Category archives: The Courts

Suicide Risk and Gender Transition: The Facts

by Jennifer Bauwens

July 23, 2021

As a graduate student in my early twenties, I volunteered on a suicide hotline. The calls I received while working on the hotline certainly included the suicidal person, but they also came from concerned family members, friends, and coworkers.  When advising people who wanted to keep someone safe, it was essential to give them tools not only to speak with the person of concern, but to also underscore that the person they seek to help has a choice in the matter.  Of course, the goal was to save lives, but we wanted to communicate to the helping party that, ultimately, they are not responsible for another person’s decision should their loved one choose to follow through with their threat of suicide.

While suicide is a very serious issue, it doesn’t mean that the helper should be controlled by the threat.  For example, after years of counseling with domestic violence survivors, I can recall countless stories of women who were told by an abusive spouse or partner, “if you leave me, I’ll commit suicide.”  Again, suicidal thoughts and gestures should be assessed and evaluated, and underlying causes need to be properly addressed. However, tying such requests to expressions of suicide can prove to be, in some cases, controlling. That’s what I communicated to domestic violence survivors who felt demands placed on them to sacrifice their safety, and in some instances, their lives, because of the threats expressed by the person abusing them.      

Unfortunately, the “threat” of suicide is what is being used against responsible leaders trying to protect children from harmful and often unknown risks associated with gender transition procedures. In the wake of the news that a federal judge in Arkansas blocked that state’s Save Children from Experimentation Act (which would protect children from receiving unnecessary and invasive medical interventions aimed at treating a psychological condition characterized by confusion over one’s biological sex) from going into effect, we’ve seen a resurgence in claims of the risk of suicide, without reference or examination to a range of likely underlying and co-occurring conditions.

When appealing to the judge several days ago to temporarily enjoin Arkansas’ law, Chase Strangio of the ACLU claimed: “These families, like hundreds of others across the state, are terrified … There has already been a spike in suicide attempts since this legislation was passed.” Court filings read: “For some transgender youth, the prospect of losing this critical medical care, even before the legislation is in effect, is unbearable … In the weeks after the bill passed, at least six transgender adolescents in Arkansas attempted suicide.” 

Within the ACLU’s claims, there is no reference to the other factors that might affect these adolescents’ decisions to attempt suicide. We are simply led to believe that legislative decisions alone are prompting suicidal thoughts in these teenagers.

Similar assertions implying that this legislation will only increase the risk of suicide were sprinkled throughout other’s reports on the issue.  Some involved in the case went on to argue that these medical practices “save lives” and are necessary for the transgender population that tends to be vulnerable to depression and suicide.

The high suicide rate in the transgender identifying population, in fact, has been repeatedly given as the reason to support treatments that stop puberty in developing children, to start kids on a lifetime supply of the opposite-sex’s hormones, and to allow surgeries that remove healthy sexual organs. These claims are misplaced, and frankly, dangerous.

That said, suicide is a real threat, and it should be addressed. The underlying causes that are leading to this threat should also be investigated so that this population can be properly treated. But, at this time, there is no evidence that suicidality abates after transgender medical procedures are performed. To the contrary, the available evidence shows a rise in completed suicides following medical interventions. Why? Clearly, the real psychological pain behind the suicidality is not being addressed by medical interventions.

The problem here is that suicide should never be used as a tool, by any group, to strong-arm policymakers and the psychological and medical communities into both allowing and providing questionable practices that have somehow gained a monopoly on “standards of care” for gender dysphoria.  Especially when those practices involve onboarding children, who have not fully developed physiologically, psychologically, and neurologically, to potentially irreversible and sterilizing treatments. 

In response, public policy makers should focus on protecting citizens, particularly vulnerable children. Further, policies that inform public health and safety should be firmly grounded in solid empirical research, such as:

  • There is no evidence that transgender medical treatments reduce the psychological distress and mental health issues associated with gender dysphoria.
  • There is no long-term investigation into the psychological and physiological consequences of transgender medicine performed on children.

The credible and available evidence indicates:

  • There are significant health risks to transgender medicine. Some of these include cardiovascular disease, high blood pressure, diabetes, & blood clots.
  • In a 30-year longitudinal study, gender reassignment surgery patients had a 19 times higher rate of completed suicide than the general population.

A few known underlying conditions that are not addressed by transgender medicine:

  • A recent study showed 45 percent of transgender identifying persons experienced childhood sexual abuse.
  • Higher rates of substance abuse have been found in this population by comparison to the general population.

For more information on this topic, see FRC’s issue analysis.

Jennifer Bauwens is Director of the Center for Family Studies at Family Research Council.

