Arkansas Supreme Court Keeps Abortion Rights Measure Off November Ballot

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

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

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

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

6 More States Enjoin Enforcement of New Title IX Rules Barring Transgender Discrimination

Yet another court has enjoined the Department of Education from enforcing its new Title IX rules that interpret Title IX's ban on sex discrimination as including a ban on gender identity discrimination. In State of Arkansas v. U.S. Department of Education, (ED MO, July 24, 2024), a Missouri federal district court issued a preliminary injunction barring enforcement against Arkansas, Missouri, Iowa, Nebraska, North Dakota, South Dakota and the individual plaintiff, a student in a school in Arkansas who says the rule violates her religious beliefs.  the court said in part:

After preliminary review and without ultimately deciding the issue, the Court is persuaded that plaintiffs have a fair chance of prevailing on their argument that the reasoning of Bostock, a Title VII employment discrimination case, should not apply to Title IX. ...

Given that notice is the touchstone of Title IX, the statute contains no definition of sex or express prohibition of discrimination on the basis of gender identity, and it expressly permits sex-based differential treatment in certain circumstances, plaintiff States have met their preliminary burden of establishing a fair chance of prevailing on their argument that they lacked constitutionally sufficient notice that sex discrimination would be interpreted as including gender identity discrimination when they accepted federal funding under Title IX.

The court also preliminarily enjoined the new rules' expansion of the definition of harassment, concluding that the definition may violate the 1st Amendment by chilling speech. ADF issued a press release announcing the decision.

Arkansas Supreme Court Orders Initial Count of Signatures on Abortion Amendment Petitions

 In Cowles v. Thurston, (AR Sup. Ct., July 23, 2024), the Arkansas Supreme Court ordered the state Secretary of State to perform an initial count of signatures submitted by volunteer canvassers for a state constitutional amendment that would give women the right to obtain an abortion during the first 18 weeks after fertilization, and later in cases of rape, incest, fatal fetal anomaly, or to protect the mother's life or physical health. As previously reported, the Secretary of State rejected all the petitions because they were not accompanied by required paperwork regarding those submitted by paid canvassers. 3 Justices would have gone further and given proponents a 30-day cure period. Arkansas Advocate reports on the Court Order. [Thanks to Thomas Rutledge for the lead.]

Arkansas Secretary of State Rejects Abortion Rights Initiative Petitions as Inadequate

Yesterday, Arkansas Secretary of State John Thurston rejected petitions to place a proposed state constitutional amendment on the November ballot that would have given women the right to obtain an abortion during the first 18 weeks after fertilization, and later in cases of rape, incest, fatal fetal anomaly, or to protect the mother's life or physical health. (Full text of Amendment via Arkansas Advocate reporting.) In his letter (full text via Arkansas Advocate reporting) rejecting the petitions, the Secretary of State said that proponents had failed to comply with statutory requirements to file a statement listing paid canvassers by name and stating that they had been supplied with specified information about collecting signatures. Proponents needed 90,704 signatures. Only 87,382 of the 101,525 submitted were from unpaid canvassers.

Arkansas AG Certifies Abortion Amendment Proposal; Signature Collection May Begin

After rejecting two prior proposals as being unclear or misleading (1 , 2 ) on Tuesday, Arkansas Attorney General Tim Griffin certified the popular name and ballot title for a proposed constitutional amendment that, if adopted by voters, will liberalize abortion rules in Arkansas.  The ballot proposal describes the changes as follows in part:

... [T]his amendment changes Arkansas law by amending the Arkansas Constitution to provide that the government of the State of Arkansas, its officers, or its political subdivisions shall not prohibit, penalize, delay, or restrict abortion services (1) in cases of rape, (2) in cases of incest, (3) in the event of a fatal fetal anomaly, or (4) when, in a physician’s good-faith medical judgment, abortion services are needed to protect a pregnant female’s life or to protect a pregnant female from a physical disorder, physical illness, or physical injury; to provide that the government of the State of Arkansas, its officers, or its political subdivisions shall not prohibit, penalize, delay, or restrict abortion services within 18 weeks of fertilization....

As reported by the Arkansas Democrat Gazette, the Attorney General's approval allows proponents to begin to collect 90,704 signatures needed to get the proposal on the November 2024 ballot.

Plaintiffs Must Seek Narrower Relief Against Restrictions on LGBTQ Books in Children's Section of Library

In Virden v. Crawford County, Arkansas, (WD AR, Sept. 12, 2023), the court denied plaintiffs' request for a preliminary injunction because the proposed injunction was too broad, but left open the possibility of a narrower injunction later on.  The court described the dispute:

According to Plaintiffs’ amended complaint, in late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children’s sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the “social section.” Plaintiffs allege this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.

