Breaking: Obama to Remove Anti-Discrimination Protections for Pro-Life Doctors

Per the LA Times - Pres. Obama will move to rescind the HHS regulation protecting medical professionals and institutions from discrimination on the basis that they do not perform, assist in or refer for abortions. No notice of rulemaking has been filed yet, but more updates will be provided when it is issued.

The regulations at issue, codified at 45 CFR Part 88, were enacted by the Bush Administration in response to recent evidence that federal grantees were unaware of or not complying with decades of federal laws protecting the rights of conscience of medical professionals. You can read more about the regulations here.

The Center currently represents the Christian Medical Association, Catholic Medical Association, and American Association of Pro-Life Obstetricians and Gynecologists as intervenors defending the regulations in three lawsuits brought in federal district court in Connecticut. You can read more about the lawsuits here.

A Philosophical Case for Conscience

Writing in the Public Discourse, Prof. Christopher O. Tollefsen presents a philosophical case for the protection of the right of conscience, discussing abortion and the pro-life physician:

In sum, under extremely serious circumstances, the state can forbid what is otherwise taken to be obligatory. But the state should never command that an agent do something that an agent takes himself to be forbidden from doing by an exceptionless moral norm, and, it seems, the state should make a considerable effort to protect its citizens from demands by others that they violate their conscience in this way. . . . Another straightforward consequence is that citizens opposed in principle to participating in abortion should not be compelled by the laws of the state to violate what they take to be exceptionless negative precepts. There can be no weak form of intrinsice malum in this domain.

DOJ & DC Transit System Settle Workplace Religious Exercise Case

The Justice Department and the Washington DC area transit system have settled a lawsuit against it over its accommodation of religious exercise in the workplace.

President Obama to Name Council on Faith-Based Partnerships

The Washington Post is reporting that President Obama is poised to name the members of a newly created Council on Faith-Based and Neighborhood Partnerships.

NPR Story on Faith-Based Initiative

NPR did a story this morning about the future of the faith-based initiative under the Obama Administration. The story featured a CLS Center case, Pedreira v. Kentucky Baptist Homes for Children (KBHC). In that case, the ACLU and homosexual rights activists are attempting to exclude KBHC (now called Sunrise Children's Homes) from state partnerships with nongovernmental organizations serving abused and neglected children because KBHC draws its leadership and employees from among those who share its religious commitments. The federal district court adjudicating the case ruled in Sunrise's favor and the ACLU appealed. Briefing in the Sixth Circuit is complete and oral argument will occur on March 11.

Garnett:At its fullest, the American model of religious liberty is not a freedom from religion or a freedom of religion; it is a freedom for religion.

Notre Dame Law Prof. Rick Garnett, a friend of the Center, writes a think piece on The Public Discourse that carefully distinguishes between three rival versions of American religious liberty: freedom from religion, freedom of religion, and freedom for religion.

Note his interesting discussion of the strengths and weaknesses of a freedom of religion position:

The second approach—“freedom of religion”—tends to emphasize toleration, neutrality, and equal-treatment. Religion, on this view, is something that matters to many people, and so the law does not permit it to be singled out for special hostility or discrimination. It is recognized and accepted that religious believers and institutions are at work in society, and the stance of the law is even-handedness. Because we are all entitled to express our views and to live in accord with our consciences, religious believers are so entitled, too. The law, it is thought, should be “religion-blind.”

Although this approach is not hostile to religion, it is also reluctant to regard religion as something special. Religious liberty is just “liberty,” and liberty is something to which we all have an “equal” right. Religion is not something to be “singled out,” for accommodations and privileges, or for burdens and disadvantages. Again, religious commitment, expression, and motivation are all, in the end, matters of taste and private preference.

This approach represents an improvement on its “freedom from” competitor, and it, too, has been and is reflected in American law. In fact, it is fair to say that its influence is much more pronounced in the Supreme Court’s recent decisions. The Justices have emphasized, for example, that officials may not treat religiously-motivated speech worse than speech that reflects other viewpoints. Similarly, courts have ruled that public funds may be allocated to religiously affiliated schools and social-welfare agencies—so long as they are providing a secular public good—on the same terms as non-religious ones. At the same time, governments are not required to provide special accommodations for religious believers, or to exempt religiously motivated conduct from the reach of generally applicable laws.

Prof. Michael Stokes Paulsen legal memo on the consequences of the Freedom of Choice Act

Prof. Michael Stokes Paulsen of the University of St. Thomas School of Law has written a detailed 4000 word legal memorandum describing the consequences of the Freedom of Choice Act on Moral Accountability, a new website providing scholarly analysis of the Obama administration's policies as they relate to abortion and same-sex marriage.

From the conclusion:

While there is room for uncertainty or disagreement concerning a
few issues, in the main, FOCA’s legal effects are clear. FOCA would
invalidate nearly every state and federal law bearing on, or attempting to
influence, the exercise of a choice of abortion. FOCA would invalidate
nearly every state or federal law substantively disfavoring abortion in the
provision of benefits, services, and information. FOCA would invalidate
nearly every state or federal law protecting the conscience of medical workers
or religious hospitals from participating in abortion. FOCA would likely
invalidate nearly any state law prohibiting partial birth abortion. And
FOCA would entrench abortion rights against further meaningful legal challenge.

Advocates International moves to intervene in federal conscience case on behalf of Concerned Women for America and four pro-life medical asociations

Yesterday, attorneys for Advocates International moved to intervene in the federal lawsuit challenging the conscience regulation on behalf of the women's advocacy group Concerned Women for America as well as four pro-life medical associations, Christian Pharmacists Fellowship International, Care Net, Heartbeat International and the New Jersey Physicians Resource Council.

Read their press release and the motion to intervene and the supporting brief.

As discussed earlier, Center and ADF attorneys represent the first group of proposed intervenors Catholic Medical Association, Christian Medical Association, and the American Association of Pro-Life Obstetricians and Gynecologists.

Christians on Campus: Great David French Blog Post

David French of the Alliance Defense Fund has a terrific blog post up at National Review Online's "Phi Beta Cons" blog regarding conservatives and Christians on campus. Check it out.

Religious Liberty CLE at CLS Regional Retreat

I will be doing a presentation on religious liberty at the Christian Legal Society northeast/New England regional retreat, which runs from Friday, February 27 through Sunday, March 1.

The retreat is at the Frost Valley conference center in Claryville, NY. Sign up on the Christian Legal Society website here.

California Appellate Court Rules in Christian School's Favor

On January 26, the California Court of Appeal ruled in favor of a Christian school sued for "sexual orientation" discrimination.

The dispute arose when California Lutheran High School expelled two students for violating its code of conduct by engaging in a same-sex intimate relationship. The students' parents sued the school, claiming that it had committed discrimination on the basis of sexual orientation in violation of California's Unruh Act, which forbids discrimination on the basis of a variety of protected characteristics in "business establishments" (among other things).

California Lutheran argued that it, as a private religious school, was not a "business establishment." The trial court agreed, and the students' parents appealed. In its January 26 decision, the appellate court agreed that the school is not a business establishment. Because of this ruling, the court did not reach the religious liberty issues in the case.

The CLS Center attempted to intervene on behalf of the Association of Faith-Based Organizations (AFBO). The joint ADF-CLS press release is here.

More information about the case, including a link to the decision, is found on the relevant page of the CLS website. Congrats to my colleague Tim Tracey, who serves as lead counsel for AFBO in this case.