Embracing Modern Science Means Overturning Roe

by Joy Zavalick

July 23, 2021

In 1973, the Supreme Court handed down the landmark Roe v. Wade decision allowing for virtually unlimited access to abortion through nine months of pregnancy. The Court justified this decision by sidestepping the matter of whether children in the womb are alive. As Justice White explained in his Roe dissent, “The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries.”

The Roe decision to prioritize mothers seeking elective abortions rests on the outdated scientific opinions available to the Court in 1973. The Court fallaciously appealed to ignorance by permitting abortion based on a lack of knowledge about when life begins. In the opinion of the Court, Justice Blackmun wrote, “We need not resolve the difficult question of when life begins. […] The judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

There can be no doubt, however, that the human understanding of the world has shifted immeasurably in the past 48 years.

In 1973, the disposable camera was 13 years away from being invented, and the rings of Neptune would not be discovered for another decade. The Walkman would not hit the market until 1979. Doctors still operated on infants without anesthesia because they were not yet aware that babies could feel pain.

In terms of science and technological advancements, the practices of 1973 ought not govern the modern world. As lessons are learned and further information is gained, it is senseless to maintain outdated practices. When DNA fingerprinting was discovered in 1984, forensic teams did not insist on maintaining their current practices for the next 50 years; rather, the technology solved its first murder case two years later.

In 2021, the science is clearer than ever that infants in the womb are alive from the point of conception. A modern understanding of DNA reveals that human zygotes have completely unique genetic compositions, determining traits from eye color to aspects of personality, from the very point that they are fertilized. A 2019 study emphasizes that light is visible to children in the womb even as their eyes are closed.

The contemporary practices of prenatal health care have greatly adapted as well. Though the point of viability was thought to be at 28 weeks in 1973, it is now known to be at 22 weeks. The most premature infant to survive was born in 1987 at just 21 weeks gestation. Fetal surgery performed on children in the womb has successfully treated a host of developmental conditions, including spina bifida. Based on the Roe decision, which refused to consider whether infants in the womb were alive, children of the same age to be born or receive operations can just as easily be electively aborted at the mother’s discretion.

The case for reevaluating the substance of Roe is clear. Just as textbooks are updated when new facts become available to ensure that children learn the most recent information, the modern Court’s rulings must be based on current knowledge rather than the claim to ignorance of the Court in 1973. Legal precedent must not triumph over the necessity to acknowledge modern science.

As the Supreme Court will soon consider a direct challenge to Roe in the case Dobbs v. Jackson Women’s Health Organization, they face a pivotal decision: abide by the outdated excuses of 1973, or recognize the evidence presented by modern science and act accordingly. Americans, particularly the unborn ones, deserve to live by the best modern practices of human knowledge, which unequivocally affirms that babies in the womb are alive.

For more information on why Roe should be overturned, see FRC’s issue analysis.

Joy Zavalick is an intern with the Center for Human Dignity at Family Research Council.

The Supreme Court Protects Religious Liberty—Barely

by Katherine Beck Johnson

June 17, 2021

Catholic Social Services’ (CSS) 9-0 victory before the Supreme Court today in Fulton v. City of Philadelphia, while unanimous, can’t be allowed to overshadow serious differences among the justices on how to approach religious liberty.

This case involved CSS’s ability to operate in accordance with their Catholic faith. The City of Philadelphia had pressured CSS to either give up the Church’s teaching on marriage and family or give up their ministry of finding children loving homes. CSS refused to go against its strongly-held religious belief that marriage is between a man and a woman. After years of litigation, the Supreme Court today held that Philadelphia violated the First Amendment by allowing secular but not religious exceptions to their fostering contracts, like the one held by CSS.

To be clear, this decision was a win. For now, CSS will be able to operate in accordance with its religious beliefs and continue placing children in most need. The organization will not be forced to shut its doors because it refuses to compromise its faith.

Unfortunately, the win was narrow, coming up short of a huge victory. The Supreme Court did the bare minimum to protect CSS and other faith adherents. It was only because Philadelphia had other exceptions, but not religious ones, that the Court found the city in violation of the First Amendment. As Justice Alito noted in his concurrence, the secular exceptions were essentially boilerplate language in the city’s contract that they did not enforce and will be very easy for them to delete—effectively leaving CSS with no protection. As Justice Alito said, “[t]his decision might as well be written on the dissolving paper sold in magic shops.”

The Court should have overturned Employment Division v. Smith, which held that a law is constitutional as long as it is generally applicable and does not target religion. Smith was wrong when it was decided, and it is wrong today. Justice Gorsuch was correct when he said, “[o]ne way or another, the majority seems determined to declare there is no “need” or “reason” to revisit Smith today. But tell that to CSS. Its litigation has already lasted years—and today’s (ir)resolution promises more of the same.”

