National Press Club Event on Conscience Regulations TODAY

Today at 10:00 AM at the National Press Club, medical professionals who have experienced discrimination as a result of their exercise of their conscience will talk about their stories and urge the Administration to protect their rights and not rescind the HHS regulations protecting rights of conscience.

Freedom2Care, a coalition of organizations (including CLS) that support conscience rights in the medical profession, will also announce the results of 2 national polls gauging popular support for conscience rights and the existing HHS conscience protection regulations that the Obama Administration has proposed to rescind.

I will be in attendance and available to answer any questions about the lawsuits filed in Connecticut challenging the HHS regulations.

If you have not yet commented to HHS in support of the existing HHS regulations and in opposition to the proposed rescission of these protections you can do so through the Freedom2Care website. The deadline is midnight TOMORROW, April 9.

Casey Mattox discusses religious student groups and nondiscrimination rules on Freedom's Ring Radio

The Center's Casey Mattox discusses religious student groups and nondiscrimination rules at public universities with attorney Alan J. Reinach on Freedom's Ring Radio. Download the fourteen minute interview podcast here. Note: this show was recorded prior to the Ninth Circuit's ruling in CLS v. Kane (UC Hastings).

Tell the Obama Administration to Enforce Laws Protecting Conscience Rights

As previously noted, the Department of Health and Human Services has now moved to rescind the federal regulations prohibiting federal grantees from discriminating against medical professionals and institutions that decline to perform or refer for abortions or against medical students that do not wish to train in the performance of abortions. The proposed rescission has now been published in the federal register, triggering a 30 day period for public comment on rescinding this rule. Despite earlier media statements from unnamed HHS officials, the Administration has not proposed simply to "clarify" the rule, but have proposed completely throwing out the conscience protection rule altogether.

The conscience protection rule imposes no new obligations on federal grantees, but requires HHS grantees to certify that they will comply with three federal laws, the Church Amendments, Coats-Snowe Amendment, and Weldon Amendment. It also provides for a process by which a medical professional or institution may report their discriminatory treatment to HHS so that the agency may take action.

HHS previously explained that the rule was necessary, in part, because grantees and the public are unaware of these statutory protections - a fact confirmed in the lawsuits CLRF has been involved in defending medical conscience rights. HHS also explained that discriminatory treatment of medical professionals and institutions also threatened access to health care by driving pro-life medical professionals from the profession and causing faith-centered medical institutions (like Catholic hospitals) to close their doors rather than perform abortions.

The public, whether medical professionals, patients, or others interested, are invited to file public comments on the proposed rescission of the HHS rule. While stories of discrimination you or others have faced is helpful, ANY comment, even a few sentences, is helpful.

A website [http://www.freedom2care.org/] has been created to help facilitate complaints of discrimination and submission of comments to HHS in support of the existing regulations and in opposition to their rescission. You can also share the link with your facebook and twitter friends.

Comments are due by April 8, but do it today!

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.

Illinois Supreme Court: Pharmacies Can Challenge Governor Blagojevich's Anti-Conscience Rule

The Illinois Supreme Court ruled yesterday that pharmacies that do not wish to stock Plan B, a drug used as an "emergency contraceptive" but which can prevent the development of an already fertilized egg, may challenge a rule issued by Governor Rod Blagojevich mandating that they fill such prescriptions despite their conscientious objections.

The plaintiffs challenged the rule in state court under state and federal laws protecting conscience, including the Illinois Health Care Right of Conscience Act, the Illinois Religious Freedom Restoration Act, and the First Amendment. The Illinois trial court ruled against the plaintiffs, holding that the case was not yet ripe for adjudication.

The Center, on behalf of the Christian Legal Society and Christian Pharmacists Fellowship International, and with substantial assistance from attorneys with the Columbia, SC firm, Nelson, Mullins, Riley & Scarborough, filed an amicus brief arguing that the case was ripe. The Illinois Supreme Court reversed the trial court, holding that the claim was indeed ripe for adjudication.

The case will now return to the state trial court for a decision on the merits of the Plaintiffs' claims. While the State Supreme Court's opinion does not weigh in on the merits directly, language used in the opinion may indicate that the justices believe that the pharmacies have a strong case. The court noted, "In our opinion, this is largely a case involving a question of law–whether pharmacists and pharmacies can be compelled to violate their consciences and religious beliefs inviolation of two Illinois statutes and the first amendment."

