Governors In Minnesota and Washington Sign Bills Protecting Access to Abortion and Gender-Affirming Care

On April 27, Minnesota Governor Tim Walz signed three bills protecting right to abortion and gender-affirming health care.  A press release from the Governor's Office describes the legislation:

Chapter 28, House File 16 prohibits mental health practitioners or mental health professionals from providing conversion therapy to vulnerable adults and clients under age 18. The bill also prohibits fraudulent or deceptive advertising practices relating to conversion therapy.

Chapter 29, House File 146 prevents state courts or officials from complying with child removal requests, extraditions, arrests, or subpoenas related to gender-affirming health care that a person receives in Minnesota....

Chapter 31, House File 366 , the Reproductive Freedom Defense Act, ensures that patients traveling to Minnesota for abortion care, and the providers who serve them, are protected from legal attacks and criminal penalties from other states.

In Washington state, on April 27 Governor Jay Inslee signed five bills protecting access to abortion and gender-affirming services. A press release from the Governor's office describes the legislation:

In anticipation of a Trump-appointed judge’s ruling pulling a common and safe abortion pill from shelves nationally, the governor acted quickly to secure a three-year supply of mifepristone for the state that could be distributed regardless of federal court action.

With the 30,000 doses being held by the state Department of Corrections, all that was left to do was pass a bill that authorized the department to distribute the medication to health providers.... SB 5768 ... does just that....

... Shield Law, HB 1469... prohibits compliance with out-of-state subpoenas related to abortion and gender affirming care services; prevents cooperation with out-of-state investigations; bans extraditions related to abortion and gender affirming care services that occur legally in Washington; and protects providers from harassment for providing these services.....

Inslee also signed a bill to ensure health providers can’t be disciplined for providing legal reproductive health services or gender affirming care in Washington. HB 1340... protects health providers from disciplinary action or having their licenses revoked for “unprofessional conduct” if the care provided follows state law, regardless of where their patient resides.....

HB 1155, the “My Health, My Data” Act, ... will increase privacy protections around collecting, sharing and selling consumer health data. Some popular consumer products can track and share data on individuals’ health — and protections around the use of that data became more necessary with the attack on abortion care in other states....

Patients often face cost-sharing [under their health insurance plans] for receiving abortion care. SB 5242 eliminates cost-sharing for abortions and protects patients from unexpected expenses they may not be able to cover.

Biden Declares May As Jewish American Heritage Month

Yesterday President Biden issued a Proclamation (full text) declaring May to be Jewish American Heritage Month. The Proclamation reads in part:

 Jewish Americans continue to enrich every part of American life as educators and entrepreneurs, athletes and artists, scientists and entertainers, public officials and activists, labor and community leaders, diplomats and military service members, public health heroes, and more.... 

All Americans — including business and community leaders, educators, students, athletes, entertainers, and influencers — must help confront bigotry in all its forms.  We must each do our part to put an end to antisemitism and hatred and create a culture of respect in our workplaces, schools, and homes and across social media.

This Jewish American Heritage Month, let us join hands across faiths, races, and backgrounds to make clear that evil, hate, and antisemitism will not prevail.  Let us honor the timeless values, contributions, and culture of Jewish Americans, who carry our Nation forward each and every day.  And let us rededicate ourselves to the sacred work of creating a more inclusive tomorrow, protecting the diversity that defines who we are as a Nation, and preserving the dignity of every human being — here at home and around the world.

Suit Seeks Historic Preservation Funds for Churches

Two historic churches have filed suit in a New Jersey federal district court challenging Morris County's exclusion of properties currently used for religious purposes from receiving Historic Preservation funds from the county. Plaintiffs contend that recent U.S. Supreme Court cases invalidate an earlier state Supreme Court decision barring churches from participation in such funding programs. The complaint (full text) in Mendham Methodist Church v. Morris County, New Jersey, (D NJ, filed 4/28/2023), alleges in part:

In 2018 ... the New Jersey Supreme Court concluded that the Religious Aid Clause of the New Jersey Constitution bars state and local governments from providing grants to preserve the architecture of historic churches. Freedom From Religion Found. v. Morris Cnty. Bd. of Chosen Freeholders ...

