Explainer: Supreme Court Rules in Favor of Free Speech in 303 Creative Case
By / Jun 30

Today, the U.S. Supreme Court ruled in a 6-3 decision in the 303 Creative case that the state of Colorado violated the First Amendment rights of petitioner Lorie Smith by enforcing state anti-discrimination laws against her graphic design business, compelling her to speak in a way that violated her beliefs. Justice Gorsuch delivered the opinion of the court, with Justices Alito, Barrett, Kavanaugh, Thomas, and Chief Justice Roberts joining. Justice Sotomayor filed the dissenting opinion, joined by Justices Kagan and Jackson.

ERLC President Brent Leatherwood commented on this ruling:

If the government can compel an individual to speak a certain way or create certain things, that’s not freedom—it’s subjugation. And that is precisely what the state of  Colorado wanted.

Thankfully, the court has stepped in to say that individual rights may not be paved over by a zealous government. Colorado’s scheme of compulsion and coercion against creators has failed once more. 

But the implications of this ruling extend throughout the nation: People are free to speak, create, and operate in ways that are consistent with their deepest-held beliefs—even when those beliefs are deemed culturally unpopular.

What did the 303 Creative case decision say?

Today’s decision is a landmark ruling in favor of free speech. Quoting previous cases, the court highlighted that the framers designed the First Amendment to protect the freedom to think and speak as one wishes. The government cannot suppress speech simply because it deems it “misinformed or offensive” (17). The court emphasized that technological advancements, such as the internet, do not diminish the protections afforded by the First Amendment. 

Though the opinion recognized the important role that public accommodation laws have played and continue to play in our nation, it noted that these laws can “sweep too broadly when deployed to compel speech” (14) and that “no public accommodations law is immune from the demands of the Constitution” (14). The court took an expansive view of what should be considered “speech,” and thus, be afforded First Amendment protections. 

It also rejected arguments made that Lorie Smith was merely facilitating the speech of others through the creation of a website. It also rejected claims that because each creative professional is unique, prospective clients would be unable to find a satisfactory alternative. As Justice Gorsuch wrote, this would mean that “the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise” (15).

Rather, the First Amendment was designed to establish the United States as “a rich and complex place where all persons are free to think and speak as they wish, not as the government demands” (26). Justice Gorsuch clarified, “Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive, misguided, or even hurtful,’ but tolerance, not coercion, is our Nation’s answer” (25-26).

Why does this decision in the 303 Creative case matter for Southern Baptists?

This ruling provides yet another legal victory for free speech, affirming that creative professionals possess the First Amendment protections necessary to express their core convictions in the marketplace and public square. The ruling also clarifies the understanding of the Free Speech Clause, which carries positive implications for individuals seeking First Amendment protections in the arts and business sectors. Though this case was a win for free speech, it was also a win for religious liberty.

As Southern Baptists, our beliefs on matters of marriage and gender are core to our convictions, pointing to God’s design and the living picture of Christ and his Church. It is essential that people of faith not only have the ability to believe these fundamental truths but also to express them in the public square.

The First Amendment protects this right, and the court’s ruling affirms these robust constitutional protections for free speech —  even when that speech is culturally unpopular. 

What is this 303 Creative case about?

Lorie Smith, owner of the web design firm 303 Creative, challenged a Colorado law that violates her First Amendment rights—the same law used to target Christian cake designer Jack Phillips in the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission case. In that case, the court ruled favorably for Phillips on narrow grounds but failed to address the underlying conflict between anti-discrimination laws and free speech rights.

Like Phillips, Lorie Smith is a creative professional who serves others through her business. She has created custom websites for people of all backgrounds, but she refuses to use her design skills and creativity to express messages inconsistent with her Christian convictions.

This case first arose when the state of Colorado categorized Smith’s work as a public accommodation. This subjected her business to review under Colorado’s Anti-Discrimination Act, which prohibits discrimination, including refusal of service, against any protected class, including sexual orientation or gender identity. This placed Smith’s desire to run her business according to her beliefs in direct conflict with Colorado law.

How did the ERLC engage this case?

The ERLC has written in favor of Lorie Smith, preparing Christians and Southern Baptist churches to respond to this important decision. The ERLC believes that all of our foundational First Amendment rights are interconnected; a weakening of one is a weakening of them all. The Supreme Court has once again affirmed a robust view of these foundational rights, and we applaud this ruling in favor of freedom of speech in the public square. We will continue to advocate for religious freedom, as well as God’s design for marriage and family, no matter what views are fashionable at the time.

5 recent Supreme Court rulings you should know about
By / Jun 30

Here are five recent Supreme Court rulings you should know about. The decisions made by the U.S. Supreme Court often directly affect Southern Baptist pastors and churches and the people they serve. That’s why every year the ERLC actively engages in the judicial process on issues that hold immense importance for our churches and the gospel.

But the court also issues rulings in cases that, while they aren’t directly related to the issues we work on, intersect with or are related to topics of concern for Southern Baptists. Here are five recent Supreme Court rulings from the most recent term. 

Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC 

On Thursday, the U.S. Supreme Court issued a ruling on two cases brought by Students for Fair Admissions, Inc (SFFA). The cases—SFFA v. UNC and SFFA v. President and Fellows of Harvard—addressed the consideration of race in college admissions. The court was asked to consider whether institutions of higher education can use race as a factor in admissions, and whether Harvard College was violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race-neutral alternatives.

