Police Officer Who Prayed Outside Abortion Clinic Sues Over Suspension From Duty

An officer in the Louisville, Kentucky police department this week filed suit in a Kentucky federal district court seeking damages for the Department's four-month suspension of him. The suspension was in effect during an extended investigation of the officer's praying outside an abortion clinic while in uniform, but before he went on duty for the day. He was ultimately cleared of any violation of rules.  The complaint (full text) in Schrenger v. Shields, (WD KY, filed 10/4/2021) alleges violations of the 1st and 14th amendments as well as of Title VII, and state civil rights laws. It also alleges a claim for intentional infliction of emotional distress. WDRB News, reporting on the lawsuit, says:

EMW staff said the officer intimidated patients and medical staff while wearing his uniform and gun.

Surveillance video from the clinic showed Schrenger in a marked police cruiser. He marched outside of the clinic for approximately 45 minutes, at one point holding a sign that read "pray to end abortion."

6th Circuit: Christian Student Athletes Wrongly Denied Exemption From COVID Vaccine Mandate

In Dahl v. Board of Trustees of Western Michigan University, (6th Cir., Oct. 7, 2021), the U.S. 6th Circuit Court of Appeals upheld, pending appeal, a district court's injunction barring Western Michigan University from enforcing its COVID vaccine mandate against 16 Christian student athletes who had applied for religious exemptions. The university requires student athletes to be vaccinated, but provides for medical and religious exemptions. Plaintiffs here however were denied a religious exemption. The court said in part:

[W]here a state extends discretionary exemptions to a policy, it must grant exemptions for cases of “religious hardship” or present compelling reasons not to do so....

True, the University did maintain plaintiffs’ athletic scholarships and did not formally dismiss them from their teams. But that is not the same thing as granting an exception from the University’s policy of conditioning “full involvement in the athletic department” on vaccination status. After all, the purported exception plaintiffs received did not allow them to play college sports. Yet playing on the team (and not just receiving a scholarship) is their goal, a point the University itself recognized....

Because the University’s policy is not neutral and generally applicable, we analyze the policy through the lens of what has come to be known as “strict scrutiny.” ... The University’s interest in fighting COVID-19 is compelling..... But the University falters on the narrow tailoring prong. For one, public health measures are not narrowly tailored if they allow similar conduct that “create[s] a more serious health risk.”... That is the case at the University, which allows non-athletes—the vast majority of its students—to remain unvaccinated. One need not be a public health expert to recognize that the likelihood that a student-athlete contracts COVID-19 from an unvaccinated non-athlete with whom she lives, studies, works, exercises, socializes, or dines may well meet or exceed that of the athlete contracting the virus from a plaintiff who obtains a religious exemption to participate in team activities....

Fox2Detroit reports on the decision.

Woman Required To Remove Hijab Loses Suit Against Security Guard and County

In Niblett v. Universal Protection Service, LP, (CD CA, Oct. 5, 2021), a California federal district court dismissed a damage action by a Muslim woman who was required by a security guard to remove her hijab in order to enter Los Angeles County's Department of Public Social Services building. The court dismissed on qualified immunity grounds the suit against the security guard and his employer that were hired to provide security for the county building, saying in part:

Assuming that Rodriguez and UPS were acting under color of state law when they exercised their authority to control access to a County building, which the Court does not decide, Plaintiff has not alleged a violation of any clearly established First Amendment right. Plaintiff ... cites no authority whatsoever holding that requiring someone to remove a hijab to pass through a metal detector violates the First Amendment.

Plaintiff's suit against the County was dismissed for failure to show a policy or practice of constitutional violations, saying in part:

Plaintiff does not allege that before her encounter with Rodriguez any County employee or agent had ever forced a Muslim woman to remove her hijab in any context, much less that County employees and agents had a widespread practice of requiring Muslim women to remove their hijabs in order to pass through security screenings at County buildings. Similarly, she does not allege facts suggesting that the County knew of such a practice and endorsed it or had reason to know further training was required about allowing hijabs to be worn through metal detectors.

