FRC Blog

Mississippi Continues to Fight for Religious Freedom

by Johnathan Taylor

July 22, 2016

After Judge Carlton Reeves’ stubborn decision preventing his state’s religious freedom law from taking effect several weeks ago, Mississippi Governor Phil Bryant notified the court he would be swiftly appealing the ruling. The district court’s ruling had prevented H.B. 1523 from being applied to the people of Mississippi, meaning that clerks in state offices could now be forced to issue marriage licenses to those seeking same-sex unions, despite deep religious convictions that the clerks may have against aiding in a union that consists of two people of the same sex.

House Bill 1523 is a state law signed by Governor Bryant that allows a subset of business entities and government employees to opt out of being forced to violate their beliefs by participating in same-sex marriages, while mandating that the authorities ensure the couple still receive their services or benefits from some other government actor. The law seeks to protect religious organizations that have moral opposition to the practice of aiding in a process that promotes a lifestyle that goes against their religious core values. H.B. 1523 seeks to protect their core beliefs: That marriage is only between a man and a woman, that sex should only take place in such a marriage, and that a person’s gender is determined at birth and cannot be altered. It allows state clerks to exercise their religious freedom by not issuing marriage licenses to same-sex couples, and protects citizens of faith who are merchants by ensuring that they can still exercise their religious freedom. With these provisions, this law is a continuation of Mississippi’s long standing history of protecting religious freedom.

In the past, the state of Mississippi has exempted people who oppose all war for religious reasons from having to enter the draft. Mississippi has also exempted pro-life health care workers from performing some duties that are associated with terminating pregnancies. In his court filing opposing the renegade district court decision, Governor Bryant noted “[i]t is perfectly acceptable for the government to choose the conscientious scruples that it will protect and accommodate, while withholding those protections and accommodations from other deeply held beliefs.” Moreover, H.B. 1523 is not a drastic change in state law, he observes, because Mississippi lacks sexual orientation anti-discrimination laws. Thus, even without H.B. 1523, Mississippians in theory could suffer all sorts of adverse action because of their sexual orientation. Yet the fact that the opponents of H.B. 1523 can’t point to a record of this occurring shows they are hyping up supposed problems which do not exist.

Thankfully, Governor Bryant strongly disagreed with the outcome-based decision of Judge Reeves. He rightly pointed out that H.B. 1523’s challengers will not be affected if the law takes effect during the appeal period, as they have shown no real, concrete injury to themselves. Thus, his request that H.B. 1523 be applied to the people of Mississippi while its appeal is ongoing is quite sensible.

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Question of the Week - July 18, 2016

by Daniel Hart

July 18, 2016

Question: Ok, so the House passed the Conscience Protection Act last week. Doesn’t the Senate have to do so as well, and then the President sign it? If Obama vetoes, will there be an override? If the above is true, why is FRC so happy at this point?

FRC: The Senate does have to pass the Conscience Protection Act (CPA). We don’t have the votes to override a veto by President Obama. However, this is the first time since 2004 that Congress has voted on conscience. This CPA vote gets members on record. In addition, if the Senate passes CPA, it builds momentum and puts pressure on President Obama. Finally, if support for CPA remains in Congress, then it hopefully has a strong chance of becoming law if we have a pro-life president in the future.

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The Economist Magazine Highlights Progressives’ Religious Freedom Hypocrisy

by Travis Weber

July 15, 2016

We are glad to see last week’s article in The Economist accurately diagnosing the hypocrisy surrounding religious freedom which has infected the agitating political Left in the last several years. This reputable magazine has pinpointed the biggest trouble of the current political and policy dynamic surrounding religious freedom: the progressive Left just can’t bring itself to support traditional Christian claims of religious freedom—even when those claims are brought under the same laws and legal standards as others which modern liberals have supported.

As Family Research Council has consistently made clear, religious freedom laws have historically had bipartisan consensus. Sadly, this is no longer true, as in the last several years the progressive Left has abandoned its support for First Amendment principles in favor of new policy goals. Meanwhile, in an ironic twist, conservatives are attacked as only supporting religious liberty when it concerns them. We have shown this not to be true. Now, we are thankful The Economist has shed additional light on the religious freedom debate.

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The Social Conservative Review: July 15, 2016

by Daniel Hart

July 15, 2016

Dear Friends,

People are not problems to be solved, they are souls to be loved. In our times, in which deadly mass violence seems to occur on almost a weekly basis, this powerful Christian principle is something that desperately needs to be lived out and spread to others.