The court ruled that colleges and universities can no longer take race into consideration as an express factor in admissions, a landmark decision that overturns long-standing precedent. In the 1978 case, Regents of the University of California v. Bakke, the court considered a quota system in place at the University of California and established the constitutionality of affirmative action programs 

Writing for the majority, Chief Justice John Roberts said that for too long universities have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

Justice Ketanji Brown Jackson, the only Black woman on the court, wrote that the majority had “detached itself from this country’s actual past and present experiences.” But Justice Clarence Thomas, the only Black man on the court, said, “While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.”

United States v. Texas

In United States v. Texas, the Supreme Court ruled that Texas and Louisiana lacked Article III standing to challenge immigration-enforcement guidelines issued by the Secretary of Homeland Security. These guidelines were issued in a memorandum by the Department of Homeland Security to the Acting Director of U.S. Immigrations and Customs Enforcement (ICE) instructing ICE officials to prioritize the removal of noncitizens who pose a threat to national security, public safety, or border security.

The purpose of these guidelines was to provide a framework for ICE to exercise prosecutorial discretion in immigration enforcement and to promote consistency and transparency in the enforcement of immigration laws. The Biden administration also argued that these guidelines were necessary to prioritize limited resources and focus on individuals who pose a greater risk to the country. However, Texas and Louisiana challenged the legality of these guidelines, arguing that they restrained ICE agents from fully enforcing immigration laws. The Supreme Court ultimately ruled that Texas and Louisiana lacked standing to challenge these rules, reinforcing the federal government’s unique role in setting immigration policy.

Gonzalez v. Google and Twitter v. Taamneh 

On May 18, the Supreme Court issued opinions in two related cases, Gonzalez v. Google and Twitter v. Taamneh. In the Taamneh case, the court unanimously ruled that the plaintiffs’ allegations were insufficient to establish that the defendants (Twitter, Google, and Facebook) aided and abetted ISIS in carrying out the relevant attack. 

In both cases the plaintiffs made arguments related to the application of Section 230 of the Communications Decency Act and the Anti-Terrorism Act. Additionally, in the Gonzalez v. Google case, the plaintiffs argued that Google, through its subsidiary YouTube, aided, abetted, and conspired with ISIS by allowing the terrorist group to use its platform to spread propaganda and recruit members. The plaintiffs claimed that Google’s algorithms and revenue-sharing practices contributed to the spread of ISIS content on YouTube, and that Google should be held liable for the deaths of their family members in an ISIS attack in Jordan in 2016. In the Twitter v. Taamneh case, the plaintiffs alleged that Twitter, Google, and Facebook aided and abetted ISIS in carrying out an attack in Istanbul in 2017. The plaintiffs claimed that the defendants provided material support to ISIS by allowing the group to use their platforms to spread propaganda and recruit members.

The court unanimously ruled in the Taamneh case that the plaintiffs’ allegations were insufficient to establish that the defendants aided and abetted ISIS in carrying out the attack. Based on that ruling, the court declined to address the issues raised about the application of Section 230 protection from liability for aiding terrorists in the Gonzalez v. Google case and remanded it back to the lower courts.

Haaland v. Brackeen 

In the case of Haaland v. Brackeen, the Supreme Court ruled 7-2 to reject challenges to the Indian Child Welfare Act (ICWA), a federal statute that aims to protect the future of Tribal Nations (i.e., the 574 federally recognized Indian Nations) and promote the best interests of Native American children. The case was brought by a birth mother, foster and adoptive parents, and the state of Texas, who claimed that the ICWA exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race. 

The ICWA is a federal law that was passed in 1978 to protect the well-being and best interests of Native American children and families. The law aims to uphold family integrity and stability and to keep Native children connected to their community and culture. ICWA establishes minimum federal standards for the removal of Native children from their families and placement of such children in homes that reflect the unique values of Native culture.  

The Supreme Court rejected these challenges and upheld the ICWA, a victory for the Biden administration and several Native American tribes that defended the law. The majority opinion authored by Justice Amy Coney Barrett said the court “declines to disturb the Fifth Circuit’s conclusion that ICWA is consistent with” Congress’s authority under the Constitution in Article I. Justices Clarence Thomas and Samuel Alito were the only justices to dissent. 

Moore v. Harper 

The case of Moore v. Harper involved the controversial independent state legislature theory (ISL). This theory arose from the redistricting of North Carolina’s districts by the North Carolina legislature following the 2020 census, which the state courts found to be too artificial and partisan, and an extreme case of gerrymandering in favor of the Republican Party. ISL asserts that only the state legislature itself has the power to set the rules for making state laws that apply to federal elections, from drawing congressional district lines to determining the who-what-when-where of casting a ballot. 

The Supreme Court of North Carolina granted a rehearing in the underlying case, which prompted the justices to request additional briefing on whether they still had the power to rule in Moore. On June 27, the U.S. Supreme Court rejected the “independent state legislature theory” in a 6-3 decision, affirming the lower court’s ruling that the congressional map violated the state constitution and dismissing the plaintiffs’ lawsuits. The case was decided in an opinion by Chief Justice Roberts, with Justice Brett Kavanaugh filing a concurring opinion, and Justice Thomas dissenting. The case was one of the most high-profile cases the Supreme Court has taken up in recent years, with former federal judge Michael Luttig calling it the “single most important case on American democracy—and for American democracy—in the nation’s history.”

