Weighing the interests of mother and baby

Justice Brett Kavanaugh (left) sworn in.

The Supreme Court of the United States held oral arguments on December 1 on a landmark case (Dobbs v. Jackson Women's Health) that challenges the infamous 1973 Roe v. Wade decision that legalized abortion nationwide.

Mississippi's Attorney General, defending that state's law that bans abortions after 15 weeks, argued that the states and the people--not the nine justices of the Supreme Court--should decide how to handle abortion, given that the US Constitution does not enumerate a right to abortion. The abortion industry and its allies in the Biden administration leaned heavily on the legal doctrine of stare decisis, arguing that women have come to depend on Roe and therefore the precedent cannot be overturned without decimating the Court's legitimacy. Mississippi countered that following the Constitution--and responsibly correcting an error such as Roe in interpreting the Constitution--preserves rather than destroys the Court's integrity.

Federal court strikes down transgender mandate, protects medical judgment and conscience

 A federal court has provided protections for physicians committed to following medical evidence and conscience convictions regarding the transgender and gender-questioning patients for whom they care.

The U.S. District Court for the District of North Dakota has struck down an Obama-era rule that would have nixed physicians' considerations of conscience and medical judgment on transgender procedures and prescriptions. Becket, the legal firm representing the plaintiffs in the case--an order of Catholic nuns, a Catholic university, and Catholic healthcare organizations--describes the victory in a press release below.

Becket also represents the Christian Medical & Dental Associations (CMDA) and a Catholic health entity in a different federal court in a similar case, Franciscan Alliance v. Azar.

Judge Amy Coney Barrett’s opening statement - highlights

CONFIRMATION PROCESS

“I thank the President for entrusting me with this profound responsibility, as well as for the graciousness that he and the First Lady have shown my family throughout this process.”

“I thank the members of this committee—and your other colleagues in the Senate—who have taken the time to meet with me since my nomination. It has been a privilege to meet you.”

“The confirmation process—and the work of serving on the court if I am confirmed— requires sacrifices, particularly from my family. I chose to accept the nomination because I believe deeply in the rule of law and the place of the Supreme Court in our nation. I believe Americans of all backgrounds deserve an independent Supreme Court that interprets our Constitution and laws as they are written. And I believe I can serve my country by playing that role.”

“If confirmed, it would be the honor of a lifetime to serve alongside the Chief Justice and seven Associate Justices. I admire them all and would consider each a valued colleague. And I might bring a few new perspectives to the bench.”

“I come before this Committee with humility about the responsibility I have been asked to undertake, and with appreciation for those who came before me.”

“I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place. I will be forever grateful for the path she marked and the life she led.”

IMPORTANCE OF FAMILY

“As I said when I was nominated to serve as a Justice, I am used to being in a group of nine—my family. Nothing is more important to me, and I am so proud to have them behind me.”

“There is a tendency in our profession to treat the practice of law as all-consuming, while losing sight of everything else. But that makes for a shallow and unfulfilling life.  I worked hard as a lawyer and a professor; I owed that to my clients, my students, and myself. But I never let the law define my identity or crowd out the rest of my life.”

JUDICIAL PHILOSOPHY

“Courts have a vital responsibility to enforce the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.”

“That is the approach I have strived to follow as a judge on the Seventh Circuit. In every case, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court, and done my utmost to reach the result required by the law, whatever my own preferences might be.”

“When I write an opinion resolving a case, I read every word from the perspective of the losing party. I ask myself how would I view the decision if one of my children was the party I was ruling against: Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in the law? That is the standard I set for myself in every case, and it is the standard I will follow as long as I am a judge on any court.”

“If I am fortunate enough to be confirmed, I pledge to faithfully and impartially discharge my duties to the American people as an Associate Justice of the Supreme Court.”

LEGAL SCHOLARSHIP

“Although I considered graduate studies in English, I decided my passion for words was better suited to deciphering statutes than novels. I was fortunate to have wonderful legal mentors—in particular, the judges for whom I clerked. The legendary Judge Laurence Silberman of the D.C. Circuit gave me my first job in the law and continues to teach me today. He was by my side during my Seventh Circuit hearing and investiture, and he is cheering me on from his living room now.”

“I also clerked for Justice Scalia, and like many law students, I felt like I knew the justice before I ever met him, because I had read so many of his colorful, accessible opinions. More than the style of his writing, though, it was the content of Justice Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were.”

NEW PERSPECTIVE ON THE COURT

“And I might bring a few new perspectives to the bench. As the President noted when he announced my nomination, I would be the first mother of school-age children to serve on the court. I would be the first Justice to join the court from the Seventh Circuit in 45 years. And I would be the only sitting Justice who didn’t attend law school at Harvard or Yale.”

HHS addresses "transgender mandate" in new rule … but Supreme Court redefines "sex discrimination"

The U.S. Department of Health and Human Services (HHS) announced on June 12 that it had "finalized a rule under Section 1557 of the Affordable Care Act (ACA) that maintains vigorous enforcement of federal civil rights laws on the basis of race, color, national origin, disability, age, and sex, and restores the rule of law by revising certain provisions that go beyond the plain meaning of the law as enacted by Congress."