The ever-growing demands from the Left and their radical gender ideology being imposed on more and more of America make it increasingly impossible for a person to live out their Christian faith while operating in the foster care and adoption space (or many other aspects of society). Evidently, the City of Philadelphia would rather children languish in the system without loving homes than allow CSS to operate in accordance with its faith. Catholics in Philadelphia and throughout our country deserve better than that—and are afforded more than that in our Constitution.

Although today’s opinion allows CSS to continue operating without compromising its faith, that likely won’t be the case for long. Soon, the Court will have to answer if a city can force a religious agency to violate its beliefs if no secular exceptions were provided. The answer is no, and that should have been the answer today. Justices Roberts, Barrett, Kavanaugh, Breyer, Sotomayor, and Kagan refused to answer this.

Today, Justices Alito, Thomas, and Gorsuch were the only members of the nation’s highest court who demonstrated awareness of the pressing need to revisit Smith and rightly protect religious adherents. Let us hope more justices join them in the future.

Fidelity to the Constitution Requires Roe’s Reversal

by Mary Szoch

May 27, 2021

Before joining the policy world, I taught history in Catholic schools. One of my favorite units was on the Supreme Court. Students were required to memorize the justices’ names, review various cases, and argue how the justices should rule in each case. The biggest challenge I faced as a teacher was convincing students that their determination of how justices should rule needed to be based in the United States Constitution, not in personal opinion. Sadly, this is not a problem only middle school teachers face but one confronting all Americans who recognize the role and purpose of the highest court in the land.

Last week, the Supreme Court agreed to review Dobbs v. Jackson Women’s Health—a case asking whether Mississippi’s ban on abortion after 15 weeks is constitutional. The Court’s decision to review this case is terrifying pro-abortion activists across the country because not only does Dobbs have the potential to overturn Roe v. Wade and Planned Parenthood v. Casey, but if the Supreme Court justices follow their obligation to the Constitution, the Dobbs decision should overturn Roe and Casey.

In Roe, the Court argued that under the 14th Amendment, the Due Process Clause, a woman has a right to privacy, and as such, she has a constitutional right to an abortion. As part of this decision, the Court said that the states had the power to regulate abortion in the first trimester for any reason, in the second trimester in the interest of the woman’s health, and in the third trimester, the state could outlaw abortion. In the Court’s 1992 decision Planned Parenthood vs. Casey, the Court reaffirmed Roe’s finding that a woman has the right to an abortion but changed the requirements for outlawing abortion from the trimester framework to a viability framework.

As any former student of mine should be able to attest, the words “right to privacy” that are used to justify the right to an abortion in both Roe and Casey do not appear anywhere in the Constitution—neither do the words “viability ” or “trimester.” The seven justices who ruled in favor of Roe, and the five justices who ruled in favor of Planned Parenthood fell into the same trap that plagued my 8th graders. They ruled based on their personal opinion—not on the United States Constitution.

Many have speculated that the outcome of Dobbs will be less than satisfactory to those in the pro-life movement—suggesting that the decision will likely favor a more incremental walk-back of Roe and Casey rather than a full reversal. I hope they are wrong.

If my middle school students (who were very bright, but still, middle school students) were the ones deciding Dobbs, I could understand another failure to decide an abortion case based on the Constitution. I could understand that for a third time, middle school students might substitute their own opinions and create their own framework for when and how abortion should be allowed. But the nine individuals deciding this case have been educated far beyond middle school by teachers and professors far more knowledgeable than me. In fact, these nine men and women are some of the best and the brightest this country has to offer, and more importantly, they have taken an oath to defend and uphold the Constitution.

As the Dobbs case is argued and the opinion is written, the pro-life movement must pray that the nine justices are able to recognize that overturning Roe and Casey is not a form of judicial advocacy, a decision based on religious principles, or an ideological answer to the pro-life movement. Overturning Roe and Casey is what fidelity to the Constitution requires.

6 Times the Supreme Court Has Ruled Against California Church Restrictions

by Kaitlyn Shepherd

April 29, 2021

On Monday, the U.S. Supreme Court vacated a Ninth Circuit Court of Appeals decision in a case challenging restrictions California imposed on houses of worship due to the COVID-19 pandemic. Monday’s order marks the sixth time that the Supreme Court has ruled against unfair restrictions that treated California churches more strictly than secular businesses.

For months, California churches faced particularly complicated and onerous restrictions that limited church attendance and inhibited religious exercise. In multiple cases, churches and pastors faced fines or the threat of imprisonment for holding indoor worship services. However, following Justice Barrett’s appointment to the Supreme Court in October 2020, California churches have started to experience relief. As of April 23, 2021, California’s guidance for houses of worship states that “location and capacity limits on places of worship are not mandatory but are strongly recommended. Additionally, the restrictions on indoor singing and chanting are recommended only.”

