New HIPPA Rules Protect Against Disclosure to Law Enforcement of Out-of-State Abortions

On April 22, the Department of Health and Human Services issued new rules under HIPPA to protect the privacy of reproductive health care.  The rules were adopted in a 291-page Release (full text) (press release). The rules are designed to protect women (and those who assist them) who travel out of state for an abortion that is not legal in their state of residence. A Fact Sheet issued by the Department of Health and Human Services summarizes the new rules, saying in part:

The Final Rule strengthens privacy protections by prohibiting the use or disclosure of protected health information (PHI) by a covered health care provider, health plan, or health care clearinghouse—or their business associate—for either of the following activities:

To conduct a criminal, civil, or administrative investigation into or impose criminal, civil, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care, where such health care is lawful under the circumstances in which it is provided.

The identification of any person for the purpose of conducting such investigation or imposing such liability.

... [T]he prohibition applies where...:

The reproductive health care is lawful under the law of the state in which such health care is provided under the circumstances in which it is provided....

The reproductive health care is protected, required, or authorized by Federal law, including the U.S. Constitution, regardless of the state in which such health care is provided....

19th News reports on the new rules. [Thanks to Scott Mange for the lead.]

Sikh Court Opens in Britain

Religion Media Center reports that in England, the world's first Sikh court opened last Saturday. However, unlike Muslim and Jewish religious courts, Sikhism does not have its own legal code.

 According to the report:

The court [in London] was set up by Sikh lawyers who felt that secular judges lacked the religious and cultural expertise to deal with disputes between Sikhs. It will operate as an alternative forum for dispute resolution for UK-based Sikhs involved in family and civil disputes....

[Baldip Singh] aid its purpose would be “to assist Sikh families in their time of need when dealing with conflict and disputes in line with Sikh principles”....

[The court will] work within the remit of the Arbitration Act (1996), under which anyone — legally qualified or not — can sit as arbitrator so long as both parties agree to submit to the same set of rules....

At the first instance, Sikh court “magistrates” will mediate in disputes to try to negotiate a settlement, as well as directing court users to courses that can help them work on issues that have contributed to the dispute. These courses, developed with Sikh charities, cover low-level domestic violence, anger management, gambling and substance misuse and are available in Punjabi as well as English....

Florida Authorizes Volunteer Chaplains in Schools

On April 18, Florida Governor Ron DeSantis signed HB 931. The bill (full text) allows school districts to authorize volunteer school chaplains to provide support, services, and programs to students. Schools must require parental consent for students to avail themselves of chaplain's support, services or programs. Liberty Counsel issued a press release announcing the signing of the bill.

Qualified Immunity Granted in Denial of Religious Exemption from Vaccine Mandate

In Babiy v. Oregon Health and Science University, (D OR, April 22, 2024), an Oregon federal district court dismissed claims for damages brought against a medical school and involved individuals by a patient access specialist who was denied a religious exemption from its Covid vaccine mandate. The University's policy was to deny religious exemptions where their claim was based solely on fetal cell concerns. The court said in part:

... Plaintiff has failed to prove that it was clearly established at the relevant time that the Doe Defendants were barred from (1) attempting to distinguish between religious and secular objections to a vaccine or (2) in that effort, denying exemptions to a state-mandated vaccine mandate to employees who expressed ostensibly religious objections to the use of fetal cells in the development of the vaccine. Accordingly, the Court grants Defendants’ Motion and dismisses Plaintiff's second claim under the doctrine of qualified immunity to the extent that Plaintiff seeks damages. The Court, however, denies Defendants’ Motion to the extent that Plaintiff seeks declaratory or injunctive relief under her first amendment claim.

Supreme Court Hears Arguments on Whether Federal Emergency Treatment Law Preempts State Abortion Ban

The U.S. Supreme Court on Wednesday heard oral arguments in Moyle v. United States, (Docket No. 23-726) and Idaho v. United States, (Docket No. 23-727). (Audio and Transcript of full oral arguments). The case poses the question of whether the federal Emergency Medical Treatment and Labor Act that requires hospitals accepting Medicare to provide stabilizing emergency treatment to patients preempts state abortion bans when such treatment would involve pregnancy termination. The Court took the case without waiting for 9th Circuit review. (See prior posting.) SCOTUSblog reports on the oral arguments.

