By / Nov 19

What is this case and what’s it about?

The case is Whole Women’s Health v. Cole. Abortion clinics in Texas are challenging common-sense state regulations intended to protect the health of all women and any children born alive during botched abortions, arguing that the laws are too burdensome on women wanting to get abortions in some parts of Texas. You may remember the immense protests at the Texas State Capitol surrounding the Wendy Davis filibuster of these regulations that resulted in then-Governor Rick Perry calling a special session to pass these laws once and for all.

What is the Texas law, and what part of it is being challenged?

Referred to as House Bill 2, the abortion restrictions in the law can be divided into four parts:

  • A rule that requires abortionists to obtain admitting privileges at a hospital within 30 miles of the clinic where they perform the abortion;
  • A rule that requires patients to follow FDA protocols when ingesting abortion medication;
  • A ban on abortions after 20 weeks; and
  • A rule requiring abortion facilities to meet Ambulatory Surgical Center (ASC) standards

The 20-week abortion ban and the application of these other standards to most abortion clinics throughout Texas have already taken effect. By most reports, the number of abortion clinics in Texas has been reduced from over 40 to 17.

Some abortion clinics challenged the admitting privilege requirements for abortionists and the ASC basic health standards for abortion clinics.

What did the Fifth Circuit rule?

The Fifth Circuit Court of Appeals ruled that the Texas law was constitutional with a couple small exceptions. From the opinion itself:

In plain terms, the Texas law and its provisions may be applied throughout Texas, except that Supreme Court precedent requires us to partially uphold the district court’s injunction of the ASC requirement as applied to the Whole Woman’s Health abortion facility in McAllen, Texas, and to uphold the district court’s injunction of the admitting privileges requirement as applied to Dr. Lynn when he is working at the McAllen facility. (p. 3)

Texas’s stated purpose for enacting H.B. 2 was to provide the highest quality of care to women seeking abortions and to protect the health and welfare of women seeking abortions. There is no question that this is a legitimate purpose that supports regulating physicians and the facilities in which they perform abortions. (p. 32)

In other words, with the exception of one abortion clinic in McAllen, Texas and one abortionist who works there, the law may go into effect. That clinic would not need to meet the ASC requirement, and that doctor would not have to meet the admitting privileges requirement due to the Fifth Circuit’s application of Supreme Court precedent in Planned Parenthood v. Casey. The Fifth Circuit found that the requirements for that clinic would possibly close it down and therefore make it too burdensome for women nearby to obtain an abortion.

For every other abortion clinic and every other abortionist, the laws and regulations would apply.

What is the question before the Supreme Court?

The petitioners in the case presented two questions in their petition for a writ of certiorari (asking the Supreme Court to take the case and answer these questions):

(1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and

(2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.

Why is this case so important?

Planned Parenthood v. Casey was the successor and clarifying case that could have overturned Roe v. Wade. Instead, in an opinion that was as constitutionally cloudy and perplexing as its predecessor, the Supreme Court established a new constitutional standard that any abortion regulations and restrictions must meet. That standard asks whether the regulation imposes an “undue burden” on a woman’s right to an abortion. This test asks if a substantial obstacle has been placed in the path of a woman seeking the abortion of a nonviable fetus. However, in order to promote states’ profound interest in potential life, measures may be taken to ensure a woman’s choice is informed and they may not be invalidated even if their purpose is to persuade the woman to choose childbirth over abortion.

In other words, states may pass abortion regulations to promote women’s health, respect for unborn life, and to persuade to choose childbirth. While upholding the essential holding of Roe, Casey struck down the requirement that a woman notify her spouse before getting an abortion while upholding a 24-hour waiting period and parental consent for minors.

The Supreme Court’s answers to these cases provide the best chance in nearly a quarter century since Casey to overturn Roe v. Wade. While we cannot expect that to happen, the case will have a huge impact on the rights of citizens and their elected representatives in state legislatures to pass common-sense regulations protecting the health of women and children in light of grisly abortion clinics like those of Kermit Gosnell.

Be in prayer for the lawyers arguing this case and for the Supreme Court justices deciding it.

By / Apr 28

What is the same-sex marriage case the Supreme Court is hearing?

Today the Supreme Court is hearing oral arguments in the case of Obergefell v. Hodges, which is consolidated with three other cases (Tanco v. Haslam (Tennessee); DeBoer v. Snyder (Michigan); Bourke v. Beshear (Kentucky). These cases challenged two issues concerning whether the Fourteenth Amendment's must guarantee the right for same-sex couples to marry.


What issues will the court decide?

The two issues to be answered in this case are:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

These are known as the “marriage” and “recognition” questions, respectively. The Court could answer “yes” or “no” to both questions. Additionally, the Court could say that individual states are not required to issue marriage licenses to same-sex couples but, due to the Full Faith and Credit clause, must recognize such marriage licenses as valid when issue in another state.


Why is the argument relying on the Fourteenth Amendment?

