Legal Docket: Religious liberty and child protection

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LINDSAY MAST, HOST: Coming up next on The World and Everything in It: WORLD legal correspondent Jenny Rough continues our coverage of the U.S. Supreme Court’s final week of the term. Today, three major rulings, all of them decided 6 to 3, they highlight some of the biggest tensions in American law and culture.

NICK EICHER, HOST: The court rejected a constitutional challenge to the task force behind a controversial health mandate. It upheld a Texas law requiring age verification for online porn, siding with a state effort to protect children. And it ruled that South Carolina can exclude Planned Parenthood from the state Medicaid program, finding no individual, private right to sue under federal law.

CLARE MORELL: Children don’t have to go looking for it. It finds them. , And so children quickly get sucked down very dangerous rabbit holes.

JENNY ROUGH: Protecting kids from pornography, I’ll get to that pivotal case in just a moment.

But I’ll start with Kennedy versus Braidwood, this one involved Christian business owners and they pursued a creative but ultimately unsuccessful strategy.

Back in 2019, a task force within the Department of Health and Human Services mandated that health insurers cover so-called PrEP drugs, these are pills or shots individuals take to help prevent HIV.

Christian businesses in Texas filed a lawsuit. They said the structure of the task force violates the Appointments Clause of the Constitution, and its mandates should be scrapped.

But before unpacking the legal issue, I wanted more context from a medical perspective, so I called up a doctor. Barry Perkins went to medical school in Houston from 1992 to 1996 when the AIDS crisis was still at its peak.

PERKINS: I saw a lot of HIV patients, a lot of patients with AIDS, with AIDS-defining illnesses.,

These days, Perkins says he can’t remember the last time he saw a patient with AIDS, and rarely sees one with HIV.

PERKINS: The reason it’s at that stage right now is because of medical research and advancements with pharmaceuticals that suppress the virus.

Even though the drugs encourage promiscuity, he says the advancements are good. They save lives and reduce spread.

PERKINS: As Christians, we should want people to flourish. What if you have someone who is living a sinful life, and they take this medication to keep themselves from getting sick. But then let’s say they turn their life around and they come to know Jesus and they become a Christian, and they want to get married and have children. Well because of this medication they can go on and live their lives in a healthy way.

Still, he says individuals should be responsible for covering PrEP drugs.

PERKINS: I mean, people have to be responsible for their own actions, don’t they? I’m not a big fan of the government forcing someone to purchase something for someone else because of their behavior.

That’s the position Braidwood took in this case.

ANDY SCHLAFLY: We’re talking about medication that costs more than $20,000 a year per person.

Andy Schlafly is general counsel for the Association of American Physicians and Surgeons. He filed a friend-of-the-court brief in support of Braidwood.

SCHLAFLY: So if there are five people in a company who decide they want to try this lifestyle medication, that’s $100,000 the company has to shell out.

He says there’s no such thing as free care.

SCHLAFLY: It just gets fed back into the cost of the system. And by forcing employers to cover this and insurance companies to cover this with no cost to the patients the costs go up for everybody. Businesses should not be subjected to these costly mandates which, in the position of Braidwood Management, are unconstitutional.

Unconstitutional because Braidwood claims the task force members were improperly appointed under the Appointments Clause.

But the Supreme Court disagreed. It held that the task force members are inferior officers consistent with the Appointments Clause.

Justice Brett Kavanaugh wrote the opinion. Justice Clarence Thomas wrote the dissent, joined by Justices Samuel Alito and Neil Gorsuch.

The pharmaceutical business is a powerful lobbying industry in Washington. Even though Braidwood lost, Schlafly says perhaps we’ll see some changes.

SCHLAFLY: It’s sort of RFK Jr’s issue in a sense in that he stood up against Big Pharma. And he could put people on this task force who are not going to be influenced by Big Pharma.

Next, protecting kids from pornography , Free Speech Coalition versus Paxton. In 20-23, Texas passed a law requiring porn websites to verify the ages of their users. Adults must enter identifying information to show they’re 18 or older.

