Friday, June 22, 2007

The Pro-Life Pharmacist Eradication Bill of 2007

This would be a better title for the recently introduced "Access to Birth Control Act." The bill would create a federal law for the purpose of punishing pharmacies for their moral objection to dispensing the "morning after pill" or "Plan B." Detailing all of the distortions, misconceptions, and terrible policy ideas in this bill would make for a very lengthy post for a Friday afternoon, so I'll just highlight two for now.

1. The Most Likely Effect of the Bill, Should it Become Law, Would be to DECREASE Access to Birth Control: This bill requires pharmacies that sell contraceptives to sell contraceptives. Sec. 249's provisions apply and require the pharmacy to fill a prescription only if a customer requests a contraceptive that is in stock or that the pharmacy does not have in stock IF "the pharmacy in the normal course of business stocks contraception." You're probably asking yourself, "O.K., then Mattox, what's your beef?" Here's the trick. "contraception" = "any drug or device approved by the Food and Drug Administration to prevent pregnancy." Sec. 249(f)(1). This includes both your standard birth control pills AND "Plan B." If a small family pharmacy has made the decision to sell regular birth control pills, but to draw the line at selling "Plan B" it would violate this Act.

Many pharmacies draw exactly this distinction. They do not have an ethical or religious objection to dispensing regular birth control pills since their primary means of action is to prevent the fertilization of the egg. But they DO object to dispensing "Plan B" because these medications are much more likely to act by stopping the already fertilized and growing embryo (which many believe is the beginning of life) from implanting in the womb and receiving the nutrients and oxygen it needs from the mother to survive.

By treating both Plan B and birth control pills together as "contraceptives" (because they're both FDA approved), the bill would require any pharmacy that has drawn this ethical line and therefore sells only birth control pills to also sell Plan B. But if a pharmacy does not sell birth control pills then it is not (on my reading) required by the bill to also sell Plan B. Many conscientious pro-life pharmacies presented with this compelled participation with the destruction of a human embryo can be expected to simply choose to eschew birth control pills altogether. Thus, the bill would not even accomplish its stated - and dubious - purpose of increasing access to birth control. Rather than increasing access to the "morning after pill," the far more likely result of this bill would be to diminish the number of pharmacies that sell standard birth control pills - or for the reasons below even the number of pharmacies and pharmacists altogether.

2. The Bill Would Permit Lawsuits for Civil and Punitive Damages by Women "Aggrieved" by a Single Pharmacist's Exercise of His Conscience -- The bill's "Enforcement" section provides civil penalties of up to a HALF MILLION dollars against pharmacies that do not carry Plan B. What's more, the bill would also authorize private rights of action (READ: Cases for the ACLU) to compel compliance - allowing for "actual and punitive damages, injunctive relief, and a reasonable attorney's fee and cost." Sec. 249(e)(2). There is a 5 year statute of limitations on such claims, much longer than the typical 2 year SOL on civil rights claims. Sec. 249(e)(3). It is not a stretch to think that if this bill were law, pro-life pharmacies could be dragged through inordinantly expensive litigation, forced to pay for a woman's surgical abortion or even for the "wrongful life" of her child. They could also be subject to punitive damages and required to pay the attorneys fees of ACLU lawyers because of their criminal exercise of their conscience and the decision they have made to not sell Plan B.

Again, facing this possibility, why would a pro-life individual want to enter the pharmacy profession at all? Let me suggest that this is exactly the real object of this bill and its chief supporters. In the economy of the ACLU and NARAL, there simply is no room for dissent and difference of opinion when it comes to abortion and matters of "reproductive choice." Anyone who does not agree with their views about the morality of abortion are simply unwelcome in the medical profession. The presence of pro-life individuals in the medical professions and their voices for the unborn are an unfortunate menace that the abortion lobby would prefer to eliminate. This bill is a tremendous step in that direction.

Friday, June 15, 2007

Tom Berg Reviews Eisgruber and Sager's Religious Freedom and the Constitution

Can Religious Liberty Be Protected As Equality? Prof. Thomas C. Berg reviews Religious Freedom and the Constitution (Harvard, 2007) by Princeton Provost Christopher L. Eisgruber and Texas Law Dean Lawrence G. Sager in the April 2007 issue of the Texas Law Review.