CLRF Challenges Boise State's Religious Discrimination in Student Group Funding

The Center has filed suit in the Federal District Court for the District of Idaho, Boise Division, today against Boise State University officials, challenging their discriminatory exclusion of religious student groups from student activity fee funding available to all other groups. CLRF attorneys also filed a Motion for Preliminary Injunction asking the Court to prohibit the Defendants from mandating and allocating student fees unless they halt their discriminatory policies.

Boise State collects a mandatory Student Activity Fee for the purpose of allowing the student government to distribute this money to student groups. However, the university expressly prohibits religious student organizations from receiving these funds, citing a provision of the Idaho constitution. In Widmar v. Vincent, the Supreme Court rejected a Missouri university's attempt to justify excluding religious student groups from university recognition, deeming its claim that the state constitution compelled it to do so was insufficient to trump the First Amendment rights of the religious student group. In Rosenberger v. Rector and Visitors of the University of Virginia the Supreme Court likewise held that the First Amendment prohibits a public university from excluding religious student groups from student activity fees available to other groups.

Boise State does provide student fee funding to the Secular Student Alliance, an atheist student group that proclaims a purpose to advocate for "non-religious world views."


In addition to the exclusion of religious student groups, the complaint also alleges that Boise State’s policies permit discrimination against other student groups on the basis of their views.

Bruce Skaug of Goicoechea Law Offices in Nampa, Idaho also represents the Plaintiffs.

The Complaint and Motion for Preliminary Injunction filed in Cordova v. Laliberte with the Federal District Court for the District of Idaho, Boise Division can be viewed here.

HHS Issues New Conscience Regs

The U.S. Department of Health and Human Services has issued final regulations protecting healthcare workers from being forced to perform or assist in abortions against their conscience. The full text of the regulations are available here.

The Center for Law & Religious Freedom filed comments on the proposed rules in September on behalf of the Christian Legal Society and the Fellowship of Christian Physician Assistants. The Center's comments pointed out that the proposed rule did not add any additional obligations to employers but merely required them to certify that they complied with federal conscience protections with which they have been required by law to comply for decades. A previous post on the Center's comment is available here.

Despite the fact that the regulations impose no new legal obligations on federal grantees, the Center's comment pointed out that the State of California, Planned Parenthood of California, the California Medical Association, and the National Family Planning and Reproductive Health Association had all evidenced ignorance of existing federal laws protecting the conscience rights of healthcare workers in two federal court cases challenging the Weldon Amendment. In both of those cases, California v. United States, and National Family Planning and Reproductive Health Association v. Gonzales, the Center for Law and Religious Freedom served as counsel for intervening pro-life medical groups defending the Weldon Amendment. The federal courts sided with the Center and the medical groups in both cases.

The new rule will take effect 30 days from tomorrow, Dec. 19. It will require federal grantees to specifically certify that they comply with the Church Amendment, Coats-Snowe Amendment to the Public Health Services Act, and the Weldon Amendment.

University of Iowa Restores Funding of CLS Chapter

On October 22, the University of Iowa rescinded its earlier decision to revoke the funding of the law school's Christian Legal Society chapter.

On or about September 25, 2008, the CLS chapter submitted a request for funding to the Student Assembly Budgeting & Allocating Committee. The Committee rejected the chapter's funding request based on the notion that the chapter commits "religious discrimination" by drawing its leaders and voting members from among those who voluntarily embrace the CLS Statement of Faith.

On October 20, Center Litigation Counsel Casey Mattox sent a letter to the university's general counsel. On October 22, the Committee informed chapter representatives that the general counsel had instructed them not to deny the chapter funding based upon the Statement of Faith requirement.

Iowa attorney L. Craig Nierman assisted the Center.

From the Presidential Debates: the "Health of the Mother" Canard Demonstrated.

In last night's presidential debate, Senator John McCain criticized Barack Obama for his opposition to proscriptions on abortion, including partial birth abortion. Obama countered that he had only opposed a Partial Birth Abortion Ban because it did not include an exception for cases where it was necessary to protect the "health of the mother."