In today’s society, huge swaths of people live insular lives fed by non-stop media exposure, materialism, and a host of false ideologies, hoping that these things will somehow fill the God-sized hole in their hearts. Believers know that it is only in giving all the glory to our Creator and living out a life of love as Christ did that brings us true happiness.

This means that as Christians, we will have to get out of our comfort zones and reach out as never before to those in need, whether they be in our schools, in our workplaces, in the grocery store, and even those we may encounter on the streets. As Christ said in Luke 10:2, “The harvest is plentiful, but the laborers are few.” Don’t be afraid to be a laborer for the Lord and witness to the truth in love.

Thank you for your prayers and for your continued support of FRC and the family.

Sincerely,

Dan Hart
Managing Editor for Publications
Family Research Council


FRC Articles

Religious Liberty

Free to Believe”

International Religious freedom

Religious Liberty in the public square

Life

Abortion

Adoption/Bioethics

Obamacare

Family

Family Economics

Marriage

Human Sexuality

Human Trafficking

Pornography

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Gallup Poll Shows Few Same-Sex Couples Marry Despite Supreme Court OK

by Peter Sprigg

July 6, 2016

Noting the one-year anniversary of the 2015 Supreme Court decision redefining marriage to include same-sex couples, the Gallup organization recently released poll data on how many Americans self-identify as LGBT (lesbian, gay, bisexual, or transgender), and how many of those are now in legally recognized civil marriages.

Marriages after Obergefell

Same-Sex Marriages Up One Year After Supreme Court Verdict” was the headline Gallup used, reporting that “approximately 123,000 same-sex marriages have taken place since the Obergefell v. Hodges decision.” Some news outlet emphasized the growth of such relationships even more strongly, with Time saying they are “Way Up” and The Atlantic referring to “a surge in same-sex marriages in all 50 states.”

One would hardly have expected it to be otherwise, given that the Court had thrown open a door that had been closed by the state constitutions of thirty states. (Due to lower court decisions, however, only 13 states were still denying marriage licenses to same-sex couples by the time the Supreme Court ruled.)

The real news in the Gallup survey—missed by virtually every news outlet that reported on it—is not how many same-sex couples have now obtained civil marriages, but how few.

LGBT Adults Who Are Married

Gallup currently estimates 3.9% of U.S. adults are lesbian, gay, bisexual, or transgender,” the report says. How many of those are married? “Currently, 9.6% of LGBT adults report being married to a same-sex spouse.”

Wait a minute—after all the hullabaloo over same-sex marriage, all the insistence that marriage was essential to affirm the dignity of lesbian and gay Americans—less than one in ten have even bothered to take advantage of this critical new “right?”

Well,” you may point out, “adults can be as young as 18 years old. They may not feel ready to marry, or they may not have found the right person yet, or they may be between relationships. Not all heterosexual adults are married at any given time, either.”

All this is true—so let’s compare the 9.6% of “LGBT adults” who are in same-sex marriages with the percentage of the general population (the vast majority heterosexual) who are married. That figure has been in decline for decades—partly because people are waiting longer to marry, partly because of an increase in cohabitation outside of marriage, and partly because of an increase in divorce.

In fact, a federal government report issued in 2014 made headlines: “Number of Unmarried Americans Now Over 50 Percent.” According to NewsMax, “the Bureau of Labor Statistics finds that the number of Americans over the age of 16 who are unmarried leapt from 37.4 percent in 1974 to 50.2 percent today.” Thus, only 49.8% (roughly five out of ten) were married.

Yet if five out of ten heterosexuals are married, and only one out of ten “LGBT” adults is in a same-sex marriage, this suggests that LGBT Americans are only one-fifth as likely to marry as are heterosexuals.

Same-Sex Couples Who Are Married

Perhaps,” you may respond, “it’s just harder for LGBT people to find partners than for heterosexuals. What about the marriage rates among people who have already found a partner they are living with?”

The Gallup report offered data on that question as well—in fact, it led with it, beginning its report by declaring, “The proportion of same-sex cohabiting couples who are married has increased from 38% to 49% in the year since the U.S. Supreme Court legalized same-sex marriage nationwide.”

However, 49% being married means that 51% of “same-sex cohabiting couples”—an outright majority, although a slim one—are still “living together but not married.”

What about all the arguments that legal civil marriage was absolutely essential to same-sex couples, because it is the only way to provide for inheritance rights, and medical decision-making, and over a thousand other “benefits” attached to marriage under federal law? It looks like most same-sex couples can do without civil marriage after all.

