5th Circuit Remands Religious Medical Providers' Challenge To Anti-discrimination Rules

In Franciscan Alliance, Inc. v. Becerra, (5th Cir., April 15, 2021), the U.S. 5th Circuit Court of Appeals remanded to a Texas federal district court a challenge by religious medical providers to a 2016 Health and Human Services rule that prohibited discrimination on the basis of "termination of pregnancy" and "gender identity." The appeals court noted that since the district court decision, "the legal landscape has shifted significantly." It pointed out: 

HHS repealed the 2016 rule and finalized a new rule in 2020; the Supreme Court interpreted Title VII’s prohibition of “sex discrimination” to include gender identity...; two district courts entered preliminary injunctions against the 2020 rule....; President Biden issued an executive order declaring that his administration would apply Bostock’s interpretation of Title VII to other statutes prohibiting sex discrimination; and HHS is again considering a new rule....

The court said that on remand the district court should consider they type of relief that should be granted and whether the case is moot.

Canadian Trial Court Upholds Most Applications of Quebec's Ban On Officials Wearing Religious Symbols

In Hak v. Attorney General of Quebec, (Que. Super. Ct., April 20, 2021), a Quebec (Canada) Superior Court judge in a 240-page opinion upheld, with two important exceptions, Bill 21 which prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. (See prior posting.) Here is CBC News' summary of the decision:

Quebec's secularism law violates the basic rights of religious minorities in the province, but those violations are permissible because of the Constitution's notwithstanding clause, a Superior Court judge ruled on Tuesday.

But the ruling by Justice Marc-André Blanchard also declared that the most contentious parts of the law — the religious symbols ban for many government employees — can't be applied to English schools.

The desire of English school boards to foster diversity by choosing who they hire is protected by the minority-language education rights in the Charter of Rights and Freedoms, Blanchard said in his decision.

Crucially, that section of the charter (23) is not covered by the notwithstanding clause....

Blanchard also ruled that members of the province's National Assembly can't be forced to provide services to the public with their faces uncovered.

In other words, MNAs are allowed to wear religious symbols that cover their faces, such as a niqab, in accordance with the section of the charter that guarantees every citizen the right to be eligible to vote and be a member of the legislature.

Quebec's Justice Minister says that an appeal is planned. Montreal Gazette and the New York Times also analyze the decision.

New Indictment Against Lev Tahor Over Kidnapping Of Minor

The U.S. Attorney's Office for the Southern District of New York yesterday announced the issuance of a superseding indictment (full text) bringing additional charges against leaders and members of the extremist Jewish sect Lev Tahor.  The new indictment in United States v. Helbrans, (SDNY, April 20, 2021) charges defendants with conspiring to transport a minor with intent to engage in criminal sexual activity and travel with intent to engage in illicit sexual conduct. It also repeats former charges of use of false documents and international parental kidnapping of a girl and her brother. The 250-member Lev Tahor sect is currently based in Guatemala.  The indictment stems from initially successful attempts to kidnap and return to Guatemala a 14-year old girl whose uncle had her married in a religious ceremony to a 19-year old member of the sect for purposes of a sexual relationship to procreate. The girl's mother had fled from Guatemala to New York with the girl and her brother. [Thanks to Scott Mange for the lead.]

Christian College Sues HUD Over Interpretation of Fair Housing Act

Suit was filed last week in a Missouri federal district court challenging a Directive issued last month by the U.S. Department of Housing and Urban Development interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. The 70-page complaint (full text) in The School of the Ozarks, Inc. v. Biden, (WD MO, filed 4/15/2021), in addition to claiming a number of procedural problems with the adoption of the Directive, alleges that it violates the 1st Amendment and the Religious Freedom Restoration Act. The complaint alleges in part:

1. This action challenges a federal agency directive that requires private religious colleges to place biological males into female dormitories and to assign them as females’ roommates. 

39. The Christian faith is an integral part of life at College of the Ozarks....

57. The College teaches human sexuality is a gift from God....

58. The College teaches that sex as determined at birth is a person’s God-given, objective gender, whether or not it differs from their internal sense of “gender identity,” and it bases this teaching on such Biblical passages as Genesis 1:27, Leviticus 18:22, Matthew 19:4, Romans 1:26–27, and 1 Corinthians 6:9–10.

