Suit Challenges Michigan Medicaid Ban on Abortion Funding

Suit was filed yesterday in the Michigan Court of Claims challenging the exclusion of abortion coverage from the state's Medicaid program. Plaintiff is a local YWCA which operates a Reproductive Health Fund that provides financial support for county residents for reproductive health care, including abortion services. The complaint (full text) Young Women's Christian Association of Kalamazoo, Michigan v. State of Michigan, (MI Ct. Cl., filed 6/27/2024), alleges that the exclusion violates the state Constitutional Amendment protecting reproductive freedom, the Michigan Reproductive Health Act which implemented the Amendment and the ban on sex discrimination. ACLU issued a press release announcing the filing of the lawsuit.

Supreme Court Backs Off Deciding Whether EMTALA Pre-empts Idaho's Abortion Ban

In Moyle v. United States, (Sup. Ct., June 27, 2024), the U.S. Supreme Court reinstated an injunction that had been issued by an Idaho federal district court (see prior posting) which barred Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The Supreme Court did this in a per curiam order that vacated a previous stay of the injunction issued by the Supreme Court and which returned the case to the 9th Circuit Court of Appeals, finding that certiorari had been improvidently granted.

Justice Kagan, joined by Justice Sotomayor filed an opinion concurring with the dismissal, saying in part: 

Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute....

[Idaho] mainly argues that EMTALA never requires a hospital to “offer medical treatments that violate state law,” even when they are needed to prevent substantial health harms.... In my view, that understanding of EMTALA is not “likely to succeed on the merits,” and so cannot support a stay of the injunction.

Justice Jackson concurred in the portion of Justice Kagan's opinion that responded to Justice Alito's dissenting opinion. 

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh filed a concurring opinion, saying in part:

A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving. The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up...

On top of that, petitioners have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.

Justice Jackson filed an opinion concurring in part and dissenting in part, saying in part:

This Court typically dismisses cases as improvidently granted based on “circumstances . . . which ‘were not . . . fully apprehended at the time certiorari was granted.’” ... This procedural mechanism should be reserved for that end—not turned into a tool for the Court to use to avoid issues that it does not wish to decide.

The reasons that justified our grant of certiorari in these cases still hold true today.... The importance of recognizing Congress’s judgments in EMTALA remains as imperative as ever. The United States is still hamstrung in its ability to enforce federal law while States pass laws that effectively nullify EMTALA’s requirements. And, on the ground, healthcare providers “have been all but paralyzed by legal uncertainties,” placing pregnant patients at risk while they are waiting to be transferred out of State to receive the care they need....

If anything, the need for a clear answer to the Supremacy Clause question has only increased in the intervening months....

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects....

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

 At no point in its elaboration of the screening, stabilization, and transfer requirements does EMTALA mention abortion. Just the opposite is true: EMTALA requires the hospital at every stage to protect an “unborn child” from harm....

For those who find it appropriate to look beyond the statutory text, the context in which EMTALA was enacted reinforces what the text makes clear. Congress designed EMTALA to solve a particular problem—preventing private hospitals from turning away patients who are unable to pay for medical care.... And none of many briefs submitted in this suit has found any suggestion in the proceedings leading up to EMTALA’s passage that the Act might also use the carrot of federal funds to entice hospitals to perform abortions. To the contrary, EMTALA garnered broad support in both Houses of Congress, including the support of Members such as Representative Henry Hyde who adamantly opposed the use of federal funds to abet abortion.....

EMTALA is an exercise of Congress’s spending power. And when Congress relies on its authority to attach conditions to the receipt of federal funds, special rules apply....

The potential implications of permitting preemption here are far-reaching. Under the Government’s view, Congress could apparently pay doctors to perform not only emergency abortions but also third-trimester elective abortions or eugenic abortions. It could condition Medicare funds on hospitals’ offering assisted suicide even in the vast majority of States that ban the practice....

NBC News reports on the decision.