Lots of opposite-sex couples cohabit instead of marrying, too,” you may say, and that is true. According to the Census Bureau, in 2015 there were 8.3 million households with opposite-sex unmarried couples—and 60 million married couples. That means that about 88% of opposite-sex couples living together were married, vs. only 12% that were cohabiting without marriage.

If the percentage of same-sex couples who reject marriage (by cohabiting instead) is 51%, and the percentage of the general public who do the same thing is only 12%, this suggests that those in homosexual relationships are over  four times more likely to reject marriage than those in heterosexual relationships are.

Handling Data

I will concede that making precisely accurate comparisons between “LGBT Americans” and non-LGBT persons using such data is sometimes a challenge. First, unless it is explicitly separated out, data for the general public includes LGBT persons (although they are only a small fraction—about one in twenty-five).

The second issue—which Gallup may want to consider in its future reports—is that lesbian, gay, bisexual, and transgender persons are four different populations, which really ought to be addressed separately. They tend to be lumped together only because they are perceived as having common political interests (in challenging traditional norms for their sex), not because they share sociological characteristics. Gallup distinguished them only in part, by noting, “Males who identify as LGBT are more likely than females who identify as LGBT to report being married to a same-sex spouse (10.5% vs. 8.8%, respectively).”

B” and “T” Americans and Opposite-Sex Marriages

There is no reason to expect that bisexual or transgender persons would necessarily seek marriage to a person of the same sex (although they might). It is just as likely that they would be married to someone of the opposite sex (although even defining who the opposite sex is could be problematic in the case of transgender persons).

This may help explain perhaps the most startling finding in the Gallup report, which none of the media reports even picked up on. It is this: more “LGBT Americans” are married to an opposite-sex spouse than to a same-sex one. Gallup reports that 13.6% of “LGBT Americans” are married to an opposite-sex spouse—a number 42% higher than the 9.6% of “LGBT Americans” now legally married to a same-sex spouse.

To interpret this figure, it would be helpful if Gallup had released more data specifically on those who identify as bisexual (sexually attracted to both males and females)—what percentage of “LGBT Americans” are actually “B,” and what percentage of just the “B’s” are married to or living with a same-sex vs. an opposite-sex partner. A recent federal report based on the National Survey of Family Growth said that self-identified bisexuals may actually outnumber self-identified homosexuals—narrowly among men (2.0% of the population vs. 1.9%) and widely among women (5.5% to 1.3%).

Gallup did report that 5% of LGBT’s are living with an opposite-sex partner outside of marriage. These cohabitors are 27% of the opposite-sex couples in the LGBT population, which means that even “LGBT Americans” in opposite-sex relationships are only about half as likely to reject marriage in favor of cohabitation as those in same-sex relationships.

Perhaps the most intriguing of all would be to learn how many people in the Gallup survey identify as “gay” or “lesbian,” yet are married to someone of the opposite sex. Could it be that some people place fidelity to a vow they have made to a husband or wife ahead of solidarity with their “sexual orientation?” If this number is anything other than zero, it would put the lie to Justice Anthony’s Kennedy’s assumption that one-man-one-woman marriage laws prevent “gay” or “lesbian” persons from marrying at all.

One thing should now be clear—the drive to redefine the institution of marriage was not really about marriage. The data from the Gallup report prove that most people with same-sex sexual attractions do not “need,” and do not even want, to marry. The primary purpose of redefining marriage was not to gain access to the institution of marriage, but to put the official governmental stamp of approval on homosexual relationships by declaring them identical to heterosexual ones, even though they clearly are not.

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Ends Justify the Means in Ruling on HB 1523

by Travis Weber

July 1, 2016

Judge Reeves’ ruling striking down individual rights protections in Mississippi’s HB 1523 is a travesty for the rule of law and shows what happens when the judicial process justifies the means with the ends. It is quite unfortunate that the judge can’t see (despite the fact that no same-sex couple has been denied anything by Mississippi in the wake of Obergefell v. Hodges) that the law merely protects people from government coercion. It is doubly unfortunate that in his ruling, the judge’s denigrating and dismissive references to “Christians” exhibits an animus toward the people he is entrusted to rule over that is barely bottled up.

On the issue of standing, Judge Reeves can try to cover his reasoning in a legal swamp all he wants, but at the end of the day, his ruling pulls the law to its breaking point in order to find an actual, real injury to anyone at all. In reality, no one has been concretely affected by this law. That’s why he has to contort the matter to find an injury where someone “feels” affected. Yes, feelings get hurt in a democracy (this happens innumerable ways every day, which average American understand) but that’s part of living in a diverse country. Despite citing the Supreme Court’s Establishment Clause decision Town of Greece v. Galloway multiple times, he conveniently forgot to cite Justice Kennedy’s reminder in that case that “offense … does not equate to coercion.” Instead, Judge Reeves has opted in essence to deny the people their own right to govern. With such rulings, one can’t blame them with being fed up with federal judges and the elites who think like them.

