Category archives: The Courts

Planned Parenthood Forgoes Title X Funding, Choosing Abortion over Women’s Healthcare

by Connor Semelsberger

August 19, 2019

Today, Planned Parenthood officially withdrew from the Title X Family Planning Program, choosing to reject millions of dollars in federal funding rather than stopping referrals for abortion. This announcement came after their fifth failed attempt to find a court that would block the Protect Life Rule from going into effect while litigation over the legality of the rule continues. Ultimately, this shows the upside-down world of Planned Parenthood, in which abortion is prioritized more than women’s care.

The Department of Health and Human Services (HHS) issued the Protect Life Rule to require physical separation between clinics that receive Title X federal funds for family planning services and facilities that perform abortions. It would also prohibit physicians at Title X family planning clinics from referring patients for abortions.

After five months of mudslinging, Planned Parenthood is out of legal ammunition, and the Protect Life Rule is still squeaky clean. HHS has now won before numerous federal courts – a federal district court in Maine, a panel of the 4th Circuit, and two panels in the 9th Circuit. The last straw came on Friday, when not a single judge on the infamously liberal 9th Circuit was willing to block the Protect Life Rule. In other words, Planned Parenthood’s favorite court sent their lawyers home with their tails between their legs. This decision by the 9th Circuit allows HHS to begin enforcing the Protect Life Rule while the merits of the case are litigated.

Soon after the 9th Circuit lifted the nationwide injunction blocking the Protect Life Rule, HHS announced that all grantees that seek to comply in good faith must certify by August 19th that they do not provide abortions and do not include abortion as a method of family planning.

Yet rather than comply, Planned Parenthood backed out of the family planning program altogether. With their decision to withdraw, Planned Parenthood is sacrificing $16,120,000 in direct Title X grants, in addition to the millions more they receive as subgrantees of Title X funds.

Planned Parenthood and the mainstream media are already trying to spin the Protect Life Rule as a “gag rule” that is “forcing” Planned Parenthood out of a federal program that they have participated in for 50 years, but that couldn’t be farther from the truth. Despite Planned Parenthood’s loud protestations, The Protect Life Rule does not ban physicians from discussing abortion with their patients. The rule does prohibit physicians from referring patients for abortions, but it permits doctors to provide non-directive counseling on the risks and benefits of all options, including abortion.

Planned Parenthood has had every opportunity to comply with the new rules regulating the Title X program. HHS provided proper guidance and would have assigned them a project officer to help them comply with the regulations. Despite all this, Planned Parenthood chose abortion over helping provide family planning services to their clients. The organization touts itself as a leading women’s health provider, but Planned Parenthood turned their back on the needs of women when they opted to forego millions of dollars to fund critical family planning services so that they could keep promoting abortions.

The Title X statute is clear, “None of the funds appropriated under this act shall be used in programs where abortion is a method of family planning.” The Protect Life Rule does nothing more than fully enforce the Title X program as it was written into law. No matter what Planned Parenthood and other abortion advocates say, the Title X program was never intended to subsidize an industry that finds value in ending innocent human life.

Aside from harming the many women Planned Parenthood will no longer be able to serve, the main outcome of this decision is to make clear what Planned Parenthood’s true priority is: abortion.

Court Rulings on the Protect Life Rule Leave Abortion Advocates Stunned

by Connor Semelsberger , Mary Jayne Caum

July 15, 2019

Across the United States, courts tasked with hearing the lawsuits against the Trump administration’s pro-life rule changes to the Title X Family Planning Program agree, “the Government is likely to prevail.”

When the Trump administration’s Department of Health and Human Services (HHS) published the Protect Life Rule, pro-abortion groups such as Planned Parenthood lost no time in filing lawsuits to halt the Rule’s implementation. Believing they would be assigned a favorable judge, opponents of the Rule filed suit in the Ninth Circuit and other friendly courts. Although opponents obtained an advantageous ruling at the district court level, ultimately a three-judge panel in both the U.S. Court of Appeals for the Ninth Circuit (9th Circuit) and the Fourth Circuit (4th Circuit) decided to lift the preliminary injunctions and allow the Rule to be implemented temporarily. Opponents of the Rule suffered another failure when an 11-judge panel sitting en banc in the 9th Circuit reiterated that the Rule should be implemented while the merits of the case are heard. Lastly, a district judge in Maine refused to halt the Rule’s implementation while the merits of the case are litigated. That totals four devastating and seemingly unexpected adverse rulings opponents of the Protect Life Rule have suffered thus far. 

