Searching for new strategies after Supreme Court setbacks

Religious liberty advocates and pro-lifers saw setbacks on several fronts and on both coasts during the last week of June.

On the East Coast, the Supreme Court issued a landmark abortion ruling in Whole Women’s Health v. Hellerstedt, undoing some state regulation of abortion centers. The high court also rejected an appeal from pro-life pharmacy owners and pharmacists who challenged a Washington state rule requiring them to sell potential abortifacients over their conscience objections.

“It’s disappointing,” said Kristen Waggoner, an attorney with Alliance Defending Freedom who worked on the pharmacists’ case for several years and argued it before the 9th U.S. Circuit Court of Appeals. “You remind yourself that God knows the end from the beginning … but it is not over.”

With no protection from the Supreme Court, the Washington pharmacists now wait to see how the state will enforce the rule against them. Planned Parenthood likely will send test shoppers into Ralph’s, the family pharmacy at the center of the case, to buy the abortifacient drugs. When the pharmacy won’t sell them, the shoppers likely will file a complaint with the state, which must then decide what action to take against the family pharmacy. (Ralph’s has noted that in such situations it refers shoppers to one of 30 other pharmacies within 5 miles that do sell the abortifacients.)

If the state doesn’t enforce the law in an even-handed way, instead targeting pro-life pharmacists, then the pharmacists might have a case to take back to the courts.

On the West Coast, the effects of last year’s Supreme Court decision redefining marriage rippled out. A California state assembly committee passed a measure 7-2 that could severely limit the religious expression of Christian colleges there. As is, the bill requires religious colleges—seminaries excepted—not to discriminate on the basis of sexual orientation or gender identity, undoing a longtime religious exemption.

Under the bill, Christian liberal arts schools that limit married housing to heterosexual couples, for example, could lose access to state loans. California schools like Biola University have loudly protested the bill, SB 1146. With Democrats’ support, the bill seems likely to pass the legislature. If it does become law, it probably will face legal challenges, which may delay its enforcement.

Last June Chief Justice John Roberts foresaw this scenario in his dissent from the majority ruling in Obergefell v. Hodges, saying the ruling left vulnerable a religious college providing married student housing only to opposite-sex married couples.

“The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage,” Roberts wrote at the time. “The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”

Roberts pointed out that for the many religious people who do not agree with same-sex marriage “their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.”

And what’s next for the pro-life movement after the ruling against the Texas abortion regulations? Parallel regulations—requiring abortion facilities to meet surgical center standards and have admitting privileges at a hospital—have now collapsed in other states as the Supreme Court rejected their appeals in the wake of the Texas decision.

Already pro-abortion groups are filing suits against many other kinds of state restrictions, not just the ones the Supreme Court struck down last month. A few days after the Supreme Court ruling, the Center for Reproductive Rights challenged seven abortion regulations in Louisiana, including a 72-hour abortion waiting period, the state’s ban on aborting babies with genetic abnormalities, and the requirement of cremation or burial for an aborted baby. Planned Parenthood too says it is preparing a “state-by-state” fight.

“We do not think that all clinic regulations are off limits, but it seems certain that they will have to be supported by stronger medical justification,” said Americans United for Life (AUL) president and senior counsel Clarke Forsythe, in an email. AUL worked on several of the state regulations that passed over the last five years. The Supreme Court ruled Texas’ regulations were not medically justified. “The legal aftershocks will continue into 2017 and continue to inhibit state officials’ efforts to protect women’s health from substandard conditions and providers.”

Now pro-life groups are likely to focus on lobbying states to enforce existing regulations of abortion facilities. New York, for example, never inspected eight of its abortion centers during a 12-year period.

Americans United for Life attorneys also noted the Supreme Court left other existing regulations in place. Denise Burke, the group’s vice president for legal affairs, said a decade-old law in Texas already requires certain minimal standards for abortion centers, like annual reporting, inspections, and staffing standards.

That law “has already survived one vigorous legal challenge from an abortion industry that is desperate to avoid meaningful regulation,” she said.

The Supreme Court’s ruling underlined that states can regulate abortion for any reason once a baby reaches viability—so states with pro-life legislatures may redouble efforts to pass bans on abortion after 20 weeks of pregnancy, for example.