Federal District Court Enjoins Texas' Controversial "Heartbeat" Abortion Ban

In United States v. State of Texas, (WD TX, Oct. 6, 2021), a Texas federal district court in a 113-page decision, preliminarily enjoined enforcement of Texas S.B. 8, the state's "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. In another case, the U.S. Supreme Court last month refused to prevent the Texas law from going into effect while its constitutionality was being litigated. Today's decision comes in a lawsuit filed by the U.S. Department of Justice. In it, the court explores at length the standing and redressability issues that have been seen as impediments to courts' reviewing the law that effectively bans almost all abortions after six weeks of gestation.  The court said in part:

A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. With full knowledge that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme whereby it created a private cause of action in which private citizens with no personal interest in or connection to a person seeking an abortion would be able to interfere with that right using the state’s judicial system, judges, and court officials.....

This Court finds that S.B. 8 concretely injures the United States by prohibiting federal personnel and contractors from carrying out their obligations to provide abortion-related services and subjecting federal employees and contractors to civil liability for aiding and abetting the performance of an abortion....

The next question is whether the United States suffers an injury-in-fact such that it has standing to challenge a potential violation of Constitutional rights that not only impacts federal agencies, but the public at large.... The United States has standing to file suit in parens patriae for probable violations of its citizens’ Constitutional rights.... [W]hen, as here, a state appears to deprive individuals of their constitutional rights by adopting a scheme designed to evade federal judicial review, the United States possesses sovereign interest in preventing such a harm. This interest is sufficient to establish a particularized injury....

... [I]n the alternative, ... the concepts underpinning In Re Debs and its progeny likewise establish a particularized injury to sovereign interests of the United States.... Debs supports standing where the government’s interest is preventing harms to “the general welfare” and the “public at large."... 

However, this Court notes that were Debs’s progeny to be read narrowly to support standing only in cases involving interstate commerce, the United States has likewise demonstrated an interest sufficient to establish standing..... By extending liability to persons anywhere in the country, S.B. 8’s structure all but ensures that it will implicate commerce across state lines.... In addition to imposing liability on those coming into Texas, the law has also already had the effect of pushing individuals seeking abortions into other states.... This stream of individuals across state lines burdens clinics in nearby states and impedes pregnant individuals in surrounding states from accessing abortions due to backlogs.....

[T]he State’s scheme to disguise its enforcement role and disclaim accountability collapses upon cursory inspection. The State enacted S.B. 8 and created a private enforcement scheme that clothes private individuals with the State’s enforcement power.... That delegation alone would have been sufficient to show state action. The practical operation of an S.B. 8 lawsuit in Texas courts deepens the State’s enforcement role.... [T]he State plays a role at every step of an S.B. 8’s lifecycle in Texas courts. A private cause of action enforcement scheme is meaningless without state action.... An injunction properly runs against the State....

... [T]he State has intentionally crafted a statute to employ private citizens as its proxy. Put simply, the State’s participation in enforcing S.B. 8 lawsuits amounts to actionable state action....

... [P]rivate individuals enforcing S.B. 8 are properly regarded as state actors.... The private individuals who bring S.B. 8 lawsuits are [also] in active concert with the State to enforce S.B. 8....

IT IS ORDERED that the State of Texas, including its officers, officials, agents, employees, and any other persons or entities acting on its behalf, are preliminarily enjoined from enforcing Texas Health and Safety Code §§ 171.201–.212, including accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to the Texas Health and Safety Code §§171.201–.212. For clarity, this Court preliminarily enjoins state court judges and state court clerks who have the power to enforce or administer Texas Health and Safety Code §§171.201– .212.

As set out above, this Court has the authority to enjoin the private individuals who act on behalf of the State or act in active concert with the State.... However, the Court need not craft an injunction that runs to the future actions of private individuals per se, but, given the scope of the injunctions discussed here and supported by law, those private individuals’ actions are proscribed to the extent their attempts to bring a civil action ... would necessitate state action that is now prohibited.

IT IS ORDERED that the State of Texas must publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.....

CNN reports on today's decision and notes that quickly after the decision, Texas filed a notice of appeal to the 5th Circuit.

French Commission Reports On History Of Sexual Abuse In Catholic Church

As reported by CNN, France's Independent Commission on Sexual Abuse in the Church (CIASE) yesterday filed its final report:

Members of the Catholic clergy in France sexually abused an estimated 216,000 minors over the past seven decades, according to a damning report published Tuesday that said the Church had prioritized the protection of the institution over victims who were urged to stay silent.