This is unconstitutional discrimination on the basis of religion: States and local governments that choose to provide a generally available public benefit—such as historic preservation grants—cannot exclude an otherwise-qualified applicant solely because the applicant happens to be a house of worship. See Carson v. Makin, 142 S. Ct. 1987, 1996 (2022).... ;Espinoza v. Mont. Dep’t of Revenue...., 140 S. Ct. 2246, 2262 (2020)....

First Liberty Institute issued a press release announcing the filing of the lawsuit.

Florida Enacts Ban on Religious and Ethnic Intimidation

NBC News reports that Florida Governor Ron DeSantis, while in Israel, signed CS/CS/HB269 a bill (full text) that amends Florida's Public Nuisances law to prohibit threats and intimidation of various sorts. Among the provisions added by the new law is the following:

A person may not willfully and maliciously harass or intimidate another person based on the person's wearing or displaying of any indicia relating to any religious or ethnic heritage.

The law provides for enhanced sanctions if a person "in the course of committing the violation makes a credible threat to the person who is the subject of the harassment or intimidation...."

Former Cantor's Claims Against Synagogue Are Dismissed

In Sklar v. Temple Israel, Westport Inc., (CT Super., April 21, 2023), a Connecticut state trial court dismissed breach of contract and intentional infliction of emotional distress claims asserted by the former Cantor of defendant synagogue, Temple Israel.  Plaintiff contended that the Temple failed to provide him the procedural protections to which he was entitled under his contract before it fired him for three incidents of unsatisfactory performance of duties. The court held that the ministerial exception doctrine precludes plaintiff's contract claims, saying in part:

[T]he manner in which the defendant Temple Israel discharged or disciplined the plaintiff would constitute government interference with an internal decision that affects the faith and mission of the synagogue, thereby violating the Free Exercise Clause. The Court also finds that it would also violate the Establishment Clause, which prohibits government involvement in ecclesiastical decisions because it concerns internal management decisions of the synagogue as to its employment relationship with its clergy.

The court concluded that plaintiff's other allegations, while serious, are legally insufficient to support a claim for intentional infliction of emotional distress. Plaintiff had complained of lapses in COVID protocols and lack of enhanced security which exacerbated his post-traumatic stress disorder.

UK Supreme Court: Jehovah's Witness Organization Not Vicariously Liable for Rape by An Elder

In Trustees of the Barry Congregation of Jehovah's Witnesses v. BXB, (UK Sup. Ct., April 26, 2023), Britain's Supreme Court held that the Jehovah's Witnesses organization is not vicariously liable for the rape of a church member by an elder of the church.  The court said in part:

First, the rape was not committed while Mark Sewell was carrying out any activities as an elder on behalf of the Jehovah’s Witnesses. He was at his own home and was not at the time engaged in performing any work connected with his role as an elder. So, eg, he was not conducting a bible class, he was not evangelising or giving pastoral care, he was not on premises of the Jehovah’s Witnesses and the incident had nothing to do with any service or worship of the Jehovah Witnesses. The lack of direct connection to the role assigned to him as an elder makes these facts significantly different from the institutional sex abuse cases where, eg, as part of their jobs the [defendants] ... were living in the same institution as their victims....

Secondly, in contrast to the child sexual abuse cases, at the time of the rape, Mark Sewell was not exercising control over Mrs B because of his position as an elder. It was because of her close friendship with Mark Sewell and because she was seeking to provide emotional support to him, and not because Mark Sewell had control over her as an elder, that Mrs B went to the back room. The driving force behind their being together in the room at the time of the rape was their close personal friendship not Mark Sewell’s role as an elder. Put another way, the primary reason that the rape took place was not because Mark Sewell was abusing his position as an elder but because he was abusing his position as a close friend of Mrs B when she was trying to help him....

The Court issued a press release summarizing the decision.