ADF issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

 From SSRN:

• Karsten Schubert, The Christian Roots of Critique. How Foucault's 'Confessions of the Flesh' Sheds New Light on the Concept of Freedom and the Genealogy of the Modern Critical Attitude, (Le foucaldien 7, no. 1, pp. 1-11 (2021)).
• Agustina Ramón Michel & Sonia Ariza Navarrete, Unexpected Uses of and Responses to Conscientious Objection to Legal Abortion, (REDAAS N° 13 January 2021).
• Fiona A. Miller, The Federal Spending Power: Building Forward after the Pandemic, (Healthcare Management Forum, Forthcoming).
• Barry Winston Bussey, Human Dignity Found In Religious Community, (in Barry W. Bussey & Angus J. L. Menuge, Eds., The Inherence of Human Dignity Law and Religious Liberty, Volume 2 (London: Anthem Press, 2021), 115-145).
• Anton Sorkin, A "Cruel Choice" Made Law: Freewheelin' Accommodation Claims and Harms of Conviction Endemic to Adverse Action, (University of Memphis Law Review, Forthcoming).
• Caroline Mala Corbin, Public School Teachers & Transgender Students & Pronouns, (Balkinization, March 19, 2020).
• Agustina Ramón Michel, Abortion, (The Oxford Handbook of Constitutional Law in Latin America, Oxford University Press, 2020).
• Jaina Green, Abortion Regulations: An Avenue for Abolishing Abortion?, (Southern University Law Review, Forthcoming).
• Preston Green, Julie Mead & Suzanne Eckes, Covenants to Discriminate: How the Anti-LGBT Policies of Participating Voucher Schools Might Violate the State Action Doctrine, (University of New Hampshire Law Review, Forthcoming).
• Enyinna S. Nwauche, A Customary Law of the Afrikaner People of South Africa, (in ES Nwauche (ed) Citizenship and Customary Law in Africa, Centre for African Legal Studies, 69-85 (2020)).
• John Picton, Lëhtimaki v Cooper: Duty and Jurisdiction in Charity Law, ((2021) 84 Modern Law Review 383).
• Cindy Lott, Mary Shelly & Nathan Dietz, Regulatory Breadth Index: A New Measurement of State-Level Charity Regulation (November 9, 2020).

From SSRN (Religious Law):

• Fajri Muhammadin, Islamic Ethics of the Conduct of War,  (Forthcoming Chapter in the Handbook of Islamic Ethics, Edited by Prof Mohammad Jafar Mahallati).
• Gargey Yadav, A Critical Study on Dharma with Respect to Justice in Western Jurisprudence, (March 26, 2021).
• T. K. Tushar, Evolution of Muslim Marriage Laws, (April 1, 2021).
• Nikos Koumoutzis, The Islamic Prohibition of Adoption as Limitation of the Right to Respect of Family Life (article 8 ECHR) – Revisiting ECtHR Harroudj v France, no. 43631/09, 4 October 2012, (Cuadernos de Derecho Transnacional 1/2021).
• Moorthy S. Muthuswamy, The Theme-Enablers Theory of Salafi Extremism, (February 19, 2021).

French Top Court Says Anti-Semitic Murderer of Jewish Woman Is Mentally Unfit To Stand Trial

France 24 reports that France's highest court, the Court of Cassation, ruled on Wednesday that a Muslim man who murdered Sarah Halimi, a Jewish woman, was not criminally responsible for the act.  The report says in part:

Halimi, an Orthodox Jewish woman in her sixties, died in 2017 after being pushed out of the window of her Paris flat by neighbour Kobili Traoré, who shouted "Allahu Akbar" ("God is great" in Arabic).

The verdict by the Court of Cassation, means Traoré will not face any trial. It confirmed past rulings from lower courts. 

Traoré, a heavy pot smoker, has been in psychiatric care since Halimi's death. The court said he committed the killing after succumbing to a "delirious fit" and was thus not responsible for his actions....

Following Wednesday's verdict, lawyers representing Halimi's family said they intend to refer the case to the European Court of Human Rights.

NIH Reverses Trump Era Restrictions On Fetal Tissue Research

 As reported by Politico:

The Biden administration on Friday moved to unwind strict Trump-era restrictions on federal-funded medical research using fetal tissue obtained by abortions, reversing policies that scientists warned would devastate the development of treatments for a broad range of diseases.