Judge Reeves errs further in searching the woodwork to find constitutional violations. He admitted “discerning the actual motivation behind a bill can be treacherous.” He should have followed his own admonition. Instead, he somehow finds HB 1523 to be a violation of the Establishment Clause, despite the fact that it imposes no coercive religious requirement on anybody! (Town of Greece again relevant here). He claims that since the law doesn’t protect every type of Christian religious belief out there, it’s somehow invalid.

Yet amazingly, at the same time, the court dismisses the fact that members of non-Christian faiths also oppose same-sex marriage and would be protected by HB 1523 by arguing that those people don’t really believe their own religion:

Every group has its iconoclasts. The larger the group, the more likely it will have someone who believes the sun revolves around the Earth, a doctor who thinks smoking unproblematic, or a Unitarian opposed to same-sex religious marriage. But most people in a group share most of that group’s beliefs.

Aside from improperly delving into doctrine itself, the court’s statement is irrelevant, and by recognizing that some non-Christians would be protected by this law, it contradicts its entire grounding for this decision (that this is really just about the protection of Christians).

Under Judge Reeves’ thinking, any tailored conscience or religious rights protections would be invalid.

Additionally, his analysis of federal conscience protections is just flat wrong. He says the analogy of HB 1523 to these protections in 42 U.S.C.§ 300a-7 is not appropriate because they are “neutral” in that they protect pro-life and pro-abortion doctors, and cites to subsections c, d, and e of the statute. However, only subsection c makes reference to protection of both sides of the issue. Subsections d, e, (and a) protect doctors and facilities opposed to abortion from being forced to participate in it, and do not make mention of any pro-abortion views. The fact is that these conscience protections and similar types of exemptions have long been a part of our pluralistic society, and show how diverse people can live side-by-side while conscience is honored. When conscience is threatened, it can be protected. Yet Judge Reeves would stifle consciences that need protection in the name of protecting against some imaginary harm. He might be asked: Exactly whose consciences are being violated that he feels need additional protection in HB 1523?

In the midst of this long, contorted, and unfortunate ruling (supposedly based in part on the Establishment Clause), Judge Reeves could have at least cited the Supreme Court’s well-known pronouncement on this principle in West Virginia State Board of Education v. Barnette decades ago:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Instead, he has imposed his own orthodoxy on them and heaped even more disenfranchisement on the heads of the people of Mississippi. “You may not like Obergefell,” the judge seems to say, “but I’m not even going to allow you to protect your own liberty in the face of it.” 

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NPR Thinks Conservative Christians Are Grappling With Whether Religious Freedom Includes Muslims

by Travis Weber

June 30, 2016

In a recent story, NPR raised the question of who religious freedom applies to, and what conservative Christians think about its application to Muslims. Unlike NPR, I refuse to use quote marks to describe religious freedom—itself a recent development that the news media obediently follow, along with everyone else who all of a sudden wants to question the legitimacy of a constitutional principle over two hundred years old.

Turning to NPR’s story, the answer is: Yes, religious freedom goes for all faiths. This is clear enough from the positions most conservative, Christian advocacy groups take on the issue, confirmed by their support for RFRA and Free Exercise rights (which by their legal methodology naturally apply to all faiths). Family Research Council recently made this very clear in articulating our actual position on religious liberty, instead of what it is often perceived to be. Sensible people understand that security needs do not justify (and are even impaired by) blanket religious discrimination. Indeed, as security expert Dr. Sebastian Gorka pointed out the other day at FRC, one can address security concerns intelligently and efficiently, while preserving the religious liberty we hold dear for all faiths.

The NPR story simply tries to rustle up more than is there. The pastor cited as in opposition to religious freedom for Muslims reportedly says “he believes the U.S. Constitution protects all religions, including Islam”—he just wishes advocates would channel their energies slightly differently. Sounds like he does believe religious freedom is for all. Can we expect the media to interview some Imams who would say the same thing?

The real story lies in the currents underlying the NPR story. The Muslims who stand for religious freedom are courageous and deserve our support. But there are many within the Muslim world—as Muslims define it—who don’t have any concept of civil liberties for people of all faiths, and are willing to die fighting against such a concept. Dr. Gorka referenced this war within Islam the other day at Family Research Council. The largest group of victims of Jihadists are other Muslims. Those within the world of Islam who refuse to support religious freedom for all need to be confronted, and the media who ignore them and give them a free pass deserve to be called out.

