Author archives: Katherine Beck Johnson

A Loss for Women and Children at the Supreme Court

by Katherine Beck Johnson

July 1, 2020

Earlier this week, the Supreme Court issued its much-anticipated ruling in June Medical Services v. Russo, the first major abortion case the Court has taken up since President Trump appointed Justices Gorsuch and Kavanaugh. The Court’s ruling struck down Louisiana’s law requiring abortionists to have hospital admitting privileges. While Justices Gorsuch and Kavanaugh were both in the dissent, Justice Roberts proved to be the disappointing fifth vote that struck down the common-sense law.

Louisiana’s admitting privileges law was in the best interest of women. If something were to go awry during an abortion, the abortionist would be able to get the woman admitted to the hospital and explain to her doctors precisely what had occurred. If the abortionist does not have admitting privileges, the woman might be forced to call an ambulance and explain what had happened herself—a heavy burden to place on the woman, and quite impossible if she is unconscious. Requiring admitting privileges is a common-sense regulation that applies to every other outpatient surgical center in Louisiana. Nevertheless, liberal justices and Justice Roberts were unwilling to uphold the requirement when applied to abortion clinics.

In a previously decided case, Whole Woman’s Health v. Hellerstedt, Texas’s admitting privileges law and a few other abortion regulations had been at issue. The Court held that Texas’ law created an undue burden. Justice Kennedy provided the decisive fifth vote that struck down the pro-life and pro-woman law. Justice Roberts dissented.  

Whole Woman’s was a poorly decided case that needed to be overturned. The Court had the chance to overturn it in June Medical with Justice Kennedy off the Court and two new Republican-appointed justices. Instead, once again, the Court struck down a law aimed at saving unborn lives and protecting women’s health.  

Justice Roberts dissented in Whole Woman’s, yet he voted with the liberal justices in June Medical to strike down Louisiana’s admitting privileges law. Interestingly, in his concurrence, Justice Roberts said that he still agrees that Whole Woman’s Health was wrongly decided, yet said he is bound by stare decisis to uphold the law. Stare decisis is a legal principle that means you decide a case bound by precedent, regardless of whether the precedent is correct. Roberts claims that “for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly.” Yet, Roberts has not felt bound by stare decisis in plenty of his other opinions, including Citizens United v. FEC. When it comes to abortion, however, Justice Roberts suddenly feels his hands are tied. Regardless, if a legal precedent is wrong, he and the Supreme Court should do the right thing and overturn it. With women and children’s lives on the line, Justice Roberts chose to adhere to a precedent he acknowledges is wrong.

Justice Roberts’ adherence to stare decisis is problematic for the future of abortion law at the Supreme Court. If Justice Roberts thought adhering to a five-year-old precedent of knocking down hospital admitting privileges is so embedded in our country’s jurisprudence to deserve stare decisis, he almost certainly views Roe v. Wade and Casey v. Planned Parenthood as deserving of stare decisis, even if he disagrees with the opinions. This indicates that while judicial nominees are extremely important, they can be unreliable. It is no longer enough for the pro-life movement to depend on Republican-appointed justices and hope they will do the right thing on abortion.

Women and children lost at the Supreme Court on Monday. The abortion industry won. Once again, abortionists proved that rules don’t apply to them; they are exempt from laws. Despite this disappointing loss, the pro-life movement should not lose hope or remain discouraged. The fight for civil rights will continue—with or without Justice Roberts on our side.

Supreme Court Abandons Human Dignity in Russo but Upholds It in Open Society

by Katherine Beck Johnson , Kaitlyn Shepherd

June 30, 2020

The disappointing decision in June Medical v. Russo dominated the airwaves yesterday. However, there was a win for human dignity in another Supreme Court case. In Agency for International Development v. Alliance for Open Society International, Inc., the Court held that the Leadership Act’s Policy Requirement—which requires organizations receiving federal funds to combat HIV/AIDS to adopt a policy explicitly opposing prostitution and sex trafficking—is constitutional as applied to domestic organizations’ foreign affiliates. We applaud the Court’s decision. The Leadership Act’s Policy Requirement is a common-sense measure that promotes the human dignity of all people and especially women, who are most frequently the victims of prostitution and sex trafficking.

In 2003, congressional findings indicated that HIV/AIDS had “assumed pandemic proportions.” Data showed that, since the 1980s, the disease had killed more than 25 million people, infected an additional 40 million people, and orphaned an estimated 14 million children worldwide. In response, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the Leadership Act) “outlined a comprehensive strategy to combat the spread of HIV/AIDS around the world.” As part of this strategy, the Act prescribed efforts “to address the social and behavioral causes of the problem” and authorized the president to allocate funds to organizations that combat HIV/AIDS overseas. With a few exceptions, only organizations that adopted “a policy explicitly opposing prostitution and sex trafficking” were eligible to receive funds.