ERLC President Brent Leatherwood Commends Supreme Court Ruling in 303 Creative Free Speech Case
By / Jun 30

Washington, D.C., June 30, 2023—Brent Leatherwood, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, affirmed today’s U.S. Supreme Court ruling on the 303 Creative v. Elenis case, stating that “individual rights may not be paved over by a zealous government.”

In response to the court’s ruling in the 303 Creative free speech case, Leatherwood said: 

“If the government can compel an individual to speak a certain way or create certain things, that’s not freedom—it’s subjugation. And that is precisely what the state of  Colorado wanted.

Thankfully, the court has stepped in to say that individual rights may not be paved over by a zealous government. Colorado’s scheme of compulsion and coercion against creators has failed once more.

But the implications of this ruling extend throughout the nation: People are free to speak, create, and operate in ways that are consistent with their deepest-held beliefs—even when those beliefs are deemed culturally unpopular.”

What did the court decide in the 303 Creative free speech case?

The Supreme Court has delivered a landmark ruling in favor of free speech. Quoting previous cases, the court highlighted that the framers designed the First Amendment to protect the freedom to think and speak according to one’s deeply held convictions. The government cannot suppress speech simply because it deems it “misinformed or offensive.” The court emphasized that technological advancements, such as the internet, do not diminish the protections afforded by the First Amendment. 

As Justice Gorsuch noted in the opinion, “No public accommodations law is immune from the demands of the Constitution” (14). The First Amendment was designed to establish the United States as “a rich and complex place where all persons are free to think and speak as they wish, not as the government demands” (26). Justice Gorsuch clarified, “Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive, misguided, or even hurtful,’ but tolerance, not coercion, is our Nation’s answer” (25-26).

What was the 303 Creative free speech case about?

Since 2016, Lorie Smith, founder of the web design firm 303 Creative, has been in the process of challenging a Colorado law that violates her First Amendment rights. 

This same law was used to target Jack Phillips and led to the 2018 Supreme Court Masterpiece Cakeshop v. Colorado Civil Rights Commission case, Colorado’s Anti-Discrimination Act. In that case, the court ruled favorably for Phillips on narrow grounds but failed to address the underlying conflict between anti-discrimination laws and free speech rights.

Smith has created various custom websites for people of all backgrounds, but she refuses to use her “design skills and creativity to express messages that violate her deeply held religious convictions,” including the creation of a wedding website for a same-sex couple. 

Why does this case matter to Southern Baptists?

“Southern Baptists have long subscribed to the belief that people of faith should not only be able to hold biblical convictions about marriage and gender, but also to live them out in the public square,” said Hannah Daniel, ERLC policy manager. “No one should be forced to sacrifice their most deeply held beliefs to participate in the marketplace and contribute to our society.” 

More information about this case and ERLC advocacy is available online at the SCOTUS Resource Page.

The Southern Baptist Convention is America’s largest Protestant denomination with more than 13.6 million members and a network of over 47,000 cooperating churches and congregations. The Ethics & Religious Liberty Commission is the SBC’s ethics, religious liberty and public policy agency with offices in Nashville, Tenn., and Washington, D.C.

To request an interview with Brent Leatherwood,
contact Elizabeth Bristow by email at [email protected] or call 202-547-0209
Visit our website at www.erlc.com
Follow us on Twitter at @ERLC.

Explainer: Supreme Court Unanimously Rules in Favor of Religious Liberty in Postal Worker Groff v Dejoy Case
By / Jun 29

Today, the U.S. Supreme Court ruled unanimously in the Groff v Dejoy case that the United States Postal Service (USPS) wrongly denied a religious accommodation requested by petitioner Gerald Groff, a Pennsylvania postal worker. Justice Samuel Alito delivered the unanimous opinion of the court, with Justices Sonia Sotomayor and Ketanji Brown Jackson joining a concurring opinion.

ERLC’s President Brent Leatherwood, stated of this ruling:

“Despite some voices saying that Mr. Groff sought exceptional treatment, the court saw through that to the truth of the matter. He simply asked for a reasonable accommodation to live out the tenets of his faith. By siding with him, the court has again affirmed the importance of living in accordance with one’s deepest-held beliefs.

This is a victory for every American. Your profession of faith should not be a barrier to your professional vocation.”

What did the Groff v Dejoy decision say?

Today’s decision clarified that the court’s 1977 ruling in Trans World Airlines, Inc. v. Hardison, which had previously been used to often deny religious accommodations in the workplace, has been misinterpreted for decades and sought to clarify its ruling in favor of religious liberty. This clarification is a major victory for religious employees nationwide, as this Groff v Dejoy ruling will restore important protections especially crucial for those of minority religions. 

The Hardison decision was previously interpreted in such a way that limited and distorted the requirements of employers to reasonably accommodate employees’ religious beliefs and practices by allowing employers to prove only a “minimal burden” to deny accommodations, known as the “de minimis” standard. This approach, as noted through amicus briefs by “a bevy of diverse religious organizations[,]. . .has blessed the denial of even minor accommodation in many cases, making it harder for members of minority faiths to enter the job market” (13).