The Trump administration, under pressure from allied anti-abortion groups, ended fetal tissue research at the National Institutes of Health and established an ethics board to review government support for the research at universities and other labs. The board, which was filled with critics of the research, met just once and rejected 13 of 14 projects that NIH scientists had deemed worthy of support.

In a Notice (full text) published yesterday, the National Institutes of Health said in part:

This notice informs the extramural research community that HHS is reversing its 2019 decision that all research applications for NIH grants and contracts proposing the use of human fetal tissue from elective abortions will be reviewed by an Ethics Advisory Board. Accordingly, HHS/NIH will not convene another NIH Human Fetal Tissue Research Ethics Advisory Board.

Michigan Statute Protecting Parents' Faith Healing Includes Subjective Religious Interpretations

Michigan's Child Protection Law (MCL 722.634) provides:

A parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian.

In In re Piland, (MI App., April 15, 2021), a Michigan state appellate court held that the trial court erred in refusing to give a jury instruction based on this statute in a case in which parental rights for three children were being revoked.  The parents had allowed a newborn infant who developed jaundice to die rather than call for medical help. The trial court had refused the instruction because it interpreted the statute to relate only to the practice of beliefs of a religious organization, and not to individualized beliefs.  The appellate court disagreed, saying in part:

The trial court’s interpretation of the word “legitimately,” as used in MCL 722.634, is that the religious beliefs being practiced must be legitimate. And, that, in order to be legitimate, those beliefs had to be part of the doctrine or tenants of a religion as opposed to a parent or guardian’s subjective interpretation of scriptures. The trial court’s interpretation, however, renders the statute unconstitutional. It is well-established that “government has no role in deciding or even suggesting whether the religious ground” for a person’s actions “is legitimate or illegitimate.” 

Jewish Sailor Gets Temporary Reprieve From Order To Shave Beard

Suit was filed yesterday in the D.C. federal district court by a Jewish sailor who was ordered to shave his beard which he maintains for religious reasons. Other plaintiffs in the case are Muslim sailors.  The complaint (full text) in Di Liscia v. Austin, (D DC, filed 4/15/2021), alleges in part:

1. Plaintiff Edmund Di Liscia, a devout Chassidic Jew and a Sailor in the United States Navy with a rating as an Electricians Mate, Nuclear Power 3rd Class Petty Officer (EMN3), seeks emergency relief to stop Defendants from forcing him to shave in violation of his sincerely held religious beliefs.

2. Over two years ago, shortly after joining the Navy, EMN3 Di Liscia received a “no-shave chit” permitting him to maintain his beard as a religious accommodation for his faith. That accommodation remained effective during his current deployment aboard the U.S.S. Theodore Roosevelt. Indeed, throughout the deployment, his fellow Sailors aboard the USS Roosevelt have all received MWR (Morale, Welfare, and Recreation) no-shave chits that allow them to shave only once every fourteen days.

3. But on or around April 14, 2021, EMN3 Di Liscia’s chief informed him that he must shave on the morning of April 16, 2021, and regularly thereafter....

Plaintiff moved for a TRO (memo in support of TRO). The military agreed that it would not require Di Liscia to shave, at least for the time being. The court issued a temporary restraining order (full text) barring the military from requiring him to shave or trim his beard. Military.com reports on the case.

HHS Proposes Reversal of Trump Administration Title X Family Planning Grant Rules

Yesterday the U.S. Department of Health and Human Services published a proposed rule that would reverse the Trump Administration rules on federally funded family planning services and return, with a few modifications, to the rules in effect before 2019.  As summarized by NPR News:

The [Trump Administration] rules ... forbid any provider who provides or refers patients for abortions from receiving federal funding through Title X to cover services such as contraception and STD screenings for low-income people....

The Trump administration implemented the current rules in an effort to "defund Planned Parenthood," as he had promised supporters during both his campaign and his presidency. That prompted more than 1,000 health clinics in dozens of states, including but not limited to Planned Parenthood, to leave the program.

