News Law and Policy

7th Circuit Blocks Contraception Mandate, Suggests Expansion of “Religious Liberty” for Corporations

Jessica Mason Pieklo

The Seventh Circuit Court of Appeals appears ready to vastly expand corporate rights in the name of religious liberties.

A divided panel of the Seventh Circuit Court of Appeals has temporarily blocked the Obama administration from requiring that an Illinois company comply with the mandate that insurance policies provide full coverage of birth control methods.

The plaintiffs, Cyril and Jane Korte run a for-profit construction company and claim the contraception mandate violates their religious liberty rights.  In issuing the injunction, the 7th Circuit majority said the Kortes had met their burden and established a reasonable likelihood of success on the merits of their Religious Freedom Restoration Act claim, and that the government had not yet justified the apparent “substantial burden” on their religious exercise rights.

The ruling is a first by a federal appeals court to block enforcement of the mandate against people who said it violated their faith and came just days after the Supreme Court refused to intervene in the Hobby Lobby case. In that case, the Tenth Circuit Court of Appeals came to an opposite conclusion and refused to block enforcement of the mandate against the for-profit retail craft store.

The ruling also signals a possible shift in the federal courts in the landscape of rights available to corporations in a post-Citizens United world. Historically, the courts have ruled that religious liberty does have limits in the commercial sector, including the rights of employees to be free from employers imposing religious faith on their employees. On this point the Seventh Circuit appears to disagree:

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[T]he government’s primary argument is that because K & L Contractors is a secular, for‐profit enterprise, no rights under RFRA are implicated at all. This ignores that Cyril and Jane Korte are also plaintiffs. Together they own nearly 88% of K & L Contractors. It is a family‐run business, and they manage the company in accordance with their religious beliefs. This includes the health plan that the company sponsors and funds for the benefit of its nonunion workforce. That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it.

The decision itself is not a ruling on the merits, but does suggest at least one federal appellate court is willing to entertain another dramatic expansion of corporate “rights” and that alone could be enough to bring the issue before the Roberts Court.

Analysis Law and Policy

After a Year, What Has the Smear Campaign Against Planned Parenthood Accomplished?

Jessica Mason Pieklo & Imani Gandy

One year after David Daleiden and the Center for Medical Progress released the first of a series of videos targeting Planned Parenthood, there is still no evidence of wrongdoing by the reproductive health-care provider.

See more of our coverage on the anti-choice front group, the Center for Medical Progress here.

One year ago, David Daleiden released the first in a series of videos that he claimed proved Planned Parenthood employees were unlawfully profiting from fetal tissue donation and violating the federal “partial-birth abortion” ban. With the backing and counsel of Operation Rescue President Troy Newman and the help of a woman named Sandra Merritt, among others, Daleiden had created a front group called the Center for Medical Progress (CMP).

He then disguised CMP as a legitimate biomedical research organization—despite overwhelming evidence, including CMP’s own corporate documents, to the contrary—and used it to gain access to abortion clinics and private meetings. The organization released 11 videos by the end of 2015; in a year’s time, Daleiden and CMP had released a total of 14 videos. All have been debunked as deceptively edited and misleading.

So what have those videos truly accomplished? Here’s a summary of the fallout, one year later.

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Lawmakers Mounted Attacks on Planned Parenthood

In response to CMP’s videos, more than a dozen conservative governors launched investigations into or tried to defund Planned Parenthood affiliates in their states. States like Arkansas, Kansas, and Utah had their attempts to defund the reproductive health-care centers blocked by federal court order. The Obama administration also warned states that continuing to try and strip Medicaid funding to Planned Parenthood centers violated federal law, though that did not stop such efforts throughout the country.

Additionally, congressional Republicans began their own investigations and defunding efforts, holding at least five separate hearings and as many defunding votes. Planned Parenthood Federation of America (PPFA) President Cecile Richards provided hours of congressional testimony on the lawful fetal tissue donation option available to some Planned Parenthood patients. Other affiliates do not offer such donation programs at all.

Not a single investigation at either the state or federal level has produced evidence of any wrongdoing. Still, many continue today. To date, Congress alone has spent almost $790,000 on the matter.