The Supreme Court’s willingness to defend religious liberty is a welcome development. Because of the Court’s guidance on this issue, more and more states are relaxing their worship restrictions. As of April 26, 2021, 41 states impose no restrictions on in-person indoor worship. Only nine states and the District of Columbia still impose a percentage-based limit on indoor worship. D.C. is the last remaining jurisdiction that imposes both a percentage limit and a numerical cap on the number of people who can congregate for indoor worship services. However, these restrictions were enjoined by court order in March 2021, and the D.C. government has announced it will remove the numerical cap beginning May 1, 2021.

What follows is a timeline of the six times the U.S. Supreme Court has issued opinions or orders upholding the rights of churches against California’s COVID-19 restrictions.

1. South Bay United Pentecostal Church v. Newsom

On February 5, 2021, the Supreme Court enjoined California’s total ban on indoor worship in Tier 1 counties (i.e., those where the risk of COVID-19 transmission was said to be widespread). The Court’s decision allowed churches in these counties to reopen at 25 percent capacity but left the state’s ban on indoor singing and chanting in place. In a separate statement, Justice Gorsuch, joined by Justices Thomas and Alito, noted that “California has openly imposed more stringent regulations on religious institutions than on many businesses.”

2. Harvest Rock Church v. Newsom

On the same day, the Supreme Court partially granted an injunction that prevented California from enforcing its total ban on indoor worship services against Harvest Rock Church while the case was being resolved in the lower courts. The decision allowed Harvest Rock and other churches in Tier 1 counties to reopen at 25 percent capacity, but it kept California’s ban on indoor singing and chanting in place. Although they joined the majority’s order, Justices Thomas and Gorsuch stated that they would have granted the injunction against the capacity limits and the ban on singing and chanting as well.

3. Gish v. Newsom

On February 8, 2021, the Supreme Court vacated a California district court’s dismissal of a case that challenged various state and local orders banning indoor worship services. The Supreme Court directed the lower court to reconsider the case in light of its recent South Bay decision.

4. Gateway City Church v. Newsom

On February 26, 2021, the Supreme Court granted an injunction that prevented enforcement of California’s restrictions against Gateway City Church. Noting that the “outcome [was] clearly dictated by [its] decision in South Bay United Pentecostal Church v. Newsom,” the Court admonished the lower court, saying its “failure to grant relief was erroneous.”

5. Tandon v. Newsom

On April 9, 2021, the Supreme Court granted another injunction against California’s restrictions. This time, the Court addressed California’s requirement that at-home religious gatherings could not contain more than three separate households. In its opinion, the Court emphasized that “government regulations are not neutral and generally applicable … whenever they treat any comparable secular activity more favorably than religious exercise.” The Court added that some secular activities being treated worse than religious ones is not a defense. It also stressed that the government bears the burden of showing “that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID.” Because California “treat[ed] some comparable secular activities more favorably than at-home religious exercise” and the lower court did not find that religious activities posed more of a threat than the secular activities, the Court found that the “[a]pplicants [were] likely to succeed on the merits of their free exercise claim” and that an injunction was warranted.                                                                           

6. South Bay United Pentecostal Church v. Newsom

On April 26, 2021, the Supreme Court returned to South Bay United Pentecostal Church’s case. The Court vacated the judgment of the Ninth Circuit Court of Appeals and remanded the case for reconsideration in light of its decision in Tandon v. Newsom.

It is unfortunate to have seen so much discrimination against religious gatherings over the past year. For a full list of such instances, see here. May we continue to work and pray toward the protection of our freedom to gather as believers and live out our faith during this time.

Pennsylvania Court Delivers Two Pro-Life Victories

by Mary Szoch

March 31, 2021

This past week, the Pennsylvania Commonwealth Court issued a huge victory for all Pennsylvanians—born and unborn. In a 6-1 decision, the Commonwealth Court both upheld a 1985 Pennsylvania law stating that state taxpayer dollars could not be used for abortion except in the case of rape, incest, or to save the life of the mother and ruled that “Reproductive Health Centers,” in this case, three Planned Parenthood affiliates and three stand-alone abortion clinics, “lack standing to initiate litigation to vindicate the constitutional rights of their patients enrolled in Medical Assistance.” The abortion businesses who were the plaintiffs in the case will appeal to the Pennsylvania Supreme Court.

The Commonwealth Court’s ruling is cause for celebration for several reasons. First, the Commonwealth Court affirmed the rights of Pennsylvanians to have a law prohibiting tax dollars for elective abortions. The 1985 law is essentially Pennsylvania’s version of the Hyde Amendment. This amendment, which passed in 1976, had overwhelming bipartisan support for over 40 years—including support as recent as 2019 from now President Joe Biden—but it is now under attack by Democrats and President Biden. Neither the 1985 Pennsylvania law nor the Hyde Amendment prohibit abortions—both simply state that taxpayer dollars will not be used to fund abortions.

