Courts still issuing pandemic rulings on abortion, religious liberty

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WASHINGTON (BP) – Federal courts continue to weigh in on government restrictions affecting abortion and religious freedom during the COVID-19 pandemic.

The U.S. Supreme Court vacated Monday (Jan. 25) rulings by the Fifth Circuit Court of Appeals that upheld orders by Texas Gov. Greg Abbott prohibiting most abortions in the state early in the pandemic. In its order, the high court instructed the appeals court in New Orleans to dismiss the case as moot after a revised Abbott order had enabled abortions to resume.

In San Francisco, the Ninth Circuit Court of Appeals ruled both Jan. 22 and 25 against churches in California that sought to halt enforcement of Gov. Gavin Newsom’s order prohibiting indoor worship services in areas considered to be at high risk for the spread of COVID-19.

The Southern Baptist Ethics & Religious Liberty Commission (ERLC) expressed its disappointment with the decisions from both the Supreme Court and the Ninth Circuit Court.

Texas and some other states included abortions among non-imperative procedures that were suspended after the pandemic began to spread throughout the country in March 2020. The orders were implemented to free medical supplies for hospitals and personal protective equipment for healthcare workers. Planned Parenthood and other abortion providers challenged the Texas orders and others in court and, in some cases, refused to abide by them. Other states exempted abortions from orders suspending non-essential procedures.

After a federal judge nullified an Abbott order with a temporary restraining order on two occasions, a Fifth Circuit panel reversed the lower court’s decision by a 2-1 vote in each case. The governor had included an exception for an abortion to protect the life or health of the mother.

More than four months later, Planned Parenthood asked the Supreme Court to order the Fifth Circuit Court to vacate both of its decisions. The office of Texas Attorney General Ken Paxton, however, urged the justices to deny the request. The two decisions by the Fifth Circuit panel have been cited in decisions by more than 120 courts across the country, the attorney general’s office said in a brief for the high court.

“It would be inequitable to excuse [Planned Parenthood’s] delay and erase two of the canonical cases on the intersection of constitutional rights and COVID-19,” according to the brief.

After the Supreme Court granted Planned Parenthood’s request without comment from any justices, ERLC President Russell Moore said in written comments, “With the pandemic still raging, every effort must be made to save lives right now. Obviously, that principle stands in stark contrast to the grisly work of Planned Parenthood and other abortion providers.”

Moore said he wishes “we had seen a clear ruling against the abortion industry in this case. Nonetheless, the work of the church, along with other people of good will, is as urgent now as it was 48 years ago when Roe v. Wade was decided. We must stand for justice for preborn children before the law and also for non-violent alternatives to abortion for pregnant mothers in crisis.”

The Supreme Court’s order came three days after the anniversary of the Jan. 22, 1973, decision by the justices that legalized abortion throughout the United States.

In late March of last year, Moore and more than 50 other pro-life leaders urged public health officials to act to prevent the promotion of abortion during the pandemic. By discontinuing abortions, Planned Parenthood would make medical equipment that is in limited supply available, protect women who may require care from an overtaxed health-care system after post-abortion complications and reduce the burden on emergency rooms, the pro-life advocates said in a letter.

Planned Parenthood, the country’s leading abortion provider, performed more than 345,000 abortions at its clinics in 2018-19, according to its latest annual report.

The Ninth Circuit Court’s latest rulings on corporate worship came in challenges by congregations in Southern California – South Bay United Pentecostal Church in Chula Vista and Harvest Rock Church in Pasadena, as well as its affiliated network Harvest International Ministry – to a ban on indoor services in Tier 1, the state’s category for the highest risk of COVID-19’s transmission by county. While outdoor worship services are permitted, indoor gatherings are prohibited in most of California because the state is classified almost totally as Tier 1.

A three-judge panel unanimously agreed with a federal judge’s refusal to grant South Bay Church’s request for an injunction against the order Jan. 22, while another three-person panel applied that decision in its Jan. 25 ruling against Harvest Rock Church and its network.

Though retail and grocery stores in Tier 1 are open for customers on a limited-capacity basis, the panel in the South Bay opinion found the church’s right to free exercise of religion was not violated.

Judge Kim Wardlaw quoted from a recent opinion by the Supreme Court in saying the panel is “mindful that ‘even in a pandemic, the Constitution cannot be put away and forgotten.’ But we do not think this is what California has done. Although South Bay may not be able to hold indoor worship services, California has left open other avenues for worship that pose substantially less risk for further spread of COVID-19.”

The Ninth Circuit panels, however, approved injunctions blocking enforcement of the state’s 100- and 200-person limits on worship services in Tier 1 and 2, respectively.

The rulings followed decisions by a Ninth Circuit panel in another case and the Supreme Court that found state pandemic restrictions infringed on the First Amendment rights of churches.

The Supreme Court issued an order in late November that blocked New York restrictions on houses of worship.

In December, a three-judge panel of the Ninth Circuit granted a preliminary injunction against Nevada for attendance limits on houses of worship that are stricter than those imposed on such secular entities as casinos, bowling alleys, retail stores and restaurants.

Travis Wussow, the ERLC’s general counsel and vice president for public policy, said the Ninth Circuit, in its latest rulings, “continues to construe fundamental First Amendment freedoms so narrowly as to be nearly nonexistent during the Covid-19 pandemic.”

“What’s more, it’s a stance completely at odds with the U.S. Supreme Court,” he said in written comments. In the New York decision, he said, the high court “provided clear guidance to the lower courts like the Ninth Circuit, calling for greater scrutiny of overbroad public health orders that infringe the free exercise of religion. But the Ninth failed to follow that guidance here.”

The Supreme Court “would be justified in taking up this case and confirming, once more, the First Amendment applies, even during a pandemic,” Wussow said.

Southern Baptist leaders commended guidelines issued in May 2020 by the federal Centers for Disease Control and Prevention (CDC) for restoring in-person worship gatherings. The guidance reminded state and local officials to take the First Amendment right of religious liberty into account when they institute reopening policies. No church or other religious group should be called on to enact “mitigation strategies” stricter than those requested of “similarly situated entities or activities,” according to the CDC.

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