CMA and Becket express optimism

The Christian Medical Association (CMA) expressed optimism that the new HHS rule, which was influenced by a CMA court case and buttressed by CMA polling, will help protect medical judgment and the exercise of conscience in healthcare.

"Health professionals know they must base medical decisions on biology and science, not ideology," said Dr. Jeff Barrows, CMA's Executive Vice President for Bioethics and Public Policy and an Ob-Gyn physician. "Biological gender carries very significant health implications that a physician must be able to recognize in making treatment decisions. The freedom for a health professional to base decisions on the medical science regarding biological gender also carries conscience concerns that should not be overruled by politics or ideology.

"We are hopeful that this rule will help steer consideration of gender issues in healthcare back toward science and away from politics and ideology, back to the protection of professional medical judgment and the freedom to adhere to long-observed ethical and moral standards."

Luke Goodrich, vice president and senior counsel at Becket—the firm that represents CMA in its case against the 'transgender mandate--added, “No doctor should be forced to perform a procedure she believes would harm a patient. The new rule will help ensure that all patients receive top-notch care without forcing doctors to perform potentially harmful procedures in violation of their religious beliefs and medical judgment."

CMA lawsuit and polling influenced new HHS rule

The new HHS rule was influenced by a successful and ongoing CMA and Franciscan Alliance lawsuit aimed at stopping the previous administration's "transgender mandate" that had trampled medical judgment and nixed conscience objections over transgender procedures and prescriptions. The old rule had interpreted "sex discrimination" under Section 1557 of the Affordable Care Act (Obamacare) to include not just biological sex but also termination of pregnancy and gender identity, which the old rule defined as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”

As Roger Severino, Director of the Office for Civil Rights at HHS, explained in announcing the new final rule, "HHS will continue to vigorously enforce federal civil rights laws prohibiting discrimination on the basis of race, color, national origin, disability, age, and sex in healthcare, as Section 1557 provides. HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress. We are unwavering in our commitment to enforcing civil rights in healthcare."

In its announcement, HHS highlighted the impact that CMA's successful lawsuit had on the rules, noting, "On December 31, 2016, a federal court preliminarily enjoined, on a nationwide basis the prior administration’s attempt to redefine sex discrimination in the 2016 Rule, concluding that the provisions were likely contrary to applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act."

HHS also cited as rationale for its new rule CMA's national polling of faith-based health professionals that had been submitted to HHS during the public comment period on the proposed rule.

HHS observed that CMA "commenters, however, cited a survey showing that 97% of responding faith-based medical professionals attest that they 'care for all patients in need, regardless of sexual orientation, gender identification, or family makeup, with sensitivity and compassion, even when [they] cannot validate their choices.' Thus, some commenters argue, the issue is not one of refusing to care for certain patients based on identity, but instead a matter of declining to participate in a discrete set of morally controversial procedures and treatments that are available elsewhere."

CMA's polling also found that 91% said they would stop practicing medicine apart from conscience protection.

Supreme Court redefines "sex discrimination"

While the HHS final rule highlighted the common understanding of the term "sex" as referring to biological male or female, the Supreme Court just a week later issued a decision reinterpreting "sex discrimination" in employment to include discrimination based on sexual orientation and gender identity.

According to the majority opinion, authored by Justice Gorsuch, if any employer “fires an individual for being homosexual or transgender,” then the employer has fired that person “for traits or actions it would not have questioned in members of a different sex.” Thus, the employer has engaged in “sex discrimination” in violation of federal law.

In his dissenting opinion, Justice Alito warned that the ruling “is virtually certain to have far-reaching consequences.” In particular, Justice Alito noted that “[h]ealthcare benefits may emerge as an intense battleground under the Court’s holding,” because the Affordable Care Act “broadly prohibits sex discrimination in the provision of healthcare.”

One example of that issue is CMA's "transgender mandate" lawsuit. Winning the religious freedom aspect of that case now takes on even greater importance.

As Justice Alito noted, “[S]ome employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs.”

Call to courage and spiritual battle

Clearly some of the foundations of our faith, medical science and reality itself are under attack in the courts and in our legislatures. We know from Scripture that spiritual forces lie behind attacks on God's immutable truth and on the design of His creation.

Ultimately our enemy is not deceived legislators, activists or judges but the false ideas and spiritual forces of deception that have blinded eyes to the truth—truth that can set us free to live according to God's design.

Pray for our country, our courts, our lawmakers and CMDA, that we might all conform our lives to God's truth and follow His perfect path to human fulfillment and justice.

Related resources:

•  Freedom2Care - CMA's project focused on freedom of faith, conscience and speech
• CMA/Freedom2Care national polling – on conscience and compassionate care
• Final HHS Rule - PDF
• Factsheet on HHS rule - PDF

Essay 12: Can transgender activism silence science?

