New Developments In the Abortion Rights Controversy

The past few days have brought several developments in the battle over abortion rights. In Colorado, an Initiative measure on the ballot that would have banned abortions after 22 weeks of gestation was defeated 59% to 41% (89% of precincts reporting). In Louisiana voters approved by a margin of 62% to 38% an amendment to the state constitution providing "To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."

Meanwhile last week, the Alabama Supreme Court in Magers v. Alabama Women's Center Reproductive Alternatives, LLC, (LA Sup. Ct., Oct. 30, 2020), dismissed a wrongful death action brought by the father of an aborted 6-week old fetus against a clinic that provided the mother with a pill to induce a medication abortion. The trial court dismissed the suit, and the state Supreme Court dismissed because appellant did not comply with the procedural requirements for the type of brief that needs to be submitted for an appeal. However Justice Mitchell, joined by 3 other justices wrote concurring opinion that said in part:

I write separately, however, to state my view that Roe v. Wade ... and Planned Parenthood of Southeastern Pennsylvania v. Casey ... are due to be overruled by the United States Supreme Court....

First, the central holding of Roe -- that there is a constitutional right to have an abortion based on a judicially created trimester framework -- has no grounding in the text of the United States Constitution....

Second, the right to have an abortion has no foundation "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[Thanks to Scott Mange for the lead as to Alabama.]

Court Rejects Church's Claim That Its Free Exercise Rights Include Cockfighting

In Plumbar v. Perrilloux, (MD LA, July 13, 2020), a Louisiana federal district court refused to issue a preliminary injunction against enforcement of Louisiana's statute that bans cockfighting.  Members of Holy Fight Ministries claim that cockfighting is an integral and essential part of their religious faith. In denying the injunction, the court said in part:

Defendants have provided satisfactory evidence to show that the state has a compelling interest in enacting a law banning cockfighting and because the evidence casts doubt upon the type of institution operated by Plaintiffs. In other words, the evidence suggests that the cockfighting activities were more commercial in nature than a bona fide religious ritual.

Supreme Court Invalidates Louisiana Abortion Law Requiring Clinic Doctors To Have Hospital Admitting Privileges

The U.S. Supreme Court today in June Medical Services L.L.C. v. Russo, (U.S. Sup. Ct., June 29, 2020), by a 5-4 vote, struck down Louisiana's law that requires doctors at abortion clinics to hold active admitting privileges at a hospital within 30 miles of the clinic.  At issue in the case were (1) whether abortion providers have standing to assert their patients' abortion rights, and (2) whether the Louisiana statute is constitutional.  The Court in 2016 in Whole Women's Health v. Hellerstedt struck down a similar Texas statute.

Justice Breyer wrote today's plurality opinion which was joined by Justices Ginsburg, Sotomayor and Kagan.  As to standing, the plurality held:

The State did not mention its current objection until it filed its cross-petition—more than five years after it argued that the plaintiffs’ standing was beyond question.

The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs’ undue-burden claims bars our consideration of it here.

On the merits, the plurality said in part:

The District Court found that enforcing the admitting privileges requirement would “result in a drastic reduction in the number and geographic distribution of abortion providers.” ... In light of demographic, economic, and other evidence, the court concluded that this reduction would make it impossible for “many women seeking a safe, legal abortion in Louisiana . . . to obtain one” and that it would impose “substantial obstacles” on those who could....

The District Court found that there was “‘no significant health-related problem that the new law helped to cure.’” ...

We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion.

Chief Justice Roberts filed a concurring opinion, saying in part:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.....

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

Justice Thomas filed a dissenting opinion, saying in part:

Despite the fact that we granted Louisiana’s petition specifically to address whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients,” ... a majority of the Court all but ignores the question. The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.

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

The plurality concludes that the Louisiana law does nothing to protect the health of women, but that is disproved by substantial evidence in the record. And the plurality upholds the District Court’s finding that the Louisiana law would cause a drastic reduction in the number of abortion providers in the State even though this finding was based on an erroneous legal standard and a thoroughly inadequate factual inquiry....

Both the plurality and THE CHIEF JUSTICE hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health. .... [T]he idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.

Justice Gorsuch filed a dissenting opinion, saying in part:

The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.