Pro-Life Pregnancy Centers May Move Ahead with Challenges to Vermont Regulations

 In National Institute of Family and Life Advocates v. Clark, (D VT, June 14, 2024), a Vermont federal district court allowed three pro-life pregnancy centers to move ahead with free speech challenges to Vermont's regulation of limited-service pregnancy centers. At issue is a prohibition on disseminating misleading information about the services offered by such pregnancy centers as well as a provision making health care professionals at these pregnancy centers responsible for the conduct and speech of non-licensed individuals.  The statute also provides that offering services to reverse a medication abortion constitutes unprofessional conduct by health care workers at the centers. The court rejected the state's claim that the speech being regulated is commercial speech or is regulation of professional conduct that merely incidentally regulates speech. It allowed plaintiffs to move ahead with their claims that the statutes discriminate on the basis of the viewpoint. However, the court dismissed plaintiffs' vagueness claims. ADF issued a press release announcing the decision.

Michigan Court Enjoins Abortion Restrictions Including 24-Hour Waiting Period and Consent Form

 In Northland Family Planning Center v. Nessel, (MI Ct. Cl., June 25, 2024), the Michigan Court of Claims issued a preliminary injunction against enforcement of three restrictions on abortion procedures found in Michigan law.  The enjoined provisions impose a 24-hour mandatory waiting period, require a uniform informed consent for women seeking an abortion, and bar advanced practice clinicians from performing abortions. The court held that the provisions are unconstitutional under a state constitutional amendment adopted by referendum in 2022 which grants every individual a fundamental right to reproductive freedom and provides that an "individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means." The court said in part:

... [T]he Court is convinced that the [24-hour] mandatory delay exacerbates the burdens that patients experience seeking abortion care, including by increasing costs, prolonging wait times, increasing the risk that a patient will have to disclose their decision to others, and potentially preventing a patient from having the type of abortion that they prefer....

The informed-consent provisions, read as whole, are designed to force a patient to consider the alternative of not having an abortion. The manner in which the information is presented is not neutral; it is designed to eschew abortion in favor of completing a pregnancy. This forced deliberation, through the mandatory informed-consent process, burdens and infringes upon a patient’s right to make and effectuate decisions about abortion care. The State is metaphorically putting its finger on the scale, thereby infringing upon a patient’s deliberative process.

The court however refused to enjoin provisions calling for oral counseling against coercion and providing resources to victims of domestic violence. Bridge Michigan reports on the decision.

Oklahoma Supreme Court Says Creation of Religious Charter School Is Unconstitutional

In Drummond v. Oklahoma Statewide Virtual Charter School Board, (OK Sup, Ct., June 25, 2024), the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. The court said in part:

Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs. The expenditure of state funds for St. Isidore's operations constitutes the use of state funds for the benefit and support of the Catholic church. It also constitutes the use of state funds for "the use, benefit, or support of . . . a sectarian institution." The St. Isidore Contract violates the plain terms of Article 2, Section 5 of the Oklahoma Constitution....

Because it is a governmental entity and a state actor, St. Isidore cannot ignore the mandates of the Establishment Clause, yet a central component of St. Isidore's educational philosophy is to establish and operate the school as a Catholic school. St. Isidore will fully incorporate Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities. It will require students to spend time in religious instruction and activities, as well as permit state spending in direct support of the religious curriculum and activities within St. Isidore--all in violation of the Establishment Clause....

... [W]hat St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause. It is about the State's creation and funding of a new religious institution violating the Establishment Clause.12 Even if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause. Compliance with the Establishment Clause in this case is a compelling governmental interest that satisfies strict scrutiny under other provisions of the First Amendment.

Vice Chief Justice Rowe concurred in part and dissented in part, saying that he concurred only in the conclusion "that Article 1, Section 5 of the Oklahoma Constitution mandates that public charter schools are nonsectarian."

Justice Kuehn dissented, saying in part:

St. Isidore would not become a "state actor" merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.

AP reports on the decision.