In each Court Opinion, the various courts explain the Protect Life Rule should go into effect during the lawsuit, because HHS will likely prevail in defending the Rule. This legal conclusion is reached for primarily two reasons: precedent and statutory interpretation. The Supreme Court Decision Rust v. Sullivan upheld regulations nearly identical to the Protect Life Rule. Additionally, the Rule adheres to applicable statutes. Therefore, courts across the nation conclude that HHS is likely to succeed on the merits because of the precedent established by Rust and the Rule’s lawful adherence to statutory law. An issue brief published by Family Research Council has further information on the legal arguments surrounding Title X. 

These legal proclamations are devastating for pro-abortion groups because it undermines a significant portion of their industry. The clear separation that the Protect Life Rule establishes between family planning funding and the abortion industry is contrary to their worldview. If the Protect Life Rule is ultimately upheld, abortion providers must adhere to the regulations in order to continue receiving Title X funds. If abortion providers such as Planned Parenthood refuse to comply, however, those Title X family planning funds can be diverted to other healthcare clinics such as Federally Qualified Health Centers (FQHCs), Rural Health Centers, and Pregnancy Resource Centers which provide certain services that would be eligible for Title X funding under the Protect Life Rule

Since taking office, President Donald Trump and the U.S. Senate have worked together to confirm 127 federal judges. Several of these judges were vital to lifting the preliminary injunction against the Protect Life Rule, including two in the 9th Circuit, two in the 4th Circuit, and one in the United States District Court for the District of Maine. The ability of President Trump and the U.S. Senate to confirm constitutionally-minded judges shows that elections have consequences and that victory in the courts is crucial.

Without a favorable ruling on the merits, abortion referrals will continue, co-mingling of funds will perpetuate, and precious babies developing in the womb will perish. Courts must continue to discard the shallow political arguments opponents of the Rule are making and choose to uphold the law. The survival of countless lives depends upon future legal victories. 

Mary Jayne Caum is a Policy intern at Family Research Council. Connor Semelsberger is Legislative Assistant at Family Research Council.

Supreme Court Will Determine Whether “Sex” Means “Sex”

by Peter Sprigg

April 23, 2019

LGBT activists want “sexual orientation” and “gender identity” (“SOGI”) to be protected categories in federal non-discrimination laws. They have been using a two-pronged attack to try to achieve this goal—working through both Congress and the courts.

In Congress, they are pushing a sweeping bill that would add sexual orientation and gender identity to virtually every federal civil rights law. But in the courts (and some quasi-independent agencies like the Equal Employment Opportunity Commission), they have promoted the idea that federal law already outlaws SOGI employment discrimination. The theory is that discrimination based on “sexual orientation” and “gender identity” is actually a form of discrimination based on “sex”—which was outlawed in the Civil Rights Act of 1964. (Note that these two approaches are in some ways contradictory—if the judicial theory is correct, then the Equality Act is largely superfluous.)

The latter of these two approaches has now taken a huge step closer to resolution. On April 22, the U.S. Supreme Court agreed to take up three cases addressing the SOGI issue (these cases will be heard in fall of 2019).

In two of the cases (Bostock v. Clayton County and Altitude Express v. Zarda), the Court will decide the “SO” question—whether discrimination against an employee due to “sexual orientation” is included in the prohibition on discrimination “because of … sex” contained in the Title VII of the Civil Rights Act of 1964.

In a third case, R.G. & G.R. Harris Funeral Home v. EEOC, the Court will decide the “GI” question—whether Title VII’s prohibition on discrimination “because of … sex” includes a prohibition on discrimination against transgender people based on (1) their status as transgender or (2) the “sex stereotyping” theory derived from Price Waterhouse v. Hopkins (“sex stereotyping” initially meant one couldn’t discriminate against, for instance, a man for wearing pants that looked feminine—but has now been used to claim one could not discriminate against a man for wanting to identify as a woman).