However, as Justice Alito argued, this interpretation was a “mistaken view” (19). Instead, the court explains that:

“Showing ‘more than a de minimis cost,’ as that phrase is used in common parlance, does not suffice to establish ‘undue hardship’ under Title VII. Hardison cannot be reduced to that one phrase. In describing an employer’s ‘undue hardship’ defense, Hardison referred repeatedly to ‘substantial’ burdens, and that formulation better explains the decision. We therefore, like the parties, understand Hardison to mean that ‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business (15-16).”

This means that employers must meet a higher standard before denying religious accommodations requested by their employees. The court did not establish a one-size-fits-all method for determining what is a hardship but instead ruled that the context of each business and situation must be taken into account. Specifically for Gerald Groff, the court vacated the lower court’s previous decision and sent his specific case back to be reconsidered in light of this corrected interpretation of Hardison.

Why does this Groff v Dejoy decision matter for Southern Baptists?

Southern Baptists believe that we cannot separate our vocation from our deeply held beliefs. Our whole lives, including our work, are lived as service to the Lord. Employers must be required to do more in accommodating the needs of religious employees to allow them to continue serving in their vocation without compromising their beliefs. Religious liberty protects not only our freedom to believe but also our freedom to live out those beliefs in the public square.

As Southern Baptists, we also believe that religious liberty protects all people of all faiths. Religious accommodations are especially vital for members of minority religions whose needs and requests might not be widely understood.

Today’s ruling provides another major legal win in a long line of religious liberty victories. The court has proven, yet again, that religious liberties do not vanish when we walk into the workplace. Rather, as this case has demonstrated, federal law grants robust protections that allow all people of faith to fully live out their deeply held beliefs in the workplace.

What is this Groff v. Dejoy case about?

Gerald Groff began working as a mail carrier for the United States Postal Service (USPS) in 2012. As a Christian, Groff is compelled by his religious beliefs to observe a Sunday Sabbath. After USPS began delivering packages on Sunday for Amazon, Groff offered to take extra shifts on weekdays and holidays to avoid working on his Sabbath. USPS initially granted him an accommodation but then changed its mind and began scheduling Groff for Sunday shifts. Groff refused to violate his faith, so he faced termination until he ultimately resigned in 2019.

Groff subsequently sued USPS in federal court, claiming his employer failed to reasonably accommodate his religious conviction. Both the district court and the U.S. Court of Appeals for the Third Circuit ruled in favor of USPS, and the Supreme Court heard oral arguments in the case on April 18, 2023.

This case challenged the 1997 court holding in Trans World Airlines v. Hardison. The language of Hardison has long been interpreted as reducing the legal requirements of employers to reasonably accommodate employees’ religious beliefs and practices. As such, up to this point, Hardison allowed employers to demonstrate only a “minimal burden,” rather than the much higher Title VII bar of “undue hardship,” to deny requests for religious accommodation. Title VII of the 1964 Civil Rights Act protects employees and job applicants from employment discrimination on the basis of race, color, religion, sex, and natural origin.

How did the ERLC engage this case?

The ERLC filed an amicus brief alongside other religious organizations arguing that Hardison should be overturned and employers must meet a higher standard before denying accommodations to their religious employees. As our brief argues:

“Correctly interpreted, Title VII’s mandate to accommodate employees’ religion affirms this Nation’s fundamental commitment to religious freedom. That mandate embodies a careful balance between the right of workers to practice their religion without sacrificing their jobs and the ability of employers to maintain an effective workplace . . . A right that exists only when it bothers no one else is no right at all.”

The court acknowledged this point in the Groff v. Dejoy ruling, stating “diverse religious groups tell the Court that the ‘de minimis’ standard has been used to deny even minor accommodations.”

The ERLC will continue to advocate for our first freedoms, especially the right to express deeply held religious convictions in the workplace. The Supreme Court has once again affirmed a robust view of these foundational rights, and we are grateful that the justices have ruled in favor of religious liberty. As we have been tasked by Southern Baptists, the ERLC will always work for the protection of religious liberty before Congress, the courts, and in the public square.

ERLC President Brent Leatherwood Applauds Unanimous Religious Liberty Ruling in Postal Worker Supreme Court Groff v Dejoy Case
By / Jun 29

Washington. D.C., June 29, 2023 —Brent Leatherwood, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, applauded today’s unanimous U.S. Supreme Court ruling in the Groff v Dejoy case, stating that it “is a victory for every American.”

In response to the ruling, Leatherwood said: 

“Despite some voices saying that Mr. Groff sought exceptional treatment, the court saw through that to the truth of the matter. He simply asked for a reasonable accommodation to live out the tenets of his faith. By siding with him, the court has again affirmed the importance of living in accordance with one’s deepest-held beliefs.

This is a victory for every American. Your profession of faith should not be a barrier to your professional vocation.”

What’s the takeaway from the ruling for religious liberty?

The court has clarified the interpretation of a previous ruling that was so often used to deny religious accommodation, was inaccurate. This ruling reflects a central argument from the ERLC brief. In today’s ruling, the justices clarified that the real standard requires employers to show a “substantial” burden before they can deny an employee the freedom to live according to their beliefs.

What did the ERLC brief say?