Instead of trying to create a sensation where none exists, perhaps the media can focus on the religious freedom story that does exist.

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Supreme Court Denies Hearing and Curtails Freedom in Stormans Case

by Travis Weber

June 30, 2016

Sadly, earlier this week, the Supreme Court declined to take up the case of Stormans v. Wiesman.

In declining to hear this case, the Court missed an opportunity to shore up individual freedom and rebuke baseless government harassment of religious believers.

The Stormans owned a pharmacy and did not want to dispense certain drugs that can kill embryos due to their moral and religious beliefs, yet are happy to refer potential customers to other pharmacies who could dispense them. The drugs are carried by more than 30 other pharmacies within five miles of the Stormans’ pharmacy. It seems like there’s a way in this case for conscience to be honored, and the customer to receive their drugs.

Unfortunately, Washington State had put in place regulations barring pharmacies from referring customers elsewhere for religious or moral reasons, despite permitting them to do so for a host of secular reasons.

These regulations were challenged as a violation of the Free Exercise Clause due to their targeting of religious beliefs. The Supreme Court had an opportunity to hear the case, yet unfortunately declined. Justice Alito (joined by Chief Justice Roberts and Justice Thomas) dissented from this denial of certiorari.

As Justice Alito observed in his dissent, “none of [the Stormans’] customers has ever been denied timely access to emergency contra­ceptives.” At the end of the day, the only reason for this law is to disparage the moral objections of those who think differently and force these unwilling pharmacists to play a part in the government’s imposed regime by steamrolling their individual freedom. And now, in permitting a lower court decision against the Stormans to stand, Justices Kennedy, Breyer, Sotomayor, Kagan, and Ginsburg apparently see no problem with letting the state of Washington squash religious freedom by barring referrals tied to religious reasons but permitting them for non-religious reasons.

Now, as Justice Alito put it, the price we must pay is the continued existence of “regulations [which] are improperly designed to stamp out religious objectors.” This price may be acceptable to some for now—at least until it is turned around and applied against them.

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Question of the Week - June 28, 2016

by Daniel Hart

June 28, 2016

Question: I don’t understand how [The Supreme Court’s Whole Woman’s Health v. Hellerstedt decision] is an attack on women or children. It seems this ruling was intended to remove burdensome obstacles for women needing a safe and legal medical procedure. There seems to be a disconnect between what you find safe and legal and what the Supreme Court deemed safe and legal. Could someone tell me why admission rights make this procedure more safe? Thank you.

FRC: The law in question [Texas’ H.B. 2] that was struck down would have required abortion facilities to have the same health and safety standards as ambulatory surgical centers (such as trained staff, corridors that could accommodate a stretcher in case of an emergency, up-to-date fire, sanitation, and safety codes) and for abortionists to have admitting privileges at a local hospital not further than thirty miles from the abortion facility. This law would have helped to provide women protection from substandard medical care and in many cases criminal activity of abortion facilities. Over the last six years, “more than 150 abortion providers in at least 30 states and the District of Columbia have faced criminal charges, investigations, administrative complaints, and/or civil lawsuits” related to substandard practices or substandard operation of these abortion facilities. When abortion facilities are not held to the same standards as other facilities, women’s lives are endangered. For example:

  • In 2011 alone, 26,500 women experienced abortion-related complications, and close to 3,200 women required post-abortion hospitalization. 
  • As Federal Judge Edith Jones noted in her opinion for the U.S. Court of Appeals for the Fifth Circuit on this case: “Planned Parenthood conceded that at least 210 women in Texas annually must be hospitalized after seeking an abortion.”

Further, abortionists with admitting privileges in hospitals could seamlessly assist their patients to a hospital in case of an emergency and no precious time would be lost that could cost the woman her life. Twenty-nine year old Jennifer Morbelli died at the hands of abortionist LeRoy Carhart following complications. After the abortion, Carhart released her to return to her hotel and he left town. Morbelli’s condition deteriorated, but Carhart could not be reached by family members or by hospital emergency room staff.

These are just a few of the reasons why the Supreme Court’s decision is so tragic for women. The pro-life movement is pro-woman and pro-child. We will continue our efforts to protect them both.

We will be releasing more information on this topic in the coming days.

