State Trial Court Strikes Down Wyoming Abortion Bans

In Johnson v. State of Wyoming, (WY Dist. Ct., Nov. 18, 2024), a Wyoming state trial court held that two Wyoming statutes barring abortions violate the Wyoming Constitution. One of the statutes bans all abortions with narrow exceptions. The other is a ban on prescribing or selling medication abortion drugs. The court said in part:

Under the Life Act and the Medication Abortion Ban, the State has enacted laws that impede the fundamental right to make health care decisions for an entire class of people, pregnant women. Wyoming Constitution, article 1, section 38 provides all individuals with the fundamental right to their own personal autonomy when making medical decisions. The Defendants have not established a compelling governmental interest to exclude pregnant women from fully realizing the protections afforded by the Wyoming Constitution during the entire term of their pregnancies, nor have the Defendants established that the Abortion Statutes accomplish their interest. The Court concludes that the Abortion Statutes suspend a woman's right to make her own health care decisions during the entire term of a pregnancy and are not reasonable or necessary to protect the health and general welfare of the people.

The court entered a permanent injunction, thus extending the temporary restraining orders that it had previously issued. Buckrail reports on the decision and reports that Wyoming Governor Mark Gordon has indicated that the decision will be appealed to the state Supreme Court.   [Thanks to Scott Mange for the lead.]

Suit Challenges Kentucky Abortion Bans

A class action lawsuit was filed last week in a Kentucky state trial court challenging the constitutionality under the Kentucky state constitution of two separate abortion bans found in Kentucky statutes. The complaint (full text) in Poe v. Coleman, (KY Cir. Ct., filed 11/12/2024), alleges that both the six-week ban, and the near total ban violate the right to privacy and the right to self-determination protected by the individual liberty guarantees of Sections 1 and 2 of the Kentucky Constitution.  The complaint alleges in part:

92. The constitutional right to privacy protects against the intrusive police power of the state, putting personal and private decision-making related to sexual and reproductive matters beyond the reach of the state. The right to privacy thus protects the right of a pregnant individual to access abortion if they decide to terminate their pregnancy. ...

98. The constitutional right to self-determination guards every Kentuckian’s ability to possess and control their own person and to determine the best course of action for themselves and their body. An individual who is required by the government to remain pregnant against her will— a significant physiological process affecting one’s health for 40 weeks and culminating in childbirth—experiences interference of the highest order with her right to possess and control her own person. The right to self-determination thus protects Kentuckians’ power to control whether to continue or terminate their own pregnancies.

The Kentucky ACLU issued a press release announcing the filing of the lawsuit. [Thanks to Thomas Rutledge for the lead.]

Court Enjoins Disciplining of Doctors Performing Certain Abortions in Tennessee

In Blackmon v. State of Tennessee, (TN Chanc. Ct., Oct. 17, 2024), a Tennessee state Chancery Court issued a temporary injunction barring the state from instituting disciplinary proceedings against plaintiff physicians for performing abortions in any of four specified medical situations. The court found that plaintiffs are likely to succeed in their challenges under the right to life, liberty or property and the equal protection clauses of the state constitution and in their vagueness challenge. The court said in part:

The question remains ... whether the Medical Necessity Exception, as currently written, serves a compelling state interest and is narrowly tailored to achieve that goal.  Given the range of interpretations proffered through the expert declarations ..., the Court finds that the issue of which conditions, and the timing of when they present and escalate to life-threatening conditions, constitute medical emergencies within the Medical Necessity Exception is demonstrably unclear, notwithstanding the “reasonable medical judgment’ of the physician standard set forth in the Exception.  This lack of clarity is evidenced by the confusion and lack of consensus within the Tennessee medical community on the circumstances requiring necessary health- and life-saving abortion care.  The evidence presented underscores how serious, difficult, and complex these issues are and raises significant questions as to whether the Medical Necessity Exception is sufficiently narrow to serve a compelling state interest....

