High Court Faces Religious Freedom Issues in New Term
Abortion, Public Prayer and HHS Mandate on the Docket
BY Joan Frawley Desmond
Oct. 20-Nov. 2, 2013 Issue | Posted 10/14/13 at 4:09 PM
WASHINGTON — The U.S. Supreme Court is diving into a new term, with several cases threatening court precedents dealing with abortion and public prayer.
Church leaders and religious-freedom advocates are also waiting to see whether the high court will agree to hear one or more appeals in legal challenges to the Health and Human Services’ contraception mandate filed by for-profit employers who oppose the federal law on moral grounds.
While the justices are not slated to hear blockbuster cases like recent challenges to the Affordable Care Act, known as Obamacare, or the federal Defense of Marriage Act, The Washington Post noted that the high court has increasingly become the "uneasy arbiter of America’s intractable social conflicts."
Indeed, for John Kennedy, the Catholic owner of a Michigan-based manufacturing company and one of 30 for-profit employers who have sued Health and Human Services Secretary Kathleen Sebelius over the federal contraception mandate, the high court now offers his last hope, after the 6th Circuit Court of Appeals ruled against him.
"The 6th Circuit said I could only practice my faith within the four walls of my church. I hope the Supreme Court agrees to a review of the HHS mandate and it recognizes that the law impinges on the religious freedom of all business owners who don’t believe in birth control and abortion-inducing drugs," Kennedy told the Register, after he wrote an op-ed for USA Today outlining his objections to the federal law.
In September, the U.S. government petitioned the Supreme Court to hear an appeal of the Hobby Lobby case, a legal challenge to the HHS mandate filed by the owners of the craft-store chain. The 10th Circuit had ruled in favor of Hobby Lobby, while two other circuit courts backed the Obama administration argument that free-exercise protections did not apply to for-profit employers.
Experts predict the Supreme Court justices will hear at least one of the HHS mandate cases, and a decision will be filed by June 2014.
"The chances of the court taking this case up this term are somewhere between 99% and 100%," Paul D. Clement, the U.S. solicitor general in the George W. Bush administration and a top advocate before the high court, told The New York Times.
Free Speech on Abortion
Meanwhile, for pro-life activists, McCullen v. Coakley (No. 12-1168) is the most closely-watched case now before the court. It will ask the justices to decide the constitutionality of a Massachusetts law that requires a 35-foot "buffer zone" at abortion facilities, separating pro-life activists from women entering those businesses.
Opponents of the law assert that it violates the First Amendment rights of those seeking to dissuade abortion-minded women from completing their plans to end their pregnancies. But lower courts upheld the state law, citing the Supreme Court’s 2000 decision in Hill v. Colorado, which ruled that a Colorado law keeping protesters eight feet from abortion businesses was constitutional.
The high court will now revisit its 2000 ruling in Hill. Legal scholars say the outcome could result in the overturning of state buffer-zone laws that are designed solely to prevent close interactions between sidewalk counselors and women entering abortion facilities.
"The case gives the court the opportunity to overturn an egregious 2000 ruling that deprived pro-life protesters of the First Amendment rights that other protesters enjoy," said Ed Whelan, a constitutional scholar who blogs at National Review’s Bench Memos.
Dana Cody, executive director of the Life Legal Defense Foundation, a public interest group that has defended the civil rights of pro-life protesters, told the Register that it was past time for the court to provide clarity on such laws.
"We are glad the Supreme Court has decided to review McCullen. In doing so, they will hopefully reconsider Hill v. Colorado. In Hill, the court created a presumption that speech outside abortion clinics is unwanted — that is viewpoint-based discrimination and unconstitutional," she said.
"Hill is the controlling case right now. Due to Hill and other interpretations of free-speech rights, courts are confusing the requirements for an injunction, where a specific wrong, like trespassing, has occurred, vs. an ordinance, which is more general and should be narrowly tailored so as to not violate law-abiding citizens’ time-honored free-speech rights. That is precisely what McCullen v. Coakley does, and it is happening throughout the country," she explained.
Cody noted that the Life Legal Defense Foundation defended Rev. Walter Hoy, who was "arrested and fined for holding a sign saying, ‘Jesus loves you and your baby.’ He was sentenced to 30 days in jail and served 18 days of that sentence, being released due to the crowded conditions in the jail."
"His conviction was eventually overturned," she added. "But nonetheless, a law-abiding citizen had his liberty taken away. That is what bubble zones outside of abortion clinics have led to, with the court’s questionable interpretation of abortion and free speech."
Planned Parenthood affiliates, for their part, are strongly opposed to any change in state buffer-zone laws.
"As CEO of Planned Parenthood League of Massachusetts, I’ll keep fighting for this law on behalf of our patients and staff," said Martha (Marty) Walz, president and CEO of the Planned Parenthood League of Massachusetts, in a statement released after the high court accepted the appeal to the Massachusetts law.
Possible Hearing on RU-486
There is a second pending abortion case, Cline v. Oklahoma Coalition for Reproductive Justice (No. 12-1094), that may get a hearing once the Oklahoma Supreme Court responds to the justices’ request for clarification about the scope of the law’s regulation of abortion-inducing drugs, such as mifepristone, also known as RU-486.
The 2011 Oklahoma law targeted the "off-label" use of drugs prescribed to end pregnancies within nine weeks of conception and directed medical providers to follow the guidelines approved by the Food and Drug Administration when it made the drugs available for non-surgical medicinal abortions in 2000.
At that time, the FDA adopted the protocols of clinical trials, and so required two separate doses of a combination of mifepristone and misoprostol, which induces contractions, with both doses administered during two visits. A third visit at the end of a two-week process was required to confirm that the abortion had been successful.
But over the past decade, abortion providers have reportedly changed the dosage, and women may take the second dose at home. And, while the FDA stated that the drugs could only be administered during the first seven weeks of pregnancy, the initial deadline has been pushed ahead to nine weeks.
Gerard Bradley, an expert on constitutional law at the University of Notre Dame Law School, told the Register that the justices will decide "whether states have the power to limit a doctor’s prescription of RU-486 to the FDA protocols."
But there is a larger issue at stake for abortion facilities that resist this kind of oversight.
"I think the outcome is important and will actually turn on the larger question of whether Oklahoma is setting up an ‘undue burden’ on a woman’s right to access to abortion," said Bradley, noting the legal argument that often accompanies such cases.
"On this the answer is: ‘Surely not.’ … No woman is deprived of an abortion here; the alternative for a woman seeking eighth- or ninth-week abortion is a surgical procedure."
However, lower courts ruled against the Oklahoma law. Those decisions echo the stance of abortion-rights advocates, who have contended that the law’s sole purpose was to block an increasingly popular method of ending unwanted pregnancies.
The high court’s docket also includes cases dealing with campaign finance laws, affirmative action and legislative prayer. In the latter case, Town of Greece v. Galloway (No. 12-696), the justices will weigh the constitutionality of the town board’s practice of beginning public meetings with a prayer that has almost always been Christian, though the board has said that residents of all faiths are invited to offer their own prayers.
"The larger question here is whether the court will construe the Establishment Clause in a manner consistent with our country’s history and traditions," said Ed Whelan.
But Douglas Laycock, a leading expert on religious-freedom issues at the University of Virginia Law School and an attorney for the plaintiffs in Greece, N.Y., told the Register that the "prayers are explicitly Christian. … Citizens who attend the meetings to request board action on some local issue have no choice but to join in the prayers or go through the motions of doing so."
He argued that "conservative Christians who are constantly asking others to respect their religious liberty should also respect the religious liberty of non-Christians."
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