Christopher Eisgruber and Lawrence Sager are the most sophisticated proponents of an equality or nondiscrimination approach to the Religion Clauses. They began a dozen years ago with attacks on the idea, embodied in the Religious Freedom Restoration Act of 1993 (RFRA), that religiously motivated practices should be exempted from generally applicable legal restrictions in order to preserve a distinctive substantive freedom for religious exercise. They argued that showing special concern for freedom of religious practice "privileged" religion over deep nonreligious motives for action--violating a constitutional mandate of "equal regard" for such views--and that exempting religious conduct from restrictive laws was permissible only to protect religion from "hostility or indifference" compared with other "deep concerns of citizens."

With Religious Freedom and the Constitution, Eisgruber and Sager expand their approach to the full range of Religion Clause questions: free exercise exemptions, government-sponsored prayers and religious displays, and inclusion of religious entities in government funding programs. Their theory, "Equal Liberty," has two components. First, "in the name of equality," no persons "ought to be devalued on account of the spiritual foundations of their important commitments and projects"; beyond these concerns with "discrimination" or "hostility and neglect," religion should not be treated "as deserving special benefits or as subject to special disabilities." Second, there should be "a broad understanding of constitutional liberties generally": "rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish."
* * *
Most importantly, they confront the central problem for an equality-based theory of religious rights: how to square it with the special treatment of religion reflected in a good deal of constitutional case law, in widely held intuitions, and in the very fact that the First Amendment contains two clauses singling out religion for concern--one of which, the Free Exercise Clause, speaks by its terms of freedom rather than equality. To take the two cases Eisgruber and Sager first consider, why can there be a National Endowment for the Arts but not a National Endowment for Religion, and why are churches free to refuse women as clergy when other entities cannot practice sex discrimination in employment? Their answer to such questions is that every appropriate instance of special treatment for religion can be explained as "protecting persons from discrimination" or maintaining "parity, not advantage." They claim, among other things, that a nondiscrimination theory--protecting religious conduct from hostility or neglect--can generate a "robust" level of protection under the Free Exercise Clause.

The thesis of this Review, however, is that Eisgruber and Sager fail to show that special treatment of religion can be explained as nondiscrimination without reference to religious autonomy. Thus, although they reach many normatively attractive results--offering, for example, a rationale for potentially strong protection of free exercise rights--they can only do so by surrendering a primary focus on equality and nondiscrimination.

Download from SSRN or Westlaw. Citation: 85 Tex. L. Rev. 1185. Get more articles from Thomas Berg at SSRN and read his blogs at Mirror of Justice.

Thursday, June 14, 2007

Breaking News: Massachusetts legislature blocks constitutional amendment on marriage from going to the ballot

Today the Massachusetts legislature blocked the proposed constitutional amendment on marriage from being placed on the ballot in 2008. The AP reports that the vote was 151-45 with no debate, in contrast to previous joint sessions. Fifty votes were needed.

The Boston Globe notes that proponents of a marriage amendment will have to wait until 2012 to get it onto the ballot.

The Massachusetts Family Institute/ allege "bribery" by the Governor and "arm-twisting" by the House Speaker in its press release.

The text of the amendment:

"When recognizing marriage entered after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage as only the union of one man and one woman."

Wednesday, June 13, 2007

Greg Baylor discusses the Employment Non-Discrimination Act and Religious Organizations on the Albert Mohler Show

Listen to a recent edition of the Albert Mohler radio show, Religious Discrimination and the Narrowing Exception Clause, featuring Center Director Greg Baylor. He discusses the Employment Non-Discrimination Act of 2007, a bill intended to prohibit employment discrimination on the basis of sexual orientation or gender identity, previously analyzed on this blog. He specifically addresses the bill's exemption for religious organizations, which is narrower than the exemption provided in existing employment discrimination statutes, as well as the broader religious liberties issues at stake.

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The discussion begins at 11:10 on the audio file. Mohler references Greg's blog post, Honey, I Shrunk The Exemption! at 12:33.

You may also listen to the show with your desktop media player or download the file.

