy.  What’s more, that compelled speech isn’t necessary to further future conduct....

... Under strict scrutiny, the State carries the burden of establishing the provision is narrowly tailored; it falls far short in this case.  So, Section 6.1(3) unconstitutionally compels speech, and therefore the State can’t demand such speech in exchange for a liability shield.

The court, however, upheld another provision that requires as a condition of claiming a shield from liability, that physicians and clinics, if requested by the patient, transfer or refer them or furnish a list of other providers to them who offer abortion services, saying in part:

This provision narrowly applies when a patient expressly asks a medical provider for information regarding potential abortion providers.  Stated differently, Section 6.1(3) contains an explicit and mandatory trigger that is directly linked to the action.  And even then, the provider need only comply if he intends to use the HCRCA as an affirmative defense.

From this narrow and purposeful drafting, the Court deduces that Section 6.1(3) doesn’t target speech...

The court found that this provision also does not violate providers' free exercise rights, saying in part: 

Two providers—one a conscientious objector and the other secular—both fail to provide a woman with requested information about abortion providers.  The conscientious objector refuses because of his sincerely held beliefs.  The secular provider doesn’t provide the requested information because he’s too busy.  Both patients sue.  Before the HCRCA, both suits could’ve gone forward, requiring the plaintiff in both cases to show that the health care providers fell below the standard of care. After the HCRCA’s enactment, the conscientious objector—but not the secular provider—is wholly protected, regardless of whether the provider’s actions fell below the standard of care.     

Along comes Public Act 99-690—partially restoring the pre-HCRCA universe. Now, as before, all health care providers are amenable to suit for failure to refer, transfer, or provide written information about potential abortion providers.  Relative to each other, the secular provider isn’t in any better position than before the HCRCA and the conscientious objector isn’t any worse for the wear.  

As this hypothetical shows, the latest Amendments to the HCRCA don’t impose additional burdens on conscientious objectors because of their beliefs....

Christian Post reports on the decision.

AG May Not Threaten Prosecution of Those Who Assist Women Seeking Out-of-State Abortions

In Yellowhammer Fund v. Attorney General of Alabama, (MD AL, March 31, 2025), an Alabama federal district court in a 131-page opinion issued a declaratory judgment holding unconstitutional the Alabama Attorney General's threat to prosecute those who assist women seeking to travel out-of-state to obtain a legal abortion.  The court found that the threat violated both the right to interstate travel and free expression rights.  The court said in part:

The right to travel includes both the right to move physically between two States and to do what is legal in the destination State.  The Supreme Court has held that States cannot punish their residents for traveling to another State and engaging in conduct that is lawful there....

This principle extends to people who enter a State to procure medical services, including abortions....

If a State cannot outright prohibit the plaintiffs’ clients from traveling to receive lawful out-of-state abortions, it cannot accomplish the same end indirectly by prosecuting those who assist them. ...

The Attorney General’s threatened enforcement of Alabama’s criminal laws imposes a content- and viewpoint-based restriction on speech.  It restricts information and discussion about a specific subject--abortion-- to forbid encouraging a specific viewpoint-- access to a legal out-of-state abortion....

... Yellowhammer Fund’s act of pledging and providing funds on behalf of pregnant Alabamians who seek a legal abortion outside Alabama is expressive conduct, and, therefore, subject to First Amendment protection....

It is one thing for Alabama to outlaw by statute what happens in its own backyard.  It is another thing for the State to enforce its values and laws, as chosen by the Attorney General, outside its boundaries by punishing its citizens and others who help individuals travel to another State to engage in conduct that is lawful there.... For example, the Alabama Attorney General would have within his reach the authority to prosecute Alabamians planning a Las Vegas bachelor party, complete with casinos and gambling, since casino-style gambling is outlawed in Alabama....  As the adage goes, be careful what you pray for. 