Israel's Supreme Court Orders Drafting of Haredi Men

Yesterday, Israel's Supreme Court in a controversial ruling ordered the government to end draft deferments that have been given to ultra-Orthodox Jewish men studying in yeshivas.  According to The Guardian:

The unanimous ruling on Tuesday, from an expanded panel of nine judges, upheld an interim decision last month that the state had no authority to offer the current exemption for ultra-Orthodox, or Haredi, men. It found that yeshivas – Orthodox seminaries for Torah study – should be ineligible for state subsidies unless students enlisted in the military.

The court ruled the state was carrying out “invalid selective enforcement, which represents a serious violation of the rule of law, and the principle according to which all individuals are equal before the law … In the midst of a grueling war, the burden of inequality is harsher than ever and demands a solution.”

According to Times of Israel, within hours after the Court's decision, Israel's Attorney General ordered the Israel Defense Forces to immediately draft 3000 yeshiva students and ordered government ministries to stop transferring already-appropriated funds to yeshivas where students were studying in lieu of military service.

Suit Challenges Louisiana's Law Requiring Posting of 10 Commandments in Public Schools

Suit was filed yesterday in a Louisiana federal district court by a group of parents (some of whom are clergy) on behalf of their minor children challenging Louisiana's recently enacted statute that requires the posting of the Ten Commandments in every public-school classroom. Contending that the law violates the Free Exercise and Establishment Clauses, the complaint (full text) in Roake v. Brumley, (MD LA, filed 6/24/2024) alleges in part:

Permanently posting the Ten Commandments in every Louisiana public-school classroom—rendering them unavoidable—unconstitutionally pressures students into religious observance, veneration, and adoption of the state’s favored religious scripture. It also sends the harmful and religiously divisive message that students who do not subscribe to the Ten Commandments—or, more precisely, to the specific version of the Ten Commandments that H.B. 71 requires schools to display—do not belong in their own school community and should refrain from expressing any faith practices or beliefs that are not aligned with the state’s religious preferences. And it substantially interferes with and burdens the right of parents to direct their children’s religious education and upbringing.  

...The state’s main interest in passing H.B. 71 was to impose religious beliefs on public-school children, regardless of the harm to students and families. The law’s primary sponsor and author, Representative Dodie Horton, proclaimed during debate over the bill that it “seeks to have a display of God’s law in the classroom for children to see what He says is right and what He says is wrong.”

The advocacy groups bringing the suit (ACLU, Americans United, FFRF) issued a press release announcing the filing of the suit.

Certiorari Denied In Religious Broadcasters Challenge to Royalty Rates

The U.S. Supreme Court yesterday denied review in National Religious Broadcasters Noncommercial Music License Committee v. Copyright Royalty Board, (Docket No. 23-927, certiorari denied 6/24/2024). (Order List.) At issue in the case was whether the Copyright Royalty Board violated the Religious Freedom Restoration Act when the royalties it set for non-commercial religious broadcasters that stream copyrighted songs over the Internet were 18 time higher than the rates it set for the secular National Public Radio. (See prior related posting and ADF's press release for additional details.) Here are links to all the documents filed in the case.

Supreme Court Will Review Question of Sovereign Immunity for Taking of Assets in Holocaust

The U.S. Supreme Court yesterday granted review in Republic of Hungary v. Simon, (Docket No. 23-867, certiorari granted 6/24/2024) (Order List), a long-running case in which Holocaust survivors have sued to recover the value of property which Hungary expropriated from them during the Holocaust. At issue is whether the expropriation exception to sovereign immunity under the Foreign Sovereign Immunities Act applies so that the suit can be pursued in American courts. Here the seized assets were liquidated, and the proceeds were placed in the Hungarian treasury.  Under the FSIA, those proceeds must have been used in a commercial activity in the United States in order for U.S. courts to have jurisdiction. At issue in the appeal are questions of who must show that commercial nexus.  The D.C. Circuit below in its 2023 decision (full text) which is on appeal began its opinion as follows:

In 1944, as World War II neared its end, the Hungarian government implemented an accelerated campaign to exterminate its remaining Jewish population. Within a matter of months, the government systematically executed over half a million Jews—roughly two-thirds of the Jewish population in Hungary at the war's outset. This state-perpetrated genocidal campaign ranks among the greatest crimes in human history.