Plaintiffs claimed that this policy violates the Establishment Clause as well as their 1st Amendment free speech right.  The court said in part:

First, with respect to the Establishment Clause claim, it must be noted that—as Defendants acknowledge—there is little useful precedent to guide this Court’s analysis. The United States Supreme Court’s most recent guidance on such claims amounts to little more than the extremely general and abstract direction that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” Kennedy v. Bremerton Sch. Dist..... In the face of this instruction, the County resorts to arguing that book banning and censorship, for reasons both religious and otherwise, have a centuries-long history in America and the broader Western world....

Neither side’s argument regarding the Establishment Clause claim is satisfactory. Plaintiffs’ argument simply sidesteps the “historical practices and understandings” analysis altogether. But the County’s argument, which is essentially that the Establishment Clause does not prohibit state-sponsored religious viewpoint discrimination because state actors have been violating the Free Speech Clause for centuries, seems out of step with the Kennedy Court’s admonition that the First Amendment’s Establishment, Free-Exercise, and Free-Speech Clauses “have complementary purposes, not warring ones where one Clause is always sure to prevail over the others.”.... 

The court found that plaintiffs had alleged sufficient facts to avoid dismissal of their claim that their 1st Amendment right to receive information had been infringed. However, it refused to enter a preliminary injunction requiring the library to return to its prior procedures for classifying and processing books, saying in part:

... Plaintiffs’ proposals would essentially freeze in perpetuity the Library’s method for processing all types of books—not only children’s books relating to LGBTQ topics. The Court does not see any reason, on the record before it, why it should curtail the Library’s discretion in processing books on such disparate topics as caring for houseplants, playing chess, or mystery novels. Furthermore, the requested injunctions are so vague and general that they could potentially prevent the Library from altering these processes even for reasons that could be perfectly benign, prudent, and constitutionally inoffensive. 

State AG's Warn Target Corp. About Consequences of Its Pride Campaign

Earlier this week, the Indiana Attorney General, joined by the Attorneys General of Arkansas, Idaho, Kentucky, Mississippi, Missouri and South Carolina sent a joint letter (full text) to the CEO of Target Corp. complaining about the company's promotion and sale of products supporting Pride month. The states' legal officers suggested that Target may have violated state child-protection and parental rights laws.  It also suggests that Target has violated its duties to the states as shareholders of Target stock (presumably held in state pension funds).  The 5-page, heavily footnoted letter said in part:

As the chief legal officers of our States, we are charged with enforcing state laws protecting children and safeguarding parental rights.... 

In light of these responsibilities, we wish to communicate our concern for Target’s recent “Pride” campaign. During this campaign, Target wittingly marketed and sold LGBTQIA+ promotional products to families and young children as part of a comprehensive effort to promote gender and sexual identity among children...  Target also sold products with anti-Christian designs, such as pentagrams, horned skulls, and other Satanic products....

In connection with its “Pride” campaign, Target provides financial support to an organization called GLSEN (pronounced “glisten”). GLSEN furnishes resources to activists for the purpose of undermining parents’ constitutional and statutory rights by supporting “secret gender transitions for kids” and directing public schools to withhold “any information that may reveal a student’s gender identity to others, including [to] parents or guardians.”...

...Target’s directors and officers have a fiduciary duty to our States as shareholders in the company. The evidence suggests that Target’s directors and officers may be negligent in undertaking the “Pride” campaign, which negatively affected Target’s stock price. Moreover, it may have improperly directed company resources for collateral political or social goals unrelated to the company’s and its shareholders’ best interests....

We live in a different day and age from our nation’s founding. But certain immutable precepts and principles must always endure so long as America is to remain free and prosperous.

CBS News reports on the letter.

Court Enjoins Arkansas Ban on Gender-Affirming Medical Care

In Brandt v. Rutledge, (ED AR, June 20, 2023), an Arkansas federal district court in an 80-page opinion permanently enjoined the state from enforcing Act 626, the state's ban on gender-affirming medical care for minors.  The court, finding that the Act violates the14th Amendment's equal protection and due process clauses, as well as the 1st Amendment's free speech protections, said in part:

Act 626 prohibits a physician or other healthcare professional from providing “gender transition procedures” to any individual under eighteen years of age and from referring any individual under eighteen years of age to any healthcare professional for “gender transition procedures.”...

The State claims that by banning gender-affirming care the Act advances the State’s important governmental interest of protecting children from experimental medical treatment and safeguarding medical ethics. Throughout this litigation, the State has attempted to meet their heavy burden by offering the following assertions in support of banning gender-affirming medical care for adolescents: (i) that there is a lack of evidence of efficacy of the banned care; (ii) that the banned treatment has risks and side effects; (iii) that many patients will desist in their gender incongruence; (iv) that some patients will later come to regret having received irreversible treatments; and (v) that treatment is being provided without appropriate evaluation and informed consent. The evidence presented at trial does not support these assertions....