Plaintiff Patients, as pregnant women, claim they are similarly situated to non-pregnant women who seek and are in need of emergency medical care.  Yet because of the criminal abortion statute, pregnant women are treated differently than non-pregnant women because their access to emergency medical care is restricted....

While the court enjoined disciplinary proceedings, it held that it lacked jurisdiction to enjoin enforcement of the state's criminal abortion statute. The Hill reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Florida Voters Sue Claiming Invalid Signatures on Abortion Rights Amendment Petitions

Suit was filed last week in a Florida state trial court against election supervisors in 12 Florida counties, as well as against the Secretary of State, other state officials and the sponsors of Amendment 4, a proposed abortion rights amendment that appears on the November Florida ballot. The complaint, brought by four Florida voters, alleges illegal and fraudulent petition signature-gathering efforts. Plaintiffs rely in large part on the Office of Election Crimes and Security's October 2024 Interim Report to Legislature on Initiative Petition Fraud Related to the Abortion Initiative.  The complaint (full text) in Hoffman v. Barton, (FL Cir. Ct., filed 10/16/2024), includes 348 pages of exhibits and alleges in part:

186, Because FPF submitted signatures collected on a pay-per-signature basis, the petition process was substantially infected by fraud and corruption. The substantial fraud and corruption that permeated the election process constitutes a basis for the Court to decertify and strike Amendment 4 from the 2024 General Election Ballot or—if this case is not resolved before the election—to enjoin the State Defendants from counting the votes or, if passed, to enjoin the State Defendants from giving effect to votes cast in favor of Amendment 4.   

187. Although the Secretary of State has issued a certificate of ballot placement, the certificate does not cure the fraud and corruption that infected the petition process. Moreover, if the 2024 General Election occurs prior to the resolution of this action, passage will similarly not cure the fraud and corruption that resulted in Amendment 4’s passage. 

In October, the ACLU responded to the Interim Report, saying in part:

The Secretary of State’s unprecedented and suspiciously-timed report makes nonsensical claims about a few hundred petitions, which would have had no effect on the campaign meeting the statutory requirements. Importantly, the state had an opportunity to file objections to petitions before April, but did not object to the inconsequential petitions for which it is now attempting to sanction and publicly chastise the campaign.

Liberty Counsel issued a press release last week announcing the filing of last week's lawsuit.

Suit Challenges Oklahoma Bible Education Mandate and Purchase of Bibles

Suit was filed this week by public-school parents, their minor children, teachers, and clergy challenging Oklahoma's recently imposed requirement for all public schools to incorporate the Bible in their curricula. The suit was filed in the Oklahoma Supreme Court asking it to assume original jurisdiction because of the importance and time-sensitiveness of the case. The suit seeks a declaratory judgment, injunction and writ of mandamus providing that the Bible Education Mandate is invalid and unenforceable and seeks orders preventing the purchase of Bibles under the RFP issued by the state. (See prior posting.) The complaint (full text) in Walke v. Walters, (OK Sup. Ct., filed 10/17/2024), alleges in part:

The planned $3 million in spending on Bibles would unlawfully support an invalid rule.  The spending is also illegal for a number of other reasons.  No statutory or other legislative authority exists for Respondents to spend state funds on curricular materials that they select; rather, their authority is limited to providing state funds to individual school districts that the districts can then spend on texts of their own choice.  Respondents intend to spend on the Bibles funds that were designated for other purposes and have not been lawfully reallocated.  The Request for Proposal to supply Bibles violates state procurement requirements because it is gerrymandered to favor two particular providers.  And religious freedom provisions of Oklahoma’s Constitution—specifically Section 5 of Article II and Section 2 of Article I—prohibit spending state funds on the Bibles, because they are religious items and the spending would support one particular religious tradition.

AP reports on the lawsuit.