Today’s decision doesn’t just overlook one of these rules. It overlooks one after another....

Justice Kavanaugh filed a dissent, saying in part:

[I]n my view, additional fact finding is necessary to properly evaluate Louisiana’s law. As JUSTICE ALITO thoroughly and carefully explains, the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors ... cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.

New York Times reports on the decision.

5th Circuit Dismisses Church's Challenge To COVID-19 Order As Moot

In Spell v. Edwards, (5th Cir., June 18, 2020), the U.S. 5th Circuit Court of Appeals dismissed as moot a constitutional challenge to Louisiana Governor John Bel Edwards' COVID-19 order that restricted in-person church services to ten congregants. On June 5, the Governor issued a new order allowing churches to operate at 50% of capacity. Judge Ho concurred, but said that a future case might turn out differently.  He said in part:

If protests are exempt from social distancing requirements, then worship must be too....

Such support for the protests reflects a commendable commitment to equality. But public officials cannot devalue people of faith while elevating certain protestors. That would offend the First Amendment—not to mention the principle of equality for which the protests stand.

Minister Challenges Louisiana Cockfighting Ban

Suit was filed last week in a Louisiana federal district court by Holy Fight Ministries and its minister claiming that Louisiana's ban on cockfighting violates their federal and state free exercise rights as well as the Establishment Clause. The complaint (full text) in Plumbar v. Landry, (MD LA, filed 6/12/2020), alleges in part:

Reverend Plumbar, Holy Fight Ministries and its congregation hold the sincere religious belief that cockfighting represents that while they strive for CHRIST, they have a necessary symbolic physical manifestation, an epiphany through the fighting cock, a religious mandate of the struggle between good and evil, a struggle for life or death for the Salvation of the soul, and thus cockfighting is an integral and essential part of their religious faith.

[Thanks to Scott Mange for the lead.]

Louisiana Limits On Church Services Upheld

In Spell v. Edwards, (MD LA, May 15, 2020), a Louisiana federal district court upheld the validity of the Louisiana governor's COVID-19 restrictions on church services.The court said in part:

At the core of their argument, Plaintiffs submit that their congregation “is a large assembly of more than 2,000 individuals” whose religious beliefs require them to assemble for church in person.... Additionally, Plaintiff Spell avers that he is imbued with a “duty to lay hands on the sick and pray for them so that they may become well,” which, along with holy communion and the love offering, would lose meaning absent a public gathering.... 

The Court finds that there is a substantial relationship between the occupancy limitations in the Governor’s orders and the current severe public health crisis. Such restrictions are directly intended to limit the contact-based spread of COVID-19. Additionally, like the law at issue in Jacobson, Proclamation No. 52 JBE 2020 is not a complete ban on Plaintiffs’ rights as alleged by Plaintiffs. Under the terms of the order, Plaintiffs have been free to hold outdoor services with as many congregants as they would like and nothing in the orders proscribes, inhibits or regulates the content of their religious speech. Plaintiffs have always been free to fully exercise their rights to assembly, although for smaller numbers of congregants.

(See prior related posting).

Pastor Sues Over COVID-19 Orders and Conditions of Bond

In Louisiana, Pastor Tony Spell, who has defied state COVID-19 stay-at-home orders by holding large church services at Life Tabernacle Church in Central, Louisiana, has filed suit against Governor John Bel Edwards and other officials seeking a temporary restraining order allowing him to continue to hold services.  The suit challenges both the Governor's emergency orders and special conditions of bond imposed on Spell after he was charged with nearly running over a protester with his church bus. Those special conditions include compliance with the Governor's orders. The complaint (full text) in Spell v. Edwards, (MD LA, filed 5/7/2020) alleges in part:

There has been no factual determination made that Pastor Spell has actually violated the ambiguous and contradictorily-worded Emergency Orders, but Defendants are enforcing by penalties and home incarceration the Emergency Orders against him as if alleged violations were proven fact by the "end run" of a misplaced "special condition of bond," currently imposed by a Louisiana State District Court judge. Furthermore Defendants have explicitly failed and refused to even allow argument regarding the discriminatory and disparately applied orders against Pastor Spell and Life Tabernacle Church while allowing local and similarly situated non-religious businesses-"big box" retailers, groceries and hardware stores to continue business accommodating gatherings, crowds of more than ten (10) people or of any limit whatsoever, without the enforcement of any "social distancing," or other measures supposedly required by the Emergency Orders.