When Congress prohibited employment discrimination based on “sex” in the Civil Rights Act of 1964, both their intention and the plain meaning of the word indicated that they were prohibiting discrimination against an individual because the person is biologically male or biologically female. The Supreme Court should decline the invitation to radically re-write the statute by expanding its meaning to cover “sexual orientation” and “gender identity.” Even Justice Ruth Bader Ginsburg, writing years ago about sex nondiscrimination protections in the Equal Rights Amendment, refused to countenance the idea that they would do away with simple male/female distinctions in the context of bathrooms.

The failure of LGBT activists to achieve their goals through the democratic process is no excuse to simply bypass that process and obtain their goal by judicial fiat instead.

FRC believes that SOGI laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous (like race and sex), or in the U.S. Constitution (like religion). We also believe such laws pose a threat to religious liberty in many situations, as was an issue in the Harris case that the Court will hear.

At the end of the day, the core issue before the Court in these cases is whether it is within the legitimate power of judges to suddenly rewrite a 55-year-old statute. The answer is no.

Return to the Constitution: Judicial Activism or Originalism?

by Zachary Rogers

February 12, 2019

FRC has consistently maintained that the Supreme Court needs to bring legal precedent more in line with the Constitution and the principles of the Declaration of Independence. But if this effort is taken up in earnest by a newly conservative Court, it is likely to be tarred as “judicial activism.” Judicial activism occurs when a judge applies his views rather than a faithful interpretation of the law to the case before him. What is needed, and what we look forward to seeing with the appointment of Justices Neil Gorsuch and Brett Kavanaugh and many more lower court judges, is judges’ faithful interpretation of the Constitution and the laws to the cases before them.

However, many on the Left think that overturning any of the bad precedent churned out by the Supreme Court is partisan judicial activism. It is not. To understand this, we must comprehend the structure the Framers crafted, the role of judicial review within it, and the place of the other branches within this system.

The Framers carefully crafted a system of ordered liberty, which entrusted certain enumerated powers to the national government and reserved the rest to the people and the states. The improved science of politics included checks and balances, separation of powers, and elected representatives.

They did this because the legislature and executive branch “could be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” In essence, Congress would promulgate laws, the president would execute them, and the Supreme Court would adjudicate the relevant laws in individual cases.

The Framers created a system of checks and balances in which ambition would be made to counteract ambition. Each branch was expected to protect its prerogatives and powers, thus enforcing separation of powers and preventing tyranny—the accumulation of legislative, executive, and judicial power. This system of limited government and ordered liberty under the Constitution has shifted since 1787.

The Constitution is the highest law of the land because it is the settled and deliberate will of the people against which congressional laws, executive actions, and Supreme Court decisions must be measured. Traditionally, all three of the branches were expected to be faithful to the Constitution in the execution of their duties.

The Progressive Era, however, caused the modern American regime to shift dangerously to the left. The president is no longer expected merely to execute the laws passed by Congress but to nudge the American people in a partisan direction. Congress spends little time passing laws; instead, it occupies most of its time overseeing executive agencies while delegating lawmaking to executive agencies. The Supreme Court perceives itself the ultimate interpreter of the Constitution—which could be defined in accord with the intent of the Framers or according to the “living” Constitution desired by the liberals.

The rise of the modern court occurred for two reasons. First, the theory of the living Constitution requires the document to be interpreted in accord with the spirit of the times. This requires it to have no fixed meaning, subject to varying interpretation, and acting as a vehicle of “progress” to move the American people forward. Second, modern liberals were able to use the courts to achieve social and political change. They were forced to do so because they were unable to achieve decisive victory at the ballot box, which would have allowed them to implement their desired laws and policy objectives.

One of the reasons Supreme Court practice has strayed from the Founder’s intentions is an erroneous understanding of Marbury v. Madison (1803). The modern understanding of this case is that the Supreme Court’s interpretation of the Constitution is the supreme law of the land, and all officials must comply with it. In fact, the Court ruled that when a law conflicts with the Constitution it is the Constitution that is paramount.

Judicial review is simply the authority to declare acts void when they conflict with the Constitution. A strict fidelity to the original meaning of the Constitution limits judges’ power. If a law violates the Constitution of the Framers, then it must be declared void.

Therefore, Supreme Court decisions are not the last word and may in fact be revisited in order to uphold a proper constitutional construction. In this partisan atmosphere, Christians and conservatives should expect charges of judicial activism in an effort to tar genuine efforts to return to constitutional law. A true recognition of judicial activism lets the American people distinguish between a rejection, distortion, or return to the Constitution.