The HHS Release (full text) titled Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services says in part:

For five decades, Title X family planning clinics have played a critical role in ensuring access to a broad range of family planning and related preventive health services for millions of low-income or uninsured individuals and others.... Title X providers offered clients a broad range of effective and medically safe contraceptive methods approved by the U.S. Food and Drug Administration. Title X-funded sexually transmitted infection (STI) and human immunodeficiency virus (HIV) screening services prevented transmission and adverse health consequences....

Given the previous success of the program, the large negative public health consequences of maintaining the 2019 rules, the substantial compliance costs for grantees, and the lack of tangible benefits, the Department proposes revoking the 2019 Title X regulations. As has been clearly borne out by case law and history, the Department has the discretion to make this determination and it is in the interest of public health....

USCIRF Issues Report On Antisemitism In Europe

Yesterday the U.S. Commission on International Religious Freedom issued a 58-page report (full text) on Antisemitism In Europe. The Report says in part:

Measured against their own long-standing and common political commitments, governments of the 11 states covered in this report have responded differently to the challenges of antisemitism in their countries. In some countries, antisemitic attitudes are a greater challenge than antisemitic incidents. In others the reverse holds true.

In 10 of the 11 countries, though, efforts seem insufficient to meet the antisemitism challenges that present themselves....

The Report includes recommendations for United States policies to fight antisemitism in Europe.

Lawsuit Claims South Carolina's Blaine Amendment Is Unconstitutional

Suit was filed yesterday in a South Carolina federal district court asking the court to declare that South Carolina's Blaine Amendment (Art. XI, Sec. 4 of the South Carolina Constitution) violates the Equal  Protection and Free Exercise clauses of the U.S. Constitution.  The complaint (full text) in Bishop of Charleston v. Adams, (D SC, filed 4/14/2021) reads in part:

1. In response to the COVID-19 pandemic ravaging our state and nation, the U.S. Congress and South Carolina General Assembly have appropriated substantial sums of public funds to provide relief to local governments, employers, non-profit organizations, schools, and colleges.

2. However, because the South Carolina Constitution contains a provision, a so-called Blaine Amendment, which prohibits public funds from being allocated to private or religious schools, the schools and universities represented by Plaintiffs are legally prohibited from accessing these relief funds.

3. Because the Blaine Amendment was born in bigotry and prejudice based on race and religion, it violates the equal protection and free exercise clauses of the U.S. Constitution, and should no longer bar Plaintiffs’ schools from equal access to these essential relief funds.

The complaint goes on to trace the specific history of the Blaine Amendment in South Carolina.  Plaintiffs in the case are a Catholic diocese that operates 33 schools and an association of private colleges. The Center Square reports on the lawsuit.

FDA Lifts In-Person Dispensing Requirement For Abortion Drug During COVID Emergency

On Monday, the U.S. Food and Drug Administration in a letter (full text) to the American College of Obstetricians and Gynecologists and the Society for Maternal-Fetal Medicine announced that during the COVID-19 emergency, it is lifting the in-person dispensing requirement for the abortion drug  Mifepristone. The agency said that it was exercising enforcement discretion because of the additional COVID-related risks to patients and healthcare personnel involved in clinic visits solely to obtain the drug.  It likewise will allow prescriptions for Mifepristone to be filled by mail. Washington Free Beacon reports on criticism of the FDA's move by Republican lawmakers and anti-abortion groups.

6th Circuit Judges Debate Eugenics In Yesterday's Abortion Decision

Yesterday's important 6th Circuit en banc decision (see prior posting) upholding Ohio's statute barring doctors from knowingly performing Down-syndrome motivated abortions includes interesting debates among the various judges on the relevance of the historic eugenics movement. This focus builds on a 2019 concurring opinion in the U.S. Supreme Court by Justice Thomas in Box v. Planned Parenthood (See prior posting.) Here is an example of the exchanges between the 6th Circuit judges in yesterday's opinions:

Judge Griffin concurring (at pg. 36):

I write separately to emphasize Ohio’s compelling state interest in prohibiting its physicians from knowingly engaging in the practice of eugenics....

Many think that eugenics ended with the horrors of the Holocaust. Unfortunately, it did not. The philosophy and the pure evil that motivated Hitler and Nazi Germany to murder millions of innocent lives continues today. Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today. 

