​A post last month highlighted positive developments for religious liberty in state courts. Lower federal courts, too, have recently issued important decisions extending protection to Catholic organizations providing social services in their communities.

Sisters of Life

A religious order, the Sisters for Life, “vow to protect the sacredness of human life at every stage.” Their work involves “…caring for pregnant women and their unborn children. They provide pregnant women with housing, maternity clothes, baby formula, and other supplies for well after birth. They also connect pregnant women and their children to pro bono medical and legal services and a wide array of social services.”

The Sisters, however, have experienced an unexpected hurdle to fulfilling their mission when, in 2022, the State of New York passed a law “that allows the government to probe the internal documents and policies of pro-life pregnancy centers, even forcing them to turn over information about the individual women who seek their help.”

The nuns sued to protect the integrity of their work and the privacy of the women they served. Thankfully, the suit worked and a federal district court in southern New York resolved the case with an order agreed to by both parties: “Defendant agrees and is hereby ordered not to take any enforcement action of any kind against Plaintiff based on Plaintiff’s nonresponse to or noncompliance with any survey, document request, or information request of any kind authorized by or issued by Defendant pursuant to the Statute.” The court continues to exercise its jurisdiction to ensure its order is followed.

Bella View

In Colorado, Bella View, a “a life-affirming Catholic medical clinic for women in the Denver metropolitan area” offers health care to thousands of clients. One practice of the clinic, though, was targeted by Colorado law:

Like healthcare clinics across the nation, Bella’s OB-GYN practice often prescribes women progesterone, a naturally occurring hormone that is essential to the maintenance of a healthy pregnancy and to women at risk of miscarriage. In some cases, healthcare professionals have also used progesterone to maintain a pregnancy after a woman has either willingly or unwillingly taken the first pill in the two-step abortion-pill regimen. Consistent with its Catholic belief to protect human life, Bella offers progesterone to women who change their minds after taking the first abortion pill. Bella Health has seen firsthand the hormone successfully reverse the effects of a miscarriage caused by an abortion pill with no negative side effects.

As described in a prior post, in April 2023, the Colorado Legislature approved a package of pro-abortion bills “prohibit[ing] health care providers from providing or even offering ‘abortion pill reversal.’” Although the state allowed use of the drug to prevent a miscarriage, it singled out its use only in the “abortion reversal” context, suggesting that there was not anything inherently dangerous about the practice. Bella View challenged the law on the day it was signed.

A federal district court recently decided in favor of the clinic. In addition to the fact that the law banned only certain uses of progesterone and allowed exemptions that could benefit secular but not religious clinics, the court concluded that “both given [the] legislative history [of the law] and the bill’s text itself, that the legislature was aware that the burden of this prohibition would primarily fall on religious adherents.” Thus, the state would have to justify the law by showing it furthered a compelling interest but that the state had failed to do so.

Conclusion

There is a dark cloud with this silver lining, however. These cases would not have arisen if state lawmakers had been solicitous of the religious freedom of those who would be affected by their laws. The purpose of nearly all laws can easily be fulfilled without imposing on religious organizations. More to the point, religious practice never needs to be targeted for disfavored treatment even if it runs counter to current ideological commitments.

The courts can provide an effective backstop when laws inadvertently impose burdens on religious practice. This is an important service. When the imposition appears to be intended, the courts are forced to act to vindicate a right that should not have been challenged. Lawmakers should prioritize accommodating, rather than threatening, the free exercise of their constituents.