Drastic? "The Trump administration is
considering narrowly defining gender
as a biological, immutable condition
determined by genitalia at birth...."
Photo by Kira auf der Heide on Unsplash

The New York Times recently published apparently leaked information about plans at the U.S. Department of Health and Human Services (HHS) to adjust a 2016 transgender mandate. The adjustment involves reverting to the original Congressional statutory meaning of "sex discrimination" as discrimination based on biological sex.

Accuser v. Judge should be about true justice--not misandry.

At this point, any Senate hearing on sexual assault allegations against Supreme Court nominee Judge Brett Kavanaugh appears much less likely to illuminate the actual truth about alleged events than to illuminate the political, ideological and even the gender-based biases and agendas of senators.
What has been highlighted in this agonizing process, unfortunately, is how little so many people in Congress and in this country seem to care about the rule of law ... or reasoned and civil debate ... or true justice.
True justice does not allow automatically favoring the testimony of one gender over another. That's bald-faced bias, bigotry, discrimination.

Linking healthcare access to conscience freedoms, Christian Medical Association hails Presidential Executive Order

[The President's Executive Order text follows this press statement]
Washington, DC, May 4, 2017--Citing the link between patient access to healthcare and conscience freedom for health professionals, the 18,000-member Christian Medical Association (CMA, www.cmda.org) today expressed gratitude for President Trump's executive order that begins to provide stronger protections against discrimination against individuals and organizations of faith.

"Protecting religious freedom means protecting the millions of individuals served by organizations and professionals who are motivated and guided by the tenets of their faith," explained Dr. David Stevens, CEO of the 85-year-old nonpartisan organization of Christian doctors and students. "The faith that compels so many health professionals to minister to patients in underserved areas and populations is the same faith that compels us to practice according to moral and ethical guidelines. Conscience freedoms are the foundation of our service.

"When the government refuses to accommodate those faith principles, or--as we experienced in the previous administration's contraceptives and transgender mandates--attempts to coerce people of faith to violate those principles, those who suffer include the poor, the marginalized and the vulnerable."

Represented by Becket Law, the Christian Medical Association recently successfully challenged the Obama administration's transgender mandate. Represented by Americans United for Life, CMA filed an amicus brief in the contraceptives mandate Supreme Court case, Zubik v. Burwell.

CMA also worked to help establish the nation's first health professionals' conscience protection rule, promulgated in 2008 by the U.S. Department of Health and Human Services. The Obama administration subsequently gutted the conscience rule and also attempted to force faith-based organizations to participate in morally objectionable contraceptives such as Plan B and the morning-after pill.

"We are grateful for this executive order that begins to turn the tide back toward freedom of faith and speech, including political speech. Americans do not give up their First Amendment protections when they speak from the pulpit, counsel their patients or minister in a faith-based outreach to help the poor," Dr. Stevens observed. "Threatening the First Amendment freedoms of any one group threatens the First Amendment freedoms of all of us, and protecting those freedoms protects us all." 
-----

EXECUTIVE ORDER

PROMOTING FREE SPEECH AND RELIGIOUS LIBERTY

      By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to guide the executive branch in formulating and implementing policies with implications for the religious liberty of persons and organizations in America, and to further compliance with the Constitution and with applicable statutes and Presidential Directives, it is hereby ordered as follows:

     Section 1.  Policy.  It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom.  The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government.  For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans' first freedom.  Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.  The executive branch will honor and enforce those protections.

     Sec. 2.  Respecting Religious and Political Speech.  All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.  In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.  As used in this section, the term "adverse action" means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.

     Sec. 3.  Conscience Protections with Respect to Preventive-Care Mandate.  The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.

     Sec. 4.  Religious Liberty Guidance.  In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.

     Sec. 5.  Severability.  If any provision of this order, or the application of any provision to any individual or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other individuals or circumstances shall not be affected thereby.  

     Sec. 6.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

     (b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

     (c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,

May 4, 2017.

Obamacare "conscience" accommodation: Like making conscientious military objectors designate proxies for combat

The US Agency for International Development boasts that the United States is “the world’s largest family planning bilateral donor for 50 years, ” “supports voluntary family planning” and “takes a rights-based approach to family planning.” Here at home with its own citizens, however, the administration has taken the opposite tack.

Rather than directly providing contraceptives for voluntary use as it does overseas, the Obama administration instead has mandated coverage through employer-paid insurance plans. Not even nuns who care for the elderly—like the Little Sisters of the Poor, who this week had to ask the Supreme Court for protection—can claim a conscientious objection.

The administration’s “accommodation” of conscientious objectors is to force the nuns to sign a form that tells the government to make their insurance company provide contraceptives. That’s like making a conscientious objector to military conscription designate a proxy for combat.

The nuns and other religious objectors simply seek the freedom to follow their beliefs without fear of government punishment—in this case, draconian fines that would wipe out the ministry. At stake is not only the First Amendment freedom of religious exercise, but the rights of all citizens to speak and act in accordance with their beliefs—even when those beliefs challenge the government’s ideology and power.

[Note: The Christian Medical Association has filed an amicus brief in this case, Zubik v. Burwell. A dvidided Supreme Court recently asked both parties to consider and report back new solutions.]