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Abortion Distortion” at work in Whole Woman’s Health v. Hellerstedt

by Travis Weber

June 28, 2016

Once again, we saw the “abortion distortion” at work in our nation’s high court. The majority opinion first distorted the law governing whether a claim should be procedurally barred in order to let these claims against the Texas law proceed, then it distorted its own abortion jurisprudence governing whether there was actually an undue burden here to find one where one doesn’t exist. The majority went out of its way to support a lower court’s basis for striking down the law (and in doing so, tried to give courts authority to interfere where they shouldn’t), when it actually should have simply deferred to the legislature. The majority’s opinion leaves the state of abortion law more muddled than ever. As Justices Thomas and Alito (joined by Chief Justice Roberts) pointed out in dissents, there can be no doubt that our nation’s high court simply does not apply the law fairly and neutrally when it comes to the issue of abortion. This can only serve to discredit it as an institution.

Majority opinion

Justice Breyer wrote the majority, joined by Justices Kagan, Ginsburg, Sotomayor, and Kennedy. In its opinion, the Court bent the typical rules governing claim preclusion to permit the claims against HB 2 to proceed, then even bent its abortion jurisprudence a fair bit to conclude they imposed an undue burden on a woman’s constitutional “right” to obtain an abortion.

Claims not procedurally barred

The first issue was whether any of the plaintiffs’ claims were procedurally barred under res judicata, a doctrine which prohibits raising the same claim if it has already been raised by the party to the case. The Court said they were not. The Court first held that the plaintiff’s admitted privileges claims were not barred because changed circumstances made the claims raised in this case different than those raised in an earlier case challenging the Texas statute (a dubious holding). It also held that the surgical center claims were not barred even though they were not raised in the earlier case because they were based on a different portion of the statute (also dubious).

Undue Burden

The Court began by laying out its standard: “We recognize that the ‘State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.’ Roe v. Wade, 410 U. S. 113, 150 (1973). But, we added, ‘a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.’ Casey, 505 U. S., at 877 (plurality opinion). Moreover, ‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.’ Id., at 878.”

The justices held that neither the admitting-privileges nor surgical-center requirement “offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion),” and thus “each violates the Federal Constitution. Amdt. 14, §1.”

The Court of Appeals had held that (1) the courts should not consider and balance medical benefits against the burden when applying the undue burden standard (but rather just look at the burden issue), and (2) a standard of lower constitutional scrutiny should apply to abortion issues. The majority in Hellerstedt reversed the Court of Appeals on both these points.

Undue Burden – Admitting Privileges Requirement

The Court heavily deferred to the determinations of the district court (and affirmed the ability of courts in general to make such determinations) on these issues, and claimed that courts can resolve questions of medical uncertainty—not just legislatures. The Court held that courts can and should balance the medical benefits of a law against its burdens.

The Court found that the evidence in the record indicates that the admitting privileges requirement places a “substantial obstacle in the path of a woman’s choice” (quoting Casey). The Court again deferred to district court findings that facilities were closing at the time the law began to be enforced, which meant women had to travel further to obtain abortions, and there were fewer doctors (doctors were also unable to obtain admitting privileges for reasons unconnected to their ability to perform medical procedures), longer wait times, and more crowded facilities. Taken together, and viewed in light of the absence of a health benefit, this list of effects causes an undue burden.

The Court also noted the statute here does not have legislative findings, which weighs in favor of a court having to scrutinize findings more carefully, and heavily deferred to the district court’s evaluation of the evidence—and concluded it found nothing in the record “that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.”

The government argued facilities may have closed for reasons unrelated to this law, but the Court found that that the plaintiffs had “satisfied their burden to present evidence of causa­tion by presenting direct testimony as well as plausible inferences to be drawn from the timing of the clinic clo­sures.” When faced with the example of Gosnell, the Court said “there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing stat­utes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually.”

Undue Burden – Surgical Center Requirement

Again, the Court deferred to the district court and found that the health and safety concerns are not advanced by the surgical center requirement, especially in light of the existing regulation imposed by Texas. The Court credited evidence and deferred to an expert witness at the district court level, and found that many of the law’s requirements were not necessary to regulate abortion, and had the additional effect of placing a substantial obstacle in the face of a woman’s ability to obtain one by making them travel further and disrupting the medical care they would receive. In making these findings, the Court recognized it assumed that medical facilities operate at or near full capacity, and credited what it viewed as “commonsense inferences” by the district court. The court held that Texas had not shown that remaining facilities could accommodate many more women.

In essence, the Court nitpicked the evidence for ways Texas had not perfectly shown HB 2 would advance women’s health, and even when it had shown health benefits, claimed the burden outweighed these benefits (and the law was thus unconstitutional).

