Biden and Harris Issue Statement In Support Of Roe v. Wade

Last Saturday (Jan. 22) was the 49th anniversary of the decision in Roe v. Wade that established a constitutional right to abortion.  On Saturday, the White House issued a statement from President Biden and Vice President Harris (full text), saying in part:

The Biden-Harris Administration strongly supports efforts to codify Roe, and we will continue to work with Congress on the Women’s Health Protection Act. All people deserve access to reproductive health care regardless of their gender, income, race, zip code, health insurance status, immigration status, disability, or sexual orientation. And the continued defense of this constitutional right is essential to our health, safety, and progress as a nation.

We must ensure that our daughters and granddaughters have the same fundamental rights that their mothers and grandmothers fought for and won on this day, 49 years ago....

California Sues Health Care Sharing Ministry For Fraud

California's Attorney General announced yesterday that the state has filed a false statements and fraudulent business practices civil lawsuit against a company purporting to operate as a Health Care Sharing Ministry. The complaint (full text) in State of California v. Aliera Companies, Inc., (CA Super., filed 1/12/2022), alleges in part:

Aliera created and marketed its health insurance products as “health care sharing ministry” (HCSM) plans. HCSMs are nonprofit corporations historically comprised of members of a particular religious community, who contribute money to a shared pool with the understanding that the money would pay for catastrophic or surprise healthcare costs pursuant to the members’ shared religious tenets....

... Aliera ...  advertised that members’ monthly payments would go towards the healthcare costs of other members. To the contrary, Aliera retained as much as 84% of every member payment, leaving around 16 cents of every dollar for member expenses. Aliera arbitrarily rejected member requests for payment of healthcare costs in order to continue retaining these member payments for itself and the individual defendants.

Fourteen states and the District of Columbia, have initiated actions against Aliera for its sale and operation of its purported HCSM plans. This includes the California Department of Insurance, which issued a cease and desist order on or about March 8, 2020.

8th Circuit Hears Oral Arguments In Religious Challenge To Health Care Transgender Anti-Discrimination Rules

On Wednesday, the U.S. 8th Circuit Court of Appeals heard oral arguments in Religious Sisters of Mercy v. Becerra. (Audio of full oral arguments.) In the case, a North Dakota federal district court granted a number of Catholic-affiliated health care and health insurance entities, and several Catholic employers, an injunction barring enforcement against them of anti-discrimination rules that require them to provide (or provide insurance coverage for) transgender transition procedures. Aleteia has an extensive report on the oral arguments.

Nurse's Religious Objections Should Have Been Accommodated Under Illinois Right of Conscience Act

 In Rojas v. Martell,(IL Cir. Ct., Oct. 25, 2021), an Illinois state trial court held that under Illinois Healthcare Right of Conscience Act, a county Health Department Clinic should have accommodated the objections of a nurse who on religious grounds would not participate in abortion referrals or provide contraceptives to patients. However, the court found that plaintiff was entitled only to the statutory minimum damages of $2500 because she should have mitigated damages by pursuing a position that was available at a nursing home. The court summarized its holding:

[W]hen one member of a team of employees makes an objection of conscience to performing a minority of her job duties, the employer should be required to accommodate the employee in her present position if doing so does not unreasonably compromise the employer's operations.

ADF issued a press release announcing the decision.

Christian Employers Group Challenges HHS And EEOC Protection for Transgender Health Care

Suit was filed this week in a North Dakota federal district court by a Christian membership ministry that serves for-profit and non-profit employers challenging two federal rules on health care coverage for gender transition surgery. At issue are (1) an EEOC interpretation of Title VII that requires employers to cover gender transition services in their health plans; and (2) An HHS non-discrimination requirement that forces religiously-affiliated healthcare providers to perform gender transition surgeries, procedures, counseling, and treatments. The complaint (full text) Christian Employers Alliance v. U.S. EEOC, (D ND, filed 10/18/21), alleges in part:

31. CEA members believe and teach that each human being bears the image and likeness of God, and that the two, distinct biological sexes of male and female are complementary and together reflect the image and nature of God.

32. CEA members believe and teach that rejection of one’s biological sex is a rejection of the image of God within that person.

The suit alleges violations of RFRA, free exercise and free speech protections. ADF issued a press release announcing the filing of the lawsuit.