WBRZ News reports on the lawsuit.

Administrative Offices of New Orleans Archdiocese File For Bankruptcy

On Friday, the Catholic Archdiocese of New Orleans announced that the Administrative Offices of the Archdiocese have filed for Chapter 11 bankruptcy reorganization, saying in part:

The move was necessitated by the growing financial strain caused by litigation stemming from decades-old incidents of clergy abuse as well as ongoing budget challenges. The unforeseen circumstances surrounding COVID-19 have added more financial hardships to an already difficult situation.  

This filing only affects the Archdiocesan administrative offices.... The Archdiocese’s action will not affect individual church parishes, their schools, schools run by the various religious orders, or ministries of the church. These offices will continue daily ministry as usual....

The intention of the filing is to allow time to develop a reorganization plan detailing how available assets and insurance coverage will be used to settle outstanding claims and to negotiate reasonable settlements while enabling the administrative offices to continue and emerge better prepared for the future. This reorganization will also allow the Archdiocese to address remaining clergy abuse cases in a way that will allow funds to go directly to victims instead of funding prolonged, costly litigation.

5th Circuit Dismisses Street Preacher's Suit Over Summons

In Roy v. City of Monroe, (5th Cir., Feb. 13, 2020), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a suit by a street preacher who was issued a summons, but then acquitted, of disturbing the peace. He then sued the police and the city of Monroe, Louisiana for violation of his free speech and free exercise as well as for other violations.  The 5th Circuit summarized it conclusions:

[T]he city of Monroe’s “disturbing the peace” ordinance is not unconstitutionally vague; that, because Sergeant Booth had probable cause to issue a summons under the ordinance, he was entitled to qualified immunity from Roy’s First Amendment retaliation claim; and that, in the light of these holdings, Roy cannot prevail on his claims under the Fourth Amendment and Due Process Clause.

AP reports on the decision.

Supreme Court Grants Certiorari On Louisiana Abortion Law Restriction

The U.S. Supreme Court today agreed to hear appeals involving the constitutionality of Louisiana's abortion law.  The Louisiana Unsafe Abortion Protection Act requires any abortion provider to have admitting privileges at a hospital within 30 miles of the location where abortions are performed. The cases are June Medical Services LLC v. Gee, (Docket No. 18-1323, cert. granted 10/4/2019), and Gee v. June Medical Services, LLC, (Docket No. 18-1460, cert. granted 10/4/2019). (Order list).  In March 2016, the U.S. Supreme Court summarily upheld a preliminary injunction preventing the Act from going into effect. (See prior posting.) In September 2018, the U.S. 5th Circuit Court of Appeals upheld the statute. (Full text of opinion.) In January 2019, the full 5th Circuit, by a vote of 6-9, denied en banc review. (Full text.) Plaintiff appealed the substantive holding to the Supreme Court. (SCOTUSblog case page). The state cross-appealed the grant of standing to plaintiffs. (SCOTUSblog case page). NPR reports on the grant of certiorari.

Supreme Court Keeps Injunction Against Louisiana Abortion Law In Effect

In June Medical Services, L.L.C. v. Gee, (US Sup. Ct. Feb. 7, 2019), a case involving Louisiana's new abortion law, the U.S. Supreme Court by a 5-4 vote prevented the law from going into effect pending the filing of a petition for certiorari.  A 5th Circuit Court of Appeals decision  had stayed a district court's injunction against the law.  Now the Supreme Court has stayed the 5th Circuit's action. At issue is a facial challenge to Louisiana's law that requires doctors at abortion clinics to have admitting privileges at nearby hospitals.  Challengers had argued that this would leave only one abortion clinic operating in the state.  In allowing the law to go into effect, the 5th Circuit questioned that conclusion.  In the Supreme Court, Justices Thomas, Alito, Gorsuch and Kavanaugh would have denied the application so that the law could take effect.  Justice Gorsuch, writing only for himself, filed an opinion saying that:

I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.

NBC News reports on the decision.