In 2005, a group of United States-based organizations challenged the Policy Requirement. They argued that “adopting a policy explicitly opposing prostitution may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS.” Some organizations on the left, joined by some libertarians, advocate for the legalization of prostitution (which they call “sex work”), ostensibly to allow government regulation of health and safety. They argue that a distinction can be made between “sex work” and “sex trafficking” and believe that legalization would help to empower “sex workers.” Prostitution is inherently degrading to women, and there is no evidence that its legalization makes this practice less exploitative. When it comes to fighting HIV/AIDS, discouraging a “profession” that inherently involves the high-risk behavior of sexual relations with multiple partners should be part of our national strategy. Congress held this view, and insisted that U.S. aid recipients overseas do the same.

In 2013, the Supreme Court held that the Policy Requirement was unconstitutional as applied to American organizations operating overseas because it compelled these organizations to adopt the government’s stance on prostitution and sex trafficking as a condition of receiving the funds.

In 2015, the organizations renewed their challenge to the Policy Requirement. They opposed the government’s continued application of the Policy Requirement to their “closely aligned” foreign affiliates, organizations that shared the same “name, logo, brand, and mission” but were legally separate entities incorporated under the laws of other nations. The Second Circuit Court of Appeals struck down the Policy.

In its decision yesterday, the Supreme Court reversed the decision of the Second Circuit. Writing for the majority, Justice Kavanaugh noted that long-standing principles of American law compel the conclusion that “[a]s foreign organizations operating abroad, plaintiff’s foreign affiliates possess no rights under the First Amendment.” President Trump’s other appointee, Justice Gorsuch, also joined the majority. The Court was unpersuaded by the organizations’ argument that the speech of their foreign affiliates would be misattributed to them because the organizations were not compelled by the government to affiliate with these foreign organizations or to espouse their message. Any misattribution would be a result of their own actions, not those of the government.

The Court’s decision has important implications for human dignity. The Bible teaches that both men and women are created in the image of God and that each person is “fearfully and wonderfully made.” This means all people possess inherent dignity, worth, and value. By objectifying women, the sex trafficking industry fails to acknowledge the human dignity of women. Congress itself recognized this, stating that “[p]rostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices.” The Court’s decision yesterday should be celebrated because requiring organizations to adopt a policy explicitly opposing prostitution and sex trafficking promotes the dignity of all people around the world. 

Katherine Beck Johnson is Research Fellow for Legal and Policy Studies at Family Research Council.

Kaitlyn Shepherd is a Policy & Government Affairs intern at Family Research Council.

Is Judge Duncan an “Ultra-Conservative” or Just an Originalist?

by Katherine Beck Johnson

June 16, 2020

The Guardian put out a piece attempting to criticize Judge Stuart Kyle Duncan on the Fifth Circuit Court of Appeals. The piece only succeeded in highlighting the author’s fundamental misunderstanding of the role of a judge. It is not the role of a judge to weigh into what the law should be, but rather the judge interprets what the law is, the law enacted by the people’s representatives. 

Many of President Trump’s judicial nominees are originalist and textualist. While these may be considered “conservative” judicial philosophies, the result is not always conservative policy goals. If the judge is interpreting a “liberal” law, the text will lead to a result that is liberal. The basic goal of originalism and textualism is that the people, not unelected judges, say what the law ought to be. The judge’s role is to say what the law is, or what the people enacted through their elected officials. Therefore, the Guardian’s fearmongering piece claiming that the judges appointed by President Trump have any role in abortion law is false. It isn’t Trump-appointed judges, it’s the people that have the role of saying what abortion laws should prevail in their states. Judge Duncan is no exception to this rule.

The piece quotes the legal director at Alliance for Justice saying, “For the overwhelming number of cases, the constitutional rights of the people in Texas, Louisiana and Mississippi will be made by Kyle Duncan and the other ultra-conservatives on the fifth circuit.” This is false. The rights of the people will be made by the people—not the judges on the fifth circuit.

While a lawyer in private practice, Judge Duncan advocated for Louisiana’s law that is currently before the Supreme Court: June Medical v. Russo. This law requires abortionists to have admitting privileges at a nearby hospital. It’s a commonsense law that demands abortion facilities abide by the same rules as all other outpatient surgical centers. When Judge Duncan was in private practice, he defended this law on behalf of the state of Louisiana until he became a judge. The Fifth Circuit, where Judge Duncan now sits, upheld this law. Judge Duncan followed proper judicial protocol and recused himself from the case because he had advocated for Louisiana when he was in private practice. He has clearly conducted himself in an ethical manner on the Fifth Circuit.