Wyoming Supreme Court Rejects Nun's Claim That She Was Engaged In Ritual Of Mortification

In ASM v. State of Wyoming, (WY Sup. Ct., Oct. 12, 2021), the Wyoming Supreme Court rejected appellant's claim that the state violated her free exercise rights when it ordered her involuntary hospitalization after she began injuring herself while in detention on arson charges. Appellant (ASM) claimed that she is a Catholic nun and that she was engaged in the Catholic ritual of mortification when she scratched skin off her face. According to the Court, the psychiatrist who examined ASM explained her conduct in part as follows:

Dr. Schaaf was aware of ASM’s religious beliefs but believed that she “engage[d] [in] and promote[d] religious beliefs as a way to manipulate others around her.” He was also aware of some form of self-chastisement in Catholicism, but opined that it did not fit the way ASM chose to self harm.... Further, ASM’s self-harming behaviors correlated with many occasions when she contacted police officers to report being assaulted when she had in fact been hitting herself. He explained that “at some level [ASM] engage[d] in self[-]harm behaviors not as a way to express herself in a spiritual sense but to again manipulate.” That manipulation was due to her personality disorder.

The Court concluded:

... [E]ven assuming ASM held a sincere religious belief about the Catholic ritual of mortification, she failed to establish that she was engaged in such practice when she injured herself in the detention facility.

TRO Issued Barring Denial of Religious Exemptions To Health Care Workers' Vaccine Mandate

 In Dr. A v. Hochul, (ND NY, Sept. 14, 2021), a New York federal district court issued a temporary restraining order barring the New York Department of Health from enforcing any requirement that employers deny religious exemptions from the Department's COVID-19 vaccine mandate. At issue is the Department's recent vaccine mandate for health care workers employed at hospitals and nursing homes. The TRO was issued one day after the suit was filed. The state has until Sept. 22 to file its objections and the court set a hearing for September 28 at which time the state will be able to present its arguments against turning the TRO into a preliminary injunction. Hudson Valley360 reports on the decision. (See prior related posting.)

Suit Claims Mask Mandates Violate Free Exercise Rights and Establishment Clause

In a wide-ranging 128-page complaint, a woman who alleges that her medical conditions make it dangerous for her to wear a face mask filed suit in an Indiana federal district court earlier this month against 16 separate defendants challenging the legality of COVID- related mandates or recommendations to wear cloth face masks. Defendants include the CDC, the FDA, Dr. Anthony Fauci, the governor of Indiana, state and local health departments, local officials and several private businesses. Among the numerous challenges, the complaint (full text) in Reinoehl v. Centers for Disease Control and Prevention, (ND IN, filed 8/18/2021), includes these state and federal free exercise and federal Establishment Clause claims:

418. Non-medical masks have been used since ancient times in pagan religious ceremonies to ward of evil spirits and prevent illness....

421. Wearing talismans and other pagan, non-medical masks is against Plaintiff's religious beliefs.

422. Mandating everyone wear non-medical masks to prevent disease when the mask manufacturers cannot make claims they prevent disease transmission is the same as the State establishing a religion in which the Mask Deity prevents its wearers from becoming infected with disease.

423. The State cannot mandate the Plaintiff follows its religion. Plaintiff has the right to freely exercise her religion according to the dictates of her own conscience.

Friendly Atheist blog has more on the lawsuit.

Meanwhile, elsewhere in the country novel religious freedom arguments are being asserted to avoid mask mandates.  According to Fox47 News, a Mason, Michigan mother is seeking a religious exemption from a school mask requirement for her children based on a verse from 2 Corinthians, Chap. 3: "But when one turns to the Lord, the veil is removed..."

Another Challenge To Ban On Transgender Discrimination In Health Care

Last week, the American College of Pediatricians, the Catholic Medical Association and an individual physician filed suit in a Tennessee federal district court challenging as a violation of the Religious Freedom Restoration Act, as well as of free speech and freedom of association protections, rules and interpretations of the Affordable Care Act that prohibit discrimination by medical providers on the basis of gender identity. The Obama Administration originally adopted the prohibition; the Trump Administration reversed the prohibition; and the Biden Administration returned to the discrimination ban.  In the meantime, challenges proceeded through the courts. Now, the complaint (full text) in American College of Pediatricians v. Becerra, (ED TN, filed 8/26/2021), alleges in part:

Two courts have already recognized that this mandate is illegal and enjoined it in favor of plaintiffs in those cases. Franciscan Alliance, Inc. v. Becerra...; Religious Sisters of Mercy v. Azar.... But both injunctions protect only the plaintiffs in those cases, not the plaintiffs or their members here.

