Supreme Court Hears Arguments Today on Mandated Insurance Coverage for Anti-HIV Drugs Over Religious Objections

The U.S. Supreme Court hears oral arguments this morning in Kennedy v. Braidwood Management, Inc. Plaintiffs in the case objected on religious grounds to providing their employees the U.S. Preventive Services Task Force's mandated insurance coverage for pre-exposure drugs that prevent the transmission of HIV. Plaintiffs contended that this coverage makes them complicit in facilitating homosexual behavior, drug use and sexual activity outside of marriage. In the case, the U.S. 5th Circuit Court of Appeals held that the structure of the U.S. Preventive Services Task Force violates the Appointments Clause of the U.S. Constitution. That is the issue before the Court today. Oral arguments will be streamed here at 10:00 AM. A transcript and audio recording of the arguments will be posted later today at this web page. See prior related posting.

UPDATE: Here is a link to the transcript and audio of the oral arguments. Vox reports on the oral arguments.

Recent Articles of Interest

From SSRN:

• R. Shawn Gunnarson, James Cleith Phillips & Christopher Bates, Religions Employment and the Tensions Between Liberty and Equality, (Brigham Young University (accepted forthcoming)).
•  Joel Alicea, Constitutional Theory at a Catholic University, (75 Cath. U. L. Rev. (forthcoming 2025)).
• Edward L. Rubin, The Biblical Concept of Mercy as a Pragmatic Decision Protocol, (Vanderbilt Law Research Paper No. 25-07 (2025).
• Irene-Marie Esser, Iain MacNeil & Catriona Cannon, The Legal Dimension of 'Corporate Purpose': A Study of Companies with a Religious Influence, (forthcoming: European Business Law Review).
• L. Ali Khan, The Ministry of Jesus: A Comparative Study of the Qur'an and New Testament, (March 30, 2025).
• Jay Wexler, The Endorsement Test’s Early Years, 1983-1985: Notes from the O’Connor Files, (Boston Univ. School of Law Research Paper No. 25-7 (2025)).
• Jill Wieber Lens, Stillbirth & the Law (Book Introduction), (March 25, 2025).
• B. Sullivan, The Myth of Legal Neutrality and Its Role in Undermining Abortion Rights in The United States, (McGill Undergraduate Law Review No. 10 (2025)).
• Mark David Hall, Ten Commandments in the Public Square and Public Schools, (William and Mary Bill of Rights Journal (forthcoming)).

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

• Thomas Latendresse, Evaluating the Constitutionality of Bill 21 Amid Restricted Judicial Review, (McGill Undergraduate Law Review No. 10 (2025)).
• L. Ali Khan, Rigveda as a Proto-Islamic Scripture of the Indus Valley, (March 26, 2025). 
• Soliu Dagbo Abdulllahi, An Overview of Legal and Regulatory Framework for Islamic Finance in Nigeria, (March 18, 2025).
• Ashlynn Kendzior,  Remaining Barriers to Abortion Access in Post-Repeal Ireland, (15 Creighton Int'l. & Compar, L. J. (forthcoming 2025).

From SmartCILP:

• Nicole V. Godfrey, Group Prayer in Federal Prison, 103 Nebraska Law Review 19-44 (2024).
• Michael Allan Wolf, "Zoning" Matters: RLUIPA and the New Normal of Religious Discrimination, 61 San Diego Law Review 343-406 (2024).

"Religious" Belief Defined Broadly in Title VII Claim

Numerous cases challenging employers' refusal to grant exemptions to Covid vaccine mandates during the height of the Covid epidemic continue to wend their way through the courts. Here is the latest.

In Huber v. TIAA, (WD VA, April 17, 2025), a Virginia federal district court refused to dismiss a former employee's Title VII failure to accommodate claim and allowed the parties to move on to discovery.  The employer had refused to grant a religious accommodation, claiming that the employee's objections were secular, not religious.  According to the court:

... [Plaintiff] subscribes to “a faith based holistic healing process” promoted by the Optimum Health Institute in Southern California....  A page from the Optimum Health Institute’s website, which Huber attaches as an exhibit to the amended complaint, describes the Institute as “a healing ministry of the Free Sacred Trinity Church, which promotes healing through the use of non-medical, all-natural, holistic healing practices.”...