The number of abused minors rises to an estimated 330,000 when including victims of people who were not clergy but had other links to the Church, such as Catholic schools and youth programs. Between 2,900 and 3,200 abusers were estimated to have worked in the French Catholic Church between 1950 and 2020, out of a total of 115,000 priests and other clerics, the report found.

An English language 32-page summary (full text) of the Final Report is available online. It includes 45 recommendations to prevent future abuse, Links to the full text in French of the Final Report, Testimony and other documents are available here.

Trial Court Bars Some, Allows Other Oklahoma Abortion Restrictions

An Oklahoma state trial court judge yesterday, in a ruling from the bench in Oklahoma Call for Reproductive Justice v. O'Connor, (OK Dist. Ct., Oct. 4, 2021) (full text of complaint), issued a temporary restraining order barring enforcement of some of Oklahoma's new abortion restrictions, but denying a TRO as to other provisions. According to a press release from Center for Reproductive Rights:

The laws blocked by today’s ruling include: a total abortion ban declaring that providing abortion at any stage in pregnancy qualifies as “unprofessional conduct” by physicians; and a law banning abortion as early as six weeks into pregnancy, before many people even know they are pregnant. The state conceded that these laws are unconstitutional under Roe v. Wade.

However the court refused to enjoin provisions that would require doctors performing abortions to be board-certified OB/GYNs; and various restrictions on medication abortions, including an admitting privilege requirement and and ultrasound requirement.

HHS Reverses Trump Administration Rules For Family Planning Grantees

The Department of Health and Human Services yesterday revoked the Trump Administration rules that prohibit family planning clinics receiving Title X funds from making referrals for abortions and which require strict physical and financial separation between abortion services and services funded by Title X monies. The HHS 124-page rule release (full text) titled Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services reinstates pre-2019 requirements, saying in part:

In addition to readopting the requirements as they existed prior to the 2019 rule, the 2021 rule also includes several revisions that will strengthen the Title X program and ensure access to equitable, affordable, client-centered, quality family planning services for all clients, especially for low-income clients, while retaining the longstanding prohibition on directly promoting or performing abortion that follows from Section 1008’s text and subsequent appropriations enactments.

The new rules require that grantees offer the opportunity for clients to receive non-directive counseling on the range of options available-- pre-natal care and delivery; infant care, foster care or adoption; and pregnancy termination. However "objecting individuals and grantees will not be required to counsel or refer for abortions in the Title X program in accordance with applicable federal law."

The new rules become effective on Nov. 6. AP reports on the new rules. Planned Parenthood issued a press release regarding the new rules.

Cert. Denied In COVID, Chaplaincy and Abortion Cases

Today the U.S. Supreme Court issued its lengthy (66-page) first-day-of-the-Term Order List denying review in several hundred cases. It includes the denial of certiorari in the following:

Calvary Chapel of Bangor v. Mills (Docket No. 20-1346): In the case, the 1st Circuit Court of Appeals dismissed a church's interlocutory appeal challenging the Maine governor's COVID Orders limiting attendance at faith-based events. (See prior posting.)

Chaplaincy of Full Gospel v. Department of Navy (Docket No. 20-1794): A case in litigation for over 20 years involving allegations by non-liturgical Protestant chaplains of discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. (See prior posting.)

Schmitt v. Planned Parenthood (Docket No. 21-3): A challenge to Missouri  HB 126 imposing Down Syndrome and Gestational Age limits on abortions. The Supreme Court noted: "After this petition was filed, the United States Court of Appeals for the Eighth Circuit withdrew the panel opinion from which the petition sought certiorari. Accordingly, given the absence of any opinion for our review at this time, the petition is denied  without prejudice to the filing of a new petition by either party following the Eighth Circuit’s final disposition of the case."