Georgia Supreme Court Reinstates 6-Week Abortion Ban While Appeal Is Heard

Yesterday in State of Georgia v. Sistersong Women of Color Reproductive Justice Collective, (GA Sup. Ct., Oct. 7, 2024), the Georgia Supreme Court in a brief order reinstated Georgia's 6-week abortion ban while an appeal of a trial court's injunction is litigated. Last week a state trial court had enjoined enforcement of the abortion ban, finding it unconstitutional under the state constitution. (See prior posting.) Supreme Court Justice Ellington filed an opinion dissenting from the Supreme Court's order, saying in part:

In its motion, the State fails to show any reason for urgency that goes beyond their underlying arguments in favor of allowing the State to prevent women from deciding whether to terminate a pregnancy after embryonic cardiac activity can be detected and before a fetus is viable....

Fundamentally, the State should not be in the business of enforcing laws that have been determined to violate fundamental rights guaranteed to millions of individuals under the Georgia Constitution. The “status quo” that should be maintained is the state of the law before the challenged laws took effect.

The state Supreme Court did not stay the trial court's injunction against a provision making health records of women obtaining abortions available to the district attorney.  ACLU issued a press release announcing the decision. AP reports on the decision.

Georgia's 6-Week Abortion Ban Declared Unconstitutional

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Sept. 30, 2024), a Georgia state trial court held unconstitutional under the state constitution Georgia's ban on abortions once a fetal heartbeat is detected (usually around 6 weeks). The court said in part:

Before the LIFE Act, Georgia law required a woman to carry to term any fetus that was viable, that had become something that -- or more accurately someone who -- could survive independently of the woman.  That struck the proper balance between the woman’s right of “liberty of privacy” and the fetus’s right to life outside the womb.  Ending the pregnancy at that point would be ending a life that our community collectively can and would otherwise preserve; no one person should have the power to terminate that.  Pre-viability, however, the best intentions and desires of society do not control, as only the pregnant woman can fulfill that role of life support for those many weeks and months.  The question, then, is whether she should now be forced by the State via the LIFE Act to do so?  She should not.  Women are not some piece of collectively owned community property the disposition of which is decided by majority vote.  Forcing a woman to carry an unwanted, not-yet-viable fetus to term violates her constitutional rights to liberty and privacy, even taking into consideration whatever bundle of rights the not-yet-viable fetus may have....

For these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability.  It is not for a legislator, a judge, or a Commander from The Handmaid’s Tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could -- or should -- force them to serve as a human tissue bank or to give up a kidney for the benefit of another...

Anticipating the virtually certain appeal, the court went on to conclude that even if it is mistaken about the constitutionality of the 6-week ban, the exception for physical health emergencies, but not mental health ones, violates the equal protection clause of the Georgia constitution. It also found unconstitutional the provision of the act making health records of women obtaining abortions available to the district attorney. However, it held that if the 6-week ban is constitutional, the conditioning of the rape or incest ban on a police report having been filed is constitutional.  CNN reports on the decision.

Missouri Supreme Court Issues Opinions Supporting Prior Order on Abortion Ballot Measure

As previously reported, on September 14 the Missouri Supreme Court ruled that the Missouri's Right to Reproductive Freedom amendment must appear on the November ballot, reversing a decision by a trial court. It indicated that opinions supporting its order would follow. Now the Court has filed those opinions.  In Coleman v. Ashcroft, (MO Sup. Ct., Sept. 20, 2024), the Missouri Supreme Court in a 4-3 decision held that petitions proposing a state constitutional amendment only need to identify existing sections of the state constitution that are inconsistent and irreconcilable with the proposed amendment. Petitions need not identify all statutes that might later be declared invalid if the proposed amendment is approved. The court also held that the proposed amendment does not violate the state constitution's single subject requirement.

Judge Powell issued a concurring opinion.  Judge Broniec, joined by Judges Fischer and Gooch, filed a dissenting opinion contending that Missouri law also requires petitions to list existing statutes that would be in direct conflict with the proposed constitutional amendment.