Planned Parenthood has argued strenuously that the partial birth abortion procedure -- in which a child is pulled up to halfway outside the birth canal before its skull is crushed, it's brains sucked out, and it is delivered dead -- is necessary to protect a woman's health. In Gonzales v. Carhart the Supreme Court turned away a facial challenge to the law, holding that this procedure was unnecessary to protect a woman's health, deferring to Congress's finding after extensive hearings that the procedure was never necessary to protect a woman's health. However, the Court left open the possibility of as-applied challenges to the PBA ban if a woman's health was ever threatened by the unavailability of the procedure. Justice Ginsburg invited and predicted such challenges.

But after 18 months no such challenge has been brought. 547 days have now passed after the Supreme Court's decision upholding the PBA Ban and permitting it to go into effect. By Planned Parenthood's estimates, likely very low, six partial birth abortions were occurring daily prior to this decision. By these figures, 3,282 partial birth abortions have NOT occurred since the Supreme Court allowed the statute to go into effect without a health exception. Yet, not a single as-applied challenge has been brought claiming that the PBA Ban endangered a woman's health in a specific case.

I have discussed this point previously here and here. Again, either women have experienced a remarkable streak of luck in the past 18 months, the abortion advocacy groups are terribly understaffed in their legal departments, or Planned Parenthood and others were lying about the medical necessity of partial birth abortion. But in any case, someone now arguing for such an exception should bear the burden to demonstrate why the lack of a health exception for partial birth abortions has been a burden on women for the past 18 months.

Seventh Circuit Rejects Taxpayer Standing to Seek Repayment of Funds from Notre Dame

The Seventh Circuit Court of Appeals has issued an opinion holding that taxpayers have no standing to seek restitution from Notre Dame of funds provided to the school by the federal government for a teacher training program. The 3-0 decision is a reversal from the same panel's prior decision holding that the taxpayers had standing to seek repayment to the federal treasury from Notre Dame of a $500,000 grant for a secondary school teacher training program.

The new decision followed a remand by the Supreme Court for reconsideration in light of its decision last term in Hein v. Freedom From Religion Foundation that limited taxpayer standing. The 7th Circuit interprets Hein to limit the establishment clause exception to the general prohibition on taxpayer standing to the facts of the decision that created the exception, Flast v. Cohen. Thus, the 7th Circuit rejected taxpayer standing to seek restitution, a remedy not sought in Flast. The Court explained:

Accordingly, we read Hein to mean that taxpayers continue to have standing to
sue for injunctive relief against specific congressional appropriations alleged
to violate the Establishment Clause, but that is all. Permitting a taxpayer to
proceed against a private grant recipient for restitution to the Treasury as a remedy in an otherwise moot Establishment Clause case would extend the Flast exception beyond the limits of the result in Flast. After Hein, such an extension is unwarranted.

Judge Sykes wrote the decision for the unanimous panel. She dissented from the prior Laskowski panel decision by Judge Posner that found taxpayer standing to seek restitution from Notre Dame.

Christian Legal Society and Fellowship of Christian Physician Assistants supports proposed rule protecting health care right of conscience

On Thursday, the Center for Law & Religious Freedom (CLRF), on behalf of the Christian Legal Society (CLS) and the Fellowship of Christian Physician Assistants (FCPA), submitted comments in support of a rule proposed by the Department of Health & Human Services "Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law." Dep't of Health & Human Services, 73 Fed. Reg. 50279 (proposed Aug. 26, 2008) (to be codified at 45 C.F.R. pt. 88) (read the full text of the provider conscience regulation)

From the comments:

The pending regulations do not impose any new substantive obligations on HHS
grantees. Rather, they simply require grantees to certify that they comply with
the existing protections for medical professionals' rights of conscience. But as
the above illustrates, holding HHS grantees responsible for legal requirements
that they have ignored for decades is no small thing. The unfortunate fact is
that while federal law explicitly protects medical professionals from being
forced to perform or refer for abortions against their conscience, in practice
HHS grantees have been unaware of or ignored these laws. The pending regulations
are a necessary and important insurance that HHS grantees will not use federal
taxpayers' money to compel persons to perform abortions or provide abortion
referrals in violation of their consciences. Please issue these regulations at
the earliest possible date.