The Guardian piece is yet another example of a judge being attacked for their faith, as the piece specifically points out Judge Duncan’s Catholic faith. In America, one’s religion does not prevent them from being selected for a job. Judge Duncan’s history advocating for religious liberty is another aspect of him that the piece viewed as problematic. A judge that recognizes our first freedom, our freedom of religion, is not problematic. Judge Duncan understands just how important religious liberty is to our Constitution.

The Constitution makes it clear that the role of a judge is to say what the law is and not what the law ought to be. The people of the United States are the ones charged with saying what the laws that dictate their lives should be. Judge Duncan knows his role as a judge and has done a wonderful job. We need more judges like Judge Duncan.

The Sixth Circuit Allowed Abortion Activists to Challenge a Pro-Life Law. The Supreme Court May Soon Stop the Practice.

by Katherine Beck Johnson

June 5, 2020

Abortion was back in the federal appellate courts this week, this time because of a challenge to Kentucky’s dismemberment ban. In April 2018, Kentucky House Bill 454 was signed into law. It prohibited abortions that “result in the bodily dismemberment, crushing, or human vivisection of the unborn child” if the child is 11 weeks or older.

Kentucky wanted to outlaw dismemberment defined as “a procedure in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts portions, pieces, or limbs of the unborn child through the use of clamps…” This is certainly not the first time a type of abortion procedure has been outlawed. In Gonzalez v. Carhart, the Supreme Court upheld Congress’s law that outlawed partial-birth abortion, a procedure that involves partially delivering the baby alive before ending the life.

Two judges in the Sixth Circuit struck down the Kentucky law. The majority lamented about how women have a right not to be burdened while obtaining an abortion. However, the majority failed to acknowledge that a woman could still obtain an abortion, just not one using the dismemberment method. Judge John Bush, a Trump appointee, wrote his strongly worded dissent. Bush spoke about the conflict of interest between abortion providers representing women in court. Judge Bush noted that two abortion providers and a clinic were claiming to advocate on behalf of women. Not a single party to the case had their constitutional rights directly impacted.

Judge Bush noted that, for some reason—whether financial, litigation strategy, or otherwise—EMW Women’s Surgical Center refused to obtain the training to perform fetal demise (kill the unborn child), regardless of the fact that studies indicate many women would choose fetal demise before a dismemberment procedure. It was clear from oral arguments that EMW was not looking out for what was best for women. When the abortion provider was asked what would happen if a woman did request fetal demise, the answer was that nothing would be done to honor her request.

Whether abortion providers should have the ability to automatically represent women in court is a question currently before the Supreme Court in June Medical Services v. Russo—a case in which the Court will be issuing an opinion in the coming weeks. Family Research Council filed an amicus brief arguing that there is no statutory authority granting abortion providers the ability to automatically stand in for women. There is a clear conflict of interest; abortion providers do not have women’s best interests in mind, and they should not be allowed to represent them in court. Abortion providers are looking out for themselves and their profit, which is a far cry from women’s health.

Let us hope the Supreme Court keeps this in mind when it rules in Russo in the coming weeks. Women facing pressure from the abortion industry deserve to have their true interests looked after, and their voices heard. Pro-life voters across America deserve to have their choices respected.

Churches Are Filing Lawsuits Over Coronavirus Restrictions. Here Is a List.

by Katherine Beck Johnson

May 20, 2020

**UPDATED as of 6/11

As the coronavirus pandemic has swept across the globe, many state and local governments have issued stay-at-home orders. Almost everyone in the United States has had some kind of restriction placed on them.

Various government authorities, particularly governors in California, Kentucky, Illinois, and Maine, have failed to prioritize religious liberty even as they prioritize other secular interests. Rather than looking at churches as partners to help care for our communities at this time, the governors in these states have treated churches as antagonists. Along with other governmental authorities, they have failed to cooperate with churches, often hindering them from assisting their communities during this time.

The Department of Justice, which has been focused on protecting religious liberty, especially during the pandemic, released a memo expressing its concern that this right not be violated at this time. The memo notes that reasonable restrictions may be permissible. However, a state may not cross the line from “an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections.” Many churches have challenged discriminatory state and local orders by bringing suit in court. These court cases are listed below.

Churches that Won

1. Tabernacle Baptist Church v. Beshear

To curb the spread of the coronavirus, Kentucky governor Andrew Beshear ordered nonessential businesses to close. The state put a limit on “mass gatherings,” including those considered “faith-based.” Tabernacle Baptist Church planned to hold services in accordance with social distancing guidelines. Nevertheless, they were not allowed. The judge held that Tabernacle’s free exercise rights were violated, and granted a temporary restraining order.