Even if the Court found that Act 626 passed constitutional muster under the Equal Protection Clause, it fails under due process analysis.... 

As the Court has previously found, the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary. “[T]the Fourteenth Amendment ‘forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’”...

Act 626 is a content and viewpoint-based regulation of speech because it restricts healthcare professionals from making referrals for “gender transition procedures” only, not for other purposes. As a content and viewpoint-based regulation, it is “presumptively unconstitutional” and is subject to strict scrutiny...

 Arkansas Attorney General Tim Griffen in a statement said that he plans to appeal the decision to the 8th Circuit.  The Hill reports on the court's decision.

New Arkansas Law Authorizes Monument to Unborn Children on Capitol Grounds

As reported by ABC News, on Thursday Arkansas Governor Sarah Huckabee Sanders signed SB307 (full text) into law. The new law provides for a privately funded Monument To Unborn Children to be placed on the state Capitol grounds.  The monument is to commemorate "unborn children aborted during the era of Roe v. Wade..." The monument is to be funded by gifts, grants and donations from individuals and organizations.  The law also provides for legal defense of the monument if it is challenged, for maintenance of the monument and for replacement of it "if necessary due to catastrophic damage."

Cert. Denied in Challenge to Arkansas' Ban on Companies Boycotting Israel

The U.S. Supreme Court yesterday denied review in Arkansas Times LP v. Waldrip, (Docket No. 22-379, certiorari denied 2/21/2023). (Order List.)  In the case, the U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld against a free speech challenge Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel.  The 8th Circuit held that the law only bans non-expressive commercial decisions. (See prior posting.) JNS reports on the denial of certiorari. Here is the SCOTUSblog case page with links to briefs filed in the case.

Kroger Settles Religious Accommodation Suit With EEOC

As reported by HR Dive, the EEOC announced yesterday that it has reached a settlement in a religious discrimination suit it had filed against a Conway, Arkansas Kroger store for failing to accommodate two employees who refused to wear the company's apron which features a four-color heart symbol. Kroger developed the symbol as part of a campaign emphasizing the company's four service-based commitments. The employees insisted that the symbol promotes the LGBT community which the employees' religious beliefs preclude them from doing. (See prior posting.) Under the settlement, Kroger will pay each employee $20,000 in back pay plus $52,000 each in additional damages.  Another $36,000 in damages is apparently for attorneys' fees.  Kroger has also agreed to create a religious accommodation policy and will give additional religious discrimination training to store manage­ment.

Certiorari Filed in Challenge to Arkansas Anti-BDS Law

 A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Arkansas Times, LP v. Waldrip, (Sup. Ct., filed 10/20/2022). In the case, the U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld against a free speech challenge Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel. (See prior posting.) ACLU issued a press release announcing the filing of the petition for review.

8th Circuit Upholds Injunction On Gender Transition Procedures Ban

In Brandt v. Rutledge, (8th Cir., Aug. 25, 2022), the U.S. 8th Circuit Court of Appeals affirmed an Arkansas district court's grant of a preliminary injunction against enforcement of Arkansas' ban on healthcare professionals providing gender transition procedures to anyone under 18, or referring minors for such procedures. Finding that the law violates the Equal Protection Clause, the court said in part:

[U]nder the Act, medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex. A minor born as a male may be prescribed testosterone or have breast tissue surgically removed, for example, but a minor born as a female is not permitted to seek the same medical treatment. Because the minor’s sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex.

Arkansas’s characterization of the Act as creating a distinction on the basis of medical procedure rather than sex is unpersuasive.

Arkansas Times reports on the decision.

8th Circuit Upholds Arkansas Israel Boycott Certification Requirement

The U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel.  In Arkansas Times LP v. Waldrip, (8th Cir., June 22, 2022), the court held that the the statute's broad definition of "boycott" as including "other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories" is only a prohibition on non-expressive commercial decisions that are not protected under the First Amendment's free speech clause. The court also held that the required certification from the contractor does not amount to "compelled speech". The suit was brought by a newspaper that contracts with a state college.

Judge Kelley dissented, arguing that the statute was broader than the majority found it to be.  He contended that "other actions intended to limit commercial relations with Israel" could encompass more than just commercial activity, including activity that is protected by the First Amendment.  For example, it might include posting anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel, or publicly criticizing the anti-boycott statute. (The en banc decision reverses a decision by a 3-judge panel of the 8th Circuit handed down last year.) The Forward reports on the decision.