HHS Conscience Regulations - Your Comment Needed by September 25

The U.S. Department of Health & Human Services has issued proposed regulations that would require most recipients of HHS funds to certify that they comply with federal laws protecting the conscience rights of pro-life medical professionals. For over three decades the Church Amendment has prohibited recipients of HHS funding from compelling employees to participate in activities that violate their conscience. Two other federal statutes, the Coats-Snowe Amendment to the Public Health Services Act, enacted in 1996, and the Weldon Amendment, an appropriations rider first enacted in 2004, prohibit federal and state governments and other recipients of certain federal funds from discriminating against medical professionals who do not perform or refer for abortions.

Despite these clear protections of the rights of conscience of pro-life medical professionals, those on the ground see a different story. Medical students and professionals report pressure to perform, be trained to perform, or to otherwise be involved in assisting with abortions. (Link is to website of the Christian Medical Association which CLS has represented in defending its members’ conscience rights.) Moreover, CLRF’s own experience defending the Weldon Amendment illustrated the utter lack of understanding that some of the largest grantees of federal funds (including the State of California and abortion advocacy groups) have of their own obligations not to discriminate against pro-life medical professionals. The existing federal laws prohibiting the rampant discrimination in the healthcare profession are simply being ignored. The Department’s proposed regulations are urgently needed in order to ensure that pro-life physicians, nurses, physician assistants, and others are able to remain in the practice and that the next generation of medical professionals can enter the profession with the confidence that they will not be forced to choose between their career and their conscience.

Please take the time to submit a brief comment encouraging Secretary Leavitt to issue the proposed regulations. The email address is consciencecomment@hhs.gov. You may also go to www.Regulations.gov, click on the link “comment or submission” and enter the keywords “provider conscience” to submit a comment there. THE DEADLINE FOR SUBMITTING COMMENTS IS THURSDAY SEPTEMBER 25, 2008.

As abortion advocates have launched postcard campaigns opposing the regulations, any comment is helpful, even if just a brief 1-2 sentences urging their adoption. Of course, if you can relate an example of your own or a friend or client’s discriminatory treatment for their exercise of their rights of conscience that would be particularly helpful. And please encourage others to do the same. Some additional points you may want to make are below:

• The Department should enforce existing conscience protections, passed with bipartisan support and on the books for as long as three decades.
• Discrimination against pro-life medical professionals does not expand access to abortion. It drives a critical segment of the medical workforce from the profession, diminishing access to medical care and increasing costs.
• Urge the Secretary to interpret the existing regulations to explicitly protect medical professionals from being forced to dispense or refer for chemical abortifacients like RU-486 and “Plan B.”

Pray for this child

A woman in Israel had an abortion at 5 months on a doctor's instruction that the child was showing no signs of life after the mother's bleeding. Hours after she was delivered and placed in a freezer the baby girl moved and opened her mouth just as she was being taken to be buried. She is still in neonatal intensive care right now.

I realize this is a blog for religious freedom and life issues and that thoughts about those issues are impossible to avoid in connection with this story. And that's a shame. I long for a world where there is no perceived political axe to grind in simply praying for the survival of this little girl.

HHS Secretary Leavitt Blogs on Medical Professionals' Conscience Rights, Possible Regulatory Protections

A couple of weeks ago, Greg blogged about a New York Times article describing a leaked proposed rule from inside the Department of Health and Human Services. The rule, if adopted, would protect require recipients of federal funds to certify in writing that they adhere to the three federal statutes prohibiting discrimination against healthcare workers who refuse to perform abortions.

On August 9, Secretary Leavitt posted an entry on his blog explaining that the draft regulation would not, as the abortion lobby would like to frighten people into believing, "define contraception as abortion." He explained:

"The Bush Administration has consistently supported the unborn. However, the issue I asked to be addressed in this regulation is not abortion or contraceptives, but the legal right medical practitioners have to practice according to their conscience and patients should be able to choose a doctor who has beliefs like his or hers."

Today he has posted a new entry noting that "with the help of Planned Parenthood, my blog -- for the first time -- received more visits than my teenage son’s MySpace page." He goes on to explain that he did find one comment from Mary Gallagher, President of the National Family Planning and Reproductive Health Ass'n, helpful. Ms. Gallagher said that IF the regulation is adopted, medical professionals "get to pick and choose what they want to do." Secretary Leavitt responded:

"So, according to Ms. Gallagher’s ideology, if a person goes to medical school they lose their right of conscience. Freedom of expression and action is surrendered with the issuance of a medical degree.