2. On Fire Christian Center v. Fischer

On Fire Christian Center in Louisville, Kentucky was granted a temporary restraining order, allowing it to hold drive-in services for Easter Sunday. Judge Walker found that the Louisville mayor’s prohibition was not neutral because it allowed businesses, such as liquor stores, to remain open for drive-through purposes but not churches.

3. Maryville Baptist Church v. Beshear (church initially lost)

The district court denied the Hillview, Kentucky church’s emergency motion for a temporary restraining order. The district judge found that the order applied to “all gatherings” and not just faith-based gatherings. The judge found the exceptions to be singular transitory experiences, whereas church services are communal activities. However, the opinion was appealed to the Sixth Circuit.

On appeal, the Sixth Circuit held that the governor’s order likely prohibits the Free Exercise Clause and the Fourteenth Amendment, especially with respect to drive-in services. The governor had allowed law firms, laundromats, liquor stores, and gun shops to continue operating. The plaintiff’s motion for an injunction pending appeal was granted.

4. First Pentecostal Church of Holly Springs v. City of Holly Springs

In Mississippi, First Pentecostal Church of Holly Springs filed suit seeking a temporary restraining order permitting a planned Sunday service. At the hearing, the judge believed the city had made concessions that would resolve the dispute in question, but the court still put forth an order to clarify things. The judge noted that drive-in services should be permitted. Yet, the judge was less sympathetic to a request for a 35-person indoor gathering.

5. Berean Baptist Church v. Cooper

A federal judge in North Carolina granted a temporary restraining order, which allowed churchgoers to attend church in person. The North Carolina governor banned indoor church services of over 10 people, though outdoor services were still allowed. The judge noted that some religious services cannot be conducted outdoors or with fewer than 10 people. He also noted that the governor allowed over 10 people indoors for secular activities. Finally, the judge said, “The Governor has failed to cite any peer-reviewed study showing that religious interactions in those 15 states have accelerated the spread of COVID-19 in any manner distinguishable from non-religious interactions.”

6. Elkhorn Baptist Church, et al. v. Brown

More than 10 Oregon churches and multiple individuals brought suit against Governor Brown’s stay-at-home order. When the state started phase one opening, many churches still experienced heavy operating restrictions. The judge ruled that Brown’s executive order was null and void.

7. Edgewater Christian Church v. Brown

Two churches in Oregon sued Governor Brown. The church argues that if people are able to gather at restaurants, they should be able to gather at church.

*Update: Case voluntarily dismissed on June 10, 2020 after Phase 2 of Oregon’s reopening plans allows church to resume services.

Churches that Lost

1. Lighthouse Fellowship Church v. Northam (DOJ intervened)

In Virginia, Lighthouse Fellowship Church on Chincoteague Island filed suit after the pastor was issued a citation for holding a Palm Sunday service for 16 people. The church sought a preliminary injunction against Governor Northam’s order, but a U.S. District Court judge denied that request. The next day, attorneys for the church filed a notice that it would appeal to the U.S. Court of Appeals for the Fourth Circuit and asked again for a temporary restraining order.

Governor Northam’s new order will allow churches to hold gatherings at 50 percent capacity.

2. Cassell v. Snyders

In Illinois, The Beloved Church sued because the stay-at-home order infringed on their religious practices. The governor reissued an order allowing churches to meet as long as they abided by the requirement of no more than 10 people. The judge held that the current crisis implicates Jacobson and advances the government’s interest in protecting Illinoisans from the pandemic. It has been appealed to the Seventh Circuit.

3. Legacy Church, Inc. v. Kunkel

In New Mexico, Legacy Church challenged the governor’s executive order, which restricts places of worship to gatherings of no more than five people within a single room. The judge held that the order did not violate the church’s First Amendment because it was neutral and generally applicable.

4. Calvary Chapel of Bangor v. Mills

In Maine, Calvary Chapel sued Governor Mills over her executive order, which limited gatherings to 10 people. The district judge held that the plaintiff was unlikely to succeed on the merits. The judge found that the order was placed to protect the people from the virus. The judge found the order to be neutral and generally applicable.

5. Elim Romanian Pentecostal Church v. Pritzker

Two churches in Illinois sued because they did not want to abide by the 10-person limit. The judge held that under Jacobson and a First Amendment analysis, the churches lost. The judge found that the order does not target religion. He noted that gatherings at church pose much more risk than gatherings at businesses. Finally, the judge noted that the order had nothing to do with suppressing religion but rather was executed to protect people from the disease.