Shortly after Huber filed her amended complaint, the Fourth Circuit clarified that courts evaluating religious discrimination claims should not rigorously examine whether a plaintiff’s beliefs are “religious in nature.”...  It confirmed that courts should limit the inquiry to “whether ‘the beliefs professed . . . are, in the claimant’s own scheme of things, religious[.]’”...  An employee’s claim that her belief “is an essential part of a religious faith must be given great weight” in this analysis....

... [T]his court finds that Huber has plausibly alleged the beliefs she communicated to TIAA were “religious in nature.” Huber’s asserted faith, which “comes from the belief in a universal force and energy” and focuses on holistic healing ... is different than the biblical Christianity employees often invoke when seeking exemptions to COVID-19 vaccine requirements....  But Title VII protects nonconventional as well as conventional religious beliefs—courts “are not free to reject beliefs because they consider them ‘incomprehensible.’...

The amended complaint does not provide a clear or complete account of Huber’s conversation with the TIAA interviewer, and it is possible that later fact development will show she did not communicate an objection that was based on a sincerely held religious belief.  But the court finds that her allegations are sufficient to allow for discovery on this issue....

Catholic Employers Get Permanent Injunction Against EEOC

In Catholic Benefits Association v. Lucas, (D ND, April 25, 2025), a North Dakota federal district court converted a preliminary injunction granted last September to a Catholic diocese and a Catholic employers' organization (see prior posting) into a permanent injunction. At issue are rules and guidance documents issued under the Pregnant Workers' Fairness Act and Title VII of the Civil Rights Act.  The permanent injunction provides in part:

(1) The EEOC and its agents are permanently enjoined from interpreting or enforcing the Pregnant Workers Fairness Act and any implementing regulations ... against the Diocese of Bismarck and the CBA, including present and future members, in a manner that would require them to accommodate abortion or infertility treatments that are contrary to the Catholic faith, speak in favor of the same or refrain from speaking against the same.  

(2) The EEOC and its agents are permanently enjoined from interpreting or enforcing Title VII of the Civil Rights Act of 1964, any implementing regulations or guidances, including the Enforcement Guidance on Harassment in the Workplace, against the Diocese of Bismarck and the CBA, including present and future members, in a manner that would require them to speak or communicate in favor of abortion, fertility treatments, or gender transition when such is contrary to the Catholic faith; refrain from speaking or communicating against the same when such is contrary to the Catholic faith, use pronouns inconsistent with a person’s biological sex; or allow persons to use private spaces reserved for the opposite sex.

ABC News reports on the decision.

Appellate Court Upholds $1.2M Fine Against Church for Violating Covid Public Health Orders

In People of the State of California v. Calvary Chapel San Jose, (CA App., April 15, 2025), a California state appellate court affirmed the imposition of administrative fines totaling $1,228,700 on defendant church for violating Covid public health orders requiring face coverings and submission of a social distancing protocol. The court rejected Calvary Chapel's Free Exercise defense. The court said in part:

...  [T]he People have met their burden to establish as a matter of law that the face covering requirements set forth in the orders are neutral and of general applicability, and Calvary Chapel has failed to submit admissible evidence sufficient to create a triable issue of fact. 

First, the text of the revised risk reduction order and the safety measures order shows that these orders are neutral because they are not specifically directed at religious practice, do not discriminate on their face, and religious exercise is not the object of the orders....

Having reviewed the very limited exemptions that Calvary Chapel asserts show that the face covering requirements in public health orders are not of general applicability, we decide that Calvary Chapel has provided no evidence to create a triable question of fact regarding general applicability.