The ERLC filed an amicus brief in this case in support of United States Postal Service (USPS) employee Gerald Groff, alongside the Baptist Joint Committee for Religious Liberty, the U.S. Conference of Catholic Bishops, the National Association of Evangelicals, the Church of Jesus Christ of Latter-Day Saints and the Anti-Defamation League. The brief argues that a previous ruling, Trans World Airlines, Inc. v. Hardison, should be overturned.

The 1977 Hardison decision limited and distorted the requirements of employers to reasonably accommodate employees’ religious beliefs and practices by allowing employers to prove only a “minimal burden” to deny accommodations, known as the “de minimis” standard.

The Groff v Dejoy case ruling stated “…diverse religious groups tell the Court that the ‘de minimis’ standard has been used to deny even minor accommodations.” This was a point made in the ERLC brief. 

What was the Groff v Dejoy case about?

Gerald Groff began working as a USPS carrier in 2012, and as a Christian, was compelled by his religious beliefs to observe the Sunday Sabbath. After USPS began delivering packages on Sunday for Amazon, Groff offered to take extra shifts on weekdays and holidays to avoid working on his Sabbath. USPS initially granted him an accommodation but then changed its mind and began scheduling Groff for Sunday work. Groff refused to violate his faith, and faced termination until he ultimately resigned in 2019. 

Why does the Groff v Dejoy case matter to Southern Baptists?

Southern Baptists have long subscribed to the belief that people of faith should not have to separate their vocation from their deeply held beliefs. More background information about the Groff v Dejoy case and the ERLC’s advocacy is available online.

The Southern Baptist Convention is America’s largest Protestant denomination with more than 13.6 million members and a network of over 47,000 cooperating churches and congregations. The Ethics & Religious Liberty Commission is the SBC’s ethics, religious liberty and public policy agency with offices in Nashville, Tenn., and Washington, D.C.

To request an interview with Brent Leatherwood,
contact Elizabeth Bristow by email at [email protected] or call 202-547-0209 
Visit our website at www.erlc.com
Follow us on Twitter at @ERLC.

Understanding the Supreme Court
By / Apr 14

On this episode, Lindsay Nicolet talks with Hannah Daniel about the importance of the Supreme Court in today’s society. They also discuss what’s new with the rapidly moving abortion pill case. 

Content

The abortion pill case

Explainer: How a case makes it the Supreme Court

Explainer: What you should know about Supreme Court decisions

Connect with us on Twitter

Sponsors

  • Racial unity | If we, as Southern Baptists, can be willing to listen and have good conversations about race, we will see fruit that will draw us closer together. That’s why we believe that A Conversation with Pastor Jon Nelson will be a helpful resource for you and your congregation. Watch this NEW video at ERLC.com/racialunity and listen as Jon candidly shares his thoughts on how we can meaningfully partner together on this work within our churches and communities. Again that link is ERLC.com/racialunity
  • Email updates | Now that 2023 is fully underway, we want to make sure you are kept up to date about the important work we are doing on behalf of Southern Baptists. Whether it’s our 2023 Public Policy Agenda or another ultrasound machine placement, we want to make sure you know how we are serving our churches and acting as missionaries to the public square. As we move forward in 2023, know that first in our hearts and at the top of our minds are our churches. And we are taking those next steps with a Mark 10:44 mindset: to be a servant of all. The best way to learn more is by joining us at ERLC.com/updates. Signing up for email updates allows you to hear directly from us about our work and ways we are serving you on the issues that matter most to Southern Baptists. You’ll learn about our work on your behalf in our nation’s capital, about exciting new partnerships with our state conventions and the ways we are working across the convention with our sister entities. Become an email subscriber at ERLC.com/updates. 

An interview with Hannah Daniel on anticipated SCOTUS 2023 opinions
By / Apr 6

On this episode, Lindsay Nicolets talks with Hannah Daniel about Supreme Court opinions she’s anticipating this summer and what implications they will have for free speech and religious liberty. 

Related content

Connect with us on Twitter

Sponsors

  • Racial unity | If we, as Southern Baptists, can be willing to listen and have good conversations about race, we will see fruit that will draw us closer together. That’s why we believe that A Conversation with Pastor Jon Nelson will be a helpful resource for you and your congregation. Watch this NEW video at ERLC.com/racialunity and listen as Jon candidly shares his thoughts on how we can meaningfully partner together on this work within our churches and communities. Again that link is ERLC.com/racialunity
  • Email updates | Now that 2023 is fully underway, we want to make sure you are kept up to date about the important work we are doing on behalf of Southern Baptists. Whether it’s our 2023 Public Policy Agenda or another ultrasound machine placement, we want to make sure you know how we are serving our churches and acting as missionaries to the public square. As we move forward in 2023, know that first in our hearts and at the top of our minds are our churches. And we are taking those next steps with a Mark 10:44 mindset: to be a servant of all. The best way to learn more is by joining us at ERLC.com/updates. Signing up for email updates allows you to hear directly from us about our work and ways we are serving you on the issues that matter most to Southern Baptists. You’ll learn about our work on your behalf in our nation’s capital, about exciting new partnerships with our state conventions and the ways we are working across the convention with our sister entities. Become an email subscriber at ERLC.com/updates. 

