General Recap & Update (Winter 2014)

CASES TO WATCH:

Mississippi v. Ester Mann, Harriet Ashley, and Ron Nederhoed (Miss.)—Sidewalk counselors arrested for obstructing the sidewalk while peacefully praying and holding signs on the public sidewalk outside Mississippi’s last standing abortion clinic, the Jackson Women’s Health Organization. Jackson Police Department officers claim that the activists’ signs and chairs constitute an obstruction, despite leaving 4 feet of open sidewalk for passersby to traverse. City officials now seek to meet with local counsel to discuss the pending cases and future application of this law.

Respect Life South San Francisco v. City of South San Francisco and Planned Parenthood (Calif.)—Petition for writ of mandate to overturn grant of use permit for Planned Parenthood clinic. Petitioners assert that the City wrongfully exempted the permit from compliance with applicable state environmental impact law and regulations. Hearing is scheduled for April 2014.

McCullen v. Coakley (Mass.)—The case began in 2007, when Massachusetts passed a law prohibiting “entering or remaining” within 35 feet of abortion clinic entrances. The law contains exceptions for patients, clinic employees, and persons merely passing through the zone to get to another destination. The undisputed target of the bill was pro-life sidewalk counselors who attempt to bring their life-affirming message directly to women seeking abortions. The law was challenged in federal court, but both the District Court and the First Circuit ruled the law constitutional. When the plaintiffs appealed to the United States Supreme Court, LLDF filed an amicus brief on behalf of itself and Pastor Walter Hoye urging the Court to review the case. In June 2013, the Supreme Court announced that it would hear the case. Life Legal Defense Foundation then filed a second amici curiae (friends of the court) brief in the Supreme Court. The brief argues, inter alia, that speech restrictions targeted at abortion clinics are de facto content- and viewpoint-based laws and thus inconsistent with the First Amendment. The case was argued before the Supreme Court on January 15, a decision is expected this spring. [Read more in Winter 2014 issue ofLifeline.]

HHS Contraceptive/Abortifacient Mandate Litigation—Following conflicting rulings in the various circuit courts regarding whether for-profit businesses have federal religious freedom rights, the Supreme Court granted certiorari in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius. LLDF filed an amicus brief on behalf of the Beverly LaHaye Institute demonstrating that the Government’s argument that contraceptives and abortifacients promote women’s health is based on evidence that is inaccurate, incomplete, irrelevant, and/or biased. For these reasons, the Government cannot meet its burden under the Religious Freedom Restoration Act of showing that the Mandate furthers a compelling governmental interest. Oral argument in the Supreme Court is scheduled for March 25.

Diss v. Portland Public Schools—Bill Diss, a teacher at a Portland, Oregon high school, has had his teaching contract terminated following his request for a religious exemption to excuse his participation in a school program administered by Planned Parenthood. Following his request for accommodation, Mr. Diss was subjected to harassment and retaliation by school administrators throughout the school year, which ultimately culminated in the termination of his employment. LLDF has filed an employment discrimination complaint with the Oregon Bureau of Labor and Industries and with the Equal Employment Opportunity Commission as a first step to protect Mr. Diss’ rights under applicable statutes and his rights to freedom of expression and freedom of religion.

In re Kline—Former Kansas Attorney General is accused of violating state ethics rules while investigating Kansas abortion providers. While Kline served as Kansas Attorney General and Johnson County District Attorney from 2003–2008, he doggedly investigated the crimes of Planned Parenthood and late-term abortionist George Tiller. The crimes included failure to report evidence of child sex abuse, falsification of documents and illegal late-term abortions. Every judge who reviewed Kline’s evidence found probable cause that crimes had been committed. Meanwhile, the Kansas abortionists sued Kline multiple times in a willing Kansas Supreme Court that tied Kline’s hands from prosecuting. Most of the Supreme Court justices had been appointed by staunchly pro-abortion then-Governor Kathleen Sebelius, and they wrote deceptive anti-Kline opinions demeaning Kline and threatening him with professional discipline.