Ex-Husband Brings Wrongful Death Suit Against Wife's Friends Who Supplied Abortion Pills

 A novel wrongful death lawsuit was filed last month in a Texas state trial court by the ex-husband of a woman whose two friends assisted her in obtaining abortion medication.  The complaint (full text) in Silva v. Noyola, (TX Dist. Ct., filed 3/10/2023), alleges in part:

Under the law of Texas, a person who assists a pregnant woman in obtaining a self-managed abortion has committed the crime of murder and can be sued for wrongful death.... In defiance of these laws, defendants Jackie Noyola and Amy Carpenter  assisted Brittni Silva in murdering Ms. Silva’s unborn child with illegally obtained abortion pills. Ms. Noyola and Ms. Carpenter also instructed Ms. Silva to conceal their criminal and murderous actions from plaintiff Marcus A. Silva, the father of the child and the husband of Brittni Silva. Ms. Noyola arranged for the delivery of the illegal drugs from Aracely Garcia, which were used to murder baby Silva in July of 2022. 

Marcus Silva recently learned of the defendants’ involvement in the murder of his child, and he brings suit against them for wrongful death and conspiracy....

The manufacturer of the abortion pills that Brittni used is jointly and severally liable for the wrongful death of baby Silva, and it will be added as a defendant once identified in discovery. The manufacturer of the pills caused the death of baby Silva through a “wrongful act” because it violated 18 U.S.C. §§ 1461–1462, which imposes federal criminal liability on anyone who knowingly sends abortion pills through the mail or through any express company, common carrier, or interactive computer service.

The Intercept reports on the lawsuit.

British Court Rejects Parents' Challenge To School's LGBT Curriculum

In Montague v. Governing Body of Heavers Farm Primary School, (UK Cty. Ct., April 24, 2023), a British County Court, in an 89-page opinion, dismissed a suit by Christian parents who objected to a primary school's activities relating to LGBT equality. The court described the claims:

This is a claim for compensation, damages, declarations and recommendations pursuant to alleged violations of the Equality Act 2010, the Human Rights Act 1998 and for breach of Statutory duty....

The Claimants are black Christians whose 4 year old son Izaiyah Montague attended the school between 11th September 2017 and 19th October 2018....

In broad terms, the focus of this case is on the events from mid 2018 when the school decided to arrange a number of activities which would coincide with ‘Pride Month’ in June. It is the school’s position that these events were part of broader teaching throughout the year. This was directed towards supporting tolerance, challenging stereotypes and to prevent bullying....

The parents’ case is that the teaching at the school caused a conflict between their religious household and the approach adopted by the school, exposing their young and vulnerable child to the possibility of conflict and confusion. They further assert that the treatment of the complaints, the detention of Izaiyah and the barring of the Second Claimant were the direct result of their adherence to Christian beliefs and prosecution of a well founded complaint to the school....

In rejecting the parents' claims, the court said in part:

I do not accept that, as formulated, the curriculum the teaching I have outlined, was designed to promote LGBT beliefs over others. The difficulty that the Claimants face is that they have focussed on one aspect of a year long SMSC curriculum. There was very little examination of and criticism of the other five elements of the teaching. By throwing an intense concentration on one sixth of the teaching they have lost sight of, and distorted, the overall SMSC curriculum.... [T]he school were under a duty to meet the requirements of the Education Act....  Indeed I confess that I am very uneasy about some of the comments being made at the school gate and it is important for the children’s responsibilities and experiences in later life that there is some corrective to the ill informed views which were being articulated by some of the parents.

Fox News reporting on the case says that plaintiff is appealing the decision.

Bankruptcy Court Rejects Sex Abuse Claims Arising Outside Boundaries of Diocese

In In re Roman Catholic Diocese of Rockville Centre, New York,(SD NY Bkrptcy., April 19, 2023), a New York federal bankruptcy court held that two groups of claims filed in the Chapter 11 Bankruptcy Reorganization of the Rockville Centre Diocese should be expunged. The claims grow out of alleged sexual abuse by Franciscan brothers that occurred outside of the Diocese.  Claimants argued that the Rockville Centre Diocese had control over the Franciscan Brothers religious organization and so had control over the alleged abusers.  The court said in part:

It is well-established under New York law that for the Diocese to be liable for torts of alleged abusers, the Diocese must have had a duty to control them....

