Tag archives: Courts

Ninth Circuit Rules in Favor of the Protect Life Rule, Again

by Patrina Mosley , Connor Semelsberger, MPP

February 25, 2020

After a months-long legal battle, the U.S. Court of Appeals for the Ninth Circuit (9th Circuit) ruled 7-4 that the Protect Life Rule, which separates federal Title X Family Planning funding from abortion facilities, can go into full effect.

In July 2019, an 11-judge panel sitting en banc in the 9th Circuit reinforced a decision that the Protect Life Rule could go into effect temporarily while the merits of the case against the rule filed by Planned Parenthood and several liberal states were argued. Since this July ruling, HHS has enforced this new rule which requires physical and financial separation between clinics that receive Title X funds for family planning services and facilities that perform abortions. It also prohibits physicians at Title X family planning clinics from referring patients for abortions.

Yesterday, the 9th Circuit finally ruled that the Protect Life Rule is constitutional and can go into full effect. This victory in the historically liberal 9th Circuit is a welcome sight and was made possible in part by the great work of President Donald Trump and the U.S. Senate to confirm 51 federal appeals court judges, including two 9th Circuit judges who took part in yesterday’s ruling. However, it would not be a surprise if Planned Parenthood and the other plaintiffs decided to appeal this ruling all the way to the Supreme Court, but even at the highest court in the land there is precedent for the Protect Life Rule to be upheld. In 1991 in Rust v. Sullivan, the Supreme Court upheld similar regulations governing Title X finalized under President Ronald Reagan. The decision in Rust was a crucial part of the opinion issued by the 9th Circuit yesterday, and suggests a similarly favorable outcome should this case reach the Supreme Court.

For far too long, the people’s tax dollars have been entangled with the abortion industry. Trump’s “gag rule” only gags the dishonesty and lack of integrity that has been taking place for decades, so ultimately the court’s decision to uphold the restrictions is a win for life and a win for women.

Under the Protect Life Rule, abortion is no longer considered to be “health care” or “family planning.” Abortion-performing entities like Planned Parenthood, who have decided not to comply with the new Title X restrictions, have by default opened up more opportunities for life-affirming health care centers like federally qualified health centers (FQHCs) and Obria, which provide even more services to women than Planned Parenthood.

To see a list of the Grantees who voluntarily withdrew from Title X grant awards, see our blog here.

As a result of restoring integrity to the Title X regulations, there will be an increased diversity of health care providers available for women to choose from in the federal family planning program, and the taking of innocent life will no longer be accepted as “family planning” in America.

The Tenth Circuit’s Kitchen v. Herbert Flubs Fundamental Rights Analysis

by Chris Gacek

June 26, 2014

Yesterday, the U.S. Court of Appeals for the Tenth Circuit affirmed a federal district court’s decision striking down the definition of marriage found in Utah’s constitution. That definition limited Utah marriages to the union of one man and one woman. It was approved by referendum in November 2004 with 65.9% of the vote. In Kitchen v. Herbert, a 2-1 majority court struck down that definition by concluding, among other things, that there is a fundamental right to enter into a same-sex marriage. There is much more to the decision, but this note will focus on this key aspect of opinion.

As the U.S. Supreme Court instructed in Washington v. Glucksberg, 521 U.S. 702 (1997), the Due Process Clause of the Fourteenth Amendment guarantees more than fair process. It “also provides heightened scrutiny against government interference with certain fundamental rights and liberty interests.” Id. at 720. But, how does one determine what rights and interests are “fundamental?” Glucksberg is the key case in setting forth the constitutional law in this area.

Paul Linton summarized the Glucksberg standard in the Family Research Council’s amicus brief in Kitchen (pp. 3-5) (edits to text, notes, and citations have been made below):

In determining whether an asserted liberty interest (or right) should be regarded as fundamental for purposes of substantive due process analysis under the Due Process Clause of the Fourteenth Amendment[] (infringement of which would call for strict scrutiny review), the Supreme Court applies a two-prong test. First, there must be a “careful description” of the asserted fundamental liberty interest. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Second, the interest, so described, must be firmly rooted in “the Nation’s history, legal traditions, and practices.” Id. at 710. ….