Nebraska Supreme Court Approves Competing Initiative Measures on Abortion

Last Friday, the Nebraska Supreme Court rejected challenges to two competing state constitutional amendments relating to abortion. In State of Nebraska ex. rel. Brooks v. Evnan, (NE Sup. Ct., Sept. 13, 2024), the Nebraska Supreme Court held that the ballot initiative titled Protect the Right to Abortion does not violate the Nebraska Constitution's single subject rule. In State of Nebraska ex. rel. Constance v. Evnan, (NE Sup. Ct., Sept. 13, 2024), the Nebraska Supreme Court similarly held that the ballot initiative titled Protect Women and Children does not violate the state constitution's single subject rule. Nebraska Public Media reports on the decisions.

Indiana Trial Court Rejects "As Applied" Challenge to State Abortion Restrictions

Last year, Indiana's Supreme Court rejected a facial challenge to the state's 2022 abortion law. In that case, the Indiana Supreme Court held:

Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. (See prior posting.)

Plaintiffs then filed an "as applied" constitutional challenge to the Indiana law. In Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc. v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., Sept. 11, 2024), an Indiana state trial court now rejected that challenge.  The court said in part:

Plaintiffs have not shown a that S.B.1 materially burdens the rights of any specific patient or well-defined class of patients to access constitutionally protected abortion care. Significant and compelling evidence regarding the policy implications of S.B. 1-- and its effect on medical professionals in particular-- was presented. However, the Court cannot substitute its own policy preferences for that of the Indiana General Assembly and the Court limits its examination to the General Assembly's constitutional authority post-Planned Parenthood. Plaintiffs have not shown an instance where an abortion is necessary to treat a serious health risk but would also fall outside of the Health and Life Exception.  Additionally, Plaintiffs have not demonstrated that the Hospital Requirement is materially burdensome to constitutionally protected abortion access, nor that it fails rational basis review as to statutorily authorized (but not constitutionally protected) abortions.

Liberty Counsel issued a press release announcing the decision.

North Dakota Trial Court Says State Abortion Ban Violates State Constitution

 In Access Independent Health Services, Inc. v. Wrigley, (ND Dist, Ct., Sept. 12, 2024), a North Dakota state trial court judge held that the state's current abortion law that bans abortions (with limited exceptions), violates the state constitution.  The court said in part:

[T]he court concludes that (1) the Amended Abortion Ban set forth in Chapter 12.1-19.1, N.D.C.C., as currently drafted, is unconstitutionally void for vagueness; and (2) pregnant women in North Dakota have a fundamental right to choose abortion before viability exists under the enumerated and unenumerated interests protected by the North Dakota Constitution for all North Dakota individuals, including women-- specifically, but not necessarily limited to, the interests in life, liberty, safety, and happiness enumerated in Articles [I], section 1 of the North Dakota Constitution.

The court also observed:

... [T]he decision in this matter may be one of the most important this Court issues during its time on the bench. However, in reaching the decision below, it is also not lost on the Court that, on appeal, this Court's decision is given no deference.

... The Court is left to craft findings and conclusions on an issue of vital public importance when the longstanding precedent on that issue no longer exists federally, and much of the North Dakota precedent on that issue relied on the federal precedent now upended-- with relatively no idea how the appellate court in this state will address the issue.

North Dakota Monitor reports on the decision.

South Carolina Supreme Court: State Scholarship Program for Private School Students Violates State Constitution

 In Edison v. South Carolina Department of Education, (SC Sup. Ct., Sept. 11, 2024), the South Carolina Supreme Court in a 3-2 decision held that the state's Education Scholarship Trust Fund Act violates the state constitution insofar as it authorizes use of ESTF funds to pay tuition and fees to private educational institutions.  Article XI, Sec. 4 of the South Carolina Constitution provides:

No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.