Why Roe v. Wade was an indefensible ruling
By / Jul 15

Pro-life Christians have long understood that the Roe v. Wade decision—which institutionalized abortion on demand in all 50 states—was a moral travesty. But what has often been less clear for us is why it was considered unjustifiable as a matter of constitutional law.

A broad range of conservative and liberal legal scholars have been in agreement that the Roe decision was, as Mark V Tushnet termed Roe a “totally unreasoned judicial opinion.” A prime example of the problem was explained by Edward Lazarus, a former clerk of Justice Harry Blackmun, the author of Roe’s majority opinion. Although Lazarus supports a right to abortion, he writes that, “as a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” 

“What, exactly, is the problem with Roe?” asks Lazarus. “The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent—at least, it does not if those sources are fairly described and reasonably faithfully followed.”

We can outline the legal argument against Roe (as well as the 1992 case, Planned Parenthood v. Casey, which introduced the concept of the “viability standard”) as an opinion having no meaningful foundation in (1) the text of the constitution, (2) history, or (3) precedent. 

Text of the Constitution

As the Supreme Court points out in the Dobbs decision, the Constitution makes no express reference to a right to obtain an abortion. Still, they acknowledged that several constitutional provisions have been “offered as potential homes for an implicit constitutional right.” This supposed textual basis for the right to abortion, according to the Roe decision, is the “right to privacy”—a right that is also not mentioned in the Constitution.

The supposed right to privacy, according to the Blackmun opinion in Roe, was believed to have been found in a grab bag of constitutional provisions, including the First, Fourth, Fifth, Ninth, and 14th Amendments. As the Dobbs decision notes, “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.” In other words, to the justices who voted for Roe, it was so obvious that abortion must be protected somewhere in the constitution that there was no need to argue that point.

The current Supreme Court—as have most objective legal scholars—disagreed that the right to abortion is obviously hidden somewhere within the text of the U.S. Constitution. 

History

The issue of whether the right to abortion can be found in the text relies in part on the history of the United States. The Dobbs ruling notes that the 14th Amendment’s Due Process Clause protects two categories of rights: rights guaranteed by the first eight Amendments and a select list of fundamental rights that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the “Court has long asked whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’”

But as the court found, until the latter part of the 20th century, a right to abortion was “entirely unknown in American law.” When the 14th Amendment was adopted, three quarters of the states made abortion a crime at all stages of pregnancy. No state constitutional provision had recognized such a right either, until a few years before Roe. There was no federal or state court recognition of such a right, and no scholarly articles even proposing a constitutional right to abortion until a few years before Roe. 

The history of our country clearly showed that there was not a deeply rooted fundamental right to abortion.

Precedent

Precedent refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar legal issues. The Supreme Court generally applies the doctrine of stare decisis (Latin for “to stand by things decided”) by following prior precedent unless there is a “special justification” for it to be overridden or overturned.

In the Dobbs ruling, the court said that a “proper application of stare decisis . . . requires an assessment of the strength of the grounds on which Roe was based.” The court found ​​that none of the precedents relied on in the Roe decision were relevant:

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed “potential life” and what the law challenged in this case calls an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.

The “special justification” for overturning Roe, according to the majority, included the nature of the court’s error (“Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided”) and the poor quality of its reasoning (“Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong”). 

Since there is not legitimately binding precedent making abortion a fundamental constitutional right, the court says “it follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.’”

It is primarily for these reasons of text, history, and precedent that the court ruled in Dobbs that, “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

A round-up of post-Roe abortion developments in America
By / Jul 8

On the morning of June 24, 2022, the abortion landscape in the Unted States changed drastically with the release of the final opinion in the Dobbs v. Jackson Women’s Health case. This decision overturned the horrific precedents in both Roe v. Wade and Planned Parenthood v. Casey and ultimately sent the issue of abortion back to each state to decide. Since that moment, states, federal legislators, abortion providers, pregnancy resource centers, protestors, and others immediately began to feel the effects. This, in turn, has created an overwhelming flurry of activity on a number of fronts in the abortion debate over the past week. 

It is easy to believe that the overturning of Roe means that the fight to end abortion is over, but the reality is that much remains to be done and decided on the issue. The ending of Roe is a massive step worth celebrating, but it also marks the beginning of a new chapter in the pro-life movement. In order for Christians to wisely engage this issue, it is important for us to be aware of how the advocacy efforts around abortion are quickly changing. Below is a round-up of some of the most important developments that have come about since the Dobbs decision. 

In the states

Before the Dobbs decision, states were limited in their ability to regulate abortion, but a key outcome of the opinion was a returning of this issue to the people and their democratic representatives in the states. This means that a diverse array of state laws now govern the issue of abortion, all of which provide exceptions for when a woman’s life is at risk and do not criminalize women seeking abortions

Immediately following the decision and over the next few days, a number of “trigger laws” that totally ban abortion, with slightly differing exceptions for cases of rape and incest, went into effect in Arkansas, Kentucky, Louisiana, Oklahoma, South Dakota, Missouri, Utah, Mississippi, Idaho, Tennessee, Texas, North Dakota, and Wyoming. In Alabama, Wisconsin, West Virginia, and Arizona, abortion is currently banned due to pre-Roe bans that have remained on the books. It is likely that in some of these states, officials will ask the courts to rule on whether these laws can be reimplemented. Already, courts have temporarily blocked some of these bans in Utah, Arizona, Kentucky, and Louisiana. 