Violence Against Clinics Escalated

Just weeks after CMP released its first video, there was an act of arson at a Planned Parenthood health center in Aurora, Illinois. The following month, and after the release of three more smear videos, a car fire broke out behind a locked gate at Planned Parenthood in New Orleans. Abortion clinic staff and doctors around the country reported a significant uptick in threats of violence as Daleiden and CMP released the videos in a slow drip.

That violence spiked in November 2015, when Robert Lewis Dear Jr. was arrested for opening fire at a Colorado Springs Planned Parenthood, a siege that left three dead. Dear told investigating officers his violence was “for the babies” because Planned Parenthood was “selling baby parts.” A Colorado court has so far deemed Dear incompetent to stand trial. Dear’s siege was not the last incident of clinic violence apparently inspired by Daleiden and CMP, but it has, to date, been the most lethal.

Dear’s next competency hearing is currently scheduled for Aug. 11.

A Lot of Lawsuits Got Filed

The tissue procurement company StemExpress and the National Abortion Federation (NAF) filed suits in July of last year. In January 2016, Planned Parenthood did the same, alleging that Daleiden and CMP had engaged in conspiracy and racketeering, among other things.

StemExpress Sued Daleiden and CMP

StemExpress, one company to whom Planned Parenthood was supposedly selling tissue, sued CMP, Daleiden, and Merritt in California state court. StemExpress asked the court for an injunction blocking CMP from releasing any more videos that were surreptitiously recorded at meetings the pair of anti-choice activists had with StemExpress staff. The complaint also included allegations of conspiracy, invasion of privacy, and conversion of property (based upon Daleiden’s taking confidential information from a former StemExpress employee, including accessing her StemExpress email account after she was no longer employed at the company).

Although it issued a temporary restraining order (TRO), the court ultimately declined to convert that into an injunction, citing First Amendment concerns that to do so would constitute prior restraint, or pre-publication censorship, on Daleiden and Merritt’s right to free speech. In other words, Daleiden and Merritt are free—at least under this court order—to continue releasing videos involving StemExpress employees while the suit proceeds.

The case is set for trial in January 2017.

National Abortion Federation Sued Daleiden and CMP

About the same time that CMP and Daleiden were battling StemExpress in court, NAF filed suit in federal court in San Francisco, alleging civil conspiracy, racketeering, fraud, and breach of contract, among other claims. Like StemExpress, NAF sought a temporary restraining order blocking any further release of the attack videos. Judge William Orrick issued the TRO and later, after a protracted discovery battle, converted it into a preliminary injunction. Thus, CMP is prohibited from publishing any videos of footage taken at NAF’s annual meetings, which Daleiden and Merritt infiltrated in 2014 and 2015, while the suit proceeds.

As they had in their battle with StemExpress, Daleiden and CMP claimed that prohibiting publication of the videos constituted a prior restraint on speech, in violation of the First Amendment. But unlike StemExpress, which was trying to prohibit the publication of videos detailing conversations that took place in a restaurant, NAF sought to prohibit publication of video footage secretly recorded at meetings. Judge Orrick found that Daleiden had waived his First Amendment rights when he signed a confidentiality agreement at those meetings promising not to disclose any information he gained at them.

And, as in other court battles, one of the preeminent claims Daleiden and his cohorts raised to excuse his tactics—creating a fake tissue procurement company, assuming false identities through the use of false identification cards, getting people drunk in order to elicit damaging statements from them, and signing confidentiality agreements with no intention of following them—was that Daleiden is an investigative journalist.

Judge Orrick condemned this argument in strong terms: “Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project—achieved in large part from the infiltration—thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not—as Daleiden repeatedly asserts—use widely accepted investigatory journalism techniques.”

In an amicus brief in the same lawsuit, submitted to the Ninth Circuit Court of Appeals in early June, 18 of the country’s leading journalists and journalism scholars noted that “by calling himself an ‘investigative journalist,’ Appellant David Daleiden does not make it so.”

“We believe that accepting Mr. Daleiden’s claim that he merely engaged in ‘standard undercover journalism techniques’ would be both wrong and damaging to the vital role that journalism serves in our society,” the journalists and scholars continued.