There is something I’d like to point out to Ms Gallagher and the people she represents. It is currently a violation of three separate federal laws to compel medical practitioners to perform a procedure that violates their conscience.

Obviously, some disagree with the federal law and would have it otherwise, so they have begun using the accreditation standards of physician professional organizations to define the exercise of conscience unprofessional and thereby make doctors choose between their capacity to practice in good standing and their right of conscience. In my view, that is simply unfair and a clear effort to subvert the law in favor of their ideology.

This is not a discussion about the rights of a woman to get an abortion. The courts have long ago identified that right and continue to define its limits. This regulation would not be aimed at changing or redefining any of that. This is about the right of a doctor to not participate if he or she chooses for reasons they consider a matter of conscience. Does the National Family Planning and Reproductive Health Association believe we can protect by Constitution, statute and practice rights of free speech, race, religion, and abortion—but not conscience?

Is the fear here that so many doctors will refuse that it will somehow make it difficult for a woman to get an abortion? That hasn’t happened, but what if it did? Wouldn’t that be an important and legitimate social statement?

I want to reiterate. If the Department of Health and Human Services issues a regulation on this matter, it will aim at one thing, protecting the right of conscience of those who practice medicine. From what I’ve read the last few days, there’s a serious need for it."

Exactly. I encourage you to go to Secretary Leavitt's blog and urge the Secretary to issue the proposed regulation protecting the conscience rights of medical professionals. Were there any doubt that it is necessary to remind abortion advocacy groups receiving federal grants that they cannot force medical professionals to perform abortions against their conscience, the abortion lobby's own reaction to these draft regulations eliminates those doubts.

Washington Post's Senseless Editorial on Religious Hiring Rights

In the Washington Post's editorial today, titled "Faith-Based Obama," (behind subscription), the Post finds that Obama's recent speech on the faith-based initiative and his plan to retain it while stripping religious organizations of their right to hire those who agree with their beliefs is a "sensible balance." The Post reaches this conclusion despite first acknowledging that laws prohibiting religious discrimination in employment exempt religious employers - exemptions that the Post says "only make sense." So, it is sensible to exempt religious employers from these nondiscrimination laws, but it is a "sensible balance" to prohibit them from hiring persons who agree with their views if they are receiving any government funds to provide services that the government believes are necessary. Makes perfect sense.

The flaws in the Post's thinking are many so I'll limit my comments here to a couple. First, the Post seems to approach this question, as many do, from a perspective that faith-based charities are benefitting from the government and thus must be willing to play by its rules. This approach treats faith-based nonprofits as just another government contractor. But while for-profit contractors are generally paid a market rate for a service rendered, charitable organizations receiving a grant under the faith-based initiative are not looking to profit and the grants typically cover only a part of their expenses. The remainder is paid for by the non-profit's donors. It is the government that benefits from these programs because instead of, for example, creating its own homeless shelters, soup kitchens, marriage counseling programs, etc., the government relies upon already existing faith-based and other programs at a much lower cost to the taxpayer. Approaching this matter then from the perspective of what the faith-based organization owes the government for IT's charity misunderstands the relationship.

The Post also claims that most faith-based groups that take federal funds have managed to thrive for years without discriminating in their hiring. It gives no examples, so it is unclear what the Post considers "faith-based." However, it is true that some organizations that are ostensibly religious see no need to limit hiring based on religion. That is unsurprising as an organization that does not limit its hiring to those who share its beliefs will very soon cease to represent those beliefs. And at that point there is no reason to limit hiring to those who agree with views that the organization no longer considers it important to represent.

The Post also cheerleads for imposing sexual orientation nondiscrimination rules on faith-based charities if the proposed Employment Non-Discrimination Act (ENDA) is enacted in an Obama presidency -- even if it contains exemptions for religious organizations (a topic Greg has written on several times here).

Were there any doubt, the Post's editorial unintentionally illustrates why Obama's proposal would create a faith-based initiative that that favors "progressive" religious organizations over "orthodox" religious organizations (more on this from Greg here).

