Kansas Supreme Court Invalidates Ban on D&E Abortions, Abortion Clinic Regulations

In Hodes & Nauser MDs, P.A. v. Kobach, (KS Sup. Ct., July 5, 2024), the Kansas Supreme Court, in a 5-1 decision, held that a 2015 statute that bans (except in limited circumstances) so-called "dismemberment abortions" violates the Kansas state constitution. The court said in part:

S.B. 95 effectively bans a common method of second-trimester abortion called Dilation and Evacuation except when a D & E is "necessary to preserve the life of the pregnant women" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."...

The State devoted much of its brief to inviting us to reverse our earlier ruling in this case that the Kansas Constitution protects a right to abortion. We decline the invitation....

The State has not carried its burden to establish S.B. 95 is narrowly tailored to furthering any compelling interest.

Justice Wilson filed a concurring opinion, saying in part:

I write separately because I believe S.B. 95 is unconstitutional, though for a different reason than the majority. In my view, this purported law is unconstitutionally vague, leaving a doctor vulnerable to criminal culpability, while providing dubious notice and insufficient explanation to the doctor of what conduct is criminalized. Thus, prosecutors and juries determine retroactively when and how S.B. 95's rules are violated.

Justice Stegall dissented, saying in part:

First, it is noteworthy that the majority cannot bring itself to acknowledge the government's compelling interest in unborn human life. Yes, the majority maneuvers around this problem by skipping it in favor of its narrow tailoring analysis. But the truth is, the majority doesn't answer this question because it is so decidedly troublesome to the majority's new section 1 regime. For the majority, an interest in protecting unborn life— including the dignity of that life—is only "aspirational" with "many nuances and facets" that have "potentially far-reaching precedential effect."...  For those unfamiliar with legalese, this translates to, "We don't want to tie our hands with such inconveniences."

In a second 5-1 decision in Hodes & Nauser, MDs. P.A. v. Stanek, (KS Sup. Ct., July 5, 2024), the Kansas Supreme Court, in majority and dissenting opinions covering 114 pages, struck down "a series of statutes and implementing regulations ... relating to licensure of abortion provider facilities." The court said in part:

... [T]he State failed to meet its evidentiary burden to show the Challenged Laws further its identified compelling interest in protecting maternal health and regulating the medical profession as it relates to maternal health. Without this showing, the Challenged Laws do not survive strict scrutiny and are constitutionally infirm. We decline the State's request to sever the unconstitutional licensure requirements because the State failed to meet its burden to show severability is proper under applicable Kansas law. Finally, we deem it unnecessary to address the district court's finding of an equal protection violation because we are affirming the district court's decision on grounds that the State failed to satisfy its burden to show the Challenged Laws further a compelling state interest....

Justice Rosen and Justice Biles each filed a concurring opinion.

Justice Wilson filed a concurring opinion, saying in part:

... I am duty bound to follow the clear and essential path illuminated by our precedent. This is necessary to protect the stability, predictability, and trust in our legal system. My decision to do so is further buttressed by the people's vote on this very matter, which can be interpreted as a repudiation of legislative attempts to eliminate the core holdings of Hodes I—holdings which survive today's confusing and troubling revisions.

Justice Stegall filed a dissenting opinion, saying in part:

The saga of this court's section 1 jurisprudence has now taken its bizarre—but predicted—turn. Recall I wrote at the conclusion of my lengthy dissent in Hodes I that a legal regime of unrestricted access to abortion is now "the judicially preferred policy tail wagging the structure of government dog" and, as such, every rule and even judicial coherence and consistency will "give way, at every turn, to the favored policy." ... Should proof of this claim be required, one need look no further than the pudding of today's decision.... The betrayal of this court's promise of neutral, uniform, and rational constitutional adjudication is as far-reaching as it is audacious—and its damaging impact on this institution's legitimacy will be felt for years to come.

UPI reports on the decision.

 

Churches' Challenges To Day Care Licensing Dismissed

In Foothills Christian Ministries v. Johnson, (SD CA, May 20, 2024), a California federal district court dismissed challenges by three churches to the California Child Day Care Facilities Act. The churches wish to open day cares but object to the requirement that they obtain a license to do so. The opinion relates to plaintiffs' First Amended Complaint after a prior dismissal. (See prior posting.) The court said in part:

... [I]ndignation is not injury and Plaintiffs have provided no further grounds for standing to challenge the licensure requirement itself beyond that they do not want a preschool that operates at the pleasure of DSS through the State’s licensing scheme...