Other arguments

The Court rejected the argument that facial invalidation was precluded by the law’s severability clause. It also rejected Texas’ argument that the law did not impose a substantial obstacle because the number of women affected by the law is not a “large fraction” of Texan women of reproductive age. The Court finally rejected Texas’ argument, based on Simopoulos v. Virginia, that surgical center requirements could be applied to second-trimester abortions. The Court noted this was before Casey, which discarded the trimester framework.

Ginsburg Concurrence

Justice Ginsburg concurred, focusing on the claim that child-birth and other medical procedures are “far more dangerous” than abortion, and yet not subject to the requirements Texas attempts to impose here. “Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’ Planned Parenthood of Wis., 806 F. 3d, at 910. When a State se­verely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. See Brief for Ten Pennsylvania Abortion Care Providers as Amici Curiae 17–22. So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.”

Thomas Dissent

Justice Thomas criticized the majority for “perpetuat[ing] the Court’s habit of applying different rules to different constitutional rights—especially the putative right to abortion.”

Quoting Justice Scalia, he said this decision “exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.’ Stenberg v. Carhart, 530 U. S. 914, 954 (2000) (Scalia, J., dissenting).”

Thomas continues, “[u]ltimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predict­ability nor the promise of a judiciary bound by the rule of law.”

He criticizes third-party standing, which permits plaintiffs to sue on behalf of others (and which permitted the claims to be brought in this case in the first place). He observes the Court has made special exceptions for this doctrine in the case of abortion, noting: “There should be no surer sign that our jurisprudence has gone off the rails than this: After creating a constitutional right to abortion because it ‘involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,’ Casey, supra, at 851 (majority opinion), the Court has created special rules that cede its enforcement to others.”

Even under Casey, Justice Thomas notes that the majority alters the undue burden test here by (1) telling courts to balance burdens and benefits of the law instead of just assessing the burden, by (2) making their own medical assessments as opposed to deferring to the legislature, which is permitted to enact a law in the face of a debate within the medical community (Stenberg, supra, at 971 (KENNEDY, J., dissent­ing) (“the right of the legislature to resolve matters on which physicians disagreed” is “establish[ed] beyond doubt”), and by (3) scrutinizing laws for more than a reasonable relation to a legitimate state interest even when the law does not impose a substantial obstacle to obtaining an abortion (“Where [the State] has a rational basis to act and it does not impose an undue burden,” this Court previously held, “the State may use its regulatory power” to impose regulations “in furtherance of its legiti­mate interests in regulating the medical profession in order to promote respect for life, including life of the un­born.” Gonzales, supra, at 158 (emphasis added)).”

Justice Thomas criticized the majority for writing an opinion without any clear standard, which will “mystify” lower courts trying to figure the matter out. The Court merely highlights certain parts of the record, and announces that there is an undue burden. In Justice Thomas’s view, this opinion looks like it’s applying the strict scrutiny standard that Casey had rejected.

He proceeds to criticize the Court’s seemingly ad-hoc application of different standards of review, based on the Court’s preference for the issue, which leads to unpredictability among other issues: “Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define mar­riage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. Compare Williams-Yulee v. Florida Bar, 575 U. S. ___, ___–___ (2015) (slip op., at 8–9), with United States v. Windsor, 570 U. S. ___, ___ (2013) (slipop., at 20)).”

Thus, “[t]he Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and inter­ests in any given case.”

Indeed, the Court’s preference for special rights and inconsistent application of its standards to cases based on the rights at issue poses significant problems for the Court as a judicial body—this case being only one example. “The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitu­tional rights, while disfavoring many of the rights actually enumerated in the Constitution … Unless the Court abides by one set of rules to adjudicate constitu­tional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

He concludes: “Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s em­brace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.’ Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.”

Alito Dissent

Justice Alito also dissented, with Chief Justice Roberts, and Justice Thomas joining.

Claim is procedurally barred

Justice Alito first criticized the majority for bending the rules of res judicata to accommodate the claim at issue because it concerned abortion. “When we decide cases on particularly controversial issues, we should take special care to apply settled procedural rules in a neutral manner. The Court has not done that here.”

In essence, the majority’s basis for permitting the claims to proceed here is weak, has holes, and has insufficient supporting authority. “The Court awards a victory to petitioners on the very claim that they unsuccessfully pressed in the earlier case. The Court does this even though petitioners, undoubtedly realizing that a rematch would not be allowed, did not presume to include such a claim in their complaint. The Court favors petitioners with a victory that they did not have the audacity to seek.”