The court also rejected Calvary Chapel's due process claims and additionally held:

... [T]he undisputed facts show that Calvary Chapel’s level of culpability due to violating the public health orders requiring face coverings is high, and therefore the fines in the amount of $1,228,700 do not violate the excessive fines clause of the Eighth Amendment.

USCIS Is Screening Immigration Applicants for Antisemitic Activity

Last week (April 9), the Department of Homeland Security announced that it will begin screening the social media of aliens applying for immigration benefits to determine whether they have been engaged in antisemitic activity. A News Release (full text) posted by the U.S. Citizenship and Immigration Services reads in part:

Today U.S. Citizenship and Immigration Services (USCIS) will begin considering aliens’ antisemitic activity on social media and the physical harassment of Jewish individuals as grounds for denying immigration benefit requests. This will immediately affect aliens applying for lawful permanent resident status, foreign students and aliens affiliated with educational institutions linked to antisemitic activity.

... DHS will enforce all relevant immigration laws to the maximum degree, to protect the homeland from extremists and terrorist aliens, including those who support antisemitic terrorism, violent antisemitic ideologies and antisemitic terrorist organizations such as Hamas, Palestinian Islamic Jihad, Hezbollah, or Ansar Allah aka: “the Houthis.”

... USCIS will consider social media content that indicates an alien endorsing, espousing, promoting, or supporting antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity as a negative factor in any USCIS discretionary analysis when adjudicating immigration benefit requests....

UK Supreme Court Interprets Meaning of "Sex" In UK's Equality Act as Biological Sex

In For Women Scotland Ltd. v. The Scottish Ministers, (UK SC, April 16, 2025), the United Kingdom Supreme Court held that considering the interaction of the Gender Recognition Act 2004 with the Equality Act 2010, the terms "woman", "man", and "sex" in the Equality Act refer to biological sex.  The Equality Act gives separate protection to persons who have undergone or are proposing to undergo sexual reassignment. The court explains the limited question it is deciding:

24. ... [A] person who is aged at least 18 can apply for a GRC [Gender Reassignment Certificate] under the GRA 2004. Section 9(1) of that Act provides that when a full GRC is issued to a person the person’s gender becomes “for all purposes” the acquired gender so that if the acquired gender is the female gender, the person’s sex becomes that of a woman....

25. The central issue on this appeal is whether references in the EA 2010 to a person’s “sex” and to “woman” and “female” are to be interpreted in the light of section 9 of the GRA 2004 as including persons who have an acquired gender through the possession of a GRC. 

26. The focus of this appeal is not on the status of the large majority of trans people who do not possess a full GRC. Their sex remains in law their biological sex. This appeal addresses the position of the small minority of trans people who possess a full GRC....

The court summarized its ruling in part as follows:

265.... (xii) Gender reassignment and sex are separate bases for discrimination and inequality. The interpretation favoured by the EHRC and the Scottish Ministers would create two sub-groups within those who share the protected characteristic of gender reassignment, giving trans persons who possess a GRC [Gender Reassignment Certificate] greater right than those who do not. Those seeking to perform their obligations under the Act would have no obvious means of distinguishing between the two sub-groups to whom different duties were owed, particularly since they could not ask persons whether they had obtained a GRC.... 

(xiii) That interpretation would also seriously weaken the protections given to those with the protected characteristic of sexual orientation for example by interfering with their ability to have lesbian-only spaces and associations.... 

(xiv) There are other provisions whose proper functioning requires a biological interpretation of “sex”. These include separate spaces and single-sex services (including changing rooms, hostels and medical services), communal accommodation and others.... 

(xv) Similar incoherence and impracticability arise in the operations of provisions relating to single-sex characteristic associations and charities, women’s fair participation in sport, the operation of the public sector equality duty, and the armed forces....

The UK Supreme Court also issued a 4-page Press Summary of the Court's 88-page Opinion. And CBS News reports on the decision.