The questions raised by these appeals bear on whether survivors of the Hungarian Holocaust may hale the Hungarian government and its instrumentalities into United States courts to answer for a subset of the wrongs they committed—namely, their confiscation of property from victims of the Holocaust.

The SCOTUSblog case page has links to all the pleadings in the case.

Certiorari Denied in Connecticut Repeal of Religious Exemptions from Vaccination Requirements

The U.S. Supreme Court yesterday denied review in We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (Docket No. 23-643, certiorari denied 6/24/2024). (Order List.) In the case, the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of Connecticut's repeal of religious exemptions from its mandatory vaccination laws, while retaining medical exemptions. (See prior posting.) AP reports on the Supreme Court's action.

Supreme Court Grants Cert. in Ban on Gender-Affirming Care for Minors

The U.S. Supreme Court today granted review in United States v. Skrmetti, (Sup. Ct., Docket No. 23-477, certiorari granted 6/24/2024). (Order List.) In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision, reversed a preliminary injunction issued by a district court in a challenge to Tennessee's ban on chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state law. (See prior posting.) SCOTUSblog reports on the Supreme Court's action.

Namibia Court Strikes Down Bans on Male Homosexual Conduct

In Dausab v. Minister of Justice, (NA HC MD, June 21, 2024), a 3-judge panel of the High Court of Namibia held that the common law and statutory provisions that ban "sodomy" and "unnatural sexual offenses" unconstitutionally discriminate against gay men. The court said in part:

What emerges from the definition of sodomy is that the offense clearly and undoubtedly criminalises such sexual conduct between males.... What furthermore emerges is that various forms of sexual conduct, which have been held to constitute an offense, if committed by a male person with another male person are not regarded as criminal, if committed by a male person with a female person....

...[T]he impugned laws differentiate ... between male and female and between gay men and heterosexual men.... [T]he differentiation ... in so far as it criminalises anal sex between men and men but not between men and women, [is] based on one of the enumerated grounds set out in Article 10(2).... [I]n so far as the impugned laws differentiate between heterosexual men and gay men, it is not based on one of the enumerated grounds in Article 10(2)....

We have no qualms with counsel's argument that Article 10 does not make express reference to 'sexual orientation' as a ground of discrimination.... We, however, hold the view that the matter is not as simple as counsel portrays it to be, because the fact that a ground is not listed in Article 10(2) is not a license for the law to discriminate on that ground....

A press release by Human Dignity Trust has further background on the decision. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Luke Boso, Expressive Conduct and the First Amendment Assault on Civil Rights, (June 19, 2024).
• Giuseppe Martinico, Identity Politics and the Militarisation of Constitutional Law, (April 15, 2024).
• Maria Florencia Saulino & Patricio Enrique Kenny, Can Churches Discriminate? Religious Freedom, Non-Discrimination, and the Search for an Inter-American Standard, (July 07, 2023).
• David A. Skeel & Anna Statz, Abortion Politics After Dobbs, (Arizona Law Review, Forthcoming).
• Nancy J. Knauer, Property and the LGBTQ Community: The US Example, (Research Handbook on Property Law and Theory (Chris Bevans ed., Edward Elgar Publishing – Law and Society Series) (forthcoming 2024)).
• Andrea Martin, Balancing Freedom of Expression and Equality on College Campuses in the Wake of Intensified Antisemitism, (Forthcoming, Brooklyn Law Review).