Zachary Rogers is a Government Affairs intern at Family Research Council.

Justices Alito, Thomas, Gorsuch and Kavanaugh: We See Religious Freedom Problems with Coach Kennedy Case

by Travis Weber

January 22, 2019

Today the Supreme Court refused to take up the case of Coach Joe Kennedy, but some of the justices nonetheless sent a signal in favor of religious liberty.

Coach Kennedy, represented by our friends at First Liberty Institute, is a Christian high school football coach from Bremerton, Washington, who was punished after taking a knee and praying on the field after games. His case has been deliberated in federal district court, then the Ninth Circuit Court of Appeals, before making its way to the Supreme Court.

While the Court’s refusal to hear the case is not ideal, it appears that unresolved factual questions (the lower court never concluded whether Coach Kennedy was punished for praying or neglecting his professional duties) prevented the Court from hearing the full case and taking up the First Amendment free speech claim.

Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, penned a separate statement (see pp. 8-13) explaining that while he understands and agrees with the Court’s reason for not taking the case right now (if asked to do so, he would direct the lower court to reach a conclusion on this question, but at this point the Court was only asked to decide the legal question), he doesn’t necessarily agree with the lower court rulings, which appear problematic for religious liberty and the First Amendment:

While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.

Alito criticized the “highly tendentious way” the Ninth Circuit applied the case of Garcetti v. Ceballos (dealing with the First Amendment rights of public employees) to Coach Kennedy’s situation, which would have required public school employees like teachers and coaches to refrain from any religious activity a student might see or the school might not like, from the time the teacher or coach shows up in the morning until the time they leave. Alito concluded:

If the Ninth Circuit continues to apply [this] interpretation of Garcetti in future cases involving public school teachers or coaches, review by this Court may be appropriate.

Alito wasn’t finished:

What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty. I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way. After emphasizing that [Coach Kennedy] was hired to “communicate a positive message through the example set by his own conduct,” the court criticized him for “his media appearances and prayer in the [Bremerton High School (BHS)] bleachers (while wearing BHS apparel and surrounded by others).” [citation omitted] This conduct, in the opinion of the Ninth Circuit, “signal[ed] his intent to send a message to students and parents about appropriate behavior and what he values as a coach.” [citation omitted] But when [Coach Kennedy] prayed in the bleachers, he had been suspended. He was attending a game like any other fan. The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable.

It’s very encouraging to see Justice Alito on record noting the religious liberty problems with this case—something we’ve come to expect from him—along with Justices Thomas and Gorsuch. But it’s particularly heartening to see Justice Kavanaugh join this statement. While his judicial record would have suggested he’d rule the right way on religious liberty issues once seated on the Court, his refusal to join these three justices in dissenting from denial of cert in the Planned Parenthood defunding cases late last year left many wondering whether he would be a true originalist. While these actions don’t necessarily indicate how the justices will rule on the merits (there’s a good chance Justice Roberts still agrees with his originalist colleagues on these matters), they are heartening nevertheless.

Justice Alito concluded by almost inviting Coach Kennedy to ask the Court to reconsider Trans World Airlines, Inc. v. Hardison, a Title VII case lowering employee protections against religious discrimination, and Employment Division v. Smith, which cut back on Free Exercise protections and prompted the Religious Freedom Restoration Act to be passed over twenty-five years ago.

Let us hope Justices Alito, Thomas, Gorsuch, and Kavanaugh are prophesying where the Court is going on religious liberty.

Supreme Court Pass on Defunding Cases Reminds Us of the Horrors of Planned Parenthood

by Patrina Mosley

December 11, 2018

Many are upset at the Supreme Court’s decision to not review a set of cases that could have brought clarity to whether an individual has the right to sue their state government for withholding Medicaid funds from certain healthcare providers, some of which included Planned Parenthood. As pro-lifers think back to January 2018, we remember when President Trump rescinded Obama-era guidance that had made it harder for states to defund abortion-performing entities like Planned Parenthood. So, what just happened?

After undercover videos were released in 2015 that showed Planned Parenthood selling the remains of aborted baby parts, several states moved to defund them by withholding Medicaid funds. Pro-abortion individuals and Planned Parenthood themselves began to sue many of the states for this action. In 2016, pro-abortion President Obama took precautions and issued guidance that basically tried to scare states into not defunding entities that performed abortions, telling them they could be in violation of the law if they did so.