The vast majority of Americans are supportive of this law. In fact, a 2020 Marist poll found that 60 percent of Americans, including 37 percent who identify themselves as pro-choice, oppose taxpayer funding of abortions. Americans recognize that taxpayers who correctly believe abortion is the killing of an innocent unborn baby should not be forced to pay for this practice. Hopefully, the Pennsylvania Supreme Court will uphold this ruling and it will be repeated by other state supreme courts who face similar challenges from abortion providers.

Second, the court ruled that abortion businesses do not have standing to challenge a prohibition on taxpayer dollars paying for abortions. In doing so, the court recognized that the key stakeholders in a case regarding abortion are not businesses who stand to profit from the practice of abortion, but instead, pregnant women who intend to have an abortion. This is a major step in limiting the abortion industry’s exploitation of women in Pennsylvania. 

Under the Pennsylvania standard for standing, the Commonwealth Court ruled that they would be required to determine if patients “on whose behalf Reproductive Health Centers purport to speak even want this assistance.” Unfortunately, however, Pennsylvania has a different standard for standing than the federal government. As was seen in the Louisiana case June Medical vs. Russo, the Supreme Court has allowed abortion businesses to file lawsuits on behalf of the women they proport to serve. In doing so, the Supreme Court allowed Louisiana abortionists to continue to profit from putting the lives of women receiving abortions at risk—despite the abortionists’ inability to demonstrate that any affected women actually supported their position.

While the Pennsylvania Commonwealth Court’s ruling is not indicative of how the United States Supreme Court would rule in such a case, and while it may be overturned by the Pennsylvania Supreme Court, for now, it is a pro-life victory. It is a ruling that recognizes the conscience rights of Pennsylvania taxpayers while limiting the ability of abortion businesses to speak for women. Pray that the Pennsylvania Supreme Court upholds this ruling and that other states’ pro-life efforts are buoyed by this victory.

Family Research Council has developed a series of maps to help Americans understand their state’s abortion laws. To see where your state stands with regard to funding abortion businesses, click here.

Roe is Legally Flawed and Should Be Overturned

by David K.

February 26, 2021

On the 48th anniversary of Roe v. Wade, President Biden reaffirmed his desire to codify Roe into federal law, reflecting the Democratic Party’s fear that Roe is nearing its end.

While the Supreme Court has yet to add an abortion case to its docket, the number of pending cases challenging key provisions in Roe and Planned Parenthood v. Casey (which affirmed the central holding of Roe, that a woman has a constitutional right to abortion) continues to grow. In light of Justice Amy Coney Barrett’s nomination, legal, and legislative trends support a future reversal. This is due, in part, to Roe’s inherent legal inconsistencies. Not only did Justice Blackmun contradict himself in his majority opinion in Roe, new bodies of criminal law are incompatible with Roe’s foundational assumptions.

Former Justice Ruth Bader Ginsburg herself criticized Roe’s rationale, stating that it “went beyond the extreme ruling of the statute before the court.” Abortion advocates similarly recognize Roe’s critical flaws, mainly a lack of reasonable inference from a constitutionally enumerated right.

The contradiction within the Court’s rational is another reason to reevaluate its holding. First, it rejected the existence of an absolute right to privacy, then nine pages later made that right absolute in the first trimester of pregnancy. Two interests were at issue, the mother’s privacy interest and the state’s interest in protecting unborn persons. The Court should have ended the analysis there recognizing the compelling interest in protecting unborn persons.

The inconsistency of legal personhood is highlighted in criminal feticide laws. This is yet another indicator of its inherent incongruity. Unborn children are recognized as humans in other situations outside of abortion. For example, in 1984, the Massachusetts Supreme Court recognized unborn persons in vehicular homicide cases. Since then, 38 states have passed laws recognizing unborn victim status. Federal lawmakers followed suit, passing the 2004 Unborn Victims of Violence Act. Legal scholars recognize the dilemma this legal trend poses. How can courts grant the unborn personhood in criminal law while refusing it in the context of legal abortions?

Lawsuits in response to the 2020 presidential election, civil unrest, and the Covid-19 pandemic have captured the Supreme Court’s attention for the moment, but the abortion issue will soon have its day in court. If the Court with three new justices corrects the legal inconsistencies in its previous holding, the abortion issue will likely return to the 50 state legislatures, allowing states like Alabama to reinstitute significant protections for the unborn. So long as Congress refrains from packing the Court, it will likely not be a matter of if Roe will be overturned, but when.

David K. is an intern at FRC Action.