Christian Marriage Registrar Punished For Refusing to Perform Gay "Marriages" Wins Religious Freedom Battle

A London tribunal has held that the North London council violated her religious freedom by punishing her for refusing to perform gay civil partnership ceremonies. The Daily Mail has more on her story and the decision here. The Evangelical Alliance (UK) called the decision "a triumph for the place of conscience in public duties." The unanimous decision by the Central London tribunal comes as the recent California Supreme Court decision declaring a right to same-sex marriage under the state constitution has set the stage for similar controversies in the U.S.

CLRF has been and is counsel in several cases in which Christian student organizations were denied recognition by their universities because their membership and leadership standards concerning extramarital sexual conduct were deemed to discriminate against homosexuals. Other conflicts between the recently created right to same-sex marriage and religious freedom, range from a Methodist Church sanctioned for refusing to rent its pavilion for a same sex civil union in New Jersey to Catholic Charities in Boston and San Francisco being forced to stop providing adoptions because they will not place children with same-sex couples.

As these conflicts grow more numerous in the wake of the California decision, it will be interesting to see whether American courts will follow this lead or whether, in an ironic turn four hundred years in the making, the English surpass their former colonies in defending religious freedom.

So, I ask again. Was Planned Parenthood Lying?

Or perhaps they're just understaffed?

One year ago last Friday, on April 18, 2007, the Supreme Court rejected facial challenges to the constitutionality of the federal Partial Birth Abortion Ban. Before and after the Court's ruling in Gonzalez v. Carhart, Planned Parenthood attorneys had warned that permitting the ban on partial birth abortions to go into effect would threaten women's health. Expressing the same concerns, Justice Ginsburg predicted and invited as-applied challenges to the PBA ban to protect womens' health.

Ninety-seven days after the decision I noted here that it was odd then that Planned Parenthood had not brought such an as-applied challenge. After all, according to Planned Parenthood, 6 partial birth abortions were occurring per day. Assuming the truth of this figure - and it was likely a gross understatement - there have now been 2232 partial birth abortions that have NOT happened as a result of the Court's decision last April. Ed Whalen also notes that the attempted explanations for Planned Parenthood's failure to bring an as applied challenge on behalf of one of these thousands of women no longer hold water (and never did).

So, I ask again. Is it possible that Planned Parenthood wasn't being entirely truthful when it told the Court that partial birth abortion was necessary to protect womens' health? Or have we just witnessed 372 remarkably lucky days?

Another CLS Chapter Derecognized - This Time at The University of Montana School of Law

UPDATE Mon Dec. 17, 2007, 6:36 p.m. See also: the CLS v. U. Montana page on the CLS website with links to the press release, the complaint, and other material.

Over the past two decades CLS chapters have faced derecognition at approximately 17 Universities around the country on the basis that CLS's Statement of Faith requirement for its voting members and officers (it bears repeating for the umpteenth time that ANYONE is invited and welcome at CLS meetings and activities) violates a school nondiscrimination policy. In many cases the schools have argued that CLS commits religious discrimination. Increasingly however, schools are adopting "sexual orientation" nondiscrimination rules and claiming that because CLS interprets its Statement of Faith to include the belief that sexual conduct outside marriage (whether with someone of the same or opposite sex) is sinful, CLS discriminates on the basis of "sexual orientation."

In all but one of CLS's encounters with chapter derecognition CLS has succeeded - in or out of court - in regaining recognition for its chapter with its membership and leadership rules uncompromised. From settlement agreements in which the University altered its policies to accommodate CLS (Arizona State, Ohio State, etc.) to federal court decisions holding that applying such policies to religious organizations is unconstitutional (Southern Illinois University) to decisions on appeal by Student Bar panels that a religious organizations' faith requirements for membership and leadership are not properly termed "discrimination" at all (Idaho), CLS has been almost uniformly successful. The one exception is the University of California-Hastings College of Law where an appeal to the 9th Circuit is pending).

The University of Montana School of Law has decided to be #18. Although the Associated Students of the University of Montana, the main campus student association, has recognized CLS-UM, the law school will not. More properly, although the SBA originally recognized CLS earlier this year, with the SBA deciding that SBA nondiscrimination policies did not preclude CLS recognition, the SBA then effectively submitted CLS to a law school-wide popularity vote which CLS narrowly lost. In light of this, the SBA THEN decided that CLS-UM violated its nondiscrimination rules and derecognized the chapter.