6. Gish v. Newsom

A day after Easter, three church pastors and a congregant sued the state of California, as well as Riverside and San Bernardino counties, for refusing to designate houses of worship as essential services. The social distancing mandates are particularly challenging for James Moffatt of Church Unlimited in Indio, who, the lawsuit complaint said, “believes that scripture commands him as a pastor to lay hands on people and pray for them, this includes the sick.” Here is the church’s complaint.

*Update: Request for a Temporary Restraining Order was denied. The orders were found to be neutral.

7. Cross Culture Christian Center v. Newsom

After a Lodi, California church was ordered to temporarily shut down, the Cross Culture Christian Center sued. “Plaintiffs have sincerely held religious beliefs, rooted in the Bible, that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis.” Here is the church’s complaint.

*Update: Request for Temporary Restraining Order was denied. The court noted the general police powers to promote safety during a public health crisis.

8. Abiding Place Ministries v. Newsom

The San Diego church Abiding Place Ministries argued that California’s exemptions for non-religious businesses such as “cannabis retailers, grocery stores, pharmacies, supermarkets, big box stores,” betray a preference for non-religious activity. Here is the church’s complaint.

*Update: Request for Preliminary Injunction denied on June 4, 2020 (issue is moot in light of May 25 guidelines).

9. South Bay United Pentecostal Church v. Newsom

With Gov. Newsom declaring a transition from “Phase 1” to “Phase 2” of the state’s pandemic response, allowing for more businesses to open and operate, two religious institutions felt they were not treated equally in the reopening plans. The South Bay United Pentecostal Church in Chula Vista and the Chabad of Carmel Valley synagogue in San Diego are suing, arguing that the revised order restricts their congregation’s free exercise of religion, assembly, speech, and right to due process and that it constitutes “excessive government entanglement with religion.” Here is the church’s complaint.

*Update: Case went to the Supreme Court. Application for injunctive relief was denied May 29, 2020 (Roberts, C.J., concurring) (holding that California’s reopening procedures do not violate the Free Exercise Clause of the First Amendment).

10. Spell v. Edwards

Pastor Tony Spell of Life Tabernacle Church in Louisiana filed suit to stop Governor Edwards from enforcing restrictions on him and his church. Spell has proceeded in a manner lacking legal strategy, making it more likely he will lose.

*Update: Motion for Temporary Restraining Order was denied.

11. Bullock v. Carney

A pastor sued the Governor of Delaware claiming that the executive orders deprive his right to freely exercise his religion. A motion for a Temporary Restraining Order was denied.

Churches Awaiting an Opinion

1. Temple Baptist Church v. City of Greenville (DOJ intervened)

In Mississippi, Temple Baptist Church sued after congregants were ticketed for attending drive-in church services. The attorneys withdrew the request for a temporary restraining order because new guidance was issued.

2. Robinson, Knopfler v. Murphy

St. Thomas More Society is representing a Jewish rabbi and a Catholic priest against New Jersey’s Executive Order 107, which caps gatherings at 10 people. The police halted the celebration of Mass and a Jewish prayer ceremony, which requires 10 men.

3. High Plains Harvest Church v. Polis

High Plains Harvest Church sued Colorado health officials over their ban which prevents churches from gathering. The suit notes that if hundreds of people can gather at Lowe’s, they should be able to gather at church.

*Update: DOJ intervened in the case supporting the church.

4. Calvary Chapel Dayton Valley v. Sisolak

Complaint filed on May 22, 2020 in the U.S. District Court for the District of Nevada, challenging Governor’s ban on church services of more than 10 people; complaint amended May 28, 2020 (updated Phase II plan says that churches not allowed to meet with more than 50 people)

** It should also be noted that some attorneys and legal firms sent letters to localities that resulted in churches being allowed to resume services. They did not get to the point of bringing suit. First Liberty has a list that can be found here.

While there seems to be a split in approaches to how some courts are handling the lawsuits by the church, there is an overwhelming willingness of judges to allow outdoor church services. While the pandemic continues to unfold, we will be monitoring the church lawsuits in the courts and making sure churches are treated equally. Leaders in states less interested in protecting religious liberty during the pandemic should not be permitted to prioritize secular interests over faith-based ones. It is crucial to religious liberty that churches are treated equally; the right to freely exercise one’s religion should not be infringed upon unnecessarily.

The Link Between Abortion and Eugenics Makes Its Way to the Federal Appeals Courts

by Katherine Beck Johnson

December 19, 2019

Among a number of recent developments in the federal appeals courts regarding abortion jurisprudence, one of the most notable is their discussion of eugenics. Though the history of infamous characters like Margaret Sanger and the link between eugenics and abortion has been known for some time, it didn’t make its way into court opinions until Justice Thomas wrote a lengthy concurrence in Box v. Planned Parenthood explaining the history of abortion being used as a tool to achieve eugenic objectives.

