Montana Supreme Court: State Constitution Protects Abortion Care by Advance Practice Registered Nurses

In Weems v. State of Montana, (MT Sup. Ct., May 12, 2023), the Montana Supreme Court held that a 2005 Montana statute that bars Advance Practice Registered Nurses from delivering abortion care violates the Montana Constitution.  The court summarized its decision:

Article II, Section 10, of the Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk. The State has failed to meet its burden of demonstrating that APRN-FNPs and APRN-CNMs providing abortion care present a medically acknowledged, bona fide health risk. The State has failed to present any evidence that demonstrates abortions performed by APRNs include more risk than those provided by physicians or PAs. The State has failed to identify any reason why APRNs should be restricted from providing abortions, and thus failed to articulate a medically acknowledged, bona fide health risk. The District Court correctly determined that no genuine dispute of material fact exists regarding the safety and efficacy of APRNs providing early abortion care. Accordingly, § 50-20-109(1)(a), MCA, is an unconstitutional interference with a woman’s right of privacy to seek medical care from a qualified provider of her choice.

Law & Crime reports on the decision.

New Florida Law Protects Conscience Rights of Health Care Providers

 Yesterday Florida Governor Ron DeSantis signed Senate Bill 1580 (full text) which protects conscience rights of health care providers and insurers. The law provides in part:

It is the intent of the Legislature to provide the right of medical conscience for health care providers and payors to ensure they can care for patients in a manner consistent with their moral, ethical, and religious convictions. Further, it is the intent of the Legislature that licensed health care providers and payors be free from threat of discrimination for providing conscience-based health care....

 A health care provider or health care payor has the right to opt out of participation in or payment for any health care service on the basis of a conscience-based objection....

A board ... may not take disciplinary action against a health care practitioner’s license or deny a license to an individual solely because the individual has spoken or written publicly about a health care service or public policy, including, but not limited to, speech through the use of a social media platform ... provided that the individual is not using such speech or written communication to provide medical advice or treatment to a specific patient or patients....

Pensacola News Journal reports on the new law.

8th Circuit Upholds Constitutionality of Federal Ban on Damaging Religious Real Property

In United States v. Hari, (8th Cir., May 10, 2023), the U.S. 8th Circuit Court of Appeals upheld the constitutionality under the Commerce Clause of 18 USC §247.  The statute bars damaging religious real property because of the religious character of the property, and bars obstructing a person's enjoyment of free exercise of religion by force or threat of force against them or against religious real property, when the person's conduct affects interstate commerce. The court said in part:

Here, the statute specifically requires that the offense “affects interstate or foreign commerce.” This “ensures, through a case-by-case inquiry, that each defendant’s [offense] affected interstate commerce.”

The court also upheld defendant's conviction under 18 USC § 924(c)(1) for carrying or using a destructive device during and in relation to any crime of violence.  The conduct for which defendant was convicted was described by the court:

In August 2017, Emily Hari loaded a pickup truck with a 20 pound pipe bomb, two assault rifles, and a sledgehammer and drove with two confederates from Illinois to the Dar al-Farooq Islamic Center in Bloomington, Minnesota. The trio smashed a window of the Imam’s office before the parishioners’ dawn prayer and threw gasoline, diesel fuel, and the pipe bomb inside. The bomb detonated. No one was injured; the building suffered fire and smoke damage. Hari and the others fled.

Alabama Law Protects Identity of Donors, Supporters, Volunteers and Members of Non-Profits

Yesterday, Alabama Governor Kay Ivey signed S-59, The Personal Privacy Protection Act (full text). The new law prohibits any governmental agency from requiring disclosure of, or from releasing information about, the identity any member. supporter, volunteer, or donor of a non-profit organization.  It also bars requiring any current or prospective contractor or grantee to disclose non-profits to which it has donated or provided support. The Act contains a number of exceptions, including required disclosures under campaign finance laws.  Indiana has recently enacted a similar statute. (See prior posting.) ADF issued a press release announcing the signing of the law.