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

Court Enjoins Requirement That Christian Doctors Perform Gender Transition Procedures And Abortions

In Franciscan Alliance, Inc. v. Becerra, (ND TX, Aug. 9, 2021), on remand from the 5th Circuit, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act or implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. The court said in part:

No party disputes that the current [Affordable Care Act] Section 1557 regulatory scheme threatens to burden Christian Plaintiffs’ religious exercise ... by placing substantial pressure on Christian Plaintiffs, in the form of fines and civil liability, to perform and provide insurance coverage for gender-transition procedures and abortions....

In reaching its conclusion, the court rejected mootness and other justiciability arguments that stemmed from shifting regulations while the case wound its way through the courts. 

Catholic Hospital's Refusal To Allow Gender Dysphoria Procedure Violates ACA Discrimination Ban

In Hammons v. University of Maryland Medical System Corporation, (D MD, July 28, 2021), a transgender man challenged the refusal by University of Maryland St. Joseph Medical Center to allow his physician to perform a hysterectomy as part of his treatment for gender dysphoria. The hospital, while a subsidiary of the University of Maryland state system, adheres to Catholic religious doctrine. The court dismissed plaintiff's Establishment Clause and Equal Protection Clause claims on 11th Amendment state sovereign immunity grounds. However the court concluded that plaintiff had stated an adequate claim of sex discrimination that is prohibited by §1557 of the Affordable Care Act.

9th Circuit Remands Churches' Challenge To California Abortion Coverage Mandate

In Foothill Church v. Watanabe, (9th Cir., July 19, 2021), the U.S. 9th Circuit Court of Appeals in a 2-1 decision vacated a California federal district court's rejection of free exercise and equal protection challenges to California's requirement that insurance companies include coverage for abortion services in all health insurance policies. The court remanded for further consideration in light of the U.S. Supreme Court's recent decision in Fulton v. City of Philadelphia. Judge Bress filed a dissenting opinion, saying in part:

We should have decided the appeal that was properly before us and held what the law pre- and post-Fulton plainly requires: the Director’s broad discretionary authority to issue individualized exemptions from the abortion coverage obligation means that we must apply strict scrutiny to California’s requirement that the churches’ health planscover elective abortions.

Separately, in a memorandum opinion issued at the same time, the court unanimously affirmed the dismissal of the churches' Establishment Clause claim, saying that all religious organizations are treated alike, and the Establishment Clause is not violated merely because a rule happens to coincide with the beliefs of some religions.

HHS Says Affordable Care Act Bars LGBTQ Discrimination In Health Care

The U.S. Department of Health and Human Services announced yesterday that its Office for Civil Rights will interpret the Affordable Care Act's anti-discrimination provisions as including discrimination on the basis of sexual orientation or gender identity. It said that this change from Trump Administration rules was made in light of the Supreme Court's recent Bostock decision. HHS also added that in enforcing these provisions, it will comply with the Religious Freedom Restoration Act and applicable court orders.

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.

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).

5th Circuit Hears Oral Arguments On Enjoining Health Care Anti-Discrimination Rule

 The U.S. 5th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Franciscan Alliance v. Cochran. In the case, a Texas federal district court vacated and remanded for further consideration a rule issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. (See prior posting.) As reported by Courthouse News Service, the appeal heard yesterday focused on whether the district court should also have issued an injunction against future enforcement of the rule. The district court declined to do so because the Trump Administration agreed that the rule was invalid. The original plaintiffs argued that the rule would force them to perform gender transition surgery and abortions in violation of their religious beliefs.

Transgender Health Care Mandate Violates RFRA Rights of Catholic Entities

In Religious Sisters of Mercy v. Azar, (D ND, Jan. 19, 2021), a North Dakota federal district court in a 57-page opinion, granted a number of Catholic-affiliated health care and health insurance entities, and several Catholic employers, an injunction barring enforcement against them of transgender anti-discrimination rules that require them to provide or provide insurance coverage for transgender transition procedures. The court concluded that the anti-discrimination rules violate plaintiffs free exercise rights under RFRA. Becket Law has more background on the case.