The court said in part:

A parent who chooses to use a scholarship to pay their child's private school tuition is undoubtedly using public funds to provide a direct benefit to the private school....  After we clear away the window dressing, we can see the Act funnels public funds to the direct benefit of private schools.  This is what our constitution forbids.  We conclude Petitioners have carried their burden of proving beyond a reasonable doubt the portion of the Act that allows tuition payments from public funds for the direct benefit of private educational institutions violates Article XI, Section 4.

Chief Justice Kittredge, joined by Justice Few, filed a dissenting opinion, saying in part:

Under the South Carolina Constitution, the use of public funds for the direct benefit of a private school is impermissible; the use of public funds for the indirect benefit of a private school is entirely permissible....

In my view, ... the structure and operation of the ESTF Act provide an indirect benefit to schools of the families' choice—both private and public alike. Nonetheless, the majority opinion today defines the phrase "direct benefit" so broadly that it swallows any possible meaning of "indirect benefit" in the process.

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

Missouri Supreme Court: Abortion Rights Issue Must Appear on November Ballot

 The Missouri Supreme Court yesterday ruled that the Missouri's Right to Reproductive Freedom amendment must appear on the November ballot, reversing a decision by a trial court last week. (See prior posting.) The Supreme Court in Coleman v. Ashcroft, (MO Sup. Ct., Sept. 10, 2024) said in part in its Order:

By a majority vote of this Court, the circuit court’s judgment is reversed. Respondent John R. Ashcroft shall certify to local election authorities that Amendment 3 be placed on the November 5, 2024, general election ballot and shall take all steps necessary to ensure that it is on said ballot. Opinions to follow. ...

Pursuant to section 116.150.3, the secretary of state must certify a petition as sufficient or insufficient by 5:00 p.m. on the thirteenth Tuesday before the election.  Respondent Ashcroft certified the petition as sufficient prior to that deadline, and any action taken to change that decision weeks after the statutory deadline expired is a nullity and of no effect....

Missouri Independent reports on the decision.

Trial Court Says Missouri's Abortion Rights Initiative Petitions Were Invalid

In Coleman v. Ashcroft, (MO Cir. Ct., Sept. 6, 2024), a Missouri state trial court held that the petitions used to obtain signatures to include Missouri's Right to Reproductive Freedom amendment on the November ballot violated the provision in Missouri law that the petitions must include all sections of existing law or of the constitution which would be repealed by the measure. The court said in part:

Defendants argued on the record that such omission was made because it would confuse voters in that Amendment 3 would eventually have some type of effect on all sorts of laws.  That theory, of course, is not an exception to the requirements of 116.050 RSMo.

The secretary of state has already certified the measure to appear on the ballot. The court said that the only remedy for such omissions was enjoining certification of the measure and its appearance on the ballot. However, the court delayed execution of the injunction until September 10, the deadline for printing the measure on the ballot, so the issue could be reviewed by an appellate court.

AP reports on the decision.

Suit Challenges Nebraska Abortion Rights Ballot Proposal

On August 23, the Nebraska Secretary of State certified two competing abortion related petitions for inclusion on the November ballot-- the Protect the Right to Abortion amendment and the Protect Women and Children amendment. On Aug. 30, an anti-abortion proponent filed a petition in the Nebraska Supreme Court seeking a writ of mandamus requiring the Secretary of State to exclude the Protect the Right to Abortion proposal from the ballot. On the same day, the state Supreme Court granted petitioner leave to commence the action and set an extremely rapid hearing schedule. The state must file an answer by today, September 4, and a hearing is set for September 9. The petition (full text) in State of Nebraska ex rel LaGreca v. Evnen, (NE Sup. Ct., filed 8/30/2024) alleges as its only claim that the initiative proposal violates the single subject rule of the Nebraska constitution. Thomas More Society issued a press release announcing the lawsuit.