European Court: Finland May Require Jehovah's Witnesses to Obtain Consent Before Taking Notes on Those They Visit

In Jehovah's Witnesses v. Finland, (ECHR, May 9, 2023), the European Court of Human Rights held that Finland's data collection regulations did not infringe the religious freedom protected by Article 9 of the European Convention on Human Rights of Jehovah's Witnesses who proselytized door-to-door.  At issue was notes taken by Jehovah's Witnesses in the course of their door-to-door preaching identifying those who did not wish to be visited again, and those who are deaf or spoke a foreign language so Witnesses who knew sign language or the relevant foreign language could visit in the future. Finland's Data Protection Ombudsman had held that this personal data could not be collected without the explicit consent of the person in question. Upholding that determination, the court said in part:

The relevant order had been based on the Personal Data Act in force at the time of the proceedings. That law was formulated with sufficient precision and aimed to protect the rights and freedoms of others. The Supreme Administrative Court had taken into account the fact that individuals whose personal data had been collected were entitled to trust that their data were not collected without their knowledge and consent. They also had a legitimate expectation, guaranteed by law, that they would have access to the data and, if necessary, the right to require that the data be corrected or deleted. Ensuring the rights of data subjects therefore inspired confidence rather than distrust in the applicant community’s activities. The consent requirement and the fact that it did not interfere with the core areas of the applicant community’s freedom of religion or freedom of expression had thus been proportionate.

Courthouse News Service reports on the decision.

EEOC Sues IHOP Restaurant for Failing to Accommodate Cook's Religious Beliefs

The EEOC announced yesterday that it has filed a Title VII religious discrimination suit in a North Carolina federal district court against a Charlotte, North Carolina IHOP restaurant operated by Suncakes, LLC.  The EEOC charged that the restaurant failed to reasonably accommodate an employee's religious exercise:

... Suncakes hired a cook ... in January 2021. At the time of hire, the employee requested and was granted a religious accommodation of not working on Sundays to honor his religious observances. After a change in management in April 2021, the new general manager expressed hostility toward the accommodation and required the employee to work on Sunday, April 25 and Sunday, May 9. After the May 9 shift, the employee told the general manager he would not be working the following Sunday. The general manager refused to allow the employee to work his next scheduled shift and fired him. The manager then made comments to other employees such as, “religion should not take precedence over [the employee’s] job”” and that the employee “thinks it is more important to go to church than to pay his bills.”

Satanic Temple Sues to Deliver Invocation at Chicago City Council

The Satanic Temple filed suit last week in an Illinois federal district court challenging the city's exclusion of its clergy from delivering an invocation before Chicago City Council.  The complaint (full text) in The Satanic Temple, Inc. v. City of Chicago, (ND IL, filed 5/3/2023) alleges in part:

2. The City of Chicago has a longstanding practice of inviting clergy to open each meeting of its City Council with a prayer. 

3. Plaintiffs, The Satanic Temple Inc. (“TST”), and Adam Vavrick, an ordained minister of the Satanic Temple and a leader of TST’s Illinois congregation, seek to take part in this time-honored tradition by delivering an invocation before a City Council meeting. For more than three years, the City has rebuffed Plaintiffs’ efforts to provide an invocation without providing any clear explanation of why. 

4. The City’s practices with regard to invocations before City Council violate the First Amendment in two ways:

first, the City violates the First Amendment’s establishment clause by excluding disfavored minority faiths from the opportunity to provide an invocation; and 

second, the City grants the City Clerk unconstrained discretion to decide who can and cannot deliver an invocation because it lacks any standards for selection of clergy to give invocations and has not established a uniform process for members of the clergy to apply to give an invocation.

Reason reports on the lawsuit.

Teachers Sue Over School District's Policy on Transgender Students

Suit was filed last month in a California federal district court by two middle school teachers who claim that their school district's policy on dealing with transgender students violates their free speech and free exercise rights, as well as the rights of parents.  The complaint (full text) in Mirabelli v. Olson, (SD CA, filed 4/27/2023), alleges in part:

According to EUSD’s policies, all elementary and middle school teachers must unhesitatingly accept a child’s assertion of a transgender or gender diverse identity, and must “begin to treat the student immediately” according to their asserted gender identity. “There’s no requirement for parent or caretaker agreement or even for knowledge.”... There is absolutely no room for discussion, polite disagreement, or even questioning whether the child is sincere or acting on a whim. 