Albert Mohler is the president of the Southern Baptist Theological Seminary. He holds the M.Div. and Ph.D. from Southern Seminary and has pursued research at Oxford University. Mohler's blog, commentary, and radio show archive are available at

Tuesday, June 12, 2007

New article: When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis

SSRN has posted a draft of a new article by Prof. Carl H. Esbeck, a former Center director and current professor at the University of Missouri School of Law. The article is entitled When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis.

This article is part of a symposium The Religion Clauses in the 21st Century (April 12-13, 2007) sponsored by the American Constitution Society and the West Virginia University College of Law. The specific panel was on "Accommodation of Religion" and also featured Prof. Kent Greenawalt, whom Esbeck gently critiques in this article. Symposium articles will be published in Volume 110 of the West Virginia Law Review, fall 2007.

From the introduction:

From time to time I find myself using to good effect that proverbial question, “Is the glass half full or half empty?” That inquiry has its parallel in the subject before us. Asking “When may the government accommodate religion?” is the glass-half-full way of posing the question. Whereas asking “When is an accommodation of religion a violation of the Establishment Clause?” is the glass-half-empty means of framing the same question. In a modern, complex republic like ours, discretionary accommodations for the many and diverse religious beliefs that dot the land ought to be regarded as widely permitted except for a limited range of cases that are disallowed by the Establishment Clause. This is because the Establishment Clause is ultimately about freedom for religious individuals and the religious organizations they form, and thus the clause’s predisposition is rightly weighted toward what is permitted. As will appear below, the United States Supreme Court has indeed approached its modern cases as if the glass is half full, and thus we can expect to find that most legislative accommodations for religion will be upheld as constitutional.

Part I of this article brings to bear those foundational principles applicable to the question of religious accommodations that flow from the nature of the original Constitution of 1789, the Bill of Rights, and the text of the First Amendment. Then Part II identifies Black Letter Rules concerning discretionary religious accommodations, rules that are either derived from the foregoing principles or can be teased out of the case law of the Supreme Court. With only one exception, I am not a critic of the end result (if not always the rationale) of the work of the modern Supreme Court in this area of its Establishment Clause jurisprudence. Finally, Part III applies the principles from Part I and the rules identified in Part II to the Court’s “hard cases” in a manner that makes the law fairly predictable, as well as responds to Professor Kent Greenawalt’s article which is part of this symposium.
Download the rest of the article.

Monday, June 4, 2007

Today's Opinions and a Little SCOTUS Bingo - UPDATE on Possible Authorship of Hein


None of the opinions we're following closely were decided today, but the Court did issue opinions in three pending cases.

In Sole v. Wyner, the Court held that a party that receives a preliminary injunction but then ultimately loses the case on the merits is not eligible for attorneys fees under 42 U.S.C. 1988. Justice Ginsburg wrote the decision for a unanimous court. The Court stressed that it was NOT deciding the larger (and more critical) question whether "in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may
sometimes warrant an award of counsel fees." As the Center for Law & Religious Freedom has sought (and received) attorneys fees in some of its litigation victories over the years - some after receiving preliminary injunctions where the Defendants then mooted the case by amending their policies or settling with our clients - this issue remains of interest to CLRF.

The Court also issued opinions in Safeco Insurance v. Burr (06-84) and GEICO v. Edo (06-100) (consolidated) authored by Justice Souter and Uttecht v. Brown (06-413) authored by Justice Kennedy. For more on these opinions see Scotusblog.

Now for a little bingo.

With today's decisions only one case remains undecided from the January sitting, Davenport v. Washington Education Ass'n. Only one justice has not yet issued an opinion from that sitting, Justice Scalia. If you're an opponent of compelled speech this is likely good news. More background on the case is available here from the Medill School of Journalism.

The two cases addressing racial preferences in secondary school admissions Parents Involved in Community Schools v. Seattle School District #1 and Meredith v. Jefferson County Board of Education are the only remaining cases from the December sitting and the opinion in these cases is probably being authored by Chief Justice Roberts, the only justice to not have issued an opinion from that sitting.