In reality, due to the Hyde Amendment, Medicaid dollars cannot go towards paying for abortion, except in cases of rape, incest or life endangerment, and most states follow this federal standard, although they do have the option to cover abortion using explicitly “state” Medicaid funds. However, Medicaid money is fungible for entities that perform other services aside from abortions, which many Americans do not like and thus have already made it clear that they do not want their tax dollars entangled with the abortion business.

Cases involving state attempts to defund entities like Planned Parenthood were split on the question of whether an individual has the right to sue states for withdrawing such funding. When cases involving Kansas and Louisiana’s attempts to withdraw this funding reached the Supreme Court, many were looking to the Court to bring clarity to this issue—but they did not. Instead, they just kicked the can down the road to be resolved another day. And no doubt that day for resolution will come. The underlying question to settle is whether states have the right to decide how to best use their Medicaid dollars.

However, it’s important to remember that the Supreme Court’s decision to punt this to another day does not block and nor should it discourage states from their pursuits to defund Planned Parenthood and reallocate their Medicaid funds to better healthcare options for women. President Trump’s action rescinding President Obama’s 2016 guidance freed states from the fear of federal government punishment if they decided to defund entities like Planned Parenthood, and states should continue to capitalize on this.

We will not forget the horrific scandals of Planned Parenthood that brought us to this place to begin with. From committing over a third of the nation’s abortions, to Medicaid fraud, botched abortions, declining services, and participation in the sale of aborted baby parts, Planned Parenthood is not a place that should qualify as healthcare and does not deserve our tax dollars. For every Planned Parenthood, there are 20 more qualified federal healthcare centers that do not perform abortions and yet provide more services for women. Let’s use them!

Supreme Court Refuses to Rule on State Decisions to Defund Planned Parenthood

by Travis Weber

December 10, 2018

Over the past several years, a number of states have tried to terminate Medicaid contracts with Planned Parenthood for various reasons, not the least of which because of videos released depicting Planned Parenthood officials engaging in the sale of fetal tissue and body parts.

But how much discretion does a state have to terminate those contracts? Can an individual sue any time they disagree? This question goes beyond the topic of Planned Parenthood funding specifically. But today, the United States Supreme Court declined to review a set of cases that could have provided an answer, leaving in place several lower court decisions that have blocked state executive decisions to terminate Medicaid contracts with and defund Planned Parenthood.

In Planned Parenthood of Gulf Coast v. Gee (5th Cir.) and Planned Parenthood of Kansas & Mid-Missouri v. Andersen (10th Cir.), two circuit courts separately agreed that individuals have the right to sue states for withdrawing Medicaid funding from and thus limiting access to providers.

In other words, in five circuits, according to Justice Clarence Thomas (writing in dissent from the court’s decision today (see pp. 9-12)), “individuals could sue whenever a state changes medical product providers or services.” Sound like bad policy? At the very least, it’s one inconsistently applied across the circuits.

For one, states need clarity on this issue, and they still don’t have it.

Justice Thomas called it “the Supreme Court’s job” “to clarify the confusion in the law in this area.” True. The Court’s own rules—and caselaw—provide as much.

So what explains the Court’s refusal to do its job here?” Justice Thomas posited. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’”

As Justice Thomas notes, “the question presented here would not even affect Planned Parenthood’s ability to challenge the States’ decisions” to defund. But Justice Thomas suggests that the political cloud that hovers over the topics of abortion and Planned Parenthood prevent even the most sterile and noncontroversial legal issues from getting the attention they deserve. We’re inclined to agree.

This case “has nothing to do with abortion,” Justice Thomas points out. It’s just about a private right of action under Medicaid—involving whether individuals can sue, for instance, whenever a state changes medical product providers or services.

Are these cases considered hot potatoes because of their broader abortion defunding implications? Possibly.

Right now, 13 states have taken action to defund abortion in Medicaid programs: Alabama, Arizona, Arkansas, Florida, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, South Carolina, Tennessee, and Texas. Florida’s measure wound up in the courts, and was blocked. Other cases, like a challenge to an Ohio funding law, involve payment to abortion providers in other contexts.