Supreme Court Protects Women’s Health by Reinstating FDA Restriction on Chemical Abortion

by Mary Szoch

January 18, 2021

On January 12, the Supreme Court granted the Food and Drug Administration (FDA)’s request to reinstate its requirements surrounding the distribution of the mifepristone abortion regimen. This ruling reversed a federal judge in Maryland’s ruling that blocked the FDA’s in person distribution requirement for the regimen citing the challenges to chemical abortion access presented by the COVID-19 pandemic. The Supreme Court decision was a win for women’s health. 

In 2000, under the leadership of the pro-abortion Clinton administration, the FDA approved mifepristone for abortion usage and declared that mifepristone was subject to certain distribution restrictions to ensure safe usage. In 2011, these restrictions were converted to Risk Evaluation and Mitigation Strategies, otherwise known as REMS. The FDA decided to place restrictions on this drug because mifepristone carries with it life-threatening and health-endangering risks, such as hemorrhage, infection, incomplete pregnancy, retained fetal parts, the need for emergency surgery, and even death.

The restrictions, which were weakened but ultimately kept in place by the pro-abortion Obama administration in 2016, are meant to protect the women taking the drug. Under the current REMS, the drug must be prescribed by a health care provider who can assess patient eligibility, diagnose ectopic pregnancies, and provide or facilitate emergency surgical intervention in the case of an incomplete abortion or severe bleeding. Under FDA rules, mifepristone is not available from pharmacies. Notably, the 2016 weakening of the REMS removed the requirement for manufacturers to report any adverse events to the FDA other than death.   

The FDA is “responsible for protecting public health by assuring the safety, efficacy and security of human and veterinary drugs, biological products, medical devices, our nation’s food supply, cosmetics, and products that emit radiation.” Though the FDA operates under the Executive branch, a department responsible for protecting public health by ensuring the safety, efficacy, and security of human and veterinary drugs should not be a political organization. Its decision to put restrictions on mifepristone are based on the drug’s ability to harm women—not on a political agenda.

This spring, the ACLU filed a lawsuit demanding that the FDA temporarily suspend enforcement of the REMS so that women could receive mifepristone through the mail, thus eliminating the requirement for patients to see a health care provider prior to ingesting this dangerous drug. The ACLU argued that the patient had already been evaluated by a clinician either using telehealth or at a prior in-person visit, thus negating the need for another in-person visit to receive the drug.

Unfortunately for women, their health care is certainly not a top priority in this lawsuit. Though a doctor may be able to determine how far along a pregnancy is or diagnose an ectopic pregnancy through telemedicine, it is certainly not best medical practice. Failing to diagnose an ectopic pregnancy or to properly assess the length of a pregnancy can cause serious harm—and even death—to the woman taking the mifepristone. The Maryland court’s acceptance of the ACLU arguments puts women’s lives at risk.

Thankfully, for the time being, the Supreme Court decision issued a stay of the preliminary injunction that reinstated the REMS requirement. This means the Court will allow the FDA to once again enforce its requirement for now. In his concurrence granting the stay, Roberts wrote that the “courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health.’” In other words, Robert’s deferred to the FDA rather than specifically voting because of the risk to women’s lives.

Under the Biden administration, the FDA will have the opportunity to continue supporting the REMS, just like they did under the two proceeding pro-abortion Democratic administrations, or to do away them. In the past 20 years, mifepristone has not gotten any safer for women. Hopefully, under the Biden administration, the FDA will not decide to play politics with women’s lives.

What Is “Originalism”?

by Mary Beth Waddell, J.D.

October 22, 2020

Following last week’s confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett, the Senate Judiciary Committee today unanimously voted her nomination favorably to the floor—with no Democrats even bothering to show up. As Sen. John Cornyn (R-Texas) pointed out, they were continuing their theater from the hearing.

At the hearing, some senators rightly noted that those watching were probably confused by what they saw and heard. The Democrats spent much of their allotted time making speeches in opposition to President Donald Trump and his policies, rather than questioning Judge Barrett and evaluating her qualifications. This gave the false impression that she would have policymaking ability if confirmed as a justice. When Democrats did question Judge Barrett, there was significant focus on her judicial philosophy of originalism. While questions about judicial philosophy are entirely appropriate, some Democrats mischaracterized originalism—leading to more confusion and further elevating the false narrative that she would be a judicial activist.

So, what is originalism?

While there are several strains of this judicial philosophy, we should look to Judge Barrett’s own explanation of the doctrine during her confirmation hearing, especially since it is her perspective that will matter here:

I interpret the Constitution as a law … I interpret its text as text, and I understand it to have the meaning that it had at the time [the] people ratified it. So, that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.

She later said:

It’s original public meaning, not the subjective intent of any particular drafter, that matters. We are not controlled by how James Madison [the father of the Constitution] perceived any particular problem, but rather the people at that time.

Of course, Barrett isn’t the only one who holds to this judicial philosophy. Even some with a more liberal leaning, like Professor Akhil Amar of Yale Law School, are originalists.