3rd Circuit Hears Arguments on Whether Religious Motivation of Founders Allows Nonprofit Corporation to Assert Free Exercise Claims

On April 9, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in United States v. Safehouse. In the case, a Pennsylvania federal district court held that a nonprofit corporation that plans to open a safe injection site for those struggling with opioid abuse cannot claim protection from federal prosecution under the free exercise clause or RFRA merely because its founders had a religious motivation. The corporation's articles do not set out any religious purpose. (See prior posting.) Courthouse News Service reports on the oral arguments.

West Virginia Enacts Parents' Bill of Rights

On April 14, West Virginia Governor Patrick Morrisey signed HB 2129, the Parents' Bill of Rights (full text). The new law provides in part:

(a) All parental rights are reserved to the parent of a minor child in this state ...  including, but not limited to ...: (1) The right to direct the education and care of his or her minor child. (2) The right to direct the upbringing and the moral or religious training of his or her minor child. (3) The right to apply to enroll his or her minor child in a public school or, as an alternative to public education, a private school, including a religious school, a home education program, or other available options, as authorized by law. (4) The right to access and review all school records relating to his or her minor child. (5) The right to make health care decisions for his or her minor child, unless otherwise prohibited by law.

Under the new law, the state may interfere with parental rights only if it demonstrates that its action is reasonable and necessary to achieve a compelling state interest, is narrowly tailored, and is not otherwise served by a less restrictive means.

Religious Exemption from Medicaid Program Not Required

In Kynwulf v. Corcoran, (SD OH, April 11, 2025), an Ohio federal district court rejected plaintiff's claim that his free exercise rights were violated when he was denied a religious exemption from the estate recovery provisions of Ohio Medicaid’s Specialized Recovery Services program. The court said in part:

Mr. Kynwulf’s allegations do not raise a plausible conclusion that the SRS Program is a coercive program sufficient to state a claim under the Free Exercise Clause. He does not allege that the SRS program is mandatory – instead, he alleges that when he requested to be removed from the SRS program, he was removed.... These allegations make clear that Medicaid’s SRS Program neither compelled nor coerced Mr. Kynwulf such as to prevent him from continuing to practice his religion. 

Instead, Mr. Kynwulf seeks to require Ohio Medicaid to conform its program to the tenets of his religion. However, although the Free Exercise Clause “protects, to a degree, an individual’s right to practice [his] religion within the dictates of [his] conscience, it does not convene on an individual the right to dictate [that a governmental program] conform to [his] religion.”... The Free Exercise Clause “is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”...

Recent Articles of Interest

From SSRN:

• Nathan B. Oman, That Principle of Freedom…Belongs to All Mankind: The United States Constitution and Religious Freedom in the Latter-day Saint Tradition, (February 13, 2025).
• Laura Portuondo, The Myth of Equal Protection, (16 U.C. Irvine L. Rev. (forthcoming 2026)).
• Alex Deagon, & Francis Beckwith, Religious Freedom and Abortion: Why State-Imposed Abortion Restrictions Do Not Breach The First Amendment, (Baylor Law Review 76 (Fall 2024): 511-574).
• Nicholas Reaves & Matthew Krauter, Religious Liberty Pragmatism, (24 Federalist Society Review 331 (2023)).
• Johnny Rex Buckles, A Defense of the Unborn Person, (28 Tex. Rev. L. & Pol. 629 (2024)).
• Ortal Isaac, Lifesaving Care, Denied: Torts as a Tool in a Post-Dobbs World?, (March 01, 2025).
• Mansi Jain Comparative Analysis Of Judicial Review: Assessing The Influence On Same-Sex Marriage Rights In The United States And Germany, (January 03, 2024).
• Gail L. Heriot, Statement of Commissioner Gail Heriot in Enforcing Religious Freedoms in Prison 2017-2023—a Report of the U.S. Commission on Civil Rights, (San Diego Legal Studies Paper (forthcoming)).
• Michael L. Smith, State Constitutional Due Process Protections After Dobbs, (16 Faulkner L. Rev. (Forthcoming 2025)).

