European Court Says Azerbaijan Must Exempt Jehovah's Witnesses From Military

As reported by Courthouse News Service:

The European Court of Human Rights ruled Thursday that Jehovah’s Witnesses in Azerbaijan cannot be forced to serve in the military.

“Freedom of thought, conscience and religion [is] one of the cornerstones of a ‘democratic society’ within the meaning of the” European Convention on Human Rights, the court said in a press release announcing the decision.

Here is the full text of the decision in French in In re Mammadov v. Azerbaijan, (ECHR, Oct. 17, 2019).

Hung Jury In Pro-Life Tax Objector's Trial

KGW8 News reports that the federal court trial of an Oregon man, Michael Bowman, on misdemeanor charges of willful failure to file a tax return has ended in a mistrial.  Bowman has not filed a return since 1999 because he refuses to have any of his funds go toward funding abortions. Charges were filed against him in 2017. Bowman argues that the 1st Amendment, RFRA and the Oregon Constitution protect his decision on religious grounds to refuse to pay taxes. A jury could not reach a verdict after 11 hours of deliberation.

HHS Agrees To Delay In Implementing New Health Care Conscience Rules

The Department of Health and Human Services will delay at least until Nov.22 implementation of its newly adopted rules for conscience protection of health care providers.  The move came through an consent order submitted by the Justice Department and the San Francisco City Attorney Dennis Herrera in a lawsuit brought by Herrera challenging the new rules. (See prior posting.) The delay will allow time for the court to decide the merits of the challenge. Announcing the filing of the consent order, Herrara said in part:

The Trump administration is trying to systematically limit access to critical medical care for women, the LGBTQ community, and other vulnerable patients. We’re not going to let that happen. We will continue to stand up for what’s right. Hospitals are no place to put personal beliefs above patient care. Refusing treatment to vulnerable patients should not leave anyone with a clear conscience.

Two More Suits Challenge Expanded Religious Accommodation For Health Care Providers

Suit was filed yesterday in New York federal district court challenging rules recently adopted by the U.S. Department of Health and Human Services (see prior posting) expanding the protection of conscience rights for health care providers.  The 63-page complaint (full text) in National Family Planning and Reproductive Health Association v. Azar, (SD NY, filed 6/11/2019) alleges that:

The Final Rule encourages and authorizes discrimination by unlawfully granting a wide swath of institutions and individuals broad new rights to refuse to provide health care services and information.

The complaint elaborates:

The Rule will exacerbate existing systemic barriers by endangering Plaintiffs’ members’ ability to provide care to already underserved populations. For example:

• By requiring the absolute accommodation of an employee’s refusal to provide certain information and services, the Final Rule could at any time force Plaintiffs to reduce the availability or scope of services they provide or even eliminate them entirely, particularly in small locations that may rely on a single staff member to perform multiple job functions.
• By prohibiting Plaintiffs from even asking job applicants whether they are willing to perform basic job requirements, and because the Final Rule does not require employees who intend to refuse to so notify their employers or their patients, neither Plaintiffs nor their patients may be aware when a staff member is denying a patient access to needed care or information;
• By prohibiting those of Plaintiff NFPRHA’s members who are state and local governmental Title X grantees from requiring sub-recipients to comply with the statutory and regulatory requirements of Title X’s abortion counseling and referral, the Final Rule will systematically undermine the integrity of the Title X program, further jeopardizing the ability of Plaintiffs’ patients to access necessary health care and make voluntary, informed decisions about their reproductive health.

The ACLU issued a press release announcing the filing of the lawsuit.

Separately, Planned Parenthood filed a similar lawsuit. (Full text of complaint in Planned Parenthood Federation of America, Inc. v. Azar, (SD NY, filed 6/11/2019). Courthouse News Service reports on this lawsuit.

A similar challenge to the new Rule was filed last month by a number of states and cities. (See prior posting.)