Court Denies Summary Judgment In Attempt To Permanently Enjoin Disclosure Requirements By Pro-Life Pregnancy Centers

 In National Institute of Family and Life Advocates v. Rauner, (ND IL, Sept. 3, 2020), an Illinois federal district court denied summary judgment to two pro-life crisis pregnancy centers that are seeking to permanently enjoin enforcement of an Illinois statutory provision conditioning immunity for health care providers on their disclosure of medical options, including those that conflict with their religious beliefs. They must also facilitate patients' obtaining such services from others. In 2017, a different federal district court judge issued a preliminary injunction against enforcement of the Act. (See prior posting.) In refusing at this stage of litigation to make the injunction permanent, the court said in part:

In this litigation, Plaintiffs allege that the CPCs’ ability to promote their religiously motivated pro-life messaging ... are threatened by changes to the Illinois Healthcare Right of Conscience Act adopted in 2016....The law will compel them, Plaintiffs assert, to discuss the benefits of treatments they deem objectionable: abortion, contraception, or sterilization. Likewise, under the law, Plaintiffs must facilitate those treatments by providing patients with lists of doctors who provide those services or by transferring or referring patients to them. Both requirements violate Plaintiffs’ First Amendment Speech and Free Exercise rights, they claim....

Starting with the requirement to discuss the benefits of abortion, the court agrees with Defendant that as in Casey, this is a regulation of professional conduct that only incidentally burdens speech....

The court is mindful that from Plaintiffs’ perspective, the law compels speech on a message antithetical to their beliefs and thereby contradicts this Free Speech principle. But the court too recognizes that Plaintiffs’ patients are no less deserving of this right to decide for themselves what ideas are worth considering and adhering to, and the state may be well within its powers to protect this principle in a context involving “matters of the highest privacy and the most personal nature.”...

If the law does no more than bring the regulations of conscience objectors into conformity with that of other medical professionals (again, still a disputed issue), then the amended HCRCA may not be characterized as discriminating against religious medical professionals. The law’s text and history ... suggest instead that the legislature adopted the changes due to legitimate concerns about patient access to healthcare and not out of a desire to stifle religiously-motivated conduct.

Transgender Man Sues Catholic Hospital For Refusing Hysterectomy

A suit filed in a Maryland federal district court last week raises the question of whether a corporation created by the Maryland legislature to operate the University of Maryland Medical Center is a state actor for purposes of the 1st and 14th Amendments.  The corporation acquired St. Joseph Hospital in 2012 and continued to operate it under Catholic Directives for healthcare.  This resulted in the hospital refusing to allow a scheduled hysterectomy on a transgender man undergoing treatment for gender dysphoria.  The complaint (full text) in Hammons v. University of Maryland Medical System Corporation, (D MD, filed 7/16/2020). alleges in part:

Defendants are instrumentalities of the State of Maryland and subject to the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. But, in violation of those constitutional obligations, Defendants operate University of Maryland St. Joseph Medical Center as a Catholic institution, guided by “Catholic health care values” and bound by the “Ethical and Religious Directives for Catholic Health Care Services” established by the U.S. Conference of Catholic Bishops (the “Catholic Directives”)....

By purchasing the St. Joseph hospital and signing an agreement to operate the hospital as a Catholic institution and in accordance with the Catholic Directives, UMMS has violated the Establishment Clause by, among other things, (a) creating an impermissible fusion of governmental and religious functions; (b) impermissibly delegating government authority to be exercised in accordance with religious criteria; (c) impermissibly endorsing religion; (d) taking government action that has the primary purpose and effect of advancing religion; (e) creating unconstitutional governmental entanglement with religion; (e) favoring one set of religious beliefs over others; and (f) impermissibly coercing individuals to act in accordance with particular religious beliefs.

ACLU issued a press release announcing the filing of the lawsuit. Washington Post reports on the lawsuit. [Thanks to Scott Mange for the lead.]

Court Interprets Defenses Under Illinois RFRA and Right of Conscience Act

In Rojas v. Martell, (IL App., March 6, 2020), an Illinois state appellate court answered four certified questions on the state's  Health Care Right of Conscience Act and its Religious Freedom Restoration Act. The court held that neither the analytic framework not the reasonable accommodation defense of Title VII should be read into these state statutes. It also concluded that transfer of an employee to a job that does not include the religiously objectionable duties may be permissible under the Right of Conscience Act. The issues arose in a case in which a county health department nurse claimed that the health department discriminated against her after she asserted that her Catholic religious beliefs prevented her from providing birth control, from providing Plan B emergency contraception, and from making abortion referrals.