President Biden Issues Passover Statement

Passover begins this evening. Yesterday President Biden issued a Statement on Passover (full text) which says in part:

Tomorrow night, Jews around the world will celebrate Passover, recounting their miraculous Exodus story from hundreds of years of enslavement in Egypt and their journey to freedom. This holiday reminds us of a profound and powerful truth: that even in the face of persecution, if we hold on to faith, we shall endure and overcome....

My commitment to the safety of the Jewish people, the security of Israel, and its right to exist as an independent Jewish state is ironclad. My Administration is working around the clock to free the hostages, and we will not rest until we bring them home. We are also working to establish an immediate and prolonged ceasefire in Gaza as a part of a deal that releases the hostages and delivers desperately needed humanitarian aid to Palestinian civilians. We will continue to work toward a two-state solution that provides equal security, prosperity, and enduring peace for Israelis and Palestinians. And we are leading international efforts to ensure Israel can defend itself against Iran and its proxies, including by directing the U.S. military to help defend Israel against Iran’s unprecedented attacks last weekend.

The ancient story of persecution against Jews in the Haggadah also reminds us that we must speak out against the alarming surge of Antisemitism – in our schools, communities, and online. Silence is complicity. Even in recent days, we’ve seen harassment and calls for violence against Jews. This blatant Antisemitism is reprehensible and dangerous – and it has absolutely no place on college campuses, or anywhere in our country. My Administration will continue to speak out and aggressively implement the first-ever National Strategy to Counter Antisemitism, putting the full force of the federal government behind protecting the Jewish community....

Recent Articles of Interest

From SSRN:

• Marcia L. McCormick, Dobbs and Exit in Antidiscrimination Law, (Employee Rights and Employment Policy Journal, Vol. 27, No. 1, 2024).
• Cassidy Terrazas, How Far is Too Far?: Weighing Freedom of Religion with the Best Interest of the Child Standard, (April 18, 2024).
• Kristine L. Bowman, The New Parents' Rights Movement, Education, and Equality, (University of Chicago Law Review, Vol. 91, No. 2, 2024).
• Russell K. Robinson & David M. Frost, Marriage Equality & Intersectionality, (Anal Soc Issues Public Policy 2023; 23:219–240).
• Ezra Rosser, Progress and the Taking of Indigenous Land, (85 Ohio State Law Journal (forthcoming 2024)).
• Danielle Kie Hart, In This Moment, (Southwestern University Law Review, Forthcoming).
• Deogratias Mbonyumugenzi, Trinity, Patriarchy, and White Supremacy: Theological perspectives from Catherine LaCugna’s Trinitarian Retrieval, (April 16, 2024).

From SSRN (Non-U.S. Law):

• Frederik Zuiderveen Borgesius, Philipp Hacker, Nina Baranowska & Alessandro Fabris, Non-discrimination law in Europe, a primer. Introducing European non-discrimination law to non-lawyers, (April 7, 2024).
• Leticia Bonifaz Alfonzo & Rosalba Mora, Decriminalization of Abortion by the Mexican Supreme Court, (International Journal of Gynecology and Obstetrics 165.1 (April 2024): 375–381).
• Meital Pinto, 'Who are the Landlords Here?' Group Rights in the Age of Populism: Jewish Ownership of Symbolic and Geographic Space in Israel, (7(1) Cardozo Int'l. & Compar. L. Rev. 215 (2024)).
• Mohammad Fadel, The Believer Does Not Humiliate Himself (Al-MuʾMin Lā Yudhill Nafsahu): The Ethics of Anti-Subordination and the Decolonization of Islamic Family Law, (2023).
• Mohammad Fadel, Islamic Law, Islamic Legal History and the Possibility of Muslim Self-Government (2023).
• Matthew Cavedon, “We Is Not Converted”: Kongolese Catholics, the Stono Rebellion, and Spanish Religious Sanctuary, (April 8, 2024).

DOE Issues New Rules Under Title IX Protecting Against LGBTQ+ Discrimination

The Department of Education yesterday, in a 1577-page Release (full text), issued its final rules under Title IX on sex discrimination by educational programs receiving federal financial assistance. Among other things, the new rules provide:

§ 106.10 Scope.   Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.  

§ 106.31 Education programs or activities....   (a)(2) In the limited circumstances in which Title IX or this part permits different treatment or separation on the basis of sex, a recipient must not carry out such different treatment or separation in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm.... Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.  