States and Cities Sue Administration Over Expanded Health Care Conscience Rules

Yesterday 19 states, the District of Columbia as well as New York City, Chicago and Cook County, Illinois together filed suit in a New York federal district court challenging rules recently adopted by the Department of Health and Human Services (see prior posting) expanding the protection of conscience rights of health care providers. The rules were formally published in the Federal Register yesterday. The 80-page complaint (full text) in State of New York v. U.S. Department of Health and Human Services, (SD NY, filed 5/21/2019) alleges in part:

This lawsuit challenges a U.S. Department of Health and Human Services regulation that – in an unprecedented and unlawful expansion of nearly thirty federal statutory provisions – would compel the Plaintiff States and local jurisdictions to grant to individual health providers the categorical right to deny lawful and medically necessary treatment, services, and information to patients, based on the provider’s own personal views.... [I]t will undermine the Plaintiffs’ ability to administer their health care systems and deliver patient care effectively and efficiently.

[T]he Final Rule seeks to coerce the Plaintiffs to comply with the Department’s overbroad application of federal law by subjecting the Plaintiffs to ... denial of potentially all federal health care funds if the Department determines... that the Plaintiffs... have failed to comply with the Final Rule... [T]his financial exposure could amount to hundreds of billions of dollars each year.

...The Final Rule far exceeds in scope and substance the underlying federal health care statutes...; conflicts with federal statutes regarding access to health care, informed consent, the provision of emergency medical services, and religious accommodations; violates constitutional safeguards that assign the spending power to Congress and prohibit the Executive Branch from coercing states to implement preferred federal policies; and violates the Establishment Clause by imposing a categorical requirement that Plaintiffs accommodate the religious objections of their employees, whatever the cost.

New York's Attorney General issued a press release announcing the law suit.

Separately, the state of California filed a similar challenge. The complaint (full text) in State of California v. Azar. (ND CA, filed 5/21/2019) is discussed in this press release from the California Attorney General.

HHS Adopts Final Rules On Conscience Protection In Health Care; Suit Filed Challenging New Rules

The U.S. Department of Health and Human Services Office of Civil Rights has submitted for publication in the Federal Register final rules on protecting the conscience rights of health care providers. The rules, set out in a 440-page release (full text), become effective in 60 days.  The Release summarizes the new rules:

This final rule revises existing regulations to ensure vigorous enforcement of Federal conscience and anti‐discrimination laws applicable to the Department, its programs, and recipients of HHS funds, and to delegate overall enforcement and compliance responsibility to the Department’s Office for Civil Rights (“OCR”). In addition, this final rule clarifies OCR’s authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in existing regulations to address violations and resolve complaints.

New York Times, reporting on the new rules, says in part:

some groups said they feared the provisions were overly broad and could imperil care for patients seeking reproductive health care. They also said it could lead to discrimination against gay or transgender patients and their children, and weaken public health efforts to expand childhood vaccinations.

Yesterday, San Francisco City Attorney Dennis Herrera announced that he has filed suit to invalidate the new rules. The complaint (full text) in City and County of San Francisco v. Azar, (ND CA, filed 5/2/2019), alleges in part:

The Final Rule requires the City and County of San Francisco (“City” or “San Francisco”)—in any and all circumstances—to prioritize providers’ religious beliefs over the health and lives of women, lesbian, gay, bisexual, or transgender people, and other medically and socially vulnerable populations. If San Francisco refuses to comply, it risks losing nearly $1 billion in federal funds that support critical health care services and other vital functions.

The suit alleges that the new rules are in violation of federal statutes and various constitutional provisions including the Establishment Clause.

State AGs Seek To Enjoin Final Broad ACA Exemptive Rules On Contraceptives

Attorneys general from 14 states have filed a motion for a preliminary injunction in a California federal district court against various federal departments.  The motion seeks to prevent Trump Administration rules expanding religious and moral exemptions from the Affordable Care Act contraceptive coverage mandate from taking effect. The motion and memorandum in support (full text) in State of California v. Azar, (ND CA, filed 12/19/2018) contends that the new rules are contrary to the text and purpose of the Affordable Care Act and were adopted without meeting Administrative Procedure Act requirements. Interim Final Rules similar to the Final Rules at issue in the case have already been enjoined by the courts. (See prior posting.)  Consumer Affairs reports on the preliminary injunction motion.