The Brooklyn Claimants’ position is that the Objection fails to settle the question of “control” as a matter of law considering the internal rules of the Catholic Church, and therefore there is a disputed fact that warrants discovery. The parties agree that the Franciscan Brothers operated the five schools and parishes at issue in the Brooklyn Claims, and the Brooklyn Claimants focus solely on whether the Debtor had control over the Franciscan Brothers. They contend that the Diocese had control over the Subject Entities through its control over the Franciscan Brothers....

The additional allegations in the Brooklyn Response frame Catholic Canon Law as a set of rules that govern employer-employee or principal-agent liability outside of secular legal  principles governing these relationships. Not so. As discussed above, there is a clear constitutional prohibition on this Court weighing in on the parties’ dispute over Catholic Canon Law.... New York courts have rejected the argument that Catholic Canon Law imposes diocesan liability where secular law would not.

Polish Court Convicts LGBT Marchers of Offending Religious Feelings

 Notes from Poland reports that a district court in Częstochowa, Poland last week concluded that two women were guilty of "offending religious feelings" in violation of Article 196 of Poland's Penal Code. The defendants were identified only as Kamila Ł.-B. and Magdalena W.-D.  During the 2021 Equality March in Częstochowa, they displayed images of the Virgin Mary and Jesus with rainbow haloes above their heads. In a procedure which did not require a full trial, the court relied on the opinion of an expert who said that the haloes were not of the Biblical, seven-colors symbolizing hope and closeness to God, but instead were the six-colored LGBT symbol. The court imposed 5 months of community service on one defendant and fined the other 2,000 zloty. Defendants' lawyer says they will contest the judgment, requiring the case to go to a full public trial.

North Dakota Governor Signs New Abortion Ban That Has Limited Exceptions

Yesterday, North Dakota Governor Doug Burgum signed SB 2150 (full text) into law. The new law bars abortions except when it was intended to prevent the pregnant female's death or a serious physical health risk. The law also permits abortions during the first 6 weeks of pregnancy if the pregnancy resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest. AP reports on the new law, saying in part:

The North Dakota law is designed to take effect immediately, but last month the state Supreme Court ruled a previous ban is to remain blocked while a lawsuit over its constitutionality proceeds. Last week, lawmakers said they intended to pass the latest bill as a message to the state’s high court signaling that the people of North Dakota want to restrict abortion.

In its decision last month, the state Supreme Court concluded that the absence of an exception in the abortion ban for preserving the health of the mother is a critical defect in the state's prior abortion ban.  The new law is presumably designed to respond to that concern.

Defrocked Cardinal McCarrick Indicted in Wisconsin on Sexual Assault Charge

 In an April 17 press release, Wisconsin Attorney General Josh Kaul and Walworth County District   Attorney Zeke Wiedenfeld announced that former cardinal Theodore McCarrick, age 92, has been charged with one count of Fourth-Degree Sexual Assault.  The charge stems from an incident that occurred in April of 1977. The complaint alleges that McCarrick repeatedly abused the victim sexually over time. In 2019, the Vatican defrocked McCarrick because of past sexual misconduct. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Howard A. Palley, The Overturning of Roe v. Wade: A Theocratic and Anti-Democratic Decision, (March 31, 2023).
• Noura Erakat, Darryl Li & John Reynolds, Race, Palestine, and International Law, (AJIL Unbound, Vol. 117, No. 2, pp. 77-81, 2023).
• Andrew M. Koppelman, Religious Liberty as a Judicial Autoimmune Disorder: The Supreme Court Repudiates its Own Authority in Kennedy v. Bremerton, (Hastings Law Review, 2023 Forthcoming).
• Joel A. Nichols, Faith and Faithfulness: Vocation as Self, Others, and a Third Thing, (Touro Law Review, Vol. 38, 2023).
• Kelley Loper, Equality, Dignity and Same-sex Marriage: Reflections on Developments in Hong Kong, 53 Hong Kong Law Journal, Forthcoming.
• Malinda L. Seymore, Adoption as a Substitute for Abortion?, (University of Colorado Law Review, Vol. 95, 2023).
• Lu-in Wang, Reframing Hate,, (Journal of Criminal Law and Criminology, Vol. 112, p. 847, 2022).
• Daniel Bird & Eric Maier, Wayward Samaritans: 'Non-Profit' Hospitals and Their Tax Exempt Status, (University of Pittsburgh Law Review, Forthcoming,).