... Once a child’s social transitioning has begun, EUSD elementary and middle school teachers must ensure that parents do not find out. EUSD’s policies state that “revealing a student’s transgender status to individuals who do not have a legitimate need for the information, without the student’s consent” is prohibited, and “parents or caretakers” are, according to EUSD, individuals who “do not have a legitimate need for the information,” irrespective of the age of the student or the specific facts of the situation....

Faced with EUSD’s immoral policies deceiving parents, both Mrs. Mirabelli and Mrs. West sought an accommodation that would allow them to act in the best interests of the children in their care—as required by their moral and religious convictions....

Mrs. Mirabelli’s and Mrs. West’s request was flatly denied.

The two plaintiffs devised a "joint statement of faith" for purposes of the lawsuit, even though they come from different religious traditions. One is Roman Catholic and the other a "devout Christian."  They alleged:

Plaintiffs’ faith teaches that God immutably creates each person as male or female; these two distinct, complementary sexes reflect the image of God; and rejection of one’s biological sex is a rejection of the image of God within that person.

... Plaintiffs also believe that they cannot affirm as true those ideas and concepts that they believe are not true, nor can they aid and abet the deception of others. Doing so, they believe, would violate biblical commands against dishonesty and lying.

Fox News reports on the lawsuit.

Oakland Catholic Diocese Files for Chapter 11 Reorganization.

The Catholic Diocese of Oakland, California announced yesterday that it is filing for Chapter 11 bankruptcy reorganization, saying in part:

The filing is necessary in light of the more than 330 lawsuits alleging child sexual abuse brought against RCBO under a recent California statute that allowed decades-old claims otherwise time barred and expired to be filed....

Most of the claims brought under the most recent California statute stem from allegations of sexual abuse that occurred in the 1960s, 70s, and 80s by priests who are no longer active in ministry and/or deceased. Chapter 11 is a court-supervised, transparent process that allows for the evaluation of the merits of each claim and gives claimants a say in the outcome and visibility into the proceedings and RCBO’s finances. With the Chapter 11 filing, legal actions against RCBO will stop, allowing RCBO to develop a plan of reorganization, based on assets and insurance coverage available to be used to settle claims with abuse survivors.

Catholic schools that operate in the diocese are separate entities and are not included in the bankruptcy filing.

Recent Articles of Interest

From SSRN:

• Elana Falletti, The Reformation and the Marriage: the Duty of Fidelity and Adultery, ( 2023).
• Mridusmita Baruah, The Jurisprudence of Human Rights in the Vicinity of Religion, (April 21, 2023).
• Ann Schiavone, A "Mere Shadow" of a Conflict: Obscuring the Establishment Clause in Kennedy v. Bremerton, (Duquesne University Law Review, Vol. 61, No. 1, 2023).
• Hila Keren, 303 Creative v Elenis: What's Wrong with Preemtive Litigation of Discrimination, (May 2, 2023).
• Mugambi Jouet, A History of Post-Roe America and Canada: From Intertwined Abortion Battles to American Exceptionalism, (Michigan Journal of Gender & Law, Forthcoming).
• Robin S. Maril, From Liberation To (Re)Criminalization: Dobbs v. Jackson Women’s Health Organization, Bodily Autonomy, and the Expansion of State Rights, (SMU L. Rev., Forthcoming).
• Zachary Garrett, The Ghost of Gilbert: Title VII Abortion Discrimination Actions After Dobbs, (University of St. Thomas Law Journal, Forthcoming).
• Hila Keren, Beyond Discrimination: Market Humiliation and Private Law, (University of Colorado Law Review, Forthcoming).

From SSRN (Islam and Islamic Law):

• A.F.M. Maniruzzaman, Islamic Finance and Dispute Resolution - An Introduction, (Transnational Dispute Management - TDM 6 (2022)).
• Ruta Prabudesai, Richa Dwivedi & Varun Sharma, Comparison of Hindu and Muslim Personal Laws with Goa’s Portuguese Civil Code: Special Reference to Rights of Women, (Cardiometry- Original Research, Issue 24. November 2022).
• Mohammad Fadel, A Place for Pluralism: Rethinking the 'Problem' of Islam in the Middle East, (Foreign Policy at Brookings, March 2023).
• Sahar F. Aziz & Sarah Calderone, Islamophobia in Russia: Ethnicity, Migration, and National Security, (Global Islamophobia in an Era of Populism (Oxford 2024) (Forthcoming)).