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

• Abraham Maslow Azanya, Free Education as the Catalyst for National Transformation: The Case of Ghana's Free Senior High School Policy and Its Long-Term Impact, (March 01, 2025).
• Sanjay Koul has posted several short articles: Spirituality at the Workplace: A Pathway to Fulfillment, Productivity, and Growth, (March 15, 2025); Shirdi Sai Baba: The Saint Who Bridged Religions and Hearts, (March 15, 2025); The Cosmic Blueprint: Creation, Karma, and the Eternal Soul in Sanatana Dharma (January 30, 2025); Spirituality: A Journey to Self-Realization and Universal Connection, (March 02, 2025); A Comparative Analysis of the Four Vedas: Rigveda, Samaveda, Yajurveda, and Atharvaveda (October 18, 2024).

From SmartCILP:

• Stephen M. Feldman, Who Belongs?: "We the People" in the Twenty-First Century, 52 Fordham Urban Law Journal 1-44 (2024).
• Anya Bernstein, Book Review. The Battle for Sabarimala: Religion, Law, and Gender in Contemporary India, by Deepa Das Acevedo, 58 Law & Society Review 541-542 (2024).

President Issues Holy Week Message, Promising to Defend Christian Faith in Schools and Government Facilities

Yesterday, the White House issued a Presidential Message on Holy Week, 2025 (full text). The President said in part:

During this sacred week, we acknowledge that the glory of Easter Sunday cannot come without the sacrifice Jesus Christ made on the cross.  In His final hours on Earth, Christ willingly endured excruciating pain, torture, and execution on the cross out of a deep and abiding love for all His creation.  Through His suffering, we have redemption.  Through His death, we are forgiven of our sins.  Through His Resurrection, we have hope of eternal life.  On Easter morning, the stone is rolled away, the tomb is empty, and light prevails over darkness—signaling that death does not have the final word.

This Holy Week, my Administration renews its promise to defend the Christian faith in our schools, military, workplaces, hospitals, and halls of government.  We will never waver in safeguarding the right to religious liberty, upholding the dignity of life, and protecting God in our public square.

President Sends Passover Greetings on YouTube

On Saturday, President Trump on a YouTube post sent Passover greetings to the Jewish people in America, Israel, and around the world. He said in part:

The story of Exodus, which is retold around the globe and all over the world at every Passover Seder, is a reminder not only of the enduring strength of the Jewish people, but of the importance of putting our faith in Almighty God no matter what the circumstance.

Passover began at sundown on Saturday night.

Churches Lack Standing to Challenge Rescission of DHS's Sensitive Locations Policy

In Mennonite Church USA v. U.S. Department of Homeland Security, (D DC, April 11, 2025), the D.C. federal district court, in a suit by 27 Christian and Jewish denominational bodies and organizations, refused to issue a preliminary injunction to require DHS to reinstate its "sensitive locations" policy which severely limited the situations under which immigration enforcement actions could take place at churches, synagogues, mosques and other institutions of worship. The court concluded that plaintiffs lacked standing to bring a pre-enforcement challenge to rescission of the policy. The court rejected arguments by plaintiffs of injury based on the imminent risk that immigration enforcement actions will be taken at member congregations; of injury from declines in attendance at worship services and social service ministries; of needing to restrict in-person services to protect immigrants; and of cost of increased security measures.

Trump Selects Antisemitism and International Religious Freedom Ambassadors

President Trump announced yesterday on Truth Social that he is nominating Yehuda Kaploun as the United States Special Envoy to Monitor and Combat Antisemitism, Ambassador-at-Large. According to The Forward:

Trump’s announcement elicited a wave of sharply antisemitic comments on the social network....

Kaploun is affiliated with Chabad, the Orthodox movement, and was a fundraiser and surrogate for Trump during last year’s campaign.....

Kaploun is replacing Deborah Lipstadt.

Trump also announced on X (formerly Twitter) that he is nominating former Congressman Mark Walker as Ambassador-at-Large for International Religious Freedom. In his own post on X, Walker expressed his thanks to Trump, saying in part:

As a former minister, along with serving in Congressional leadership, I'm open-eyed to the bad actors and regions committing these atrocities against people of faith.

