After hearing arguments Friday, U.S. District Judge Joe Heaton issued an order temporarily exempting Hobby Lobby from complying with the contraception benefit in the Affordable Care Act, which requires it to offer insurance coverage for the morning-after pill and similar birth control or face steep fines. The ruling moves the national fight over the constitutionality of the contraception benefit a significant step closer to the Supreme Court, but also shows a deep divide within the federal judiciary over whether or not corporations have constitutional religious rights.
The terse, four-page order is the first to flatly bar the federal government from enforcing any part of the contraceptive benefit in the federal health-care law. Judge Heaton, who earlier had turned down an identical request by Hobby Lobby to delay enforcement (his request was overturned by the U.S. Tenth Circuit Court of Appeals), took the opportunity to jab back at the court of appeals, holding that Hobby Lobby had “newly recognized religious rights” that drove much of the conclusion to block enforcement, despite his earlier order refusing to do so. These “newly recognized religious rights,” Heaton’s order makes clear, stem from the Tenth Circuit’s ruling that business firms can take on the religious views of their owners and then exercise those rights on their own in the way they conduct their business operations.
Judge Heaton made clear that, thanks to the Tenth Circuit’s ruling, he had very little choice other than to grant Hobby Lobby’s request to block the benefit. He cited the fact that Hobby Lobby faced financial penalties that “could conceivably amount to $1.3 million” a day for violating the mandate, but also made a finding that the government had a “not insignificant interest” in providing the two companies’ employees with access to all federally approved contraceptive methods through a health insurance plan. However, even with the government’s significant interest in making contraception widely available and affordable, Judge Heaton held that the threat of financial penalties and the potential violation of religious rights outweighed the government’s “potential harm” should access be unavailable.
In addition to issuing the preliminary injection, the judge also stayed the case until October 1 to give the federal government time to consider an appeal. That means the government now has the option of appealing the order to the Tenth Circuit. But that court already has suggested it would block enforcement in an earlier ruling and had scheduled a hearing in another case challenging the benefit for October as well, meaning that even if the Obama administration doesn’t appeal this specific order, the Tenth Circuit will weigh in on the constitutionality of the benefit regardless.
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Besides the Tenth Circuit, four other federal appeals courts have held hearings on the mandate, with another hearing in September. The clear fault line emerging in these legal challenges is this idea, fully embraced by the Tenth Circuit, that businesses have the ability to take on the religious beliefs of their owners. It’s a radical re-imagining of First Amendment religious rights made possible thanks to the Citizens United decision, which held corporations have certain First Amendment speech rights, including the right to spend money in elections. And as soon as next year, we could learn whether or not the Roberts Court, and Justice Anthony Kennedy in particular, is willing to extend those rights even further.
Kim Davis, the Kentucky clerk who served jail time for refusing to issue same-sex marriage licenses, lost a legal bid to remove a contempt of court order on Wednesday.
Davis gained notoriety last year for her decision to stop issuing marriage licenses, saying it would violate her Christian beliefs, after the landmark U.S. Supreme Court Obergefell v. Hodges ruling legalizing marriage equality. Her actions sparked national outrage and served as a rallying point for advocates who claimed to be defending religious freedom.
Four couples represented by the American Civil Liberties Union sued Davis in federal court, and a judge found her in contempt of court and jailed the Rowan County Clerk for five days after she flouted a court order to issue marriage licenses.
Davis sought to remove the contempt of court order, but a Sixth Circuit Court of Appeals decision on Wednesday kept in place the district court ruling, meaning the order will remain on her record.
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The three-judge panel also granted Davis’ motion to vacate the injunction against her and drop her appeal of the lawsuit. Davis’ attorneys had argued that the appeal was no longer necessary with Kentucky’s new “religious liberty” law, which removes county clerks’ names from marriage licenses and was instated after the uproar around Davis’ decision.
ACLU LGBT Project Staff Attorney Ria Tabacco Mar hailed the appellate panel’s decision upholding the contempt order in a statement, saying, “It will serve as a reminder to other government officials that placing their personal views ahead of the Constitution and the rule of law is not acceptable.”
Mat Staver, founder and chairman of Liberty Counsel, which represented Davis, also claimed victory in a statement, noting, “County clerks are no longer forced to compromise their religious liberty and conscience rights.”
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.
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.