For guidance on the Constitution’s “plain meaning,” it is important to have some historical context. The Federalist Papers are a series of essays that were written to gain the public’s support for the ratification of the Constitution, so they are a great source of information on the subject. Alexander Hamilton, the principal author of The Federalist Papers, focused on the Judiciary in Federalist 78 through 83 and wrote that the courts should base their decisions on “the fundamental law,” and when a statute is unconstitutional, it is their duty to adhere to the Constitution and strike the statute down.

Some of the Founders feared that the Judiciary, the branch least controlled by the people, could ultimately become the most powerful of the three. Hamilton noted that the Judiciary could not significantly hinder liberty in and of itself, but it would be dangerous if it was ever combined with one of the other branches.

The Federalist Papers are very clear that the Judiciary was expected to be the weakest of the three branches of the federal government. Therefore, Hamilton pointed out that “the supposed danger of judiciary encroachments on the legislative authority” was “in reality a phantom” because its power was bounded by its weakness, constitutional construction, and the legislature having impeachment power if necessary.

With this historical context, it becomes clear that originalism is a judicial philosophy that acts as a brake on runaway judicial power. Looking to the Constitution as our reference point, originalism acknowledges that the Judiciary would be a threat to freedom if it began legislating instead of just upholding the Constitution. Originalism is all about keeping the will of the people central and not imposing the Supreme Court justices’ own beliefs.

It’s important to note that the historical restraint of originalism doesn’t necessitate race discrimination, as was unfortunately the practice in 1791. Democrats implied this as a reason why they generally oppose originalism as a judicial philosophy. As for Judge Barrett, she stated that “Brown [the Supreme Court case that ended school segregation] was correct as an original matter.”

Originalism also doesn’t mean that the Constitution can’t be applied to modern times. Responding to Sen. Ben Sasse (R-Neb.) during her confirmation hearing on how originalism still applies to current issues, Judge Barrett said:

The Constitution—one reason why it is the longest-lasting written constitution in the world is because it is written at a level of generality that is specific enough to protect rights but general enough to be lasting.

When discussing Fourth Amendment issues of today with Sen. Marsha Blackburn (R-Tenn.), Judge Barrett further said:

The Fourth Amendment protects against unreasonable searches and seizures. It doesn’t mean that it protects only the kinds of searches and seizures that those who lived at the time of the adoption of the Bill of Rights could have anticipated. Surely, they could not have anticipated the internet or cell phones or airplanes, for that matter. One can reason from the kinds of privacy protections that were in place in 1791 when the Fourth Amendment was ratified to see if the search of modern technology now is analogous to it.

In her exchange with Judge Barrett, Sen. Diane Feinstein (D-Calif.), the highest-ranking Democrat on the Committee, peppered Judge Barrett with questions on policy and said her vote depended on the answers.  Yet this shows that Democrats want the Judiciary to act as a quasi-legislative body—the very thing the Framers feared. As an originalist, Judge Barrett will constrain herself to the law and not impose her own will on the people. She repeatedly let this be known throughout the hearing.

Having originalist judges on the Supreme Court prevents judicial activism and helps keep the one branch of government designed to be most removed from politics apolitical. The politicization and activism we have seen from the Court in recent decades make it more vital now than ever to ensure we have originalist justices on the Court.

The full Senate will begin consideration of Judge Barrett’s nomination on October 23. Debate and procedural votes will occur over the course of a few days, and the final floor vote is scheduled for October 26.

Let us hope and pray that we will have a new justice on the Supreme Court before October’s end!

In Fulton, the Religious Liberty of Foster Care Providers Hangs in the Balance

by Kaitlyn Shepherd

October 21, 2020

During its last term, the Supreme Court garnered considerable attention by wading into the culture wars over polarizing social issues such as abortion and sexuality. Decisions to strike down a common-sense law requiring abortionists to have hospital admitting privileges and to redefine “sex” to include sexual orientation and gender identity were mourned by conservatives and applauded by liberals.

While secular activists lamented, conservatives celebrated decisions upholding the rights of religious families and schools to participate in neutral tuition assistance programs and requiring foreign organizations to adopt policies opposing prostitution and sex trafficking to receive federal funds to combat HIV/AIDS. The Court will likely remain in the public eye during its current term, when it will hear arguments in Fulton v. City of Philadelphia, a case that will have significant implications for the future of religious liberty and foster care in America. The justices will hear oral arguments in the case on November 4.

The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….” Thus, the Constitution protects religious liberty in two separate but related provisions. The Establishment Clause prevents Congress from favoring any religious denomination at the national level, while the Free Exercise Clause guarantees Americans the right to believe and act according to their religious convictions. Both Clauses also constrain the actions of the states. Prior to 1963, the right to freely exercise one’s religion was somewhat limited. While an individual’s religious beliefs were absolutely protected, his or her freedom to act on those beliefs could be fairly easily regulated.  