Both Kaploun's and Walker's nominations are required to be confirmed by the Senate. The White House has not indicated on its website that the nominations have yet been formally submitted to the Senate.

3rd Circuit Rejects Title VII Claim by ER Doctor Who Was Denied Religious Exemption from Covid Vaccine Mandate

In Bushra v. Main Line Health, Inc., (3d Cir., April 10, 2025), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a Title VII suit brought by an emergency room physician who was denied a religious exemption from his hospital's Covid vaccine mandate. The court said in part:

Dr. Bushra’s arguments on appeal largely challenge the District Court’s determination that MLH established the undue hardship defense to his religious discrimination claims. ...

MLH provided unrebutted expert testimony that unvaccinated healthcare workers, like Dr. Bushra, presented an increased risk of transmitting COVID-19 to others, particularly when they interacted with vulnerable groups.... [P]atients and employees at MLH died from COVID-19, and the on-site spread of this serious infectious disease compromised MLH’s mission and ability to care for sick patients, and it jeopardized the health and efficacy of its employees and staff.  MLH’s expert additionally testified, contrary to Dr. Bushra’s assertion, that alternative infection control strategies, such as frequent testing and masking, were not sufficient to prevent transmission....

As MLH has presented substantial evidence of undue hardship, and Dr. Bushra has not provided any “actual evidence in the record on which a jury could decide an issue of fact [his] way,” we will affirm the District Court’s grant of summary judgment.

Kansas Legislature Overrides Governor's Veto of Bill Protecting Adoptive Parents' and Agencies' Views on Sexual Orientation and Gender Identity

Yesterday, the Kansas legislature overrode Governor Laura Kelly's veto of House Bill 2311, the Adoption Conscience Act (full text). The new law provides in part:

(a) The secretary for children and families shall not adopt, implement or enforce a policy for selection as an out-of-home or adoptive placement or ... licensure...that:

 (1) Requires a person to affirm, accept or support any governmental policy regarding sexual orientation or gender identity that may conflict with the person's sincerely held religious or moral beliefs; or

 (2) prohibits selection, appointment or licensure, if otherwise eligible, of a person because of such person's sincerely held religious or moral beliefs regarding sexual orientation or gender identity or intent to guide or instruct a child consistent with such beliefs.

 (b) This section shall not be construed to:

 (1) Prohibit the secretary from considering the religious or moral beliefs of a child or the child's biological family or community, including, but not limited to, beliefs regarding sexual orientation and gender identity, in relation to the religious or moral beliefs of a person selected or being considered for placement....

The Federalist and an ADF issued a press release discuss the Bill.

Fired EEOC Commissioner Sues President

Yesterday, former EEOC Commissioner Jocelyn Samuels filed suit alleging that her removal from the Commission by President Trump was illegal. The removal of Samuels and a second Commissioner (both Democrats) left the EEOC without a quorum so that it cannot undertake any action that requires a Commission vote. Samuels, along with two other Democratic commissioners, had issued statements critical of President Trump's Executive Orders on DEI programs, transgender individuals and employment discrimination by federal contractors. The complaint (full text) in Samuels v. Trump, (D DC, filed 4/9/2025), alleges in part:

Congress did not grant the president authority to remove EEOC Commissioners at will.  Rather, the EEOC’s structure, mission, and functions, along with the terms set for Commissioners, demonstrate Congress’s intent to provide the Commission continuity, stability, and insulation from political pressure exerted by the president.  Because the Commissioners perform predominantly quasi-judicial and quasi-legislative functions, these restrictions on the president’s removal authority are constitutional....

Defendant Trump lacked cause to remove Commissioner Samuels.  The issues he identified in his January 27, 2025, email constitute policy disagreements between him and Commissioner Samuels.  By mandating bi-partisan membership on the Commission, Congress deliberately structured the agency to accommodate likely policy differences between the president and some Commissioners....