In 2007, a district judge reviewed Kline’s evidence and found probable cause to believe that Planned Parenthood committed 107 criminal acts. Kline filed charges against Planned Parenthood the next day but his successor in office ultimately dismissed them after discovering that the Sebelius administration had shredded evidence of the crimes. The Sebelius administration was never investigated for its misconduct. Kline’s investigation contributed to the abortion giant being defunded by some states and local governments, and even endangered its receipt of $350 million in federal funding.

Meanwhile, the attorneys for the Kansas abortionists and the Kansas Supreme Court itself filed ethics complaints against Kline. In 2010, the Kansas Disciplinary office filed formal charges alleging dozens of fabricated violations supported by novel theories of legal ethics. Two of the three attorneys appointed to the panel to judge Kline had contributed to his political opponents, and they recommended the suspension of Kline’s law license while finding twenty-one ethical violations. Kline and his attorneys, supported by LLDF, filed exceptions alleging the ethics complaint and findings to be politically motivated and without legal precedent.

During Kline’s appeal to the Kansas Supreme Court, he filed a motion exposing court bias and within days, five of the seven Supreme Court justices recused themselves from Kline’s case. Five lower court judges were appointed to sit temporarily to help to decide Kline’s case, which was argued in November 2012 and decided in October 2013. The “post-recusal” court dismissed ten of the twenty-one violations found by the panel but still upheld the panel recommendation that Mr. Kline’s license be indefinitely suspended.

On December 2, 2013, Kline’s attorney filed a ninety-five-page Motion for Rehearing exposing at least eight major distortions of fact and law in the Court’s decision. In this ongoing travesty of justice, the Court denied the motion five days later without explaining its documented errors and without requiring the Disciplinary Administrator to respond.

On February 25, 2014, Kline’s attorneys filed a motion to dismiss what they are calling a “void” judgment on the basis that the Kansas Constitution explicitly requires at least four justices to concur for every decision. With only two justices left on the Court for Kline’s case, Kline asserts that the composition of the post-recusal Court was unlawful and in explicit violation of the Kansas Constitution. It is unclear when the Court will decide that motion.

By mid-March 2014, Kline will file a Petition for a Writ of Certiorari in the U.S. Supreme Court seeking review of the Kansas Supreme Court’s many novel applications of legal ethics in the politically charged Kline case.

CASES RESOLVED:

People v. Foti and Hathaway (San Francisco)—Sidewalk counselor cited for disturbing the peace and violation of amplified sound ordinance for playing Christmas carols on portable CD player. Victory!: Charges dismissed at court trial.

Horne v. Isaacson (Ariz.)—After the Ninth Circuit held Arizona’s ban on post-20-week abortions unconstitutional, the state filed a petition for certiorari in the United States Supreme Court. LLDF, in conjunction with the Bioethics Defense Fund, filed an amicus brief urging the court to hear the case. The brief, which was filed on behalf of three disability rights organizations, argued that there is no constitutional right to abort children because they have been diagnosed with a disability. The brief argued that preventing eugenic abortion is a legitimate state interest and one that will help to forestall acceptance of eugenic infanticide. Additionally, the brief argued that the state of Arizona is furthering its legitimate interest in preserving the integrity and ethics of the medical profession from the harm caused by the practice of eugenic decision making. Unfortunately, the Supreme Court denied the petition for certiorari, though it appears likely the issue will come before it again soon, as more states adopt laws limiting late-term abortions.

Alabama Board of Health v. All Women’s, et al. (Ala.)—Abortionist Bruce Norman did not appeal the court order denying his request for reconsideration of the permanent injunction issued requiring him to obtain a license to operate an abortion center. Norman’s attorney has since informed the public that he is no longer operating in Birmingham. Victory!: The NWAW clinic is finally closed.

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.