Daleiden and CMP have appealed the preliminary injunction order to the Ninth Circuit Court of Appeals, where the case currently sits pending a decision.

Planned Parenthood Sued Daleiden and CMP

Six months after StemExpress and NAF filed their lawsuits against the orchestrators of the smear campaign, PPFA filed a whopping one of its own in California federal court, alleging civil conspiracy, racketeering, fraud, trespass, and breach of contract, among other civil and criminal allegations. PPFA was joined by several affiliates—including Planned Parenthood of the Rocky Mountains, where Dear was arrested for opening fire in November.

Daleiden has asked the court to dismiss Planned Parenthood’s claims. The court has so far declined to do so.

David Daleiden and Sandra Merritt Were Indicted on Felony Charges

Daleiden and his allies have not fared well in the civil lawsuits filed against them. But both Daleiden and Merritt also have pending criminal cases. After an investigation into Planned Parenthood Gulf Coast sparked by Daleiden’s claims, a Texas grand jury declined to indict the health-care organization for any criminal conduct. The grand jury instead returned an indictment against Daleiden and Merritt on a felony charge of tampering with a governmental record, related to their use of false California driver’s licenses in order to gain entrance into the clinic. Daleiden was additionally charged with a misdemeanor count related to the purchase or sale of human organs.

In June, Harris County Criminal Court at Law Judge Diane Bull dismissed the misdemeanor charge. Daleiden and Merritt’s attorneys, who called the dismissal a victory for the anti-choice movement, are still trying to get the felony charged dismissed.

News Law and Policy

Judge Blocks Mississippi ‘Religious Freedom’ Law, Calling it Discriminatory

Nicole Knight Shine

"But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined," U.S. District Judge Carlton W. Reeves wrote.

A U.S. District Judge temporarily blocked a sweeping and controversial Mississippi “religious freedom” law late Thursday, calling the legislation “arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

“The State has put its thumb on the scale to favor some religious beliefs over others,” U.S. District Judge Carlton W. Reeves wrote in a 60-page decision issued hours before HB 1523 was set to go into effect.

Reeves ruled that the bill violated the First and 14th Amendments by allowing individuals, religious organizations, and some government employees with “sincerely held religious beliefs” to deny services to, as Reeves wrote, “lesbian, gay, transgender, and unmarried persons,” potentially gutting certain privileges and legal protections—such as those stemming from the 2015 Supreme Court decision legalizing same-sex marriage.

The bill was authored by Mississippi House Speaker Philip Gunn (R-Hinds), who had called the high court’s legalization of marriage equality “in direct conflict with God’s design for marriage as set forth in the Bible,” as the Washington Post reported.

“Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together,” Reeves wrote in his decision.”But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined.”

The legislation, known as the Protecting Freedom of Conscience from Government Discrimination Act, was signed into law by Republican Gov. Phil Bryant in April, after clearing the Republican-controlled House and Senate.

The measure enshrined three religiously held tenets: that gender is determined at birth, that marriage is between a man and a woman, and that sex is “properly reserved” for heterosexual marriage. It determined that housing, employment, and adoption decisions could be made based on those religious beliefs.

A swift national and state-level outcry followed the passage of HB 1523, with 80 CEOs, among others, calling for its repeal as “bad for our employees and bad for business,” according to the court documents. The law had been challenged in Barber v. Bryant and Campaign for Southern Equality v. Bryant.

The state has not said whether it will appeal Reeves’ ruling. If the state does not appeal, the temporary order becomes permanent after another hearing.

“I am grateful that the court has blocked this divisive law,” said Rev. Susan Hrostowski, an Episcopal priest and a plaintiff in the Campaign for Southern Equality case. “As a member of the LGBT community and as minister of the Gospel, I am thankful that justice prevailed.”

The injunction Thursday follows a ruling earlier this week by Reeves, a 2010 Obama appointee, which blocked a provision in HB 1523 allowing circuit clerks to deny marriage licenses to same-sex couples, as the Washington Post reported. Twenty months prior, Reeves had struck down the state’s statutory and constitutional bans on same-sex marriage.