Category archives: The Courts

What Christians Need to Know About the Case that Could Overturn Roe and Casey

by David Closson , Joy Zavalick

July 28, 2021

On “Worldview Wednesday,” we feature an article that addresses a pressing cultural, political, or theological issue. The goal of this blog series is to help Christians think about these issues from a biblical worldview. Read our previous posts on the Center for Biblical Worldview page.

Most Americans are familiar with Roe v. Wade, the U.S. Supreme Court’s landmark 1973 decision that legalized abortion through all nine months of pregnancy. Many Americans, however, have not yet heard of Dobbs v. Jackson Women’s Health Center, an upcoming Supreme Court case that could overturn Roe and likely return jurisdiction over abortion legislation to the states.

What should Americans, and especially Christians, know about Dobbs? Is it possible that Roe v. Wade could be overturned? These and other questions are important to consider as the Supreme Court prepares to reconsider its abortion jurisprudence.

Context

Since the U.S. Supreme Court legalized abortion in 1973, there have been an estimated 62 million abortions in the United States. The Roe decision created abortion rights on the basis of a supposed right to privacy provided by the Fourteenth Amendment. Under Roe, the Court initially established a trimester system and prevented states from restricting abortion in the first trimester. An accompanying case, Doe v. Bolton, made it almost impossible to restrict abortion in the later trimesters as well.

In 1992, the Supreme Court revisited Roe in Planned Parenthood v. Casey. It replaced the trimester system with the standard that states cannot impose an “undue burden” on pre-viability abortion. Although infants were once thought to reach viability at 28 weeks, modern medicine has determined that children can survive outside of the womb beginning around 22 weeks, thus moving the point of viability to earlier in gestation than it had been understood to be at the time of Roe.

Mississippi’s Law

In 2018, Mississippi passed the Gestational Age Act (known as HB 1510), which prohibits elective abortions post-15 weeks gestation. The law points out that America is out-of-step with international norms regarding abortion:

The United States is one (1) of only seven (7) nations in the world that permits nontherapeutic or elective abortion-on-demand after the twentieth week of gestation. In fact, fully seventy-five percent (75%) of all nations do not permit abortion after twelve (12) weeks’ gestation, except (in most instances) to save the life and to preserve the physical health of the mother.

On the same day that the Gestational Age Act was signed into law, Dr. Sacheen Carr-Ellis filed suit on behalf of Jackson Women’s Health Organization, the only abortion facility in Mississippi.

A district court evaluated the Gestational Age Act and declared it to be unconstitutional on the basis that the point of a baby’s viability outside the womb was the earliest point at which the state could implement a legislative ban to protect fetal life. When the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s ruling, Mississippi appealed to the U.S. Supreme Court.

Mississippi’s law directly challenges the abortion jurisprudence of Roe and Casey, and its brief in the case calls upon the Court to overturn these two decisions, stating, “…[N]othing in constitutional text, structure, history, or tradition supports a right to abortion.”

If Roe and Casey were overturned, the question of abortion’s legality would likely fall to the states. Twenty-one states currently have laws that would immediately come into effect and restrict abortion in some manner if Roe and Casey were overturned. Ten of those states have “trigger laws” that would immediately ban all or nearly all abortions.

Christian Reflections

The Bible teaches that all people are created in the image of God (Gen. 1:26-27). It also affirms the personhood of the unborn. Consequently, abortion is morally incompatible with these truths.

Probably the most well-known articulation of the Bible’s affirmation of the unborn is found in Psalm 139, where David refers to his unborn self as being fully individual, not an impersonal fetus with no moral value:

For you [God] formed my inward parts; you knitted me together in my mother’s womb. I praise you, for I am fearfully and wonderfully made. Wonderful are your works; my soul knows it very well. My frame was not hidden from you, when I was being made in secret, intricately woven in the depths of the earth. Your eyes saw my unformed substance; in your book were written, every one of them, the days that were formed for me, when as yet there was none of them. (Ps. 139:13-16)

The prophet Jeremiah provides a high view of human life in the womb:

Now the word of the LORD came to me, saying, “Before I formed you in the womb I knew you, and before you were born I consecrated you; I appointed you a prophet to the nations.” (Jer. 1:4-5)

Notably, the prophet is “consecrated” and “appointed” to his vocation while in utero. God explains to Jeremiah that He “formed” and “knew” him prior to this birth. The passage reveals that God had a personal relationship with the unborn prophet, similar to how He relates to him as an adult.