From SmartCILP:

• Patrick M. Garry, The Supreme Court Corrects a Seventy-Five-Year Distortion in Establishment Clause Jurisprudence, 56 Indiana Law Review 95-118 (2022).
• Dorit R. Reiss & John DiPaolo, COVID-19 Vaccine Mandates for University Students, 24 N.Y.U. Journal of Legislation & Public Policy 1-66 (2021).

King Charles Coronation Ceremony for First Time Includes Participation by Non-Anglican Faith Leaders

The Church of England has published (full text) the 42-page Authorized Liturgy for the Coronation Rite of His Majesty King Charles III along with Commentary on each portion of the liturgy. Unique to Charles' coronation is the participation of representatives of faith communities outside the Church of England. Representatives of other Christian communities will offer blessings during the Coronation service (see pg. 25). They are The Greek Orthodox Archbishop of Thyateira & Great Britain; The Moderator of The Free Churches; The Secretary General of Churches Together in England; and The Cardinal Archbishop of Westminster. The Church of England's Commentary to this portion of the liturgy reads:

The progress of ecumenical relations since 1953 means that, for the first time, this Blessing is to be shared by Christian leaders across the country.

In addition, non-Christian faith leaders will have a role in the Coronation. The ceremony begins with a Procession of Faith Leaders & Representatives of Faith Communities (see pg. 2).  The Commentary to the liturgy reads:

Faith Leaders and representatives from the Jewish, Sunni and Shia Muslim, Sikh, Buddhist, Hindu, Jain, Bahai and Zoroastrian communities will be part of the procession into Westminster Abbey. 

This represents the multi-faith nature of our society and the importance of inclusion of other faiths whilst respecting the integrities of the different traditions.

The ceremony ends with the new King receiving a greeting by representatives of the Jewish, Hindu, Sikh, Muslim, and Buddhist faith communities:

As the King stands before the Leaders and Representatives of the Faith Communities, they deliver the following greeting in unison. 

Faith Leaders & Representatives: 

Your Majesty, as neighbours in faith, we acknowledge the value of public service. We unite with people of all faiths and beliefs in thanksgiving, and in service with you for the common good.

The King acknowledges the greeting, and turns to greet the Governors-General.

The Commentary to this section of the Liturgy reads:

In an unprecedented gesture consolidating the significance of the religious diversity of the Realms, the Sovereign will take his final moments of the service to receive a greeting from the leaders and representatives from the major non-Christian faith traditions. 

In a spoken greeting these faith leaders and representatives speak with their own voices, as communities, but deliver the greeting in unison, as a community of faiths, united in the service of others, and in thanksgiving for His Majesty’s example this day, and every day of his reign. 

We remain grateful to all faith communities for exploring ways in which such an act of unity could be produced, and especially to the Jewish community for finding ways to make this possible without compromising the observance of Shabbat.

CNN reported that  England's Chief Rabbi was invited to stay at St. James Palace over the Sabbath so that he could walk to the ceremony at Westminster Abbey.  Catholic News Agency in an article titled Catholic prelate to participate in British coronation for first time since Reformation reported that the Catholic Bishops’ Conference of England and Wales in advance of the Coronation has issued a special prayer card with prayers for the King. Law & Religion UK has additional reporting on the coronation.

Indiana Governor Signs Bill Protecting Privacy of Donors and Members of Nonprofits

On May 4, Indiana Governor Eric Holcomb signed House Bill 1212 (full text) which protects the privacy of information about the identity of members, supporters, volunteers and donors to nonprofit organizations. Among other things, under the new law governmental agencies and governmental subdivisions may not require nonprofits to furnish lists of donors, members, volunteers or supporters, may not release information of that sort that is in their possession, nor require a prospective contractor or grantee to disclose nonprofits to which it has donated.  The new law has a number of exceptions, including disclosures required by campaign finance and lobbying disclosure laws. ADF issued a press release announcing the signing of the bill.