From SSRN (Non-U.S. Law):

• Shamika Ravi, Abraham Jose & Apurv Kumar Mishra, Share of Religious Minorities: A Cross-Country Analysis (1950-2015), (May 07, 2024).
• Harshit Sangwan, The Influence of Constituent Assembly Debates on the Final Formulation of the Indian Preamble: A Study of Ideological and Political Considerations, (June 07, 2024).
• M. Mohsin Alam Bhat & Neil Chakraborti, Lost in Translation? Applying the Hate Crime Concept to an Indian Context, (Journal of Interpersonal Violence (2024)).
• Nizamuddin Ahmad Siddiqui, Uniform Civil Code and the Dynamics of Muslim Identity in India: An Introduction, ((2023) 19(4) Manchester Journal of Transnational Islamic Law and Practice 1).
• Urooj Khan & Danish Ahmed Siddiqui, How Belief of Tawhid Leads to Well-being in Muslims: The Serial Mediation of Tawakul, and Self-Regulation, Complemented by the Belief of Reward in the Afterlife, (June 13, 2024).
• Valentin Jeutner, The Function of Legal Ritual in the Peace Palace, (Oxford Journal of Law and Religion (2024) (forthcoming)).

From SmartCILP and elsewhere:

• Richard F. Duncan, Why School Choice Is Necessary for Religious Liberty and Freedom of Belief, 73 Case Western Reserve Law Review 1055-1082 (2023).
• Laura Beth Nielsen, Elsinore Kuo & Evan Zhao, Misgendering, Academic Freedom, the First Amendment, and Trans Students, 73 Case Western Reserve Law Review 1177-1208 (2023).
• Roberta Rosenthal Kwall, The Role of Ghetto Art in Holocaust Education and Fighting Antisemitism, 73 DePaul Law Review 39-56 (2023).
• Joseph Kersteins, A Historical, Philosophical, and Etymological Study of the Word "Religion" as Used in the First Amendment: Coming to a Textually-Based Definition, 31 George Mason Law Review 75-118 (2024).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) and 501(c)(4) Organizations, (June 2024 edition).

Illegal Hajj Pilgrims Contributes to Large Death Toll; Countries Take Actions Against Tour Companies and Pilgrims

 According to CNN, Saudi Arabia says that 1301 people died while on the recently-completed Hajj where temperatures soared as high as 120 degrees Fahrenheit. 83% of those who died were on unauthorized trips that generally lacked air-conditioned busses and easy access to air-conditioned tents, food and water. According to BBC, nationals of Egypt, Indonesia, India, Pakistan, Malaysia, Jordan, Iran, Senegal, Sudan, Kurdistan and the United States were among the dead. The largest death toll seems to have been among Egyptians. Egypt announced today that it will revoke the licenses of 16 tourism companies who were involved in making illegal trip arrangements. According to VisaGuide, earlier this month Saudi Arabia announced that it would impose fines on citizens, expatriates and visitors who are caught in the area of the Hajj without a Hajj permit. Anyone caught transporting visitors who do not have Hajj permits will also be subject to fines and up to six months in prison. BBC says that mismanagement by Saudi authorities also contributed to the death toll.

DC Circuit: No Tax-Exempt Status for Church Promoting Psychedelics Unless It Has Received DEA or Judicial Exemption

In Iowaska Church of Healing v. Werfel, (DC Cir., June 21, 2024), the U.S. Court of Appeals for the District of Columbia Circuit upheld the IRS's denial of tax-exempt status to a church whose practices revolved around the use of the psychedelic Ayahuasca.  According to the court:

The Church’s purpose and mission revolve primarily around the consumption of Ayahuasca and embracing certain spiritual benefits that the Church’s members believe follow from Ayahuasca consumption.  

The church contended that denial of tax-exempt status violated the Religious Freedom Restoration Act. However, the court concluded that the church lacked standing to assert a RFRA claim because it did not show sufficient economic injury, and it had waived other theories of standing.