Justice Alito observed the majority failed to even address the many elements of res judicata, and in ruling that the claims here were not the same, even erred when it addressed that element!

In essence, the claims are bound together by the law’s impact on the present or future closure of facilities. The claim in this case therefore is the same, had already been raised by the plaintiffs, and therefore should be barred. It doesn’t matter that the plaintiffs have new and better evidence; this doesn’t get around the issue that the claims are the same. The new and old claims are based on the same acts and set of circumstances, and new evidence does not transform them into different claims. The authority cited by the majority—the Comment F to Section 24 of the Second Restatement of Judgments—says a claim may be a different claim, not that it always is. This leeway should be applied sparingly, in Justice Alito’s view, and the majority does not have the authority to conclude as it does. There are no new “acts” here by Texas which even could make these claims different, but only new consequences, if at all. The plaintiffs here knew what the effects of the law would be, and thus have no basis to assert their claims are now different.

The plaintiffs could have provided evidence in their first case to show that facilities would close, yet now “the Court attempts to argue that petitioners could not have shown at that time that a sufficient number of clinics had already closed. As I have explained, that is not what petitioners need to show or what they attempted to prove.”

Even if the Court thinks that petitioners’ evidence in the first case was insufficient, the Court does not claim that petitioners, with reasonable effort, could not have gathered sufficient evidence to show with some degree of accuracy what the effects of the admitting privileges requirement would be. As I have just explained, in their first trial petitioners introduced a survey of 27 abortion clinics indicating that 15 would close because of the admitting privileges requirement. The Court does not identify what additional evidence petitioners needed but were unable to gather. There is simply no reason why petitioners should be allowed to re-litigate their facial claim.”

In sum, the Court’s holding that petitioners’ second facial challenge to the admitting privileges requirement is not barred by claim preclusion is not supported by any of our cases or any body of lower court precedent; is contrary to the bedrock rule that a party cannot re-litigate a claim simply because the party has obtained new and better evidence; is contrary to the first Restatement of Judgments and the actual rules of the second Restatement of Judgment; and is purportedly based largely on a single comment in the second Restatement, but does not even represent a sensible reading of that comment. In a regular case, an attempt by petitioners to re-litigate their previously unsuccessful facial challenge to the admitting privileges requirement would have been rejected out of hand—indeed, might have resulted in the imposition of sanctions under Federal Rule of Civil Procedure 11. No court would even think of reviving such a claim on its own. But in this abortion case, ordinary rules of law—and fairness—are suspended.”

The majority erroneously holds that these claims are separate based on weak and inapplicable authority. In reality, these claims are based on the same bill, both impose now requirements on facilities, both seek to protect women, both challenged as imposing the same kind of burden, and are treated by the plaintiffs as a package in terms of their claim that they are trying to “shut down” abortion facilities. There is no doubt they are part of the same litigation.

No Undue Burden

Even if the claims are not barred, there is no undue burden here.

Since plaintiffs assert rights on behalf of their patients, they must show an impact on a “large fraction” of impacted women to obtain facial relief. They fail to do that. They only show that certain facilities closed, but make “little effort” to show why they did.

Justice Alito noted that this law may impact facilities, which is understandable, and even desired in the aftermath of situations like the Gosnell matter. Indeed, “the Philadelphia grand jury that investigated the case recommended that the Commonwealth adopt a law requiring abortion facilities to comply with the same regulations as ASCs.”

However, facilities may have closed because of (1) H. B. 2’s restriction on medication abortion, (2) the withdrawal of Texas family planning funds, (3) the nationwide decline in abortion demand, and (4) physician retirement (or other localized factors).

The plaintiffs could have made precise findings regarding each facility in Texas, and had the burden of proof to do so, but didn’t.

In addition, the plaintiffs simply didn’t put on any evidence of actual facility capacity as it concerned facility access. The majority let them off the hook on this point, even though this was important to determine an undue burden.

Finally, the majority failed to recognize that under Casey, traveling 150 miles is not an undue burden, and a significant majority of Texas women didn’t have to travel that far.

Justice Alito also wrote that even if the claims were not precluded, in applying the severability clause here, the law’s requirements must be held in every city in which it does not impose an undue burden.

Sadly, the Court has to again apply the “abortion distortion” to argue that the severability clause does not apply here, and invalidate the entire statute. Indeed, many non-abortion related provisions of the law are now struck down too.

He concludes: “When we decide cases on particularly controversial issues, we should take special care to apply settled procedural rules in a neutral manner. The Court has not done that here.” The Court’s “patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter.”

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