The court also dismissed claims relating to removal of a preschool director and actions against it for refusing to comply with a past masking mandate over the objection of parents to the mandate. Plaintiffs' Establishment Clause, free speech and due process claims were dismissed without prejudice.

New Idaho Law Bars Adverse Action Because of Religious Conduct in Adoption, Foster Care, Licensing and State Contracting

On Monday, Idaho Governor Brad Little signed House Bill 578 (full text) which prohibits state and local governments from treating adversely any adoption or foster care agency that declines to provide services because of a sincerely held religious belief. The new law also provides:

The state government shall not take any discriminatory action against a person who the state grants custody of a foster or adoptive child wholly or partially on the basis that the person guides, instructs, or raises a child, or intends to guide, instruct, or raise a child, based on or in a manner consistent with a sincerely held religious belief. The state government may consider whether a person shares the same religious or faith tradition as a foster or adoptive child when considering placement of the child in order to prioritize placement with a person of the same religious or faith tradition.

The new law goes on to provide that the state cannot deny licensing or the award of a contract to a person because the person believes, maintains policies and procedures, or acts in accordance with a sincerely held religious belief. ADF issued a press release announcing the governor's signing of the bill.

Court Upholds Kansas Law Requiring Biological Sex at Birth on Driver's Licenses

 In State of Kansas ex rel. Kobach v. Harper, (KS Dist. Ct., March 11, 2024), a Kansas state trial court, in issuing a preliminary injunction, rejected challenges to a Kansas law that requires driver's licenses to reflect a person's "biological sex, either male or female, at birth." The court said in part:

The crux of Intervenors’ constitutional argument is that requiring KDOR to display a licensee’s sex at birth on a driver’s license and in the KDOR database violates Section 1 of the Kansas Constitution Bill of Rights. Section 1 says: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” ...

[The Kansas Supreme court decision in] Hodes said Kansans have the right to control their own bodies. It did not say Kansans have a fundamental state constitutional right to control what information is displayed on a state-issued driver’s license. And the Intervenors’ testimony at the hearing was that producing a driver’s license indicating a sex different than their expressed gender did not result in physical violence, verbal harassment, loss of employment, loss of benefits, refusal of service, or negative interaction with law enforcement. Rather, Intervenors testified about feeling embarrassed, humiliated, or unsafe if someone gave them a puzzled look, hesitated, or questioned their identity when looking at their driver’s license. They testified to the discomfort of airport security pat downs that are a universal feature of modern travel. K.S.A. 77-207 does not violate any right to personal autonomy under Section 1....

Finally, Intervenors assert that K.S.A. 77-207 deprives them of equal protection of the law .... The rules are the same for identifying each person who seeks a driver’s license. Similarly situated people are not treated differently under the statute, thus there is no equal protection violation.

AP reports on the decision.

Florida Official Rules That Changing Gender Marker On Driver's License Constitutes Fraud

In a January 26 Memorandum (full text), the Executive Director of the Florida Highway Safety and Motor Vehicles Department has rescinded the rule allowing transgender individuals to change the gender marker on their driver's licenses.  He ruled that gender reflected on one's driver's license must reflect one's sex as "determined by innate and immutable biological and genetic characteristics." The Memorandum went on to say:

[M]isrepresenting one's gender, understood as sex, on a driver license constitutes fraud ... and subjects the offender to criminal and civil penalties, including cancellation, suspension, or revocation of his or her driver license....

Newsweek reports on these developments. 

Kansas AG Says Previously Modified Birth Certificates Must Be Changed Back to Reflect Biological Sex

In April, the Kansas legislature overrode Governor Kelly's veto of Senate Bill 180 which defines "sex" as biological sex for purposes of various state laws, rules and regulations. Yesterday, Kansas Attorney General Kris Kobach issued Attorney General Opinion 2023-2 (full text) which interprets the new law as requiring birth certificates that have previously been modified to now be changed back to reflect the individual's sex assigned at birth. Similarly, driver's license records that have been modified must be changed back and future licenses must be issued on the basis of biological sex. However, the individual may present themselves as the opposite sex in their driver's license photo. The Attorney General also concluded that the new law does not apply to housing decisions by state correctional facilities since those decisions are not mandated by state rules or regulations.