South Korea's Supreme Court Recognizes Conscientious Objection To Military Draft

According to AFP, South Korea's Supreme Court yesterday-- by a vote of 9-4-- ruled that religious and moral beliefs are valid reasons to refuse the country's military conscription. The ruling, which overruled prior precedent, came in the case of a Jehovah’s Witness conscientious objector who had been convicted by lower courts. Refusing the draft has typically resulted in an 18-month prison term. Some 19,000 conscientious objectors have been jailed since 1950, with 96 currently in prison.

Norway's Supreme Court Upholds Doctor's Conscience Rights

According to Irish Legal News, in a decision published last Thursday, Norway's Supreme Court held that the European Convention on Human Rights requires health authorities to respect a doctor's conscientious objection to performing certain medical procedures.  Dr. Katarzyna Jachimowicz had been fired from her position in a medical clinic after she refused an order to insert an IUD in a patient. She claims that the IUD may act as an abortifacient, and her Christian faith opposes abortion.

HHS Investigating Legality of Hawaii Notice Requirements For Pregnancy Clinics

An ADF press release on Monday reports that the Office of Civil Rights of the U.S. Department of Health and Human Services has initiated an investigation on behalf of A Place for Women, a limited service pregnancy center in Hawaii.  At issue is the requirement in Hawaii Act 200 enacted last year requiring such centers to disseminate on-site to patients a notice that says in part:

Hawaii has public programs that provide immediate free or low-cost access to comprehensive family planning services, including, but not limited to, all FDA-approved methods of contraception and pregnancy-related services for eligible women. To apply online for medical insurance coverage, that will cover the full range of family planning and prenatal care services, go to mybenefits.hawaii.gov.

The letter from HHS to ADF, which filed a complaint with it, says in part:

Under federal regulations, OCR is designated to receive complaints based on federal laws that protect conscience and prevent coercion, including the Weldon Amendment, the Coats-Snowe Amendment, and the Church Amendments.  OCR has reviewed the Complaint and has determined that it has sufficient authority and cause to investigate the allegations under one or more of these laws.

Appeals Court Says Mennonite Woman Must Remain In Jail Until She Will Answer Prosecution's Questions

A Colorado appeals court. after expedited consideration, has rejected religious liberty arguments raised by a Mennonite woman who refuses to testify on behalf of the prosecution in a capital case.  Greta Lindekranz was an investigator for defense attorneys. The prosecution wants her testimony to rebut arguments that convicted murderer Robert Ray received ineffective assistance of counsel.  Lindekranz, who opposes capital punishment on religious grounds, argues that answering questions on direct examination by the prosecution would make her a tool in the prosecution's efforts to execute Ray.  The trial court held that her refusal to answer questions put forward by the prosecution placed her in contempt, and it ordered her held in jail until she elects to answer the questions. (See prior posting.)  In People v. Ray and Concerning Lindekranz, (CO App., March 8, 2018), the appellate court refused to reverse the contempt citation.  It held that even if strict scrutiny applies, the state has a compelling interest in ascertaining the truth and rendering a just judgment in accordance with the law.  The court rejected Lindekranz's alternative of answering questions from the court, with the prosecution and defense then cross-examining her.

The court concluded:

Ms. Lindecrantz is in a tough spot — caught between the proverbial rock and a hard place. We take no pleasure in declining to extricate her. But the state of the law being what it is, decline we must.

Colorado Public Radio, reporting on the decision, says that an appeal will be filed with the Colorado Supreme Court.

UPDATE: AP reports (March 10) that Lindekranz will now testify because her refusal to do so is hurting Ray's appeal. According to her lawyer: "Based on this dramatic change in circumstance, she has concluded that her religious principles honoring human life now compel that she must testify."