Additionally, the church argued that it qualified for an exemption under Internal Revenue Code §501(c)(3) because it was organized for religious purposes. The court said, however, that tax-exempt status can be denied if its purposes or activities are illegal.  Use of Ayahuasca in religious ceremonies is legal only if the Drug Enforcement Agency or a federal court has issued the church an exemption from the Controlled Substances Act. The church had received no exemption. The court rejected the church's argument that the Supreme Court's 2006 O Centro decision made the use of Ayahuasca presumptively legal for churches. the court concluded:

... [T]he IRS was correct in concluding that the Church’s Ayahuasca use foreclosed its eligibility for tax-exempt status.

EEOC Obtains Settlement for Failure to Accommodate Jewish Employee's Sabbath Observance

The EEOC today announced that two related automotive hauling and logistics companies have agreed to a $65,000 settlement (plus an injunction, reporting, monitoring and employee training requirements) to settle a Title VII suit charging them with religious and racial discrimination and retaliation.  The EEOC said in part in its press release:

According to the EEOC’s lawsuit, Wheeler subjected Charles R. Lynch, III, a Torah Observant employee at its Sheffield, Ohio, location to discrimination when they revoked his religious accommodation that would have allowed him to continue having Saturdays off to observe the Sabbath. The company also exposed Lynch, who is Israeli, to unlawful harassment that included likening him to a terrorist and mocking his religious beliefs.

Louisiana Governor Signs "Given Name Act", School Chaplaincy and 10 Commandments Bills

On Wednesday, Louisiana Governor Jeff Landry signed a package of 18 separate bills which the Governor's office described as " bills that will transform our education system and bring back common sense in our classrooms."  Among the bills were:

HB 121, the "Given Name Act" (full text). The new law prohibits any public or charter school policy "that provides for an inquiry of" the pronouns of a student or employee that are inconsistent with their biological sex, or "that provides for an inquiry of" their name that is not their legal name or a derivative of it. Teachers and other employees as well as other students may not be required to address a student by a name other than the student's legal name or a derivative of it, or to address a student using pronouns that are inconsistent with the person's biological sex. A parent may seek corrective action if a school employee refers to a student by other pronouns or by another name and may bring suit if corrective action is intentionally not taken. ADF issued a press release announcing the governor's signing of the bill.

HB 334 (full text) which permits public school boards to "employ or accept as a volunteer a certified chaplain to provide support, services, and programs for students, staff, and parents as assigned by a school board...." The new law also provides the chaplain with immunity from suit for actions or statements made under the program unless they were "maliciously, willfully, and deliberately intended to cause harm to harass or intimidate those seeking support, services and programs."

HB 71 that requires the posting of the Ten Commandments in every public school and college classroom. See this post for additional details.

Court Says States Lack Standing to Challenge EEOC's New PWFA Abortion-Accommodation Rule [CORRECTED]

In States of Tennessee et. al. v. EEOC, (ED AR, June 17, 2024), an Arkansas federal district court held that 17 states that are plaintiffs in the case lack standing to challenge an EEOC Final Rule implementing the Pregnant Workers Fairness Act.  At issue is the Rule's requirement that employers provide reasonable accommodation for employees' elective abortions. The court said in part:

[The states] press dual theories of injury -- sovereign harms and economic harms. The sovereign harms, the States say, are twofold: the rule will abridge their ability to regulate abortions and their interests in maintaining a pro-life message in dealing with state employees. The economic harms are the rule-related compliance costs the States say they will incur in response to potential enforcement....

The sovereign harms are not imminent because there is no credible threat of enforcement. ...

Even assuming an injury in fact, though, the States' sovereign-injury theory still fails for lack of causation and redressability. ...

Unlike in situations involving private employers, the EEOC cannot bring enforcement actions against state employers....  If an agreement isn't reached within thirty days after a charge is filed, the EEOC "shall take no further action and shall refer the case to" the Department of Justice"....

That leaves the alleged economic harms. The States don't claim any sunk costs. They only say that their compliance costs are imminent.. This economic-harm theory fails for two reasons.

First, the challenged costs-- those resulting only from rule-related compliance activities associated with illegal, elective abortions are neither concrete nor particularized. ...

