Abortion, Social Media, Guns: Supreme Court Poised to Impact Religious Freedom

Gun Rights

COMMENTARY: Several cases this term have the potential to further safeguard religious freedom and protect the unborn and their mothers.

As we edge closer to summer, it’s time to pay even more attention to the Supreme Court. The Court will release important decisions as it wraps up its current term. Although religious liberty is not directly at issue in any case before the Court, several decisions have the potential to further safeguard religious freedom, including the court hearing oral argument on Wednesday about a crucial case that impacts mothers, babies, and doctors. Let’s take a quick look at this year’s docket:

 

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 Already Issued 

Earlier this month, the Court allowed an Idaho law banning medical interventions for minors with gender dysphoria to go broadly into effect while a challenge to the law works its way through the courts. Health-care professionals in the state can face up to 10 years in prison for providing “treatments” such as puberty blockers, hormones and mastectomies for children supposedly suffering gender dysphoria. The law does not prohibit such treatments for other conditions such as early puberty or genetic disorders of sexual development, if it is consistent with a minor’s biological sex. 

The Court’s brief order narrowed a nationwide preliminary injunction against the law imposed by the district court so that it permitted only the plaintiffs, two children and their parents, to continue to receive puberty blockers and estrogen. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, added in a concurring opinion that “lower courts would be wise to take heed” of the Court’s decision narrowing a universal injunction.

Also, a unanimous Court held earlier this year that the federal government failed to meet its burden to demonstrate that removal of a Muslim from the government’s “No Fly List” mooted his case because its declaration did not disclose the conduct that landed him on the No Fly List and did not ensure that he would not be placed back on the list for engaging in the same or similar conduct in the future.

 

To Be Decided

Two cases, Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo, ask whether the Court should overrule or clarify its 1984 decision in Chevron v. Natural Resources Defense Council. The court-created doctrine known as Chevron deference directs courts to defer to federal agencies’ interpretation of laws they administer when the text is silent or ambiguous. Critics argue that deferring to bureaucrats has allowed federal agencies to both take over the courts’ power to interpret the law and Congress’ power to legislate. Becket law group has raised an additional concern: the negative impact of Chevron on religious liberty. The group explains the “endless cycle of punishment” for religious objectors, like the Little Sisters of the Poor, because Chevron has “empowered federal regulators to create new ways to punish unpopular religious groups and deny them exemptions.” 

Another “blockbuster” case raises questions about executive overreach in the context of abortion. In U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, four national medical associations, their members, and four individual doctors accused the FDA of unlawfully removing crucial safety standards for pregnant women who use the abortion drugs mifepristone and misoprostol. Over the past eight years, the agency has removed nearly all the safety standards that ensured women and girls had medical care while taking these high-risk drugs. These safeguards included an initial in-person visit to screen for ectopic pregnancies and other serious conditions and a follow-up visit to check for life-threatening complications like internal bleeding and infection. During oral argument in March, several justices questioned whether the petitioners had the legal standing to challenge the FDA in the case. It’s alarming to think that the FDA’s hasty lifting of oversight over these powerful medications could escape judicial review. 

The Court is also grappling with cases involving government intervention in content regulation of social media and the free-speech protections offered under the First Amendment. For religious believers whose beliefs are becoming less and less “acceptable,” the Court’s robust protection of ideas is of great import.

Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton involve laws in Florida and Texas that regulate how large social-media companies control content posted on their sites. The Texas law bars social-media platforms with at least 50 million active users from blocking, removing or “demonetizing” content based on the users’ views. The Florida law prohibits social-media companies from banning political candidates and “journalistic enterprises.” Two trade groups representing social-media platforms went to federal court to challenge the laws, arguing that “given the vast amount of material on the Internet in general and on these websites in particular, exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers.” 

Soon afterwards, the Court heard argument in Murthy v. Missouri, a challenge by the Biden administration to a federal court order that would limit the ability of government officials to communicate with social-media companies about their content-moderation policies. The case relates to efforts by the administration in 2021 to encourage companies to restrict information about the COVID-19 vaccine. The challengers — two states with Republican attorneys general, Missouri and Louisiana, and several individuals whose social-media posts were removed or downgraded — say that the government efforts, sometimes referred to as “jawboning,” violated social-media users’ rights to free speech. The administration claims the lower court of appeals “imposed unprecedented limits on the ability of the President’s closest aides to speak about matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on CDC’s ability to relay public-health information.” 

There also is National Rifle Association of America v. Vullo. After the tragic Parkland school shooting in 2018, New York State Department of Financial Services official Maria Vullo using pressure tactics and threats to “encourage” banks and insurers to assess and possibly end their affiliations with groups like the NRA. Several firms cut ties with the NRA, and the group filed suit against Vullo, asserting violations of its free-speech and equal-protection rights. The Court will decide whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of the government’s own hostility to the speaker’s viewpoint or a perceived “general backlash” against the speaker’s advocacy. 

Finally, Catholics will be interested in two cases related to government response to the growing homeless population in our country and the regulation of abortion.

The Court is considering whether an Oregon city can enforce its ban on public camping against homeless people in City of Grants Pass, Oregon v. Johnson, or if such a law constitutes “cruel and unusual punishment” prohibited by the Eighth Amendment. Deeply splintered, the 9th Circuit Court of Appeals reviewing the case en banc declined to do so. In one dissenting opinion, Senior Judge Diarmuid O’Scannlain criticized the decision as contrary to the original meaning of the Eighth Amendment and “seizing policymaking authority that our federal system of government leaves to the democratic process.” Becket, while taking no position on the underlying Eighth Amendment issues in the appeal, offered an amicus brief to explain that 9th Circuit precedent grossly misconstrues the Establishment Clause by categorically disregarding consideration of housing at religious shelters by improperly relying on discredited reasoning from Lemon v. Kurtzman, a Supreme Court decision issued back in 1971. 

And, consistent with the Court’s decision in Dobbs, states have begun to impose limitations on abortion. Idaho, which passed a law to protect the lives of women and their unborn children, prevents abortions except to save the life of the mother. In August 2022, the Biden administration sued the state, attempting to rewrite the federal Emergency Medical Treatment and Active Labor Act (EMTALA) to force Idaho emergency-room doctors to violate state law and harm women and their unborn children by performing abortions. EMTALA says nothing about abortion and actually requires that emergency rooms provide care for pregnant women and their “unborn child[ren].” The Court’s review of Moyle v. United States and Idaho v. United States could prevent the administration from manipulating EMTALA to override Idaho’s law. Oral argument begins April 24.

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