In an attempt to curtail eugenics, Ohio passed a law, H.B. 214, which prohibits any person from purposefully inducing an abortion if the person has knowledge that the pregnant woman is seeking the abortion in whole, or in part, because the unborn child has Down syndrome. A federal district court issued a preliminary injunction which stopped the law from going into effect, and a divided panel of the Sixth Circuit affirmed that ruling. On December 13, the en banc Sixth Circuit vacated the panel’s ruling and agreed to hear the case before the entire court.

Dissenting from the earlier Sixth Circuit panel’s opinion, Judge Batchelder noted how Ohio’s law promotes a compelling interest in preventing abortion from becoming a modern day eugenics tool. She said, “Ohio concluded that permitting physicians to become witting accomplices to the deliberate targeting of Down [s]yndrome babies would undermine the principle that the Down [s]yndrome population is equal in value and dignity to the rest of Ohio’s population, and would do deep damage to the integrity of the medical profession.”

Judge Batchelder is not the only judge to follow Justice Thomas’s lead and talk about the link between abortion and eugenics. Recently, the Fifth Circuit struck down Mississippi’s 15-week abortion ban. While he stated he was bound by Supreme Court precedent to reach this result, Judge Ho, a President Trump appointee, wrote a concurrence in which he noted that abortion is found nowhere in the Constitution, and that “the district court’s claim that it is racist to believe in the sanctity of life is particularly noxious, considering the racial history of abortion advocacy as a tool of the eugenics movement.”

It is encouraging to see appellate judges proclaim the history between abortion and eugenics. This could lead to a more clearly recognized state interest in stopping eugenics in this context, one which could eventually become compelling enough to outweigh a woman’s “right” to privacy. In the interim, we appreciate these judges exposing the history and modern-day link between eugenics and abortion.

Good News for Women and Life: Kentucky’s Ultrasound Law is Here to Stay

by Katherine Beck Johnson

December 11, 2019

On Monday, the Supreme Court denied cert in EMW Women’s Surgical Center v. Meier. By denying cert, the Supreme Court allowed Kentucky’s ultrasound law to stand, as the Sixth Circuit held the law was constitutional this spring.

Referred to as H.B. 2, the law requires an abortion provider, prior to performing an abortion, to perform an ultrasound; display the ultrasound images for the patient; and medically explain the development of the unborn child. In April, the Sixth Circuit upheld Kentucky’s law, holding that because the law “requires the disclosure of truthful, nonmisleading, and relevant information about an abortion, we hold that it does not violate a doctor’s right to free speech under the First Amendment.”

Kentucky is far from alone in regulating ultrasounds prior to an abortion. Twenty-six states have an ultrasound requirement. Fourteen states require abortionists to display and describe an ultrasound image before an abortion. Nine states require that the abortion provider offer the woman an opportunity to view the image. These ultrasound laws allow women to be more informed about the life growing within them, rather than keeping women in the dark. Ultrasound images are powerful tools that illustrate and humanize the life within the woman. Pro-choice advocates claim they are for women’s choice, yet they fight laws that would properly inform women about the very choice they are making.

The appellate courts are still divided on these laws. In January 2012, the Fifth Circuit upheld Texas’s ultrasound law. In Texas, abortion providers are required to show the women an ultrasound and provide a medical explanation of the size of the unborn child along with the development of the child. After April’s ruling in favor of Kentucky’s ultrasound law, the Sixth Circuit now joins the Fifth Circuit. In 2014, the Fourth Circuit struck down North Carolina’s ultrasound law, holding that it violates the free speech of abortion providers. The Supreme Court did not grant cert in that case.

It is a triumph for life that the Sixth Circuit’s opinion was allowed to stand. This is a welcome victory that allows the women in Kentucky to see their children in the womb and understand the medical aspects of the life within her. Women will now be better informed, and there is no doubt that life will be chosen more often thanks to H.B. 2. 

Little Sisters of the Poor Are Once Again Denied Freedom of Conscience

by Katherine Beck Johnson

October 23, 2019

The Little Sisters of the Poor were back in court yet again yesterday, this time losing at the U.S. Court of Appeals for the Ninth Circuit.

Back in 2011, the Department of Health and Human Services (HHS) issued a federal mandate as part of the Affordable Care Act (ACA). The mandate required employers to provide contraceptives, including the week-after pill, free-of-cost in their health insurance plans. HHS offered only a very narrow religious exemption. So narrow, it did not include non-profits—such as the Little Sisters of the Poor, a Catholic order of nuns who assist the impoverished who are at the end of their lives with nowhere else to go. These nuns have dedicated their lives to their faith and to serving the poor. Yet, these women were sued and told that they must violate their conscience by providing contraception through their insurance.