PA Supreme Court: Yard Signs Responding to Neighbors' Antisemitism Protected by Pennsylvania Constitution

In a 4-2 decision in Oberholzer v. Galapo, (PA Sup. Ct., Aug. 20, 2024), the Pennsylvania Supreme Court, relying on the broad free speech protections in Art. I, Sec. 7 of the Pennsylvania Constitution, dissolved an injunction issued by a trial court in an unusual dispute between neighbors. As described by Justice Dougherty's majority opinion:

In November 2014, a brewing feud between the neighbors over landscaping issues reached a boiling point after Dr. Galapo confronted Mr. Oberholzer about a resurveyed property line and Mrs. Oberholzer responded by calling him a “fucking Jew.”  This prompted the Galapos in June 2015 to erect the first of many signs primarily displaying anti-hate and anti-racist messages “along the back tree-line directly abutting [the Oberholzers’] property line, pointed directly at [the Oberholzers’] house, and in direct sight of [other] neighbors’ houses.” ...  All told, the Galapos posted twenty-three signs over a years-long span, during which the neighbors continued to quarrel over other minor nuisances.

Among other things, the Oberholzers sued claiming the signs placed them in a false light. The majority concluded:

We hold the Galapos engaged in protected speech when they posted in their own yard stationary signs decrying hatred and racism.  We further hold the Oberholzers failed to prove that substantial privacy interests are being invaded in an essentially intolerable manner by the Galapos’ pure residential speech.  As such, Article I, Section 7 of the Pennsylvania Constitution and this Court’s precedents precluded the trial court from enjoining the signs, regardless of the nature of the torts alleged.  The injunction imposed an improper prior restraint on speech in violation of Article I, Section 7.

Justice Wecht filed a dissenting opinion, saying in part:

The Galapos argue that the present injunction violates the no-injunction rule, that it is an unconstitutional prior restraint on speech, and that it fails strict scrutiny.  These arguments are unpersuasive.  The no-injunction rule does not exist in Pennsylvania.  Moreover, even if it did exist, it would not apply here because the equity court did not purport to enjoin defamatory speech.... The argument that the injunction constitutes a prior restraint is also mistaken because the injunction does not restrict speech in advance of its publication.  Finally, the injunction withstands application of strict scrutiny because it is narrowly tailored to serve a compelling state interest.

Justice Brobson also filed a dissenting opinion, saying in part:

I would conclude that the trial courts of this Commonwealth have the authority to enjoin residential speech protected by Article I, Section 7 of the Pennsylvania Constitution that rises to the level of a private nuisance and disrupts the quiet enjoyment of a neighbor’s home.  I would further find that the Injunction is content neutral, furthers the Commonwealth’s significant interest in protecting the privacy and quiet enjoyment of the Oberholzers’ home, and burdens no more of the Galapos’ speech than necessary to protect the Oberholzers’ right to residential privacy.

AP reports on the decision.

5th Circuit Reopens Lipan-Apache's Suit Objecting to Park Modifications

 In 2021, Texas voters approved an amendment to the state constitution that provides:

This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The amendment was a response to orders during the Covid pandemic that limited the size of gatherings for religious services. (Background.)

In Perez v. City of San Antonio, (5th Cir., Aug. 28, 2024), the U.S. 5th Circuit Court of Appeals certified to the Texas Supreme Court the question of whether this ban is an absolute one, or whether the amendment merely imposes a strict scrutiny requirement on any limitation. The issue arises in a suit by members of the Lipam-Apache Native American Church who claim that improvements to a park that include tree removal and rookery management destroy their ability to use a sacred site in the park for certain religious ceremonies. In a prior decision, the 5th Circuit rejected plaintiffs' claim under the Texas Religious Freedom Restoration Act. It then held that plaintiffs had not adequately briefed the question of whether the Religious Services Amendment to the constitution covers a compelled preservation of spiritual ecology. (See prior posting.) Plaintiffs filed a motion for a rehearing, and in this week's decision the panel withdrew its original opinion and certified the question of the meaning of the Religious Services Amendment to the Texas Supreme Court, saying in part:

Neither party has cited any cases interpreting this constitutional provision, nor has this court found any. This potentially outcome determinative issue raises novel and sensitive questions....