The EEOC is responsible for enforcing federal laws barring employment discrimination, including religious discrimination in employment. The Hill reports on the lawsuit.

Voting Fraud Alleged in World Zionist Congress Elections

The World Zionist Congress elections continue until May 4. The Congress, with representatives from Jewish communities around the world, allocates funds to various programs and organizations in Israel and elsewhere.  JFeed reports that the Area Election Committee overseeing the election in the United States has launched a fraud investigation into voting irregularities that benefit two of the 21 slates of candidates seeking representation. JFeed explains:

Voting in the World Zionist Congress requires a name, address, email, and a modest fee, safeguards meant to ensure authenticity. Yet the AEC uncovered patterns that defy innocence: half the flagged registrations looped back to 50 email variants, often appended with numbers, while 430 traced to a single K-8 yeshiva in Brooklyn. Six addresses, spanning New York, Pennsylvania, and Maryland, overlapped suspiciously, and the prepaid cards, all from TransPecos Bank and Pathward, suggested a coordinated financial effort.

“This isn’t mischief by overzealous supporters,” the AEC chairs asserted. “It’s a carefully orchestrated, costly scheme to manufacture votes and defraud the process.”

Broad Compelled Discussion of Abortion with Patients Violates Doctors' Free Speech Rights

In Schroeder v. Treto, (ND IL, April 4, 2025), an Illinois federal district court held that one amendment to the state's Health Care right of Conscience Act violates free speech protections but upheld another provision.  The provision struck down requires pregnancy care centers and doctors who have religious objections to abortions to inform pregnant patients of the risks and benefits of childbirth and abortion in order to claim a shield from liability. The court held that the provision compels speech in violation of the First Amendment. The court said in part:

Section 6.1(1) demands a wide ranging, hypothetical conversation unrelated to any procedure or other medical conduct.  Indeed, Section 6.1(1) requires a wide-ranging conversation that might be completely divorced from the reality of the situation; for example, the thrilled patient who is not reasonably likely to encounter medical difficulties because of the pregnancy.  What’s more, that compelled speech isn’t necessary to further future conduct....

... Under strict scrutiny, the State carries the burden of establishing the provision is narrowly tailored; it falls far short in this case.  So, Section 6.1(3) unconstitutionally compels speech, and therefore the State can’t demand such speech in exchange for a liability shield.

The court, however, upheld another provision that requires as a condition of claiming a shield from liability, that physicians and clinics, if requested by the patient, transfer or refer them or furnish a list of other providers to them who offer abortion services, saying in part:

This provision narrowly applies when a patient expressly asks a medical provider for information regarding potential abortion providers.  Stated differently, Section 6.1(3) contains an explicit and mandatory trigger that is directly linked to the action.  And even then, the provider need only comply if he intends to use the HCRCA as an affirmative defense.

From this narrow and purposeful drafting, the Court deduces that Section 6.1(3) doesn’t target speech...

The court found that this provision also does not violate providers' free exercise rights, saying in part: 

Two providers—one a conscientious objector and the other secular—both fail to provide a woman with requested information about abortion providers.  The conscientious objector refuses because of his sincerely held beliefs.  The secular provider doesn’t provide the requested information because he’s too busy.  Both patients sue.  Before the HCRCA, both suits could’ve gone forward, requiring the plaintiff in both cases to show that the health care providers fell below the standard of care. After the HCRCA’s enactment, the conscientious objector—but not the secular provider—is wholly protected, regardless of whether the provider’s actions fell below the standard of care.     

Along comes Public Act 99-690—partially restoring the pre-HCRCA universe. Now, as before, all health care providers are amenable to suit for failure to refer, transfer, or provide written information about potential abortion providers.  Relative to each other, the secular provider isn’t in any better position than before the HCRCA and the conscientious objector isn’t any worse for the wear.  

As this hypothetical shows, the latest Amendments to the HCRCA don’t impose additional burdens on conscientious objectors because of their beliefs....

Christian Post reports on the decision.