In its Release, DOE said in part:

With respect to religious educational institutions, the Department agrees with commenters that §§ 106.10 and 106.31(a)(2) do not apply to an educational institution that is controlled by a religious organization to the extent that the provisions’ application would not be consistent with the religious tenets of such organization. 20 U.S.C. 1681(a)(3). If an institution wishes to claim an exemption, its highest-ranking official may submit a written statement to the Assistant Secretary for Civil Rights, identifying the provisions of Title IX that conflict with a specific tenet of the controlling religious organization. 34 CFR 106.12(b). 

The Department notes that that the religious exemption in Title IX applies to an “educational institution” or other “entity’ that is controlled by a religious organization, 20 U.S.C. 1681(a)(3); 1687(4); it does not address an individual student or employee’s exercise of their religious beliefs. As commenters also noted, however, RFRA provides that the Federal government “shall not substantially burden a person’s exercise of religion” unless the government “demonstrates that application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. 2000bb–1.  

... OCR considers RFRA’s requirements when it evaluates a recipient’s compliance with Title IX. An individual may also inform the Department of a burden or potential burden under RFRA by sending an email to RFRA@ed.gov....  

With regard to commenters’ concerns related to the Free Speech and Free Exercise Clauses of the First Amendment, § 106.6(d) explicitly states that nothing in the regulations requires a recipient to restrict rights protected under the First Amendment or other constitutional provisions. The Department, likewise, must act in accordance with the U.S. Constitution.

The new rules also make other changes, including changes in grievance procedures. NPR reports on the rule changes.

Alabama Supreme Court: Ecclesiastical Abstention Doctrine Does Not Apply to Church Property Ownership Dispute

In Ex parte The Alabama-West Florida Conference of the United Methodist Church, Inc., (AL Sup. Ct., April 12, 2024), the Alabama Supreme Court held that the parent bodies of the Methodist Church in Alabama had not shown that an ownership dispute between them and a local church in Dothan, Alabama should be dismissed under the ecclesiastical abstention doctrine. The Methodist Church's Book of Discipline required church deeds to contain a clause providing the property was held in trust for the parent church. The deed to the Dothan church did not contain such a clause. Four of the Court's 9 Justices recused themselves in the case, and two lower appellate court judges were appointed to sit with the remaining 5 regular Justices to hear the case.  In the opinion for the court written by Justice Cook and concurred in by three others, the Court said in part:

First, the AWFC and the GCFA's claim that this is a church dispute over ecclesiastical, rather than property, issues is premised on the erroneous assertion that "Harvest wants the [trial] court to create a new disaffiliation process just for Harvest contrary to church law." ...

Harvest's complaint does not seek judicial review of the disaffiliation procedure set forth in the Book of Discipline or otherwise ask the trial court to judicially declare that Harvest's vote to sever its affiliation with the UMC was consistent with the Book of Discipline's requirements....

Instead, the complaint asks that the trial court (1) to recognize that Harvest "alone is the absolute, full, exclusive, fee simple owner of all real or personal property that is owned by [Harvest], held for [Harvest], or titled in its name," (2) to declare that the UMC and the AWFC do not have "any trust, equitable, or beneficial interest in any of the real or personal property so owned by [Harvest],"....

Accordingly, Harvest's claim, on the face of the complaint, pertains solely to the ownership and control of the local church property -- an issue that civil courts generally can resolve by applying "neutral principles of law." 

Chief Justice Parker filed an opinion concurring in part and concurring in the result, saying in part:

While I believe that the main opinion accurately applies our precedents on the limited issue of church-property disputes, I believe that it goes too far in announcing a grand unifying theory applicable to all church-dispute cases that will unfortunately result in a loss of religious liberty. 

Justice Sellers filed an opinion concurring in the result, saying in part:

[I]n my opinion, once Harvest used the civil legal system to file its deed and organizational documents, it consented to have secular law applied to its filings and, thus, opened the door to have any property dispute resolved pursuant to neutral principles of law.

Special Justice Edwards concurred in the result. 

5th Circuit Remands Muslim Inmate's RLUIPA and Establishment Clause Claims

 In Lozano v. Collier, (5th Cir., April 11, 2024), the U.S. 5th Circuit Court of Appeals reversed a portion of the district court's decision and vacated another portion of it in a challenge by a Muslim inmate to practices that allegedly burdened plaintiff's ability to exercise his religion. The court said in part:

In his first RLUIPA claim, Lozano alleges that the [Texas Department of Criminal Justice] Defendants burdened his religious exercise by denying him the opportunity to shower privately with other Muslim inmates for Jumah.  He alleges that the shower conditions—which include inmates who are “naked, cussing, speaking idol talk” and inmates who are “homosexuals and predators”—make it impossible for him to meet his “holy obligation for cleanliness in prayer for Jumah”...   