From SmartCILP:

• Khaled A. Beydoun, Killing an Arab, 101 North Carolina Law Revies 207-222 (2022).
• Blaine L. Hutchison, Revisiting Employment Division v. Smith, 91 University of Cincinatti Law Review 396-436 (2022).
• Justin Burnworth, Replacing Smith with a "Graduated Scale" Approach to the Free Exercise Clause, 54 University of Toledo Law Review 1-26 (2022).

Judge Refuses to Recuse Himself from New Orleans Archdiocese Bankruptcy Matters

AP and WWL-TV reported on Saturday that federal district court judge for the Eastern District of Louisiana, Greg Guidry, has refused to recuse himself from reviewing matters related to the bankruptcy reorganization proceedings of the Catholic Archdiocese of New Orleans. An investigation by the Associated Press found:

... [S]ince being nominated to the federal bench in 2019 by then-President Donald Trump, [Guidry] has given nearly $50,000 to local Catholic charities from leftover contributions he received after serving 10 years as a Louisiana Supreme Court justice.

Most of that giving, $36,000 of it, came in the months after the archdiocese sought Chapter 11 bankruptcy protection in May 2020 amid a crush of sexual abuse lawsuits. That included a $12,000 donation to the archdiocese's Catholic Community Foundation in September 2020 on the same day of a series of filings in the bankruptcy, and a $14,000 donation to the same charity in July of the following year.

At a pre-trial status conference last Friday, Guidry read from an advisory opinion he had received from the federal Judicial Conference's Committee on Codes of Conduct. It concluded that no reasonable person would question Guidry's impartiality. The Advisory Opinion said in part:

none of the charities to which you contributed some of your wind-down campaign funds has been or is an actual party in any proceeding before you....

AP had also reported that Guidry had once served as a board member on the Archdiocese's charitable arm for eight years.  The Advisory Opinion said, however:

[Y]our leadership as a board member of one of the charities ended 15 years ago, which is a significant span of time.

Guidry, who as district court judge would hear appeals from rulings of the district's bankruptcy judge, told the lawyers at the status conference:

Based upon that advice and based upon my certainty that I can be fair and impartial, I have decided not to recuse myself.

Fire Fighter Can Move Ahead with Free Speech and Free Exercise Claims

In Misjuns v. Lynchburg Fire Department, (WD VA, April 20, 2023), a Virginia federal district court held that a fire department captain who was denied training necessary for promotion, and who was ultimately investigated and terminated from his position, had adequately alleged free speech and free exercise violations. One of plaintiff's contentions was that adverse action was taken against him because of a religious anti-transgender posting on one of his Facebook pages. According to the court:

Plaintiff posted a meme ,,, which stated: “In the beginning, God created Adam & Eve. Adam could never be a Madam. Eve could never become Steve. Anyone who tells you otherwise defies the one true God.”...

Plaintiff has sufficiently alleged ... that Defendants’ retaliatory actions against him were due to religious beliefs, not just political beliefs.

Lynchburg News & Advance reports on the court's decision.