California Law Does Not Interfere With Pre-Schools' Religious Curriculum

In Foothills Christian Church v. Johnson, (SD CA, June 15, 2023), a California federal district court dismissed a free exercise challenge by Christian pre-schools to California's child care licensing requirement. It held that California's Child Day Care Facilities Act does not prevent the schools from offering a program that includes compulsory participation in religious activities and events. While the Act requires that schools make attendance at religious activities voluntary in the discretion of the child's parents or guardian, it also allows schools to refuse to admit children whose parents or guardians are unwilling to agree that their children will attend religious instruction and activities. The court thus held that since plaintiffs inaccurately assessed the Act's requirements, they lack standing to pursue their free exercise claims.

Rules For Possessing Coyotes Survive Free Exercise Challenge

In Tranchita v. Callahan, (ND IL, Jan. 5, 2021), an Illinois federal district court rejected an attempt by a wildlife educator who cares for orphan coyote pups to recover a coyote taken from her by the Illinois Department of Natural Resources. The Department insists that the breeder must hold a hound running area permit in order to legally possess the coyote. Plaintiff claims, among other assertions, that the permit requirement violates her free exercise of religion rights:

Tranchita contends that it is her religious belief that she must “‘do unto others as [she] would have them do unto [her],’” that this belief “extends to animals as well as humans,” and that running hounds after coyotes violates this belief.

All the parties agreed that the permit requirement is neutral and generally applicable. The court then concluded:

Because the Hound Running Permit requirement is neutral and generally applicable, the Court must next ask whether the requirement “is rationally related to a legitimate government interest.”... And it is here that Tranchita fails to show a likelihood of success on the merits. No matter how tame a coyote may seem, it is still a wild animal that could pose danger to other animals (such as pets) and people if it were to escape from its enclosure in a densely populated area. Illinois has a legitimate interest in trying to prevent such situations from occurring, and it may do so through regulating who can possess coyotes and where.

California Denied Preliminary Injunction In License Dispute Over Faith Based Teen Rescue Facility

In a Tentative Ruling (full text [scroll down]) in Leary v. Teen Rescue,(Shasta Cty. Calif. Super. Ct., Nov. 18, 2019), a California state trial court judge refused to enter a preliminary injunction that would shut down a residential facility for abused and neglected children.  The state claims that the facility should be regulated under state law as a "community care facility." The court agrees that the state has a reasonable probability of prevailing at trial on this claim, but says that there remains a significant religious free exercise question:

Defendants argue that they choose to address behavior through faith-based practices. Compliance with the Act and licensure would impact Defendants’ rights to free exercise of religion, in that 22 CCR § 80072 mandates that students be “free to attend religious services or activities of his/her choice and have visits from the spiritual advisor of his/her choice.” Further, “Attendance at religious services, in or outside of the facility, shall be on a completely voluntary basis” (“the spiritual exploration provisions”). Additionally, the Act provides students the right “[t]o be free from acts that seek to change his or her sexual orientation . . .” (“the SOCE prohibit”). The Act requires staff be trained in “[c]ultural competency and sensitivity in issues relating to the lesbian, gay, bisexual, and transgender communities” (“the LGBT cultural competency requirement”)....

The State advances the argument that requiring community care facilities to train staff in sensitivity to LGBTQ issues is neutral and does not infringe on or restrict religious practices. Defendants hold beliefs that are in direct opposition to this requirement. ....

There is no question that the protection of children – especially the particularly sensitive population of children Defendants seek out for their facility – is of great importance. However, the Court must also consider the foreseeable harm to the defendants in granting this injunction. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns (1976) 427 US 347, 373. The Court is concerned about the potential impact of the preliminary injunction on Plaintiff’s First Amendment freedoms, and the attendant presumption of irreparable injury to Defendants if this injunction were to be granted prior to a full determination of the facts of the case. 

Pacific Justice Institute issued a press release announcing the decision.

State Has Compelling Interest In Licensing of Medical and Naturopathy Practice

In Jimenez v. Washington State Department of Health, (WA App., Aug. 5, 2019), a Washington state appellate court affirmed a finding by the health department that a marriage and family therapist engaged in the unlicensed practice of medicine and naturopathy. The court rejected Arely Jiminez's claim that the health department violated her free exercise rights protected by the U.S. and Washington state constitutions.  The court said in art:

Here, even assuming that the Department’s actions have infringed on Jimenez’s right to freedom of religion, the Department has a compelling public health and welfare interest in limiting the practice of medicine and naturopathy to individuals licensed by the Department. To the extent that Jimenez’s practice of Medicine without a Washington license burdened her exercise of religion, the Department’s interest in public health and safety justified any infringement of her constitutional rights.