Lozano’s second RLUIPA claim, alleges that the TDCJ defendants burdened his religious liberty by denying him a private cell to pray..... Lozano alleges... that other inmates in his cell intruded into his prayer space and tried to provoke him to fight them during his attempts to pray....

Lozano’s third RLUIPA claim involves an alleged lack of access to religious programming and instruction, namely, Taleem and Quranic studies. ...

In his § 1983 claim, Lozano contends that the existence of Jewish- and Native-American-designated units, and the absence of a Muslim-designated unit, constitutes a neutrality problem and violates the Establishment Clause.  

Lozano also alleges that the TDCJ’s faith-based dormitories have a curriculum that requires inmates to attend Christian-based classes, despite the faith-based dorms being nominally open to inmates of all religions. ...

... [W]e reverse the district court’s order granting summary judgment on Lozano’s RLUIPA claims... and vacate and remand for further consideration....

The district court held that Lozano failed to demonstrate a genuine issue of material fact on whether the absence of a Muslim-designated unit or dorm violates the Establishment Clause.... We vacate and remand this claim to the district court to reconsider, in a manner consistent with applicable precedent and this opinion....

Supreme Court Clarifies Harm Requirement in Title VII Job Transfer Claims

 In Muldrow v. City of St. Louis, (Sup. Ct., April 17, 2024), the U.S. Supreme Court, in an opinion by Justice Kagan, clarified the extent to which harm must be shown in a Title VII employment discrimination case in which plaintiff alleges a discriminatory job transfer. The court said in part:

The courts below rejected the claim on the ground that the transfer did not cause Muldrow a “significant” employment disadvantage.  Other courts have used similar standards in addressing Title VII suits arising from job transfers. 

Today, we disapprove that approach. Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test.  Title VII’s text nowhere establishes that high bar....

To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.

What the transferee does not have to show, according to the relevant text, is that the harm incurred was “significant.” ... Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.

Justices Thomas, Alito and Kavanaugh each filed a separate opinion concurring in the judgment, but differing to some extent with the majority's reasoning. 

Although this case involved sex discrimination, the test would apply equally to religiously discriminatory job transfers. Wisconsin Public Radio reports on the decision.

British Court Upholds School's Ban on Student Prayer

In The King (On the application of TTT) v. Michaela Community Schools Trust, (High Ct., Kings Bench, April 16, 2024), a British trial court in an 83-page opinion rejected a Muslim student's challenge to a secular secondary school's Prayer Ritual Policy (PRP) that prevented the student from using part of her lunch break to perform her Duhr prayer. The policy was adopted by the high-performing school, in which half of the students were Muslim, after prayer by some students led to divisions within the student body and to threatening social media posts.

The court said in part:

It seems to me that this is a case ... where the Claimant at the very least impliedly accepted, when she enrolled at the School, that she would be subject to restrictions on her ability to manifest her religion. She knew that the School is secular and her own evidence is that her mother wished her to go there because it was known to be strict....

... [W]hilst accepting that her belief is that she should perform Duhr during the relevant 25 minutes of the lunch break in the winter months, and that this belief falls within Article 9 [of the European Convention on Human Rights], the evidence indicates that the effect of the PRP is that Qada is available to mitigate the failure to pray within the allotted window....

... [B]alancing the adverse effects of the PRP on the rights of Muslim pupils at the School with the aims of the PRP and the extent to which it is likely to achieve those aims, I have concluded that the latter outweighs the former and that the PRP is proportionate....

The court also rejected the claim that the prayer policy violated Britain's Equality Act. The court also issued a press release summarizing the decision. The Guardian reports on the decision. [Thanks to Scott Mange for the lead.]

House Brands Palestinian Slogan as Antisemitic

Yesterday the U.S. House of Representatives by a vote of 377-44 adopted House Resolution 883 (full text) stating that the slogan, "from the river to the sea, Palestine will be free'" is antisemitic. After 29 "Whereas" clauses, the Resolution reads:

That it is the sense of the House of Representatives that—

(1) the slogan, “from the river to the sea, Palestine will be free”, is outrightly antisemitic and must be strongly condemned; 

(2) this slogan is divisive and does a disservice to Israelis, Palestinians, and all those in the region who seek peace;

(3) this slogan rejects calls for peace, stability, and safety in the region;

(4) this slogan perpetuates hatred against the State of Israel and the Jewish people; and

(5) anyone who calls for the eradication of Israel and the Jewish people are antisemitic and must always be condemned.