We have filed a complaint in federal court in Missoula, Montana on behalf of CLS-UM and National CLS. The complaint is linked from the release linked above. Expect more here on this case in the weeks ahead.

On Stem Cell Research and Media Portrayals of Christians as "Anti-Science"

If you haven't read this article in Opinion Journal today, you should. Since Roe v. Wade scientific progress has slowly undermined many of the underpinnings for the abortion right as, for example, unborn children are shown to feel pain and viability dates become earlier and earlier. With recent developments in adult stem cells, science once again appears to be on the side of the angels. But don't hold your breath expecting the media to change its narrative that conscientious and moral objections are the enemies of science. THAT would take a miracle.

Big Week for Healthcare Rights of Conscience

Last week was a significant one on the healthcare rights of conscience front. A federal court in Washington state issued a preliminary injunction prohibiting the enforcement of Washington regulations to force pharmacies and pharmacists to stock and dispense the morning after pill (Plan B). In Stormans v. Selecky, the Court addressed a Washington pharmacy rule that the pharmacy board adopted only after pressure by Planned Parenthood and the governor in response to its previous decision that - comparatively speaking - protected conscience rights. A pharmacy and two individual pharmacists who object to stocking and filling prescriptions for the drug challenged the rule on Free Exercise and Title VII grounds.

The Court held that the Washington rule was not a neutral and generally applicable rule that happened to burden religious persons, but was in fact "targeted at the religious practices of some citizens," and that the "burden [the regulations imposed] on the practices of plaintiffs is intentional not incidental, and substantial not minimal." Indeed, the Court cited "the prominent role played by Planned Parenthood and the Northwest Women's Law Center" as further proff "that Plan B and religious objection were the focus of the rulemaking process." "The regulations appear designed," the Court observed, "to impose a Hobson's choice for the majority of pharmacists who object to Plan B: dispense a drug that ends a life as defined by their religious teachings, or leave their present position in the State of Washington."

Having determined that the rule was targeted at religious objectors, the Court applied strict scrutiny and had no problem concluding that the state had no compelling interest to justify this imposition on objecting pharmacies and pharmacists.

Finally, a Court that understands exactly what is at stake in this fight. Not "access" to the morning after pill (the Court notes that even the state's pharmacy association recognizes that access is not a problematic in Washington state), but the pro-abortion lobby's desire to drive out any vestiges of pro-life sentiment from the medical profession. In the view of those on the radical side of "Choice," dissenting voices cannot be tolerated. Even the few pharmacists who for reasons of conscience and personal religious beliefs do not wish to stock or personally fill prescriptions for a drug that operates in many cases to stop an already fertilized egg from attaching to the womb and developing into a child cannot be permitted to remain in the profession.

The Court had no problem disposing of the argument that the regulations were justified by a concern that pharmacist objections amounted to gender discrimination. Noting that federal and state law both provide a clear right to health care providers not to participate in an abortion, the court held "refusal to participate in an act that one believes terminates a life has nothing to do with gender or gender discrimination." Again, pointing to the apparent lack of a problem of access to Plan B in Washington state, the Court held that "the interests promoted by the regulations have more to do with convenience and heartfelt feelings than with actual access to certain medications."

Exactly. One could hardly hope for better understanding by a court of the true dynamics of this debate than is evidenced in this opinion. Kudos to lead counsel Kristen Waggoner (who were proud to claim as a CLS member), the team at Ellis, Li & McKinstry, and the Alliance Defense Fund for this win.

The importance of the decision is demonstrated by the other big development last week, an Ethics Opinion by the American College of Obstetricians and Gynecologists that belittles the role of conscience and repeats many of the misguided arguments for setting aside the role of the conscience of the individual medical professional that the Washington defendants relied upon in Stormans. Relying only a caricaturized view of conscience as simple subjective feelings of distaste for abortion and buying the Planned Parenthood media spin that persons with conscientious objections typically seek to lecture others about their sinfulness, ACOG would effectively rule out conscience rights in the abortion context. More on this ACOG opinion and its serious flaws in the coming days.