In Ohio, South Carolina, Georgia, and Florida, restrictions but not complete bans are currently in place, and several lawsuits have been filed to try and keep these bans from being enacted. Several other states, such as Tennessee and Mississippi, have gestational limit laws in effect until their total bans are ultimately enacted.

While we celebrate these states working to protect life, we must also acknowledge that this decision allows other states to regulate abortion as they see fit and even make their states “abortion destinations.” In Alaska, Colorado, Illinois, Maine, Nevada, Rhode Island, and New Hampshire, the right to abortion is protected under state constitution or law up until various gestational points. Even further, California, Connecticut, Washington, D.C., Delaware, Hawaii, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Vermont, and Washington not only protect access to abortion but are also expanding their laws to shield abortion providers from other state’s bans, create a “sanctuary” for those seeking abortions, and increase mandated insurance coverage for abortion.

One final group of states—Indiana, Iowa, Kansas, Michigan, Montana, Nebraska, North Carolina, Pennsylvania, and Virginia—remain largely undecided on what their abortion stance will be. Currently, all of these states are allowing abortions up until various gestational limits, but either the courts, state legislatures, or voters may change those restrictions in the coming days.

In Congress

Though Democrats have had much to say on the end of Roe, the realities of a narrow majority in the House of Representatives and an evenly divided Senate prevent them from taking any real action to preserve access to abortion in states where it is now restricted or prohibited. It is important to note that while the Dobbs decision does return the issue to the states currently, it does not prohibit future federal legislation banning, restricting, or codifying abortion. Some Democrats, including President Biden, have urged Senate Democrats to carve out an exception to the legislative filibuster, a Senate rule that requires 60 votes to end debate and proceed to a vote on most partisan legislation, and codify Roe with a simple majority, rather than the 60 votes currently required. However, Sens. Manchin (D-WV) and Sinema (D-AZ) remain strongly opposed to this path.

Speaker Pelosi has committed to exploring legislation around data privacy concerns connected to apps such as period trackers and sensitive location data. She also has considered once again bringing the Women’s Health Protection Act to the floor for a vote. This bill is the most pro-abortion bill to pass the House, and it has failed in the Senate two times this Congress. There is no reason to believe that it would be successful with an additional attempt.

Additionally, Sens. Warren and Markey of Massachusetts introduced a bill targeting pregnancy resource centers for “disinformation”  and deception about services provided and preventing women from seeking abortions. This bill is unlikely to become law but has gained support from 15 Senate Democrats. For now, congressional Democrats are largely confined to using this issue to attempt to mobilize voters in November in hopes of winning large enough majorities to pass these pieces of legislation.

If Republicans win a majority in the House of Representatives in November, as many predict, some members of Congress have suggested taking up federal abortion restrictions such as the Pain-Capable Unborn Child Protection Act or the Born-Alive Abortion Survivors Protection Act. Though those bills might pass the House, they would face an uncertain future in the Senate, and would almost assuredly be vetoed by President Biden.

In the White House and administration

Following the ruling, the president has acknowledged there is little that he is able to do, and similarly to Congressional Democrats, urged voters to elect a filibuster-proof majority in November to codify Roe. The president also joined calls to create an exception to the filibuster in order to protect abortion rights.

Within the limited authority of the presidency, Biden committed to two primary steps: ensuring that women can travel to another state to receive an abortion and protecting access to FDA-approved abortion pills. Press Secretary Karine Jean-Pierre rejected calls to use federal lands, national parks, and Veterans Affairs hospitals to provide abortion services due to the “dangerous ramifications.” The administration also launched a new website clearly laying out a woman’s “reproductive rights” and providing features such as an abortion finder and information on insurance coverage of abortion. 

The attorney general and the Department of Health and Human Services (HHS) have made similar commitments as Biden and are exploring avenues to ensure that states cannot ban medication abortion and to increase access to these abortifacents. The HHS also released new guidance on HIPPA enforcement “making it clear that providers are not required to disclose private medical information to third parties.” This guidance comes in light of some concern expressed by some women that period tracker or health information apps could threaten privacy rights and put them at risk if they seek to travel for an abortion.

Abortion clinics and pregnancy resource centers

Immediately following the decision, reports began to emerge of abortion clinics across various states either closing entirely or stopping their abortion services. Many abortion providers are considering how they can increase capacity in states where abortion is allowed in order to meet the demand of both local women and those traveling from out of state to receive an abortion. 

Pregnancy resource centers around the country are continuingto serve more vulnerable women who may choose to use their services now that abortion providers are no longer open. At the same time, many of these clinics have faced threats and violence in the wake of the decision. 

What comes next?

All of these efforts will continue to unfold simultaneously, creating new challenges and opportunities for the pro-life movement to evolve in this new season. One such challenge that the pro-life community will have to consider is the rise of the abortion pill and efforts to expand access to it in states where abortion is now illegal, as referenced by many pro-abortion officials. The abortion pill already accounted for over half of abortions in 2019 and is approved by the FDA for use for up to 10 weeks in a woman’s pregnancy. Recent changes now allow these abortifacients to be received through the mail from other states—even other countries—and can be done without an in-person doctor’s visit in many states. This represents a massive challenge toeliminating abortions and poses new legal territory for pro-life states to navigate. The ERLC has strongly opposed the proliferation of abortion pillsand will continue to advocate against their usage.