Ohio Court Issues TRO Against Bill Barring Gender-Affirming Care for Minors and Transgender Women on Sports Teams

 In Moe v. Yost, (OH Com. Pl., April 16, 2024), an Ohio state trial court issued a 14-day temporary restraining order preventing the state from enforcing House Bill 68 which enacted the Saving Ohio Adolescents from Experimentation (SAFE) Act barring gender transition services for minors and the Save Women's Sports Act that barred transgender women from competing on women's sports teams. (See prior posting.) The bill was set to take effect on April 24. The court concluded that the bill likely violates the provision in the Ohio Constitution that states: "No bill shall contain more than one subject..." The ACLU says that it "will continue the litigation to ultimately obtain a permanent injunction on behalf of Ohio families whose children are at risk of losing critical life-saving medical care." National Review reports on the decision.

Denial of Religious Exemption from Vaccine Mandate Upheld

 In Matter of Ferrelli v State of New York, (App. Div., April 16, 2024), a New York state appellate court upheld the denial of religious exemptions from the Covid vaccine mandate imposed for employment in the New York court system, The court held that the mandate was a neutral law of general applicability and thus was subject only to rational basis review. The court went on:

Marie Zweig, submitted her initial religious exemption application asserting that because of her Christian belief in the sanctity of life, she could not "in good conscience receive or benefit from the use of vaccines that are either tested on or produced using human cell lines derived from voluntarily aborted fetuses." On the supplemental form, Zweig acknowledged that she took over-the-counter medicines and would continue to do so, stating that she had "no knowledge that they were originally developed with the use of cell lines from aborted fetuses and [she] [has] determined that [she] can take them in good conscience" because "they were developed and approved long before they were tested on fetal cell lines." Respondents denied Zweig a religious exemption on the grounds that she failed to set forth a sincerely held religious belief....

... While reasonable people may disagree, upon review of Ms. Zweig's application, this Court cannot conclude that respondents' determination to deny her a religious exemption was so irrational as to be arbitrary and capricious....

5th Circuit Denies Further Relief to Native American Church Objecting to Park Modifications

As previously reported, last year a Texas federal district court held that members of the Lipam-Apache Native American Church should be given access for religious services to a point on the San Antonio River which is a Sacred Site for them.  The court refused to grant plaintiffs' request that the proposed improvements to the park in which the Sacred Site is located be limited so that the spiritual ecology of the Sacred Area would be preserved by minimizing tree removal and allowing cormorants to nest. Plaintiffs appealed the injunction denials.  In Perez v. City of San Antonio, (5th Cir., April 11, 2024), the U.S. 5th Circuit Court of Appeals affirmed the district court. Rejecting appellants' claim under the Texas Religious Freedom Restoration Act, the court said in part:

In analyzing Appellants’ contention that the destruction of the tree canopies, where cormorants nest, and the driving away of the cormorants themselves will burden their religions, we consider whether the presupposed burden is real and significant....

Appellants continue to have virtually unlimited access to the Park for religious and cultural purposes. Appellants’ reverence of the cormorants as sacred genesis creatures from the Sacred Area is not implicated here because the City’s rookery management program does not directly dictate or regulate the cormorants’ nesting habits, migration, or Park visitation. For example, the record shows that, regardless of the rookery management program, no cormorants, due to their migration patterns, inhabit the area for extended periods of time each year. Moreover, the City’s rookery management program does not substantially burden Appellants’ religious beliefs because cormorants can still nest elsewhere in the 343-acre Park or nearby. The deterrent activities are deployed only within the two-acre Project Area and only to persuade the birds to nest elsewhere....

The record indicates that various areas of the Park “become nearly unusable for 10 months of the year due to the bird density/habitat.”...

 [T]he City’s tree removal plan is narrowly tailored to achieve the City’s compelling governmental interest of making the Project Area safe for visitors to the Park....

Appellants assert that the City’s plan violates the religious-service protections provision of the Texas Constitution....

Even accepting that the “relatively new provision bars any government action that prohibits or limits religious services,” Appellants do not sufficiently brief the question of whether a compelled “preservation of spiritual ecology” was envisioned in the statute’s definition of a “religious service” protected from state sanctioned prohibitions or limitations.

Judge Higginson dissented in part, contending that the city should have done more to accommodate plaintiffs as to tree removal and anti-nesting matters.