Recent Articles of Interest

From SSRN:

• Sahar F. Aziz, Reflections on Security, Race, and Rights Twenty Years After 9/11, (12 J. Nat'l Sec. L. & Pol. 135 (2021)).
• Carl H. Esbeck, An Extended Essay on Church Autonomy, (22 Federalist Society Review 244 (2021)).
• Richard W. Garnett & Mitchell Koppinger, Tandon v. Newsome, South Bay Pentecostal, & Roman Catholic Diocese of Brooklyn on Religious Liberty and the Pandemic, (Ch. 13, M. Marietta, ed., SCOTUS 2021: Major Decisions and Developments of the U.S. Supreme Court (Forthcoming 2021)).
• Nausica Palazzo, Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships, (Columbia Journal of Gender and Law, Forthcoming).
• Duncan Kennedy, Consciousness, Doctrine, and Politics in the History of American Family Law, (February 2, 2020).

From SSRN (Non-U.S. Law):

• Robert C. Blitt, Russia’s 2020 Constitutional Amendments and the Entrenchment of the Moscow Patriarchate as a Lever of Foreign Policy Soft Power, (Peter Mandaville (ed.), The Geopolitics of Religious Soft Power: How States Use Religion in Foreign Policy, Oxford University Press, Forthcoming 2022).
• Thomas McMahon, Canada Needs the Every Child Matters Act: What Needs to Be in the Act, (September 30, 2021).
• Saud Alholiby & Zakaria A. Almulhim, From the Lack to the Requirement: The Public Consultation Reform in Saudi Arabia, (UCLA Journal of Islamic and Near Eastern Law, Forthcoming).
• Christian Bjørnskov, Stefan Voigt & Mahdi Khesali,   Unconstitutional States of Emergency, (August 30, 2021).

From SmartCILP:

• Fatemah AlBader, Cultural Oppression Disguised as Religious Obligation: A Fatal Misrepresentation to the Advancement of Muslim Women's Rights in the Context of the So-Called Honor Killings, 24 Asian Pacific American Law Journal 1-16 (2020).
• Stephanie Hennette-Vauchez, Religious Neutrality, Laicite and Colorblindness: A Comparative Analysis, 42 Cardozo Law Review 539-596 (2021).
• Mark Strasser, Conscience Clauses and the Placement of Children: Introduction, 15 Journal of Law & Family Studies 1-18 (2013).

Kentucky Governor Has Qualified Immunity From Church's Damage Suit Over COVID Orders

In Pleasant View Baptist Church v. Beshear, (ED KY, Sept. 30, 2021), a Kentucky federal district court held that Kentucky's governor has qualified immunity from a damage action against him brought by a church that objected to his COVID Orders that temporarily suspended in-person classes in public and private schools. Plaintiff sought compensatory and punitive damages. The court said in part:

After examining the applicable precedent, particularly in light of a global pandemic, Pleasant View cannot demonstrate that Governor Beshear’s issuance of Executive Order 2020-969 violated a clearly established constitutional right, and qualified immunity will be granted on that basis. In fact, courts across the country have addressed qualified immunity for government officials at the 12(b)(6) stage regarding Covid-19 measures and found government officials to be immune from suit in their personal capacities.

The court found that plaintiff's claims for declaratory relief are moot.

Rhode Island Vaccine Mandate, Silent On Religious Exemptions, Is Upheld

In Dr. T v. Alexander-Scott, (D RI, Sept. 30, 2021), a Rhode Island federal district court refused to issue a temporary restraining order to prevent enforcement of a Rhode Island Department of Health Emergency Regulation that requires all healthcare workers (except if medically exempt) to be vaccinated against COVID-19. Plaintiffs challenge the absence of a provision for religious exemptions.  Rejecting plaintiffs' 1st Amendment challenge, the court held that the regulation is a neutral law of general applicability. Responding to plaintiffs' claim that the Regulation is in conflict with Title VII, the court said in part:

Nothing in the language [of the Regulation] prevents any employer from providing a reasonable accommodation to an employee who seeks one in accord with their sincerely held religious beliefs. Indeed, the Regulation is silent on the issue of religious exemptions. Title VII requires employers to accommodate religious beliefs, practices, or observances only to the extent that doing so would not impose “undue hardship” on the employer.... While the Regulation may make it more difficult for employers to accommodate religious objections; it does not create a “physical impossibility.”