Second, even assuming some concrete and particularized compliance costs related to illegal, elective abortions, these costs are not fairly traceable to any threat of enforcement....

Beyond the intense controversy surrounding abortion, there are no signs that this is a major questions case. Chevron's general rule applies.

CORRECTION: An earlier version of this post incorrectly said this was decided by a Tennessee federal district court. 

A Louisiana federal district court has just reached the opposite conclusion (see prior posting.) [Thanks to Thomas Rutledge for the lead.]

Court Says EEOC Exceeded Its Authority in New Rules Under Pregnant Workers Fairness Act

In State of Louisiana v. EEOC, (WD LA, June 17, 2024), a Louisiana federal district court granted a preliminary injunction to the states of Louisiana and Mississippi, as well as to the U.S. Conference of Catholic Bishops and two Louisiana dioceses, postponing the effectiveness of new EEOC rules under the Pregnant Workers Fairness Act that require employers to accommodate employees' elective abortions. The court said in part:

If Congress had intended to mandate that employers accommodate elective abortions under the PWFA, it would have spoken clearly when enacting the statute, particularly given the enormous social, religious, and political importance of the abortion issue in our nation at this time (and, indeed, over the past 50 years).  The Court is therefore not persuaded, on the record before it, that Congress could reasonably be understood to have granted the EEOC the authority to interpret the scope of the PWFA in a way that imposes a nationwide mandate on both public and private employers – irrespective of applicable abortion-related state laws enacted in the wake of Dobbs – to provide workplace accommodation for the elective abortions of employees.

In this sense, EEOC’s use of its regulatory power to insert the issue of abortion into a law designed to ensure healthy pregnancies for America’s working mothers squarely implicates the “major questions doctrine” as enunciated by the Supreme Court....  The major questions doctrine applies when an “agenc[y] assert[s] highly consequential power beyond what Congress could reasonably be understood to have granted.”...

Clearly, EEOC failed to include a broad religious exception in the Final Rule, and... EEOC’s interpretation of the PWFA religious exception – inasmuch as it mirrors the religious exception in Title VII, an antidiscrimination statute – does not square with the PWFA.

See prior related posting.

9th Circuit Reverses Dismissal of Suit Challenging Refusal to Grant Religious Exemptions to Vaccine Mandate

 In Bacon v. Woodward, (9th Cir., June 18, 2024), the U.S. 9th Circuit Court of Appeals in a 2-1 decision reversed a Washington federal district court's dismissal of a suit by firefighters who claim that their free exercise rights were infringed by the city of Spokane refusing to accommodate their religious objections to the Covid vaccine. The majority said in part:

The Complaint alleges that, once unvaccinated firefighters were terminated, Spokane would turn to firefighters from neighboring fire departments to fill the gaps left by the firefighters’ departure even though those fire departments granted religious accommodations to their employees.  In other words, Spokane implemented a vaccine policy from which it exempted certain firefighters based on a secular criterion—being a member of a neighboring department—while holding firefighters who objected to vaccination on purely religious grounds to a higher standard.  The Free Exercise Clause prohibits governments from “treat[ing] comparable secular groups more favorably.”...

 ... [T]he Complaint alleges at least three less restrictive ways that “[t]he Mayor, the Fire Chief, and the City could accomplish its same compelling purpose.”...

Judge Hawkins dissented, saying that rational basis review should apply:

The complaint alleges that the City Defendants applied the Proclamation to their employees uniformly and treated medical and religious objectors the same.  The complaint also alleges that other cities and entities adopted different policies and the City Defendants had pre-existing mutual aid agreements with some neighboring fire departments.  The complaint then predicts that, as a result of those pre-existing mutual aid agreements, some unvaccinated firefighters from neighboring departments may operate within the City of Spokane.  In my view, these allegations are insufficient to plausibly show that the Proclamation, as implemented by the City Defendants, is not neutral or generally applicable.