CLARE MORELL: It actually does change the brain.

Clare Morell of the Ethics and Public Policy Center works on helping states pass these age-verification laws. She says pornography websites harm kids in several ways.

CLARE MORELL: There’s brain science that shows it is extremely addictive, actually changes a child’s brain and desensitizes them to pleasures in the real world. A study I was just recently looking over said children exposed to pornography between the ages of 6 to 12 then were more likely to struggle with sexual dysfunction as an adult. The rates on child-on-child sexual abuse have increased. Nurses and doctors in the ER say they are seeing 11- to 12-year old boys who have sexually assaulted 4- to 8-year old girls.

So psychologically, emotionally, spiritually dangerous. Representatives of the porn industry filed a lawsuit. They claim the law violates their First Amendment right to free speech.

But why is a porn debate about free speech? Well, the court has long held that almost every form of meaningful expression counts.

BARRY MCDONALD: That includes porn, it includes video games, it includes things like parades—

Barry McDonald teaches First Amendment law at Pepperdine University.

MCDONALD: —art, of course. Movies. And the court has said the government has no business in terms of policing people’s taste. So the fact that it’s a porn movie rather than an Academy Award winner doesn’t really matter to the constitutional analysis.

The court has also long said that free speech has two sides, the right to speak it, and the right to hear it.

MCDONALD: That’s why adults who want to consume porn without entering their age information are able to claim that this unduly impedes their ability to receive the speech they want to consume.

Now the court typically applies strict scrutiny in cases touching on fundamental rights. A law that restricts speech is unconstitutional unless it overcomes three high hurdles.

The Free Speech Coalition argues the law doesn’t clear one of them because it’s too broad. There are alternative ways to keep kids away.

MCDONALD: Namely, by encouraging the use of content filters to protect minors. But that just hasn’t worked...

It’s impractical, parents don’t know how to use them. Or can’t. Claire Morell again:

MORELL: Apps like Snapchat, TikTok, they will not grant access to third party parental controls or filters. And so when a child can click through to PornHub inside of the Snapchat app without ever leaving the app, a parent would never know. In just five clicks they can get to PornHub and they never leave the app.

Justice Amy Coney Barrett is the mother of seven kids. She mentioned this at oral argument.

JUSTICE AMY CONEY BARRETT: Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with.

Texas argued the court should apply an easier test for the state to satisfy: rational basis.

Here, the court took a middle ground: the intermediate scrutiny test. It said the law’s okay because its main objective is to protect kids, and it doesn’t burden more speech than necessary. It only incidentally burdens it. Justice Clarence Thomas wrote the majority opinion.

Justice Elena Kagan wrote the dissent, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. They said the court should stick with strict scrutiny and suggested this might be an instance where the law could still survive.

McDonald says this case is long overdue, that prior cases did not strike the right balance, because they tipped the scales in favor of protecting adults over kids. Here, that changed.

MCDONALD: I’m glad they did this. They at least sided on behalf of kids rather than porn seeking adults, you know?

Even so, he says the court’s First Amendment precedents applying a different test in similar cases might cause confusion in the lower courts.

Morell notes up to 24 states have adopted similar laws:

MORELL: Texas’ law passed in 2023 but really it felt like it just spread like wildfire in a good way after that because it's very feasible now for states, not just Texas, but any other states that want to pass these laws and even Congress to pass a nationwide age verification law. And I hope that that is the next step. That is personally what I'm advocating for, because we want all of America's children to be protected, not just these 24 states.

Finally, one last case, the court ruled that an individual has no right to sue a state for prohibiting Planned Parenthood from participating in the state’s Medicaid program , in this case, South Carolina. Planned Parenthood can’t sue, either. If Congress wants to allow lawsuits like this, it has to say so clearly. And in this case, it didn’t.

Reporting for WORLD, I’m Jenny Rough.

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