New British Law Creates 150 Meter Buffer Zone Around Abortion Clinics

 On May 2, Britain's Public Order Act 2023 gained Royal Assent. Section 9 of the Act (full text) creates a 150 meter safe access zone around any abortion clinic.The section provides in part:

It is an offence for a person who is within a safe access zone to do an act with the intent of, or reckless as to whether it has the effect of—

(a)influencing any person’s decision to access, provide or facilitate the provision of abortion services at an abortion clinic,

(b)obstructing or impeding any person accessing, providing, or facilitating the provision of abortion services at an abortion clinic, or

(c)causing harassment, alarm or distress to any person in connection with a decision to access, provide, or facilitate the provision of abortion services at an abortion clinic....

where the person mentioned in paragraph (a), (b) or (c) is within the safe access zone for the abortion clinic.

The Secretary of State must still promulgate the effective date of this section.  Law & Religion UK has more on the new law.

Montana Governor Signs 5 Abortion-Related Bills

On Wednesday, Montana Governor Greg Gianforte signed into law five bills recently passed by the Montana legislature which regulate abortion procedures or availability.  The Daily Montanan reports on the bills that will now become law. Here is its description of each bill:

Senate Bill 154 ... carves out an exception to abortion under the constitutional right to privacy. A legal review note for the bill said it was at odds with the state constitution, which [Senate Judiciary Chairman Sen. Kieth] Regier responded to in a rebuttal saying it was the state’s Supreme Court that decided that abortion was covered under the right to privacy, and not the constitution.

House Bill 303... provides protections for medical practitioners and facilities that object to participation in health care services based on conscience, defined as “ethical, moral, or religious beliefs or principles.”...

House Bill 575 ... bans abortions after 24 weeks with a definition for viability by that stage of development, and it requires medical practitioners to perform and keep record of an ultrasound. 

House Bill 625 ... is a resurrection of the ballot issue LR-131 that voters rejected last fall, which would have required doctors save any infant born alive after an abortion later in pregnancy.

House Bill 786 ... has the state create regulations for the “humane disposition” of dead infants and fetuses, and other regulations of maternal complications and deaths tied “directly or indirectly” to abortions.

Five additional abortion-related bills are close to being submitted to the Governor for his signature.

White House Advisor: Strategy to Counter Domestic Terrorism and Antisemitism Will Be Completed This Month

On Tuesday, the White House posted the Remarks by Homeland Security Advisor Dr. Liz Sherwood-Randall to the Anti-Defamation League (full text) delivered at the ADL's National Leadership Summit. Dr. Sherwood-Randall said in part:

Ethnic and religious hatred is being normalized in our melting pot. Antisemitism is being normalized – its more mainstream, it’s out in the open. And, most disturbingly, violence against Jews is being normalized....

So it was with urgency that President Biden charged us with crafting this country’s first-ever National Strategy for Countering Domestic Terrorism.  We started this work on literally the first day of the Administration. Then, as part of that larger effort, we embarked on the first National Strategy to Counter Antisemitism specifically....

Dr. Sherwood-Randall said that they expect to complete their work on a national strategy by the end of May.

Today Is National Day of Prayer

Yesterday, President Biden issued a Proclamation (full text) declaring today to be a National Day of Prayer, saying in part:

Throughout our history, prayer has empowered moral movements and fueled efforts to strengthen our democracy.  It was deeply rooted in the fight to abolish slavery and the expansion of voting rights and voter access.  And it continues to compel us to uphold our founding creed that all of us are created equal, are made in the image of God, and deserve to be treated with dignity and equality throughout our lives....

 The Congress, by Public Law 100-307, as amended, has called on the President to issue each year a proclamation designating the first Thursday in May as a “National Day of Prayer.”

... I call upon the citizens of our Nation to give thanks, in accordance with their own faith and conscience, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God’s continued guidance, mercy, and protection.