These cases are not directly affected by the Supreme Court’s actions today. But the optics certainly wouldn’t look good for Planned Parenthood if a Supreme Court decision, even on different legal grounds, meant that states could go forward with their decision to defund Planned Parenthood.

One of these days, the Supreme Court will have to confront the issue.

Pray Tell: Atheist Sues to Lead Legislative Prayer

by Family Research Council

November 1, 2018

In a peculiar turn of events, secularist organization Freedom From Religion Foundation (FFRF) has argued before a federal appeals court that an atheist has the right to pray on the floor of the U.S. House of Representatives.

Dan Barker, co-founder of FFRF, desired to serve as Rep. Mark Pocan’s (D-Wis.) guest in leading the opening prayer for the following legislative session. Barker is an atheist. His request was denied because it was determined that he did not meet the chaplain-policy requirements to give an invocation on the House floor. His lawsuit argues that the policy unconstitutionally discriminates against nonbelievers under the Establishment Clause of the United States Constitution.

It is ironic and hypocritical that the group that routinely seeks to box out religion from the public square is now invoking the principles of religious freedom in order to make a secular invocation in our national legislature.

This anomaly notwithstanding, the greater issue is that the current judicial precedent surrounding the Establishment Clause is so malleable (one federal circuit court judge called it “a hot mess” and “a wreck”) that even something as unobtrusive as prayer is no longer guaranteed protection in the public square. Coach Joe Kennedy of Washington is one example, and there are many more like him across the nation.

As the late Justice Antonin Scalia observed, 1970s-era Establishment Clause doctrine has created a “geometry of crooked lines and wavering shapes” in this area of constitutional law. So what should we expect out of the judges responsible for interpreting constitutional law at our nation’s highest court and in lower courts across the country?

To establish sound Establishment Clause (or any constitutional) doctrine, the most intellectually honest and sustainable approach is to look to the understanding of the Founders at the time they penned and ratified the U.S. Constitution. This means looking at history. As the U.S. Supreme Court once said, “The line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.” This idea of looking at the understanding of the drafters of any law is as true for the latest entry of the U.S. Code as it is for the First Amendment.

Barker’s case involves legislative prayer, which is specially recognized for its undeniable historical precedent. In fact, legislative prayer, or “divine service,” has taken place as early as the 1700s. Largely because of its deep roots in history, legislative prayer is considered constitutional. It is an instructive example of how the courts have used and should use legal history to determine the constitutionality of religion in the public square. Unfortunately, the same is not true for judicial precedent surrounding religiously inspired monuments or certain tax exemptions, which some argue should fail constitutional muster under the Establishment Clause.

Fortunately, scholars have observed a resurgence in the role of legal history in modern judicial decision-making at the Supreme Court. What’s more, President Donald Trump’s laser-like focus on the appointment of judges has resulted in “appointees [that] are showing themselves to be strong spokespeople for what is generally described as the conservative viewpoint.” As such, law professor Arthur Hellman of the University of Pittsburgh said, “[n]ew blood reopens old issues.” And even though this use of legal history, or “originalism,” has become associated with “the conservative viewpoint,” the fact is that it is “ideologically neutral. On various stormy issues, both the conservative and liberal factions . . . have found safe harbor in historical reasoning.” What all this means is stable judicial precedent—not the confusion that exists today.

As with the doctrine of legislative prayer, we need to return to our legal historical roots and use what we find there as our guiding principles for understanding the constitutionality of religion in the public square.

Moreover, with mid-term elections on the horizon, it is critical that we vote in U.S. Senators who will help appoint judges that protect our constitutional rights. Our Republican-controlled Senate has faithfully stewarded its advice-and-consent powers by helping appoint judges who value historical reasoning. We ought to vote for candidates who will continue this trend.

Public prayer in schools and the government workplace, for instance, is more constitutional than it’s given credit for. You can feel assured in this by looking no further than Article III of the Northwest Territory Ordinance of 1787, in which the Founding-era Congress stated, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

As for Barker and his legislative prayer case—we’ll have to see whether the judges in his case conclude that history is on his side.

Ala. Supreme Court Justice: Roe Cuts Off the Unborn’s Full Right to Life

by Family Research Council

October 31, 2018

In a concurring opinion, Justice Tom Parker of the Supreme Court of Alabama called on the nation’s highest court to overturn Roe v. Wade (1973) and remove the last major obstacle to the states’ right to enact protections for the unborn.