Mennonite Woman Jailed For Contempt For Refusal To Testify In Capital Case

CBS4 reports that in Arapahoe County, Colorado, a Mennonite woman has been held in contempt and remanded to jail for refusing to testify for the prosecution in the challenge to a conviction by Robert Ray who was sentenced to death for murder.  Ray is claiming inadequate representation at trial. The woman, Greta Lindecrantz, was an investigator for the defense in the original trial. Prosecutors want her to testify to show the adequacy of Ray's lawyers.  However Lindecrantz says that her religious beliefs prohibit her from participating in the killing of another person, and that is what prosecutors are asking her to do.

Trump Administration Takes Several Actions Supporting Pro-Life Advocates

As reported by CNN, today was the 45th annual March for Life in Washington, D.C.  Both Vice-President Pence and President Trump addressed the marchers via video feed from the White House Rose Garden. (Video of remarks.) Today, President Trump also issued a Proclamation (full text) declaring January 22 as National Sanctity of Human Life Day. The White House additionally issued a Fact Sheet titled President Donald J. Trump is Standing Up for the Sanctity of Life.

Today, the Department of Health and Human Services also announced two pro-life initiatives. The HHS Office for Civil Rights issued a 216-page release (full text) proposing revisions in in order to expand enforcement authority as to rules that protect conscience objections in delivery of health care services. Second, the Department of Health and Human Services issued a Letter to State Medicaid Directors (full text) rescinding SMD #16-005, a 2016 letter to Medicaid.  That letter which today's action rescinded provided in part:

... [S]tates may not deny qualification to family planning providers, or take other action against qualified family planning providers, that affects beneficiary access to those providers—whether individual providers, physician groups, outpatient clinics or hospitals—solely because they separately provide family planning services or the full range of legally permissible gynecological and obstetric care, including abortion services (not funded by federal Medicaid dollars, consistent with the federal prohibition), as part of their scope of practice.

Trump Administration Is Planning Expanded Religious and Moral Exemptions For Doctors

The Wall Street Journal reported yesterday that the Trump Administration is planning to expand exemptions from health care anti-discrimination rules for doctors who have religious or moral objections to gender transitioning or abortion.  The Department of Health and Human Services also plans to create  a division of "conscience and religious freedom protections" in the Department's Office for Civil Rights.  HHS sent its rule proposals to the White House for review last Friday.  President Trump might announce the changes on Friday when he addresses the March for Life on the National Mall by satellite. [Thanks to Steven H. Sholk for the lead.]

UPDATE: On Jan. 18, the Department of Health and Human Services formally announced formation of a new Conscience and Religious Freedom Division in its Office for Civil Rights.

Court Tells South Korea To Halt Publicizing Personal Information On Conscientious Objectors

The Hankyoreh yesterday reports that South Korea's Military Manpower Administration is publishing the personal information of religious conscientious objectors on its website. The paper says:

Since last year, the Military Service Act has mandated that a registry be kept identifying those who refuse to report for service without a legitimate reason. But critics have pointed out that presenting those who refuse to serve because of their pacifism or religious beliefs as if they were deliberate draft dodgers subjects them to double punishment....

When the MMA published the personal information of conscientious objectors on its website in Dec. 2016, 105 individuals filed a lawsuit with the Seoul Administrative Court asking for the publication decision to be reversed and another lawsuit asking for a stay of execution on the publication until the court made its decision in the first case. In May, the ... Seoul Administrative Court ... ruled that the publication of their personal information should be halted until the final legal decision, citing “concerns that irreparable damages could be incurred.”

Despite the stay of execution ordered by the court, the MMA included conscientious objectors among the draft dodgers whose personal information was published once again this year. In response, 252 individuals filed the same lawsuit once again..... On Dec. 19, ... the Seoul Administrative Court... once again ruled that the publication of the plaintiffs’ personal information should be halted until the court makes its ruling.