Judge Donald dissenting (at pg. 108):

... Ohio’s and the various concurrences’ invocations of the term “eugenics” fail to acknowledge the difference between (1) the purpose with which a woman may decide to have an abortion after a Down-syndrome diagnosis, and (2) the goals of eugenics as a means of “improving stock” .... Put simply, the use of the term “eugenics” ignores the difference between a private choice and a social movement. I find it exceedingly, if not undeniably, unlikely that a woman choosing an abortion because of a prenatal Down syndrome diagnosis is doing so with any intention of improving the quality of humankind.... Rather, she likely makes the decision based on a multitude of deeply personal factors, including her financial and emotional ability to commit to raising a child with Down syndrome.... The state legislature now commandeers that personal decision-making, which interferes not only in a profoundly private personal decision, but also does violence to the ethical norm of patient autonomy, likely leading to doctors withholding information from patients and patients concealing information from their doctors....

6th Circuit En Banc Upholds Ohio's Ban On Doctors Knowingly Performing Abortions Because of Down Syndrome

In Preterm-Cleveland v. McCloud, (6th Cir., April 13, 2021), the U.S. 6th Circuit Court of Appeals sitting en banc in a complicated set of fragmented opinions spanning 111 pages upheld Ohio's statute which prohibits a doctor from performing an abortion if the doctor has knowledge that the woman’s reason, in whole or part, for having the abortion is that she does not want a child with Down syndrome. The vote was 9-7. 

Eight judges joined several portions of Judge Batchelder's opinion to make these portions the opinion of the court.  Critical to the majority opinion was the fact that the law does not apply so long as the woman does not disclose the reason for her abortion to the doctor performing it. Indeed, according to the majority, even if the doctor performing the abortion learns of the fetal-Down-syndrome diagnosis, "knowledge of the diagnosis is not knowledge of the reason." With that understanding, the majority went on to say in part:

The right to an abortion before viability is not absolute. The “[S]tate may regulate abortion before viability as long as it does not impose an undue burden on a woman’s right to terminate her pregnancy.”...

H.B. 214 advances the State’s legitimate interests and will not prevent a large fraction of the women it affects from obtaining abortions. As mentioned, H.B. 214 furthers three valid and legitimate interests by protecting: (1) the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families from coercion by doctors who advocate abortion of Down-syndrome-afflicted fetuses, and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions. These are legitimate interests....

The burdens here are that H.B. 214 will (1) prevent a full, open, and honest conversation with the doctor who will perform the abortion by forcing the woman to withhold this reason for the abortion and (2) require her to engage in “doctor shopping” to find a doctor who is unaware of her reason for having the abortion....

Ohio’s broad definition of knowledge does not alter the reality that the woman remains in control of who knows, and who does not know, the reason for her abortion. And the record simply does not support the notion that a large number of doctors would independently learn of the reason such that it would place a substantial obstacle in the path of most women seeking abortions.... Ohio’s knowledge requirement does not amount to an undue burden.

Only five judges joined other parts of Judge Batchelder's opinion. Four separate concurring opinions were filed, as were six separate dissenting opinions. Cincinnati Enquirer reports on the decision.

UPDATE: For additional discussion of the case, see this later posting.

Multi-Faith Group Issues Statement Questioning Religious Exemptions From COVID Orders

On Monday, some 27 religious organizations representing various Christian, Jewish and Muslim traditions issued a statement (full text) expressing concern that states are going too far in adopting legislation exempting houses of worship from COVID-19 health orders and other emergency orders.  The statement reads in part:

We appreciate the desire to protect our right to worship and gather for religious activities. Too often, however, these bills are overly broad and could result in policies that threaten public health and safety.

Religious freedom is a fundamental American value, and the freedom to worship in accordance with one’s spiritual practices and traditions is a right of the highest order. At the same time, religious freedom does not demand tying the hands of public officials who are trying to safeguard public health as they respond to unforeseen events like pandemics, natural disasters and other emergencies. Indeed, all of our denominations have found creative ways to provide opportunities for worship during the pandemic, recognizing the spiritual sustenance and sense of community that religious practices provide....

Times of public crisis demand that all community leaders—religious, secular, and governmental—work together to find solutions. By giving religious gatherings a pre-emptive exemption from future emergency orders, we fear that these bills will unintentionally paint religious communities as part of the problem, not the solution, and thereby undercut our ability to partner with community leaders to defeat the crisis.

[Thanks to Don Byrd at BJC for the lead.]