Settlement Filed In Louisiana Religion In Schools Case

Yesterday a settlement agreement was filed with a Louisiana federal district court in Does 1-4 v. Bossier Parish School Board.  In the case (see prior posting), plaintiffs claimed widespread Establishment Clause violations in classrooms at at school events.  As part of the settlement, the school board has adopted a revised religious expression policy.  KTBS News reports that both sides are stressing elements of the settlement that they consider victories:

Americans United said provisions of the settlement include:

• Creation of a monitoring committee to review and resolve potential violations or disputes involving religious freedom.
• An agreement by the School Board to create, expand or seek out appropriate facilities to minimize the need to hold school events in places of worship.
• A commitment to protecting the rights of all Bossier students to pray in school, as long as the prayers are initiated by students, aren’t disruptive and don’t occur during class time.
• Permission for Bossier teachers to teach about religion in an objective manner, but not proselytize students.

The School Board said the agreement also includes the following:

• Students maintain the right to pray at school and at school events.
• Students will be allowed to speak about religion at school events.
• Does not penalize school employees who bow their heads when prayers are offered.
• Allows teachers to teach about religion in an objective manner.
• Allows student clubs of all kinds, including Fellowship of Christian Athletes, to continue to organize, meet and be active on campus.
• Allows students to express their own ideas verbally and to distribute literature.
• Allows employees to wear items of jewelry that include symbols associated with religion

Suit Says Police Chief Forced Religion On Officers

The Advocate reports on a federal court lawsuit filed last week against the Port Allen, Louisiana Police Department::

A second former Port Allen police officer has filed a lawsuit alleging Police Chief Esdron Brown consistently forced his religion on his officer corps through mandatory meetings, and further claimed the chief used God's will as reasoning for unjust promotions.

Robert Cannon Jr.,... , filed a federal civil rights case ... alleging the chief's repeated mention of religion and religious-focused meetings created a hostile work environment.

Supreme Court Denies Review In Attempted Cutoff of Medicaid Funds To Planned Parenthood

Over the dissent of Justices Thomas, Alito and Gorsuch, the U.S. Supreme Court today denied certiorari in Gee v. Planned Parenthood of Gulf Coast, Inc., (cert. denied, 12/10/2018). (Order list with dissenting opinion by Thomas, J.)  In the case, the 5th Circuit in a 2-1 decision (full text) upheld the district court's preliminary injunction against the state of Louisiana's termination of Medicaid contracts with Planned Parenthood. At issue in the case is whether Medicaid recipients have a private right of action to challenge the state's action, (SCOTUSblog case page).

Congressman Claims Advocacy Groups Are Spying On Christian School Groups In Louisiana

As a lawsuit against the  Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations continues, Louisiana congressman Mike Johnson this week posted the following warning on his campaign/personal Facebook page:

WARNING TO OUR FRIENDS IN BOSSIER SCHOOLS (Please share):

Last night we received very credible information that atheist litigation groups in CA have contacted private investigators in our area to try to hire them to obtain hidden video of Christian student groups and activities at Benton High School and potentially other Bossier Parish schools.

Unfortunately, this is to be expected now that these groups perceive the Bossier Parish School District as an ATM machine for attorney fee awards in what they believe will be easy Establishment Clause lawsuits. They are wrong, as our district is following the law--even as we fight vigorously to defend religious freedom. Sadly, Bossier schools will have to endure this legal harassment from the atheist groups for a while now, so everyone needs to be prepared.

According to an AP report, Americans United for Separation of Church and State says it has not hired private investigators, and the school district's attorney says he has no first hand knowledge of this kind of activity.

Suit Argues Drag Queen Story Time Violates Establishment Clause

KADN News reported yesterday on a lawsuit filed in federal district court in Louisiana by two religious groups-- Warriors for Christ and Special Forces of Liberty-- seeking to stop Drag Queen Story Time at the Lafayette, Louisiana public library.  The lawsuit argues that the program endorses secular humanism. According to a report last month by the Acadiana Advocate:

Drag Queen Story Time entails a group of male University of Louisiana at Lafayette students reading books to young children while dressed in women’s clothing. Library staff will select the books, which are to be appropriate for children ages three to six. It is scheduled for Oct. 6 at the main branch downtown.