While we celebrate the reality of a post-Roe America, we must redouble our efforts to eventually reach a post-abortion America. As the landscape around abortion across the United States continues to change rapidly, the ERLC remains committed to ending abortion, saving lives, serving mothers, and supporting families while equipping churches to continue standing in the gap and praying for vulnerable mothers and their children.

ERLC interns Daniel Hostetter, Cooper Shull, and Rebecca Fried contributed to this article.

4 misperceptions about abortion law in the post-Dobbs era
By / Jul 1

The Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization is only a week old, and already there are misperceptions, misunderstandings, and misconstruals about what abortion law will look like now that Roe v. Wade has been overturned. Here are four main misperceptions that have been expressed in light of the recent ruling and explanations of how to think through them.

Misperception #1: The Supreme Court took away a constitutional right. 

In a speech delivered on the same day the Supreme Court released the Dobbs decision, President Joe Biden said, “Today the Supreme Court of the United States expressly took away a constitutional right from the American people that it had already recognized.” Biden is implying that the U.S. Constitution contains a recognizable right to abortion, but the Supreme Court determined that is not the proper reading of the Constitution.

The court explained its reasoning, in part, by considering whether the right to obtain an abortion is part of a broader entrenched right that is supported by other precedents. The majority of the justices concluded that the right to obtain an abortion cannot be justified as a component of such a right, and that attempts to justify abortion through appeals to a broader right to autonomy and to “define one’s ‘concept of existence’ prove too much.” If there was a right to abortion, the court noted, then Roe and Casey would also allow as fundamental rights such things as illicit drug use and prostitution. 

There was never a “constitutional right to abortion,” only a legal fiction established by Roe and Casey to give that impression. The Supreme Court did not remove a right held by individuals but merely recognized the reality that the Constitution allows abortion to be an issue decided by the individual states. 

Misperception #2: Overturning Roe makes it harder to treat miscarriages and ectopic pregnancies. 

“The medical options used to treat some miscarriages, as well as some ectopic pregnancies, can be the same or similar to those prescribed for an abortion,” says the ERLC’s Chelsea Sobolik, “This makes it imperative to carefully define our terms.”

Take, for example, dilation and curettage (in which the preborn baby is removed through surgery) or dilation and evacuation (in which a probe-guided vacuum removes fetal tissue from the uterus). These procedures can be used in elective abortions (in which the child is killed before removal) or in circumstances when the child is already dead and needs to be removed from the woman’s body. Similarly, medications called mifepristone and misoprostol are sometimes used as abortifacients (i.e., medication to cause an abortion), but they can also be used to treat cases of miscarriage. 

“There is no current policy in place prohibiting the treatment of miscarriage or ectopic pregnancies, and many laws similarly exclude such circumstances from the definition of abortion,” says Sobolik. But she also points out that this misceperception has gained traction because some recently proposed state-level legislation included wording that would affect access to treatment for miscarriage or ectopic pregnancy. 

For instance, Sobolik notes that an abortion restriction bill was initially proposed in Ohio in 2019 advocating for the reimplantation of ectopic pregnancies—invoking the use of a nonexistent and medically impossible procedure—but was struck down in hearings. The Ohio lawmaker behind the bill later admitted that he had not researched ectopic pregnancies beforehand. 

Such misguided proposals have always been caught before they become law, and pro-life groups are working closely with state legislators to ensure that such unhelpful language does not find its way in any stage of the legislative process. 

Misperception #3: Anti-abortion laws do not protect the life of the mother. 

On the same day in 1973 that the Roe v. Wade decision was handed down, the Supreme Court also issued its decision in Doe v. Bolton. In that ruling, the court said that a state must permit a “health” exception to any laws restricting abortion. But “health” was defined so broadly that it allowed abortion in all nine months of pregnancy for nearly any reason, including the mental or emotional health of the mother. 

Abortion advocates claim that without that “health” exception that women’s lives will be put in danger, but every pro-life statute in states where abortion is being restricted currently has an exception for the life of the mother. Many of the states, such as Utah and Texas, also include exceptions for “harm to the physical health” of the mother along with exceptions for the life of the mother. 

Misconception #4: The individual states now have final say about abortion laws. 

The ruling in Dobbs says, “​​The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.” While this means that the states can decide the issue, it also leaves open the possibility that a federal law could regulate abortion in all 50 states. 

Nothing in the Dobbs opinion prohibits the U.S. Congress from passing federal legislation to restrict, ban, or allow abortion. Whether such legislation could pass constitutional scrutiny remains to be seen. For now, given the even divide in the U.S. Senate, states will be tasked with regulating abortion as they see fit, but the possibility does remain that a future Congress could pass federal legislation on the issue.

Many Christians fervently prayed and planned for the overturning of Roe and Casey, yet never dreamed they would actually see the day. Now that it’s here, we rightly rejoice and celebrate. However, we also recognize that many in our broader culture are anxious about what life will be like in a post-Roe world, and that fear is largely supported by misinformation portrayed as fact. We must stand ready to pray for our neighbors and meet them with truth and compassion, demonstrating that a post-Roe culture is indeed a good one where women will be cared for and babies will be given a chance at life.