In May 2016, the Supreme Court unanimously overturned lower court rulings against the Little Sisters. The Court said the government should be provided an opportunity “to arrive at an approach going forward that accommodates the petitioners’ religious beliefs.” On May 4, 2017, President Trump issued an executive order that directed the secretaries of federal agencies to consider regulations that would address the conscience-based objections to the ACA’s contraceptive mandate. On November 7, 2018, the federal government complied with the Supreme Court’s ruling and the president’s executive order by issuing a new rule protecting religious liberty. This new rule provided religious ministries, entities, and persons holding sincere religious beliefs with an exemption to the contraceptive and sterilization coverage.

Soon after the rule was issued, states including Pennsylvania and California sued the federal government to ensure that the Little Sisters of the Poor would not be exempted from providing contraception. Even though these states have programs that provide contraceptives to women who want them, these states insist that non-profits, including the Little Sisters, must either be forced to violate their conscience or else cease to exist.  

In July 2019, the Third Circuit ruled against the Little Sisters of the Poor. The Third Circuit claimed that the Women’s Health Amendment to the ACA did not grant the Health Resources and Services Administration (HRSA, a component of HHS) the authority to exempt entities from providing insurance coverage for contraceptive services. On October 22, 2019, the Ninth Circuit issued a similar ruling and affirmed the preliminary injunction. The Ninth Circuit said, “the statute delegates to HRSA the discretion to determine which types of preventative care are covered, but the statute does not delegate to HRSA or any other agency the discretion to exempt who must meet the obligation.” Thus, the Ninth Circuit and the Third Circuit prevented relief for the Little Sisters of the Poor by issuing an injunction and blocking the implementation of a rule that would allow religious protections.

The Supreme Court needs to settle the debate and rule that the government cannot require people and groups to violate their conscience by providing contraceptive services. The Court should uphold the HHS rule, which protects the inherent human right of religious liberty. This liberty promotes the common good and allows society to flourish. The Little Sisters of the Poor certainly promote the common good as they assist the poorest in society. Violating their conscience ought not to be a precondition for the Little Sisters assisting those most in need.

Federal Court Ruling in Texas Is a Big Win for Religious Liberty

by Katherine Beck Johnson

October 16, 2019

An Obama-era regulation went to court recently at a U.S. federal courthouse in Texas. In Franciscan Alliance v. Azar, Judge Reed O’Connor issued an opinion striking down a Health and Human Services (HHS) mandate requiring doctors to perform gender transition procedures. Judge O’Connor held that the Rule violated the Religious Freedom Restoration Act (RFRA).

In May 2016, the federal government, through HHS, issued a mandate that would require a doctor to perform gender transition procedures on any patient, including a child. The Rule required doctors to provide these procedures even if the doctor believed it could harm the patient. In addition, the mandate required virtually all private insurance companies and many employers to cover gender reassignment therapy. If the insurance companies or employers refused, they would face severe penalties and legal action. While HHS exempted Medicare and Medicaid, they expressly prohibited religious exemptions. The Plaintiffs asked the District Court to vacate the Rule and convert its previously entered preliminary injunction to a permanent injunction.

Judge O’Connor held that the Rule violates RFRA. The Rule substantially burdened Plaintiffs’ sincere religious beliefs without a compelling interest. In addition, the Rule expressly prohibits religious exemptions.

The Plaintiffs’ refusal to perform, refer for, or cover transitions or abortions is a sincere religious exercise. In order to follow this sincere religious belief, the mandate requires extensive expenses. The Rule places significant pressure to perform and cover transition and abortion procedures, it forces Plaintiffs to provide the federal government an extremely persuasive justification for their refusal to perform or cover such procedures, and it requires them to remove the categorical exclusion of transitions and abortions. Judge O’Connor found that the Rule makes the practice of religion more expensive in the business context.  

Judge O’Connor ruled that the Defendants did not provide a compelling interest that would justify the burden on religious exercise. Those advocating in favor of the mandate argued that a compelling interest was specified in the preamble to the Rule, which states, “the government has a compelling interest in ensuring that individuals have nondiscriminatory access to health care and health coverage.” Judge O’Connor found that although that could arguably satisfy a categorical application of strict scrutiny, it cannot satisfy RFRA’s “more focused” inquiry. He said that even if those in favor of the mandate had provided a compelling interest, they failed to prove the Rule employs the least restrictive means.