Satanic Temple Sues Billboard Company Over Abortion Ritual Ads

The Satanic Temple filed suit last week in an Arkansas federal district court claiming that a billboard advertising company violated the Arkansas Civil Rights Act by refusing to perform under its contract  to put up billboards in Arkansas and Indiana that would spread awareness of TST's Satanic Abortion Ritual. Arkansas Code § 16-123-107 prohibits religious discrimination in contractual and property transactions. The complaint (full text) in The Satanic Temple, Inc. v. Lamar Media Company, (WD AR, filed 2/25/2022), alleges in part:

Part of this case will involve proving that TST’s Satanic Abortion Ritual is substantively different than getting a secular abortion, even though it involves the abortive act, such that this advertising contract contemplated a religious message.....

The Satanic Abortion Ritual is a ceremonious casting off of guilt, doubt, and mental discomfort that the member may be experiencing in connection with their election to abort the pregnancy.

The complaint also alleged breach of contract claims. Arkansas Democrat Gazette reported on the lawsuit.

Arkansas Supreme Court Rejects Inmate's Complaint Over Withholding Of NOI Publications

In Muntaqim v. Payne, (AR Sup. Ct., Sept. 16, 2021), the Arkansas Supreme Court affirmed the dismissal of a suit litigated pro se by a Nation of Islam inmate who contested prison officials' withholding of multiple copies of the NOI publication Final Call for review because of racist and inflammatory content. Plaintiff also alleged that the mailroom supervisor destroyed five copies of NOI books. Responding to appellant's RLUIPA and free exercise claims, the court said in part:

The prison must permit a reasonable opportunity for an inmate to engage in religious activities but need not provide unlimited opportunities to do so. Id. Muntaqim’s claims that the appellees restricted access to some but not all NOI religious literature did not state sufficient facts that appellees placed a substantial burden on the exercise of his religious practices.

The court also rejected free speech, equal protection, due process, access to courts and Establishment Clause claims.

Court Enjoins Arkansas Abortion Ban

In Little Rock Family Planning Services v. Jegley, (ED AR, July 20, 2021), an Arkansas federal district court issued a preliminary injunction against enforcing Arkansas Act 309 against pre-viability abortions. The statute bans all abortions, except when necessary to save the life of the pregnant woman.  The court said in part:

The Act thus “prohibit[s] any woman from making the ultimate decision to terminate her pregnancy before viability.”... Defendants do not make any argument to the contrary.... Instead, defendants argue that Roe and Casey were wrongly decided and that there is no constitutional right to abortion.... As a federal district court, this Court “is bound by the Supreme Court’s decisions in Casey.”... Accordingly, the Act is categorically unconstitutional, and plaintiffs have demonstrated that they are likely to succeed on the merits.

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

Republican Arkansas Governor Vetoes Bill Banning Gender Transition Procedures [Update: Veto Override]

 As reported by NPR, Arkansas Republican Governor Asa Hutchinson yesterday vetoed Arkansas House Bill 1570 ("Save Adolescents From Experimentation (SAFE) Act") which prohibits physicians from providing gender transition procedures to minors. Hutchinson told reporters that the bill would set:

new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters involving young people.

A majority of the Arkansas legislature can override the Governor's veto.

UDATE: On April 6, the Arkansas legislature overrode the Governor's veto by a vote of 71-24. (ABC News).

Arkansas Enacts Conscience Protections For Medical Personnel

Last Friday, Arkansas Governor Asa Hutchinson signed SB289, the Medical Ethics and Diversity Act (full text). The law gives broad protection for medical practitioners, healthcare institutions, and healthcare payers who have religious, moral or ethical objections to participating in a particular healthcare service. Protections extend to a long list of providers, including doctors, nurses, pharmacists, researchers. counselors and student counselors. In his signing statement, the Governor said in part:

I support this right of conscience so long as emergency care is exempted and conscience objection cannot be used to deny general health service to any class of people. Most importantly, the federal laws that prohibit discrimination on the basis of race, sex, gender, and national origin continue to apply to the delivery of health care services.

ADF issued a press release regarding the signing. 

Arkansas Enacts Law Banning Virtually All Abortions, Seeking Vehicle For Overturning Roe v. Wade

On Tuesday, Arkansas Governor Asa Hutchinson signed into law SB6, the Arkansas Unborn Child Protection Act (full text). The new law bans all abortions, except to save the life of a pregnant woman in a medical emergency.  A doctor who violates the law is subject to a fine of up to $100,000 and up to ten years in prison. Gov. Hutchinson's signing statement said in part:

I will sign SB6 because of overwhelming legislative support and my sincere and long-held pro-life convictions. SB6 is in contradiction of binding precedents of the U.S. Supreme Court, but it is the intent of the legislation to set the stage for the Supreme Court overturning current case law. I would have preferred the legislation to include the exceptions for rape and incest, which has been my consistent view, and such exceptions would increase the chances for a review by the U.S. Supreme Court.

[Thanks to Scott Mange for the lead.]