Other pro-life passages include Isaiah 49:1b, Luke 1:39-45, Psalm 51:5-6, Job 3:3, Judges 13:3-5, and Genesis 25:22-23.

Christians should care about the Dobbs case because it poses a serious legal challenge to a deadly practice that is incompatible with Christian ethics—abortion. We urge you to follow activity related to the Dobbs case and join us in praying that the U.S. Supreme Court would act to defend life.

For a more in-depth survey of what the Bible has to say about abortion and the personhood of the unborn, we invite you to read FRC’s helpful resource Biblical Principles for Pro-Life Engagement. For more information on what would happen if Roe v. Wade were overturned, we invite you to read our explainer on this consequential case.

Mississippi Boldly Leads the Fight to Overrule Roe

by Katherine Beck Johnson

July 27, 2021

Mississippi’s brief in the Dobbs v. Jackson Women’s Health abortion case is the latest example of a recently emboldened pro-life movement. All eyes were on Mississippi Attorney General Lynn Fitch last week, waiting to see how she would defend her state’s 15-week abortion ban. Would Fitch be bold and mention that Roe and Casey should be overturned? Or would she try to convince the Court that the 15-week ban could be upheld under Casey?

Fitch and Scott Stewart, Mississippi’s solicitor general, exceeded all expectations when they boldly and brilliantly led the fight against Roe and Casey. Their brief convincingly explained the damage the Court’s two most deadly decisions have inflicted on our nation and demanded that the Court overturn them. “Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life.” Mississippi’s brief called out Roe for what it is: wrong. No matter how strong of an interest women have in their own privacy, this does not extend to a right to end the life of an innocent child.

The brief’s introduction made it clear that Mississippi would be bold and aggressive in its defense of the unborn. “…[N]othing in constitutional text, structure, history, or tradition supports a right to abortion.” The brief went on to discuss the damage inflicted on our country as a result of the judicial activism of the seven male justices who decided Roe. Mississippi did not shy away from humanizing the child in the womb:

The Court could hold that the State’s interests in protecting unborn life, women’s health, and the medical profession’s integrity are, at a minimum, compelling at 15 weeks’ gestation—when risks to women have increased considerably; when the child’s basic physiological functions are all present, his or her vital organs are functioning, and he or she can open and close fingers, make sucking motions, and sense stimuli from outside the womb; and thus when a doctor would be extinguishing a life that has clearly taken on the human form.

Mississippi reminded the Court that states are willing and should be able to protect the most vulnerable among us. Some pressured Mississippi to take a more timid approach and not ask for much, but Mississippi did the right thing by being bold. No other fight for basic human rights, such as the civil rights movement, was shy in their requests for equal rights. Thurgood Marshall was bold in his requests before the Court in Brown v. Board of Education, and now Mississippi stands boldly before the Court in its request for the state’s ability to protect the most basic right—the right to life—for the unborn. The Court did the right thing in Brown, and it should do the right thing in Dobbs.

The conclusion of the brief summarizes the harm done by judicial activism in creating a right to abortion:

The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not.” Webster, 492 U.S. at 521 (opinion of Rehnquist, C.J.). Roe and Casey—and a viability rule—do not meet that goal. And they never can. Retaining them harms the Constitution, the country, and this Court. This Court should… overrule Roe and Casey.

Mississippi did the right thing. Now it’s the U.S. Supreme Court’s turn to do the right thing. No justice will be able to feign ignorance regarding Mississippi’s glaring request. No justice can claim that Mississippi didn’t ask for Roe to be overturned. It is time for Americans to see the true colors of every justice sitting on the Court. Dobbs is the case that should overturn Roe. If it isn’t overturned, it won’t be because Mississippi didn’t do the best job it could. There is no excuse for Roe not to be overturned now.

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.

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