The Rule was vacated (as opposed to a less severe permanent injunction) because it was found to be arbitrary and capricious. The Rule was found to be “contrary to law” under the APA due to its conflict with Title IX, its incorporated statute.

Judge O’Connor’s ruling is a huge win for religious liberty. HHS under President Trump is also working to take strides that further protect religious liberty. In May 2019, HHS proposed bringing its regulations into compliance with those decisions and ensuring that the government did not interfere and require a person to go against their convictions to provide gender transition procedures. The win in Texas coupled with the new rules from HHS provide optimism for the future of religious liberty.

House of Horrors 2: 2,246 Bodies of Unborn Children Shows Need for Fetal Dignity Laws

by Katherine Beck Johnson

September 18, 2019

The horrendous discovery of jars containing thousands of aborted baby body parts at deceased abortionist Dr. Ulrich Klopfer’s home reaffirms the horrors of abortion and underscores the need for laws that provide for the dignity of the unborn.

Klopfer performed over 30,000 abortions in Indiana before his license was suspended in 2016 for various violations. His egregious acts included performing an abortion on a ten-year-old girl who had been raped by her uncle. He then sent the girl back to her family without notifying the authorities. Now it is abundantly clear that his misdeeds didn’t stop there.

After Klopfer’s death, his family discovered medically-preserved remains of 2,246 unborn children in his home. The horror of this discovery strikes at the very core of a fetal dignity law that was passed in Indiana and affirmed by the Supreme Court. Although his license was suspended for other reasons, there appears to be no Illinois state law barring him from harboring the remains of thousands of unborn children in his Illinois home.

In 2016, then-Indiana Governor Mike Pence signed a state law that required the burial or cremation of fetal remains. Designed to honor the human dignity of unborn children in death, the statute specifically prevents the incineration of fetal remains together with surgical byproducts. The law was challenged and eventually made its way up to the Supreme Court, where it was affirmed in Box v. Planned Parenthood. The Court held that the State had a legitimate interest in the proper disposal of fetal remains and that the requirements were rationally related to that legitimate interest, a principle that the Court noted in City of Akron v. Akron Ctr. for Reprod. Health.

Many other states followed Indiana’s example and enacted laws that affirm the dignity of the remains of the unborn. Texas, Iowa, Louisiana, Michigan, Idaho, Arizona, Florida, Arkansas, and Wyoming all passed fetal dignity laws that provide various protections for the remains of the unborn. A number of other states introduced bills that would have provided similar protections but failed to pass them. Such laws refuse to treat the remains of the unborn as mere surgical byproducts, and instead, acknowledge the humanity and life lost with each abortion.

Klopfer’s storage of thousands of baby body parts should shock the conscience of Americans. In Box, Planned Parenthood challenged the Indiana fetal dignity law that would have outlawed Klopfer’s actions, claiming the law was unnecessary and an attack on women’s rights. However, Klopfer’s collection of unborn remains debunks the myth that there is no need for fetal remains laws.

Atrocities from the disgraced abortionist Kermit Gosnell’s infamous House of Horrors and the recent discoveries at Klopfer’s residence highlight the need to regulate the abortion industry in ways that keep women safe and care for the remains of unborn babies. In June, Illinois proudly expanded abortion access when it enacted the Reproductive Health Act. The law is one of the most sweeping pro-abortion laws in the country: it removed restrictions on the abortion industry and required that insurance providers cover abortion procedures. While the Illinois legislature and Governor were proudly lifting many restrictions on the abortion industry, Klopfer was harboring thousands of unborn remains in his Illinois residence. This stark contrast emphasizes precisely why the industry must be strictly regulated.

Had Indiana’s law been in place when Klopfer was performing abortions, he would have been legally required to surrender the remains for burial or cremation within ten business days. He also could have been charged with transporting a fetus out of Indiana as a Class A misdemeanor, as well as intentionally acquiring fetal tissue as a Level 5 felony. Had Indiana’s law been in place when Klopfer was performing abortions, 2,246 unborn babies might have never been stored in a house like some perverted trophies. There is a crucial need for fetal dignity laws to affirm the unborn and prevent people from perpetrating heinous acts like Klopfer’s. It appears Gosnell’s case is no longer as isolated as we once thought, and there must be legal protections to prevent these types of atrocities.

Our laws must protect the most vulnerable in our society. Indiana’s fetal dignity law and similar laws in other states are crucial steps towards recognizing the humanity of the unborn even in death. Dr. Klopfer, Gosnell, and others have shown what the abortion industry is capable of, and they must not be allowed to disgrace the bodies of their unborn victims howsoever they wish.

Katherine Beck Johnson is the Research Fellow for Legal and Policy Studies at Family Research Council.

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