Another Court Enjoins Expanded Exemptions From Contraceptive Coverage Mandate

In State of California v. Health and Human Services, (ND CA, Dec. 21, 2017), a California federal district court issued a nationwide preliminary injunction against enforcement of the Trump Administration's Interim Final Rules issued in October (see prior posting) expanding exemptions from the ACA contraceptive coverage mandate for those with religious or moral objections.  The court ordered the government, pending resolution on the merits, to proceed under the narrower exemption regime that was in effect prior to October.  The court concluded that plaintiffs had shown a likelihood that they will succeed on their claim that the government violated the Administrative Procedure Act by promulgating the Interim Final Rules without advance notice and comment.  Americans United issued a press release announcing the decision.  Last week another federal district court issued a similar preliminary injunction. (See prior posting.)

Texas Legislature Passes Conscience Protections For Adoption, Foster Care, Counseling Services

The Texas legislature yesterday gave final passage to HB 3859 (full text), a bill that prohibits any governmental agency from discriminating or taking adverse action against a child welfare service provider that refuses to provide adoption, foster care, counseling or other services that conflict with the agency's religious beliefs.  The bill, which now goes to the governor for signature, also protects agencies that place children with providers who will give the children a religious education. Where an agency refuses to serve a client, it must refer the client to, or to a listing of, other agencies that can serve them.  AP, reporting on the bill, says:

The private foster care and adoption organizations, which are paid by the state to place children with families, make up about 25 percent of the agencies working in Texas. Those groups say they face a threat of lawsuits for exercising their religious beliefs if they don’t get specific state legal protection.  Many Texas adoption agencies admit they don’t work with adoptive parents who are single, gay or non-Christian, and the bill could keep them from being sued.

[Thanks to Scott Mange for the lead.]

Objectors To Assisted Suicide Lack Standing To Challenge Vermont Law

In Vermont Alliance for Ethical Health Care, Inc. v. Hoser, (D VT, April 5, 2017), a Vermont federal district court dismissed for lack of standing a suit challenging Vermont's law which protects physicians who prescribe a lethal dose of medication to terminally ill patients who meet specified requirements.  Plaintiffs, two organizations whose members are healthcare providers holding religious and ethical opposition to assisted suicide, sought injunctions shielding from professional disciplinary action healthcare providers who for religious or ethical reasons refuse to inform patients that assisted suicide is an available option.  the court said in part:

The prospect of imminent harm through the filing of disciplinary proceedings in the future is highly unlikely. The parties largely agree on a solution to their dilemma which satisfies both sides. They agree that making a false statement or ignoring a patient's inquiry is wrong. Both agree that directing a patient to a website explaining the conditions under which assisted suicide might be available will neither violate religious principles nor fall short of the physician's obligation to provide information to the patient.

5th Circuit Hears Arguments On Mississippi's Conscience Protection Law

The U.S. 5th Circuit Court of Appeals on Monday heard oral arguments (audio of full arguments) in Barber v. Bryant.  In the case, a Mississippi federal district court issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act.  The law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth. (See prior posting.)  Buzzfeed has extensive coverage of the oral arguments.

Preliminary Injunction Issued Against Illinois Conscience Act Amendments

In Pregnancy Care Center of Rockford, Inc. v. Rauner, (IL Cir. Ct., Dec. 20, 2016), an Illinois state trial court granted a preliminary injunction preventing enforcement against conscientious objectors of recently enacted amendments to the Illinois Healthcare Right of Conscience Act.  According to the court:

While the Conscience Act allows medical care providers to decline to participate in medical procedures to which they have moral objections, the amendments to the Act ... require providers to provide information and referral assistance with respect to a patient's "legal treatment options" as a precondition to invoking the Act's protections.

Invoking intermediate scrutiny of regulation of "professional speech" under the Illinois constitution, the court said that the legislature has imposed an obligation to furnish information only on conscientious objectors.  It goes on:

The Court concludes that plaintiffs have raised a "fair question" about whether SB 1564 unnecessarily burdens their right to be free from government compelled speech to a degree more than necessary to serve the state's interest in educating patients.

CatholicCitizens.org provides a lengthier analysis of the decision.