Supreme Court Stays District Court's Order That Invalidated FDA's Approval of Abortion Pill

The U.S. Supreme Court yesterday evening in Danco Laboratories, LLC v. Alliance for Hippocratic Medicine, (Sup. Ct., April 21, 2023), and in a companion case in which the FDA was a party, granted stays of a Texas federal district court's order that had found the FDA's approval of the abortion drug mifepristone to be invalid. The stays will remain in effect while appeals work their way through the courts. Justice Thomas indicated that he would have denied the applications for stays.  Justice Alito filed an opinion dissenting from the grant of the stays, saying that the applicants have not shown that they would suffer irreparable harm if the stays were not granted. SCOTUSblog has additional reporting on the Supreme Court's action.

Suit Challenges Tennessee's Ban On Gender Transition Treatment For Minors

Suit was filed yesterday in a Tennessee federal district court challenging Tennessee's recently enacted law banning medical or surgical treatment of gender dysphoria in minors. The complaint (full text) in L.W. v. Skrmetti, (MD TN, filed 4/20/2023), alleges that the ban violates plaintiffs' Equal Protection rights and their rights to parental autonomy, as well as violating provisions of the Affordable Care Act. ACLU issued a press release announcing the filing of the lawsuit.

Suit By Florida Breakaway Methodist Churches Is Dismissed

In Grace United Methodist Church Inc. v. Board of Trustees of FL Annual Conf of UMC Inc., (FL Cir. Ct., April 18, 2023). a Florida state trial court dismissed a suit by 71 Methodist congregations throughout Florida which seek to break away from their parent body because of their objections to United Methodist Church allowing bishops and clergy to officiate at same-sex weddings and to be openly gay. The congregations want to reaffiliate with the more conservative Global Methodist Church. Current UMC rules impose substantial financial costs on congregations seeking to disaffiliate. The court concluded that, under Florida precedent, it must defer to decisions of church hierarchical bodies. It also concluded that actions to determine title to property must be brought in local courts covering the jurisdiction in which the property is located. The court added:

[C]onsidering the recent clarifications from the Supreme Court of the United States on matters of discrimination and unequal treatment based on religious status, along with the abrogation of Lemon v. Kurtzman ... it seems to the Court that merely deferring to the UMC on all matters and denying the Plaintiffs access to the courts to litigate neutral property and trust matters does not meet the strictest scrutiny. Nevertheless, the Court is bound to follow the law as established by the higher courts in the State of Florida.

UM News reports on the decision.

Mississippi Must Grant Religious Exemptions To School Vaccination Requirements

 In Bosarge v. Edney, (SD MS, April 18, 2023), a Mississippi federal district court issued a preliminary injunction requiring Mississippi's State Health Officer, as well as school officials named as defendants, to provide religious exemptions from the state's mandatory vaccination requirements for school children. The court said in part:

The face of the statute allows for medical exemptions but affords no exemption for religious beliefs, and the Complaint alleges that this constitutes “an unconstitutional value judgment that secular (i.e., medical) motivations for opting out of compulsory immunization are permitted, but that religious motivations are not.”....

The Attorney General’s argument is essentially that the Compulsory Vaccination Law does not violate the Free Exercise Clause because the [Mississippi Religious Freedom Restoration Act] MRFRA saves it.... Taking this argument to its logical conclusion as to Plaintiffs’ facial challenge, no Mississippi statute could ever violate the Free Exercise Clause on its face because the more general, non-specific MRFRA applies to all State laws and operates to cure any law that would otherwise be deemed to violate the Free Exercise Clause.... However, at least in this case, the Court is not persuaded that the MRFRA can be read in this fashion with respect to Plaintiffs’ facial challenge.

RNS reports on the decision.

Additional Administrative Stay Issued By Supreme Court In Abortion Pill Case

U.S. Supreme Court Justice Samuel Alito today (April 19) in Food & Drug Administration v. Alliance for Hippocratic Medicine issued an Order (full text) extending the Court's April 14 administrative stay until Friday April 21. At issue is a Texas federal district court's decision invalidating the FDA's approval of the abortion drug mifepristone. Previously the Supreme Court had stayed the district court's order only until today. (See prior posting.) CNBC reports on Justice Alito's action.