Interesting Supreme Court Term Opens Tomorrow

The U.S. Supreme Court's Fall Term opens tomorrow morning. Several cases important to Religion Clause readers will be heard this term. (Others may be added to the Court's docket in coming weeks or months. Also emergency petitions of interest are likely to arise on the Court's so-called "Shadow Docket" during the Term.)  Here are the cases of interest the Court has agreed to hear so far, with links to the SCOTUSblog case page for each. (Links to all the pleadings in the case and other relevant material can be found on the case page):

Cameron v. EMW Women’s Surgical Center, P.S.C.  In the case, the U.S. 6th Circuit Court of Appeals refused to allow the state attorney general to intervene to defend the constitutionality of a Kentucky statute which banned D&E abortions prior to fetal demise.

Ramirez v. Collier.  A convicted murderer is suing for permission to have his pastor lay hands on him in the Texas execution chamber as he receives a lethal injection and dies.

Federal Bureau of Investigation v. Fazaga: This case grows out of a suit for damages against FBI agents for discriminatory surveillance of Muslims in California. The issue for the Supreme Court is whether a provision in FISA displaces the state secrets privilege to allow the district court to move ahead in camera, rather than dismissing the claims.

Dobbs v. Jackson Women’s Health Organization: This is a challenge to Mississippi's abortion law that bars most abortions after 15 weeks of gestation.  The question before the Court is framed as whether there can be any ban on pre-viability abortions.

Carson v. Makin: At issue is whether Maine can exclude schools that provide religious instruction from participating in a program that pays tuition to out-of-district public or private high schools for students whose districts do not operate a high school.

Shurtleff v. Boston: Here a Christian organization is suing because the city of Boston refused to allow it to raise its "Christian" flag on a city hall flagpole that is open to private organizations for temporary flag-raising ceremonies.

In anticipation of the new Term, the Roman Catholic Archdiocese of Washington and the John Carroll Society will present the 69th Annual Red Mass today at 10:00 am. Several Justices usually attend. It will be livestreamed on YouTube. The National Law Journal has background and more information on this year's Mass.

Nuns Again Lose Challenge To Atlantic Sunrise Pipeline

 In Adorers of the Blood of Christ v. Transcontinental Gas Pipeline Co., (ED PA, Sept. 30, 2021), a Pennsylvania federal district court dismissed a claim for damages under RFRA brought by an Order of Catholic nuns whose land was condemned for construction of the Atlantic Sunrise Pipeline. They alleged that the taking violated their religious exercise because of their belief in the need to protect and preserve creation. In 2018, the U.S. 3rd Circuit Court of Appeals held that their suit seeking an injunction against the pipeline should be dismissed because their challenge should have first been brought before the Federal Energy Regulatory Commission (FERC). (See prior posting.) In this week's decision, the court said in part:

simply seeking money damages as opposed to injunctive relief does not cure the jurisdictional defect in this matter.

Limited Religious Exemptions From Vaccine Mandate Challenged

Suit was filed this week in a Colorado federal district court challenging provisions limiting religious exemptions from the University of Colorado Medical School's vaccine mandate.  The school offers a religious exemption only to those whose objections are based on a religious belief whose teachings are opposed to all immunizations. The complaint (full text) in Jane Doe, M.D. v. University of Colorado,(D CO, filed 9/29/2021), says in part:

[The policy] imposes two necessary conditions to ... any religious accommodation, namely:

a. ... [A] sincere religious belief that opposes acceptance of “all immunizations” and vaccines; and

b. That the person requesting a religious accommodation be a member of an organized religion whose tenets include a hierarchically promulgated, authoritative position on the moral liceity of “all immunizations” and vaccines....

Both conditions are clearly forbidden by the Establishment, Free Exercise, and Equal Protection clauses of the United States constitution and the Religious Freedom provisions of the Colorado constitution.... [They] privileg[e] hierarchically prescribed religious belief over autonomously prescribed (yet sincerely held) religious belief.

Thomas More Society issued a press release announcing the filing of the lawsuit.

Religious Accommodation That Violates OSHA Rules Not Required

In Hamilton v. City of New York, (ED NY, Sept.28, 2021), a New York federal district court dismissed religious discrimination and failure to accommodate claims brought by a Jewish New York City firefighter. Plaintiff, who wore a beard for religious reasons, was transferred from full-duty to light duty because OSHA regulations preclude firefighters with beards from wearing close fitting respirators. The court held that NYFD cannot be held liable for failing to offer an accommodation that is expressly prohibited by federal law.