Only seven cases were heard in February, including Claiborne v. U.S. and Rita v. U.S., sentencing guidelines cases heard the same day and probably decided in a single opinion. Claiborne was dismissed today due to Mr. Claiborne's death this past week. Rita and Hein are the only opinions remaining from the February sitting. Justices Kennedy, Scalia, Souter and Ginsburg have issued opinions in February and are unlikely to be writing the opinions in either Rita or Hein, but other than this observation the tea leaves are a bit sparse. And no opinions have yet been issued from the March sitting in which Morse v. Frederick was heard, so any speculation as to authorship of that opinion would be, well, speculative.

UPDATE -- Reading a few more tea leaves, Tom Goldstein at Scotusblog is now predicting that Chief Justice Roberts is writing the Hein decision. If this prediction comes to pass, the decision could be very interesting. Chief Justice Roberts was counsel in Lujan v. Defenders of Wildlife, the landmark standing decision that held that Article III's "case or controversy" requirement was the "irreducible constitutional minimum" of standing (as opposed to being a more flexible rule that the Court could waive in a given circumstance). Justice Roberts advocated for this stricter adherence to Article III in Lujan and may have a particularly strong interest in reigning in the Court's standing jurisprudence. Some have argued that Flast v. Cohen, the decision allowing taxpayer standing in establishment clause cases, is at odds with Lujan's understanding of Article III as the unyielding constitutional restraint on the Court's exercise of jurisdiction. Although the Court need not directly address the constitutionality of taxpayer standing in order to decide Hein, it is not outside the realm of possibility that it would. And in any case, a Roberts opinion might provide some indication as to how taxpayer standing will fare once the issue is squarely presented to the Court.

Supreme Court Opinions Due Today

It's June, when every young constitutional lawyer's fancy turns to Supreme Court Order Lists. The Court is set to issue one or more opinions today at 10 A.M. (and every Monday through the rest of this month).

Among the cases we're watching are these below. Watch this space for analysis (or at least off-the-cuff reaction) once the opinions come down.

Hein v. Freedom from Religion Foundation.
Question presented: Whether taxpayers have standing under Article III of the Constitution to challenge on Establishment Clause grounds the actions of Executive Branch officials pursuant to an Executive Order, where the plaintiffs challenge no Act of Congress, the Executive Branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government?

Davenport v. Washington Education Association.
Questions presented: (1) Do labor union officials have a 1st Amendment right to seize and use for politics the wages of nonmembers who have chosen not to become union members? (2) Does a state campaign finance law that prohibits labor unions and their officials from seizing and using the wages of nonmembers for partisan political campaigns without obtaining the nonmembers' affirmative consent violate the 1st Amendment rights of labor unions?

Morse v. Frederick.
Questions presented:1. Whether the First Amendment allows public schools to prohibit displaying messages promoting the use of illegal substances at school sponsored, faculty-supervised events.
2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public high school principal was liable in a damages lawsuit under 42 U.S.C. 1983 when, pursuant to the school district's policy against messages promoting illegal drug use, she disciplined a student for displaying a large banner with a slang marijuana reference at a school-sponsored, faculty-supervised event.

Parents Involved in Community Schools v. Seattle School District #1.
Questions presented: (1) How are the Equal Protection rights of public high school students affected by the jurisprudence of Grutter v. Bollinger and Gratz v. Bollinger? (2) Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools? (3) May a school district that is not racially segregated and that normally permits a student to attend any high school of her choosing deny a child admission to her chosen school solely because of her race in an effort to achieve a desired racial balance in particular schools, or does such racial balancing violate the Equal Protection Clause of the 14th Amendment?

Meredith v. Jefferson County Board of Education.
Questions presented: (1) Should Grutter v. Bollinger and Regents of University of California v. Bakke and Gratz v. Bollinger be overturned and/or misapplied by the Jefferson County Board of Education to use race as the sole factor to assign students to the regular (non-traditional) schools in the Jefferson County public schools? (2) Whether the race-conscious Student Assignment Plan with mechanical and inflexible quota systems of not less than 50% of African American students without individually or holistic review of any student, meets the 14th Amendment requirement of the use of race which is a compelling interest narrowly tailored with strict scrutiny? (3) Did the District Court abuse and/or exceed its remedial judicial authority in maintaining desegregative attractiveness in the public schools of Jefferson County, Kentucky?