The attorney filing the lawsuit for the religious groups is Christophe Sevier, who has filed numerous suits around the country contending that homosexuality is a "religion." (See prior posting).  Commenting on the Louisiana lawsuit, Sevier said:

The evidence would suggest that the self identified transgendered. They are using a government facility to show that the governments backs their worldview to then target children, to indoctrinate them under a faith based ideology.

Religious Themed Ad Reinstated On Football Field Amid Broader Litigation

As previously reported, in February four parents sued the Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations. Recently, amidst settlement talks in the litigation, the Benton High School Booster Club sold advertising space on the school's football field to Christ Fit Gym. The business' logo that was placed on the field in the end zone includes a cross and a citation to a bible verse.  KTBS News  and KTAL report that at the recommendation of legal counsel the ad was removed just before the school's homecoming game on Friday, pending consultation with the court. But apparently Christ Fit Gym filed suit in state court against the Booster Club challenging removal of the ad, and a temporary restraining order was issued against the Club.  The Booster Club is not a defendant in the federal lawsuit. The School Board that is a party to the federal lawsuit was not previously aware of the logo, but met yesterday to discuss it.  As reported by Bossier Now, amid increasing pressure the Board, after a two hour executive session, decided to fight the federal lawsuit rather than settle it and to allow back Christ Fit Gym's ad.

Street Preacher's Disturbing-the-Peace Citation Was Valid

In Roy v. City of Monroe, (WD LA, Aug. 29, 2018), a Louisiana federal district court dismissed a street preacher's suit challenging the constitutionality of the city of Monroe's disturbing-the-peace ordinance and the citation he received for violating it. The court described the conduct that led to the citation and summons:

The Corner Bar is known as a gathering spot for homosexuals. Roy believes that homosexuality is a sin. He preaches against homosexuality, as well as drinking alcohol, the use of drugs, fornication, and other topics.... On this night, they gathered at a telephone pole across the street from the Corner Bar. Roy was wearing an orange jump suit to demonstrate that he is a “prisoner of Christ” and to pose the questions to others, “Whose prisoner are you?”. At various times, he was also carrying a sixfoot cross made of cedar 4 x 4s. He normally approaches people and says something short to “startle” them or “stop” them. He cannot “afford to” be concerned about other people’s feelings because it might alter his message. Roy tells people that they are “going to Hell,” uses the terms “homosexual” and “whore,” and will tell people that “their father is the devil.” He raises his voice, shouts, and uses “strong Biblical language” to convey his message.

Qualified Immunity For Issuing Citation To Street Preaher

In Roy v. City of Monroe, (WD LA, Aug. 1 2018), a Louisiana federal district court granted defendant's motion for reconsideration and dismissed on qualified immunity grounds the damage portion of a claim by a street preacher against a police officer.  At issue was a claim that issuance of a citation and summons to the preacher for disturbing the peace violated his First Amendment rights. The court said in part:

Sergeant Booth issued a citation to Roy for disturbing the peace based upon Falcon’s complaint to him, in which she said Roy followed her across the street, called her names, and scared her. Falcon’s complaints were corroborated by Falcon appearing scared and by her direct identification of Roy. Sergeant Booth did not issue a citation to Roy for preaching in a public forum. Viewed from the standpoint of an objectively reasonable police officer, Booth had probable cause, and is entitled to qualified immunity.

Plaintiff's claims for injunctive and declaratory relief and attorneys' fees were set for trial.

Title VII Race Provisions Cover Anti-Jewish Discrimination

In Bonadona v. Louisiana College, (WD LA, July 13, 2018), a Louisiana federal magistrate judge held that Title VII's ban on racial discrimination in employment is broad enough to cover discrimination based on a person's Jewish heritage. At issue is a Title VII suit by an applicant for a coaching position who was not hired because of his Jewish heritage.  Plaintiff was born to a Jewish mother but converted to Christianity in college.The court said in part:

America is no stranger to anti-Semitism, which is often rooted in prejudice against a person based on his heritage/ethnicity without regard to the person’s particular religious beliefs. Jewish citizens have been excluded from certain clubs or neighborhoods, and they have been denied jobs and other opportunities based on the fact that they were Jewish, with no particular concern as to a given individual’s religious leanings. Thus, they have been treated like a racial or ethnic group that Title VII was designed to protect from employment discrimination based on membership in that group.

AP reports on the decision.