Arkansas Supreme Court Keeps Abortion Rights Measure Off November Ballot

 In Cowles v. Thurston,(AR Sup. Ct., Aug. 22, 2024), the Arkansas Supreme Court in a 4-3 decision held that the Secretary of State properly refused to count signatures collected by paid canvassers on petitions to have an abortion rights amendment submitted to the voters in November. Proponents failed to submit paid canvasser training certifications along with the petitions, and there were insufficient signatures collected only by volunteer canvassers. Proponents claimed that an employee in the Secretary of State's Office told them that filing the certifications was unnecessary.

Chief Justice Kemp dissented contending that the Secretary of State should complete counting the signatures and grant a provisional cure period.  Justice Baker, Joined by Justice Hudson dissented contending that proponents later filing of certifications adequately complied with the filing requirements, saying that "nothing in the statute requires that the certification and the petition be filed simultaneously." She said in part:

In my view, the majority has reconfigured the relevant statute in order to cater the initiative process to the preference of the respondent while this process is the first power reserved for the people. In fact, despite the majority’s acknowledgment that “[t]his court cannot rewrite the statute[,]” the majority has done just that multiple times to achieve a particular result.

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

Ohio Court Rejects Challenge to Ban on Treatment of Minors for Gender Dysphoria

In Moe v. Yost, (OH Com. Pl., Aug. 6, 2024), an Ohio state trial court held that Ohio's ban on surgical or hormonal treatment of minors for gender dysphoria does not violate the equal protection or due process clause of the 14th Amendment, or the Ohio constitution's single subject rule, due course of law clause or its Health Care Freedom Amendment. The court said in part:

25. The State of Ohio has a legitimate government interest in protecting the health and safety of its citizens.  

26. The Court finds that upon weighing the evidence received at trial, the Health Care Ban is rationally related to this interest. It is limited to minors. Moreover, the medical care banned carries with it undeniable risk and permanent outcomes.  Indeed, countries once confident in the administration of gender affirming care to minors are now reversing their position as a result of the significant inconsistencies in results and potential side effects of the care.  Thus, there can be no doubt that the Health Care Ban is neither arbitrary nor unreasonable.

The court thus vacated the temporary restraining order previously entered in the case. 

The ACLU announced that it would file an immediate appeal of the decision.

Utah Supreme Court Upholds Preliminary Injunction Against Law Banning Most Abortions

 In Planned Parenthood Association of Utah v. State of Utah, (UT Sup. Ct., Aug. 1, 2024), the Utah Supreme Court, in a 4-1 decision, affirmed a trial court's entry of a preliminary injunction against enforcement of SB174, a trigger law that prohibits all abortions except for death or substantial bodily harm of the mother, lethal defect or brain abnormality of the fetus, or the mother was pregnant as a result of rape or incest. The state Supreme Court said in part:

In re J.P. discussed, among other [state constitutional] rights, the right to marry the person of one’s choosing and the right to establish a home.... The commonality these rights share is not a child, but the right to make certain intimate decisions about one’s life free from government intrusion. At this point in the litigation, we cannot say whether a restriction on the ability to choose to have an abortion infringes the rights we recognized in In re J.P., but there are serious questions regarding the scope of those rights that merit further litigation....

PPAU has standing to press its claims and the claims of its patients. 

The district court did not err when it concluded that PPAU had raised serious issues about the constitutionality of SB 174. The court did not abuse its discretion when it concluded that PPAU and its patients would be irreparably harmed without the injunction. Likewise, the court did not abuse its discretion when it concluded that the balance of harms tipped in favor of enjoining SB 174 while the parties litigate its constitutionality. Nor did the court act outside the bounds of its discretion when it concluded that the injunction would not be adverse to the public interest.

Chief Justice Durrant filed a dissenting opinion, contended that Planned Parenthood lacked standing to bring the lawsuit.

Utah News Dispatch reports on the decision.