The Supreme Court rarely recognizes new “fundamental rights” in the Constitution that have previously existed, which is what many opponents of same-sex marriage say is being asked for. Because of this obstacle LGBT marriage advocates are claiming that the right to marry is already well established and they simply want access to it in order to marry a person of their choosing.


What is the argument that the Court is creating a new “fundamental right” by allowing same-sex couples to marry?

Marriage is currently considered a “fundamental right” by the Supreme Court and clearly applies to opposite-sex couples.  When considering whether an asserted right is "fundamental," says Chris Gacek, we are to rely on the test that the court set out in Washington v. Glucksberg (1997).

First, the court requires the presentation of a "'careful description' of the asserted fundamental right or liberty interest." The claimed right must be described precisely. Second, such rights must be "deeply rooted in this Nation's history and tradition."

Furthermore, the right must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental." The sought-after right must be "implicit in the concept of ordered liberty" so that "neither liberty nor justice would exist if (it was) sacrificed."

In the current cases, a broad definition like "being able to marry the person of one's choice" does not describe what the plaintiffs seek. They are permitted to marry at present, but they must marry a person of the opposite sex.

That is how the right to marry has always been understood, but that is not the type of marriage the challengers want. Rather, they seek the legitimation of a new right — a right to a governmentally recognized conjugal arrangement for persons of the same sex.


What happens if the court rules to overturn the state prohibitions against same-sex marriage?

The Court could invalidate all bans against same-sex marriage in the individuals state. The same effect would occur, however, if the Court forces the states to recognize same-sex marriages from other states. In either situation, recognition of same-sex marriage by the states would be the law of the land.


What is the Obama administration’s position on this case?

The Justice Department's decided in 2011 to stop defending the federal anti-marriage law. Since then the administration has actively backed the creation of a right for same-sex couples to marry. The Obama administration has also filed an amicus brief supporting the same-sex marriage side, which will receive considerable attention from the Court.


How many same-sex couples currently have marriage licenses?

There are an estimated 350,000 same-sex couples that have received state marriage licenses. That's just 0.3 percent of the nation's 242 million adults.


When will the case be decided?

The final ruling is not expected until June or early July.


By / May 5

Today, the Supreme Court ruled 5-4 to uphold the right of Greece, New York citizens to begin its municipal meetings in prayer.

Writing for the majority, Justice Kennedy argues that,

These ceremonial prayers strive for the idea that people of many faiths may be united in a com­munity of tolerance and devotion. Even those who dis- agree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and per­ haps appreciate a ceremonial prayer delivered by a person of a different faith.


Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be under­ stood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs.

In the Town of Greece, New York, the town board held monthly meetings to conduct city business. The board opened these meetings with a prayer given by a rotating resident of the town. A majority of the time, the prayers were offered by Christian pastors, although in a few instances members of other faith traditions offered the invocation (a Jewish man, a Baha’i leader, and a Wiccan).

The challengers to the Town’s practice argued that this practice amounts to an “establishment” of religion by the government. Because members of the public that are required to be at the board meeting for city business like zoning issues, they argue, the public is forced to pray.

Ultimately, this case is about whether a prayer offered before a governmental meeting of any kind is constitutional. This particular case is about a town board meeting, but prayers are offered every day as Congress, state legislatures, state and federal courthouses, city councils, and school boards open for business. Praying to God for wisdom, guidance, and Providence as the legislature opens for business has been a part of America’s tradition since the days of the Founding Fathers.

Legislative prayer serves the purpose of reminding us that the government is not a faceless, monolithic institution: it is made up of people with diverse perspectives and diverse religious viewpoints. And indeed, if American culture continues to grow more hostile toward the beliefs held by evangelical Christians, the freedom for legislators and other public officials to express their religious beliefs openly will be a great comfort to what may become a Christian minority.

At the same time, Christians must recognize that freedom to express religious viewpoints in the public square is just that: freedom. The days when it seemed possible to ensure that all religious speech in the public square reflected orthodox Christianity are becoming history. If Christians are to preserve our own rights to express our religious views in the public square, we must just as zealously defend the rights of members of other faiths to defend their religious views, even if they are different from our own.

The best path forward for the United States is neither secularism nor theocracy, but a healthy, civic pluralism that recognizes and respects the diversity of viewpoints and beliefs in our society.

What makes America great is our ability to accept our differences, even when those differences are expressed in the public square. When we allow evangelicals to pray as evangelicals, Catholics to pray as Catholics, Muslims to pray as Muslims, Jews to pray as Jews, we are not undermining political pluralism in our democracy, we’re upholding it.

Today, the Supreme Court ruled correctly; and Christians of all stripes should be thankful. But this victory is extended not only to Christians, but also to people of all faiths or no faith at all, for it is a victory in the state recognizing its limits over its own citizenry. This is a sentiment echoed by Justice Kennedy, who writes,

Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.

The ERLC provided a white paper on why this case is of significant importance. It’s available here.