As in other cases asserting fundamental liberty interests, it is necessary to provide a “careful description” of the fundamental liberty interest at stake. For purposes of substantive due process analysis, therefore, the issue here is not who may marry, but what marriage is. The principal defining characteristic of marriage, as it has been understood in our “history, legal traditions, and practices,” is the union of a man and a woman. Properly framed, therefore, the issue before this Court is not whether there is a fundamental right to enter into a marriage with the person of one’s choice, but whether there is a right to enter into a same-sex marriage. ….

This is the point at which the majority opinion runs off the rails. It dodges the hard edge of Glucksberg requiring a tight, accurate definition of the claimed right. The Kitchen court goes in another direction asserting baldly (p. 35), “But we cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex.” They cannot do so because they will not to do so.

Of course, there is a fundamental right to marry a person of the opposite sex. See Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967). And, homosexuals are not precluded from marrying in any state. But, what is this national debate about? It is about the definition of marriage. Homosexual men and women assert that the laws of over thirty states should be nullified because, among other things, there is a fundamental right to marry members of the same sex. Furthermore, all states must be compelled to recognize male-male and female-female marriages.

Returning to the Glucksberg test it is manifestly clear that there is no such fundamental right, for it must be deeply embedded in “the Nation’s history, legal traditions, and practices.” How can this be possible with the claimed fundamental right to same-sex marriage? There is nothing about it that is firmly grounded in this country’s history, legal tradition, and practices. There were no same-sex marriages anywhere in the United States until the 21st Century.

Google is older than same-sex marriage.

There is a Supreme Court case that is instructive here, and it is Baker v. Nelson, 409 U.S. 810 (1972). Much blood in the same-sex marriage debate has been spilled over this case. In Baker, the Supreme Court dismissed an appeal from a decision by the Minnesota Supreme Court which had rejected arguments for same-sex marriage similar to those being considered presently in our courts. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).

The U.S. Supreme Court declined the invitation to consider the matter stating that there was a “want of a federal question.” It has been argued that Baker precludes lower federal courts from even considering these issues, but federal courts have brushed aside those arguments, especially in the post-Windsor environment. It should be noted that the dissenting judge in Kitchen did accept this argument. Judge Kelly would have dismissed the case and left it for the U.S. Supreme Court to decide whether it wanted to revisit this area of the law. That seems like the correct approach.

Laying aside the argument that Baker requires a dismissal by lower courts, Baker is highly instructive in answering whether any claimed right to same-sex marriage is “fundamental.”

In 1972, the fundamental right argument was presented to the U.S. Supreme Court, and it was rejected – as it had been in Minnesota. Because Glucksberg tells us that fundamental rights must be rooted in our nation’s legal history and traditions, such a right should have been extant only forty-two years ago when the Supreme Court considered the Baker appeal. Fundamental right questions are dyadic – you either have one, a 0, or not, a 1. Baker gives us the Supreme Court’s answer in 1972: 0. Both courts had the constitutional issues presented in a manner we would recognize today. The Minnesota Supreme Court quoted Loving noting “there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Baker, 291 Minn. at 315 (concluding the court’s equal protection analysis and discussing Loving).

Thus, the Baker Court had the core legal concepts and precedents before it that we now routinely see in same-sex marriage litigation (e.g., fundamental rights claim, arguments based on Loving), and it dismissed the appeal.

Of course, there are equal protection arguments to also consider, but one must reasonably conclude that the Kitchen majority’s fundamental rights analysis fails badly. This point is underscored by footnote 4 of the FRC amicus brief in Kitchen which provides a lengthy list of courts that have rejected the argument that any fundamental rights (Due Process) analysis supports the claims of the Utah plaintiffs challenging the state’s natural marriage definition.

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