Earlier this month, the Supreme Court of Alabama affirmed that Jesse Livell Phillips will face the jury-recommended death penalty for the murder of his young wife and their unborn child. Prosecutors used Alabama’s Brody Act, one of several laws in Alabama that legally recognize the personhood of the unborn.

Justice Parker agreed with the outcome and wrote separately to denounce what he calls the “Roe exception.” Because of the U.S. Supreme Court’s holding in Roe, he writes, “the only major area in which unborn children are denied legal protection is abortion.” The “unborn child’s fundamental, inalienable, God-given right to life is the only right the states are prohibited from ensuring . . . .”

His proffer comes at a time when advocates on both sides of the life debate are keeping a close watch on the new makeup of the U.S. Supreme Court and how it might rule in a case that allows it to revisit the holding in Roe. But for years Justice Parker has urged that the decision in Roe is outmoded, that the holding in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) meant to address the decision in Roe only created more issues, and that the unborn are “entitled to the full protection of law at every stage of development.”

Many (though not all) state legislatures agree. Americans United for Life comprehensively documents the “legal recognition of the unborn and newly born” available in every state. Another article covers the numerous state laws governing crime, tort, health care, property, and guardianship that recognize the personhood of the unborn.

But Justice Parker points out that “in spite of voluminous state laws recognizing that the lives of unborn children are increasingly entitled to full legal protection, the isolated Roe exception stubbornly endures.”

At least two courts have ruled on the side of life in cases about statutes requiring abortion clinics to have hospital admitting privileges. But a case from the U.S. Court of Appeals for the Seventh Circuit may present the opportunity to strike at the heart of the matter and revisit the aberrational decision in Roe. If the justices on the U.S. Supreme Court take up the case on this ground, we hope they heed Justice Parker’s call for the restoration of the power of the states to protect the lives of the unborn in all areas of the law.

Pro-Life Law Upheld By Another Federal Court: Dare We Say “Momentum”?

by Cathy Ruse

October 22, 2018

The Louisiana law requiring abortionists to have hospital admitting privileges was recently upheld by the federal 5th Circuit Court of Appeals. Last month, a similar Missouri law was also upheld.

This feels like momentum. 

This column contains a good description of where the legal fight stands on requiring abortionists to obtain admitting privileges.

Good, but confusing, because the Supreme Court has confused things so much. 

Here’s my attempt at a shorter description:

Prior to the devastating 2016 Whole Women’s Health v. Hellerstedt ruling striking down Texas’ abortion safety regulations, the Supreme Court had long used the “undue burden” standard from Casey (1992) to measure the constitutionality of state abortion regulations: A law could stand if (1) the state had a legitimate reason for the law, and (2) the law did not impose an “undue burden” on obtaining an abortion (meaning it did not place a “substantial obstacle in the path” to obtaining an abortion).

But the Hellerstedt majority did not follow this legitimate reason + no undue burden formula. Instead, it asked whether the burdens from the law outweigh the benefits from the law

This is a new balancing test, and there is a lot of room for judicial shenanigans in balancing tests.

As the majority in Hellerstedt saw it, many Texas clinics threatened to close, so that showed a large burden, and since abortion was already safe in Texas (the court’s conclusion), additional safety requirements would provide little benefit.

Importantly, the court disregarded the legislators’ position that hospital admission privileges do provide a health benefit for women. 

But the recent 5th Circuit’s application of the balancing test came out differently.

In Louisiana, only one of the five clinics threatened to close. On the benefit side, the court gave deference to legislative position that admitting privileges provide “a real, and previously unaddressed, credentialing function that promotes the wellbeing of women.”

The really gratifying part of the 5th Circuit opinion is when they call out these abortionists for not even really trying to get admitting privileges—for “sitting on their hands.” One abortionist apparently threatened to close if his was the only abortion clinic left, but then when he learned that another clinic would be remaining open, he changed his position and threatened to close if his was one of only two clinics left. This shows bad faith, and the 5th Circuit wasn’t going to be played for fools. 

It would be best, of course, if the Supreme Court got rid of the Hellerstedt balancing test altogether. Perhaps that will happen now that there are a majority of justices who aren’t keen to make up fancy new standards to get the results they want. 

But in the meantime, pro-life laws are winning, even under a bad standard. 

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