Vegetarian Leafleter Loses Suit Against Police and City

In a Sept. 24, 2021 Order, a Louisiana federal district court accepted the recommendation set out in the magistrate judge's opinion in Hershey v. City of Bossier City, (WD LA, Aug. 23, 2021), and dismissed a suit against the city and two police officers. At issue was police conduct in ordering plaintiff to stop distributing leaflets on a public sidewalk outside an arena at which a Christian rock concert was being held. Plaintiff was distributing literature from the Christian Vegetarian Association. The court held that plaintiff had adequately alleged that the police were given unbridled discretion and engaged in viewpoint discrimination. However the court dismissed plaintiff's claims, summarizing its reasons in part:

[T]he city police officers are entitled to dismissal based on qualified immunity because Plaintiff has not made an adequate showing of clearly established law in the context of this case. The City of Bossier City is entitled to dismissal because the amended complaint does not allege sufficient facts to plead an actionable Monell claim of municipal liability.

Supreme Court Grants Certiorari In Case On Display of "Christian Flag" At City Hall

The U.S. Supreme Court today granted review in Shurtleff v. City of Boston, (Docket No. 20-1800, certiorari granted 9/30/2021) (Docket List). In the case, the U.S. 1st Circuit Court of Appeals upheld the city of Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) The SCOTUSblog case page with links to all the briefs and pleadings is here.

Huntsman's Fraud Claim Against Mormon Church Dismissed

In Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (CD CA, Sept. 10, 2021), a California federal district court dismissed a fraud suit brought by James Huntsman against the LDS Church. Huntsman, a prominent LDS Church member, alleged that the Church falsely claimed that no tithing funds would be used in its development of commercial real estate in Salt Lake City. Huntsman claims this was false because the Church used earnings on invested tithing funds for the project. First the court held that the church autonomy doctrine does not require dismissal of the case because the dispute is purely secular. It does not involve an analysis of Church policy or doctrine. However, the court concluded that no reasonable juror could conclude that defendant made a misrepresentation. The President of the Church, while stating that no tithing funds would be used, added that earnings of invested reserve funds will be used. The court also rejected a fraud claim relating to a second project. A Notice of Appeal of the decision to the 9th Circuit has been filed.

Court Says Objections To Mask Requirement Were Not Sincerely Held Religious Beliefs

 In Geerlings v. Tredyffrin/ Easttown School District, (ED PA, Sept. 27, 2021), a Pennsylvania federal district court refused to issue a preliminary injunction sought by parents of four students who claim that the students are entitled to religious exemptions from a school district's COVID-19 mask requirement. The court held that none of the plaintiffs demonstrated a "sincere religious belief". In each case the court concluded either that the asserted beliefs were not sincerely held or were not religious in nature.  The court described the asserted beliefs of each plaintiff:

Ms. Marvin believes people are made in the image of God and it therefore dishonors God to cover our faces....

Ms. Geerlings believes the body is a temple and must not be harmed, and in her view, masks violate the prohibition on harming the body because they are unhealthy....

Mr. Governanti came to believe that he must not harm his daughter, which, in his view, means he must not allow his daughter to wear a mask....

Mr. McLellan believes God intervened in his life to save him from certain trauma, and that masks are a mockery of the gift of life because they cover what makes us human and show a lack of gratitude to the creator.

Court Says U.S. Engaged In Vindictive Subsequent Prosecution of Defendants Originally Charged With Female Genital Mutilation

In United States v. Nagarwala, (ED MI, Sept. 28, 2021), a Michigan federal district court dismissed witness tampering charges against defendants (medical personnel and mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community) who were originally charged with violating the federal statute banning female genital mutilation. In 2018, the court held that the FGM statute was unconstitutional as exceeding Congress' interstate commerce and treaty powers. (See prior posting.) Subsequently, the government unsuccessfully attempted to convict defendants under superseding indictments, including an indictment for travel with intent to engage in illicit sexual conduct. The court now holds that the latest superseding indictment charging witness tampering was a vindictive prosecution brought in retaliation for defendants asserting their rights. MLive reports on the decision.