In 1963 and 1972, the Supreme Court decided two landmark religious liberty cases, Sherbert v. Verner and Wisconsin v. Yoder. These cases established the strict scrutiny standard, which means that when the government implements a law or policy that burdens someone’s right to free exercise, it must show (1) that it has a compelling state interest that justifies its burden on religious exercise and (2) that its law or policy is the least restrictive means of accomplishing this compelling interest. Because of their robust protection of religious liberty, Sherbert and Yoder ushered in a Golden Age of religious freedom in America.

In 1990, the Court issued an unexpected decision that dramatically changed religious liberty protections. In Employment Division v. Smith, the Court abandoned the strict scrutiny standard and held that the government only needs to show that its law or policy is neutral and generally applicable in order to overcome a free exercise challenge. This “neutral law of general applicability” standard waters down protections for religious liberty by giving the government a lower bar to overcome. The government only needs to demonstrate that the law treats religious and secular groups equally and was not enacted to target religion. Under this standard, religious individuals are rarely successful in court and must prove that they were actively targeted for their religious beliefs to prevail.

In its upcoming term, the Court will consider Fulton v. City of Philadelphia. The decision will impact the rights of religious foster care agencies to speak and act consistently with their sincerely held religious beliefs. One of the plaintiffs in the case, Catholic Social Services (CSS), is a faith-based foster care agency that operates in Philadelphia. When a child enters Philadelphia’s foster care system, the City refers them to one of several foster care agencies. These agencies then evaluate prospective foster parents to certify that they meet state standards. Because of its sincerely held religious belief that marriage is between one man and one woman, CSS considers same-sex couples to be unmarried and is unable to certify them as foster parents. However, if an LGBT-identified couple were ever to approach them (which has never happened), CSS would refer them to another agency that would be a better fit. Nevertheless, Philadelphia’s Department of Human Services has stopped referring children to CSS.

In the lower courts, CSS argued that the City’s actions were neither neutral nor generally applicable and targeted CSS because of its religious beliefs. The Third Circuit Court of Appeals held that there was no First Amendment violation and that Philadelphia did not treat CSS differently because of its religious beliefs. Rather, the court found that Philadelphia was merely engaged in a good-faith effort to enforce its nondiscrimination policy, which “prohibits sexual orientation discrimination in public accommodations.”  

In Fulton, one of the major issues that the Supreme Court will consider is whether it should revisit its decision in Employment Division v. Smith. If the Court revisits and overrules Smith, it will be a major victory for religious liberty that could restore the favorable strict scrutiny standard. However, if the Court declines to revisit Smith, or revisits and upholds Smith, its damaging precedent will become further entrenched in American law, dealing a major blow to religious liberty. The Court’s decision could be influenced by its recent decision in Bostock v. Clayton County, which, as Justice Alito predicted in his dissent, could affect the speech of those who desire to “express[] disapproval of same-sex relationships …”

Allowing religious discrimination against faith-based foster care agencies would not just be a blow to the constitutionally-protected right of religious liberty. It would also be detrimental to the already overburdened foster care system. In states and localities that have forced religious agencies to close, children suffer. For example, after Illinois passed a statute that forced all foster care and adoption agencies to place children with same-sex couples, nearly 3,000 children were displaced from religious agencies that were forced to close, and over 5,000 foster homes were lost. In Philadelphia, the home of a “Foster Parent of the Year” award winner who had been serving needy youth for decades was forcibly closed to foster youth, as were others. After the City ended its contract with CSS, siblings of children who had already been placed by the agency faced the daunting prospective of being forced into separate homes.  

Pennsylvania is not the only state to witness the targeting of religious foster care agencies. In Michigan, an activist couple targeted St. Vincent Catholic Charities, passing four other agencies they could have worked with as they traveled from their home to St. Vincent. Here, referrals had been made. Children in St. Vincent’s care had been transferred to other agencies working with LGBT-identified couples who were interested in adopting children in St. Vincent’s care. And in New York, New Hope Family Services, which has been serving needy children for over 50 years, was informed by the state that it must either change its policy of referring LGBT-identified couples to other agencies or cease its adoption services. A New York District Court judge recently issued an injunction on behalf of the church, preventing the state “from revoking New Hope Family Services’ authorization to place children for adoption.”

In Fulton, the Court stands poised to issue a decision that will have a lasting impact on the religious liberty of foster care agencies and perhaps that of all Americans. While we watch and wait for the Court’s decision, we should pray that God would give the justices wisdom to make the right decision.

Kaitlyn Shepherd is a legal intern with the Policy & Government Affairs Department at Family Research Council.

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