A tangle of legislation, executive action, and litigation over abortion

Written by William C. Duncan

November 18, 2021

In a recent speech at the University of Virginia, President Dallin H. Oaks of The Church of Jesus Christ of Latter-day Saints offered some wise words regarding conflicts between constitutional protections for religious exercise and nondiscrimination policies. He said:

I caution against primary reliance on judicial rulings to ultimately resolve these conflicts. What is needed is wise public policy, not a declaration of the winner in a legal contest.


Litigation should not be the first recourse in resolving our differences. Courts are constitutionally limited to resolving the specific cases before them. They are ill-suited to the overarching, complex, and comprehensive policy-making that is required in a circumstance like the current conflict between two great values.

Oaks’ encouragement of legislative lawmaking over judicial lawmaking is a sound prescription for moving forward. Unfortunately, at present the courts – particularly the U.S. Supreme Court – play an outsize role in defining the scope and effect of legal guarantees of religious freedom through their rulings.

What happens before the court ruling, though? That seems obvious – someone’s religious freedom is affected by a government action or law, and they bring a suit. Then, the courts determine what happened, apply the law, and create precedents for other disputes in the future.

This is basically correct, but even before the courts get involved, the initial decision of whether and when to pursue litigation can have a significant effect. Strategic decisions about which cases to pursue, which to continue, and which will be appealed to higher courts all help shape the law as well.

A recent illustration involves an unusual interplay of legislation, executive action, and litigation.

The story really begins with Roe v. Wade in 1973. When the Supreme Court invalidated state restrictions on abortion, Congress acted quickly to protect the conscience rights of those who objected to participating in abortions. As the Christian Legal Society explains, “A Democratic Congress passed the Church Amendment to prevent hospitals that received federal funds from forced participation in abortion or sterilization, as well as to protect doctors and nurses who refuse to participate in abortion. The Senate vote was 92-1.”

This law is still on the books. Currently, it is enforced through a process where an individual who is asked to participate in an abortion contrary to their beliefs files a complaint with the Office of Civil Rights (OCR) at the Department of Health and Human Services. The office can then determine whether to bring a lawsuit against the hospital or clinic for violating the law.

In 2018, a Catholic nurse working for the University of Vermont Medical Center filed a complaint with OCR claiming she had been deliberately scheduled to participate in an abortion despite her expressed objection and the fact that non-objecting nurses were available. She felt pressured by the possibility of losing her job if she did not participate.

After an investigation, OCR determined the center had violated the law. OCR referred the case to the U.S. Department of Justice (DOJ) which brought suit in the federal district court located in Vermont in December 2020 (during the lame duck period of the Trump administration).

At that time, however, the government did not file any motions or try to move the case forward. In August of this year, now under the Biden administration, the DOJ told the court it was dropping the case.

This executive action prior to any judicial decision obviously impacts the nurse who brought the complaint, but it also influences the law’s protection of people in similar circumstances. The Church Amendment has been law for decades, and some cases have been brought invoking its provisions. But none have been fully heard in the courts, so it is not clear exactly what protections people have under the law.

Seeing the government back off on enforcement of the law may also send a message that people are unlikely to prevail if they are in a situation like that of the Vermont nurse.

The case illustrates not only how important litigation is but also how important litigation policies of the government – primarily the executive branch – can be. To address potential holes in civil rights due to executive decisions, lawmakers must provide clear remedies in religious freedom laws to truly protect the people whom the law is supposed to help.

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