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

Parents Lack Standing to Challenge School District's Transgender Policy

In Short v. New Jersey Department of Education, (D NJ, March 28, 2025), a New Jersey federal district court dismissed a suit by two parents and a third parent who intervened in the lawsuit who object to the transgender policy of their children's high schools. The policy, adopted by the board of education, calls for high schools to follow students' requests regarding their names and pronouns, without necessarily notifying parents. The court concluded that the policy applied to the schools, not to students or parents, so that plaintiffs lacked standing to obtain a declaratory judgment or injunction against the policy. The Intervenor parent particularly focused on free exercise issues, as set out by the court:

Count One of the intervenor complaint asserts equal-protection violations under the Fourteenth Amendments of the United States and New Jersey Constitutions.... Maldonado alleges that the Cherry Hill policy unnecessarily seeks to prevent discrimination against transgender students at the expense of students’ religious beliefs.... Cherry Hill Defendants cannot provide an exceedingly persuasive justification for unequal treatment of students and parents whose religious beliefs are contrary to the policy’s definition of gender.... 

Counts Two, Three, and Four claim violation of free speech and freedom of religion under the First Amendments of the United States and New Jersey Constitutions.... The policy favors speech based on views and ideas, according to Maldonado, and burdens parents’ and students’ free-speech rights by requiring affirmance of its definition of gender.... The intervenor complaint adds that the policy violates students’ and parents’ freedom to hold sincerely held Christian beliefs premised on a biblical worldview by forcing them to affirm that there are more than two genders or that gender may be based on one’s identity.... The policy seeks to compel affirmation of views repugnant to Christian beliefs and its stated goals may be achieved without forcing parents and students to alter or otherwise abandon their religious beliefs.... The policy does not provide for an excusal or opt-out, stressing one moral interpretation over others, favoring a secular view over a religious one, and discarding other views on gender identity as prohibited, worthy of ridicule, bigoted, or the like.... Count Four alleges failure to accommodate religious beliefs and practices....

The Cherry Hill policy implicates complex, sensitive issues that students will no doubt take from the classroom to the dinner table. Ensuing thoughts and conversations may touch upon family, faith, sexuality, and a host of other important topics. I accept Maldonado’s stated concerns as genuine expressions of her faith and related beliefs. However, without the allegedly offending provisions applying to her or her children, her mere perception of harm is insufficient to confer standing....

Covid Era Mask Mandate Did Not Violate Free Exercise

In Robol v. City of Columbus, (OH App., March 20, 2025), an Ohio state appellate court affirmed the dismissal of plaintiff's claims that the city infringed his free exercise rights when during the Covid pandemic it required individuals to wear a mask in public spaces.  The court said in part:

Ordinance 1643-2020, the City’s mask ordinance, required all persons to wear a mask in public spaces.  The ordinance did not regulate, or even mention, any religious activity, religious creed, or religious affiliation.  Thus, the face mask policies Mr. Robol challenges are both neutral and generally applicable....

Despite the general applicability and neutrality of the mask ordinance, Mr. Robol nonetheless asserts the City violated his rights under the Free Exercise Clause because the ordinance violated his Christian beliefs, forced him to worship a false god, and had the effect of mocking the tenets of his faith.  Though we do not question the sincerity of Mr. Robol’s interpretation of his religion, we are mindful that a government action is not unconstitutional merely because it incidentally burdens religious practices.

Mr. Robol also brought a religious exercise claim under 42 U.S.C. 2000bb, the Religious Freedom Restoration Act....

Not every imposition on religious exercise is a substantial burden....

Without doubting the sincerity of Mr. Robol’s belief that wearing a face mask violates his religious beliefs, we note that Mr. Robol does not allege, much less demonstrate through Civ.R. 56 evidence, that the face mask policies imposed any more than a mere inconvenience to his religious beliefs.....

Mr. Robol argues the City’s face mask requirement violated his freedom of speech and expression because the choice not to wear a face mask is a form of expressing his opposition to the City’s response to the COVID-19 pandemic.  The City’s mask ordinance is content-neutral, and nothing in the terms of the ordinance suggests the purpose is to regulate speech.  And we agree with appellees the face mask policy promotes an important governmental interest in controlling the spread of COVID-19 that is unrelated to the suppression of speech.....