White House Hosts Eid Reception; Conducts Listening Session on Islamophobia

On Monday evening, President Biden spoke at a White House reception to celebrate Eid al-Fitr. (Full text of remarks). The President said in part:

We remember Muslim communities around the world that are enduring conflict, poverty, hunger, disease, and those that are displaced from their homes. And we recommit to the tireless work of building peace and standing up for the rights and dignity of all people.  All people. 

And we’re determined to confront all forms of hate, including Islamophobia, which is important to me.  (Applause.)  This is a priority for my administration, which is why I established an interagency task force to address attacks on Muslims and anti-Muslim bias and discrimination....

Muslims have been part of the United States from the very start.  Muslims fought along the patriots during the War for Independence. One of the first countries to recognize the United States as an independent nation was a Muslim country, Morocco.  (Applause.) 

Today, there are 3.5 million of you in the United States.  You come from different ethnicities, races, speak different languages, but you’re united all as Americans.

The White House also announced that on Tuesday:

Second Gentleman Douglas Emhoff, White House Domestic Policy Advisor Ambassador Susan Rice, Deputy Homeland Security Advisor Joshua Geltzer, U.S. Ambassador at Large for International Religious Freedom Rashad Hussain, and Office of Public Engagement Director Stephen Benjamin hosted a listening session with Muslim community leaders to discuss efforts to counter Islamophobia....

South Carolina Legislature Approves School Voucher Bill

 On Tuesday, the South Carolina legislature gave final passage to S0039 (full text) which gives lower income families access to school vouchers of up to $6000 per student through the newly created Education Scholarship Trust Fund. The funds may be used at approved public or private schools for tuition, textbooks, computers and tutoring. In the first year of the program, vouchers will be available to 5,000 students. By the third year this increased to 15,000. The State reports on the legislation.

Supreme Court Denies Cert. In Challenge to Indiana Fetal Remains Law

The U.S. Supreme Court on Monday denied review in Jane Doe No. 1 v. Rokita, (Docket No. 22-951, certiorari denied 5/1/2023) (Order List). In the case, the U.S. 7th Circuit Court of Appeals rejected 1st Amendment challenges to an Indiana statute that requires abortion providers to dispose of fetal remains either by burial or by cremation. (See prior posting.) The case Docket with links to filings in the Supreme Court is here.  AP reports on the Court's action.

USCIRF Releases 2023 Annual Report

 On May 1, the U.S. Commission on International Religious Freedom released its 2023 Annual Report (full text). A press release from the Commission summarizes the 98-page Report. It says in part:

The United States Commission on International Religious Freedom (USCIRF) today released its 2023 Annual Report documenting developments during 2022, including significant regression in countries such as Afghanistan, China, Cuba, Iran, Nicaragua, and Russia....

USCIRF recommends 17 countries to the State Department for designation as Countries of Particular Concern (CPCs) because their governments engage in or tolerate “systematic, ongoing, and egregious violations” of the right to freedom of religion or belief. These include 12 that the State Department designated as CPCs in November 2022: Burma, China, Cuba, Eritrea, Iran, Nicaragua, North Korea, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan—as well as five additional recommendations: Afghanistan, India, Nigeria, Syria, and Vietnam....

The 2023 Annual Report also recommends 11 countries for placement on the State Department’s SWL [Special Watch List] based on their governments’ perpetration or toleration of severe religious freedom violations. These include two that the State Department placed on that list in November 2022: Algeria and Central African Republic (CAR)—as well as nine additional recommendations: Azerbaijan, Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, Sri Lanka, Turkey, and Uzbekistan....

USCIRF further recommends to the State Department seven non-state actors for redesignation as “entities of particular concern” (EPCs) for systematic, ongoing, and egregious religious freedom violations. The State Department designated all seven of these groups as EPCs in November 2022: al-Shabaab, Boko Haram, the Houthis, Hay’at Tahrir al-Sham (HTS), Islamic State in the Greater Sahara (ISGS), Islamic State in West Africa Province (ISWAP or ISIS-West Africa), and Jamaat Nasr al-Islam wal Muslimin (JNIM)....

In addition to chapters with key findings and U.S. policy recommendations for these 28 countries, the 2023 Annual Report describes and assesses U.S. international religious freedom policy overall. The report also highlights important global developments and trends....