November 23, 2016: ACLA local affiliate attorney Professor Brian P. McCall has filed and served a multi-count civil rights lawsuit against the City of Oklahoma City in the federal District Court for the Western District of Oklahoma. The suit, which also names several police officers and the head of the City's Civic Center, follows the appellate victory of Joan Andrews Bell in the Oklahoma Criminal Court of Appeals (see story below), which reversed her convictions for "disorderly conduct" and "Interfering or Obstructing by Disobeying a Lawful Command" by allegedly not cooperating in her unlawful arrest.
The suit alleges that the defendants violated Mrs. Bell's civil and constitutional rights under both federal and state law, seeks unliquidated monetary damages and attorney's fees, and also requests an injunction to prevent future rights violations by the City and its personnel.
"Suits of this kind are an important vehicle for the vindication of civil and constitutional rights when they are violated by state actors," said Christopher A. Ferrara, ACLA President and Chief Counsel. "They benefit not only the plaintiff in the suit but others who might be similarly situated, as such suits often result in published opinions and injunctions that serve as precedents for the protection of civil and constitutional rights."
Professor McCall will be assisted in this case by ACLA affiliate counsel James Bendell, an experienced civil rights litigator based in Idaho who has been specially admitted to the Western District of Oklahoma for this case.
August 18, 2016: In an opinion issued yesterday, the Court of Criminal Appeals of the State Oklahoma reversed the convictions of veteran pro-life activist Joan Andrews Bell following her unlawful arrest for kneeling and praying the Rosary at the Oklahoma City Civic Center on September 21, 2014 during a "Black Mass" being held inside the building.
The Court's 18-page opinion systematically dismantles the prosecution's groundless criminal complaints against Mrs. Bell for "disorderly conduct", based on alleged "obstruction" of access to the Civic Center, and "Interfering or Obstructing by Disobeying a Lawful Command" by allegedly not cooperating in her unlawful arrest.
The Court accepted ACLA's arguments that there was insufficient evidence to support either charge, that Mrs. Bell's arrest (originally for "trespass" but later amended to "disorderly conduct") was unlawful, and that she had a right passively to resist her unlawful arrest by going limp momentarily but otherwise offering no significant impediment to the arrest. "The City has failed to show that Bell obstructed access to the Civic Center, and we find there was insufficient evidence to support the charged offense," the Court concluded. Further, the Court found, "Bell reasonably resisted officers during an unlawful arrest for the City's unsupported trespass charge," the arrest having occurred on public rather than private property.
"This is an important victory for the rights of Catholics in America, faced with a rising tide of anti-Catholic hatred, in this case officially sanctioned by the City of Oklahoma City," said ACLA President and Chief Counsel Christopher A. Ferrara following the decision. "Congratulations are in order to ACLA Oklahoma affiliate counsel Professor Brian McCall and local counsel Matt Kane," Ferrara added. "ACLA attorneys are now reviewing the options, including a federal civil rights law suit on Mrs Bell's behalf. The gross violation of civil and constitutional rights in this case must never happen again in Oklahoma City."
May 27, 2016 - At the request of the attorneys for David Daleiden and his organization, the Center for Medical Progress (CMP), ACLA has filed an amicus (friend of the court) brief on his and CMP’s behalf.
Mr. Daleiden and CMP received worldwide publicity for of their undercover video exposé of Planned Parenthood’s trafficking in human baby parts. Thanks to David’s work Planned Parenthood has been exposed as the diabolical organization it really is, and numerous states have defunded that vile organization as a result.
Mr. Daleiden and CMP were sued in federal court by the National Abortion Federation. In that lawsuit, a federal judge in San Francisco issued a totally unprecedented injunction against release of any further CMP videos of revealing conversations with the abortionists who call themselves “women’s healthcare providers.” These conversations took place during NAF conventions, but were not part of the official proceedings.
The federal court based its decision in part on an attendance form Mr. Daleiden was required to sign in order to attend NAF’s conferences. The form states that “information provided” during the conferences is “confidential.” As ACLA’S brief notes, however, courts have consistently held that such “confidentiality” agreements do not negate someone’s First Amendment right to publish information on matters of public concern. And, as the judge in this case conceded in his own judicial opinion: “There is no doubt that members of the public have a serious and passionate interest in the debate over abortion rights and the right to life, and thus in the contents of defendants’ recordings.”
The court’s “prior restraint” on Mr. Daleiden’s speech is presumed to be unconstitutional under Supreme Court precedent. Yet the judge disregarded that precedent and issued a preliminary injunction against release of the videos on the theory that if people heard and saw what these abortionists had to say about their grisly trade, the abortionists might be subjected to a “significant increase in harassment, threats, and violence.”
“That theory would allow federal courts to prohibit the speech of anyone whose message might arouse justified public indignation against the subject of the speech,” said ACLA President and Chief Counsel, Christopher A. Ferrara. “For example, criticism of radical Islam could be prohibited because it might cause ‘harassment’ of Muslims.”
But as ACLA’s brief argues, the Supreme Court has made it clear that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger… There is no room under our Constitution for a more restrictive view.”
“That goes for activism on the ‘right’ as well as activism on the loony left,” said Mr. Ferrara. “Such a prior restraint on speech would be unthinkable as to Green Peace or PETA if they conducted ‘undercover’ video recording of their targets for protest. But, sad to say, the courts have tended to employ a double standard of First Amendment liberty when it comes to advocacy against abortion, and this is one such case.”
As ACLA’s brief argues, however, “Doctors who happen to perform abortions for a living are not entitled to a special cloak of protection from the First Amendment’s ample – indeed almost limitless – accommodation of the tempests of American political discourse.”
Please pray that David Daleiden and his valiant organization receive justice in this case, and that their First Amendment rights are restored.
May 26, 2016 - ACLA is awaiting decisions from appellate courts in two major cases.
In Oklahoma, the Criminal Court of Appeals, Oklahoma’s highest criminal court, is considering an appeal by ACLA local affiliate attorney Professor Brian McCall and local counsel Matthew Kane of the conviction of renowned pro-life advocate Joan Andrews Bell on charges of “disorderly conduct” and “failure to obey a lawful command” because she declined to cease kneeling in prayer outside the Oklahoma City Civic Center while a “Black Mass” was being staged inside.
The appellate brief argues that Mrs. Bell was exercising her First Amendment rights by prayerfully protesting the blasphemy and sacrilege being committed on public property. As the court’s rather remarkable opinion states, however: "She said that, 'God told me to do it. I am here to pray. I was just praying.' … She clarified not just to pray,but to protest…. I think that the Defendant wanted to be a martyr or have others see her up there on like a stage, showing that this was her being here for this, that she was uncooperative at all times, and that she had an ulterior motive in doing what she did….
It thus appears that Mrs. Bell was explicitly punished for exercising her First Amendment rights, which the court characterized as an “ulterior motive” that warranted her arrest and prosecution.
Another major decision ACLA awaits is from New York’s Appellate Division, which late last year heard Chief Counsel Christopher A. Ferrara’s oral argument for quashing an abusive subpoena issued by New York’s Attorney General, Eric T. Schneiderman, in what ACLA argues is a blatant attempt to shut down Chris Slattery’s Expectant Mother Care (EMC) crisis pregnancy centers. The overbroad subpoena demands all manner of sensitive and confidential information about EMC’s staff, operating procedures, literature and sources of funding.
The four-judge appellate tribunal was attentive to ACLA’s argument that the subpoena is an abuse of power and a “fishing expedition.” It is hoped that the Court will strike it down or severely limit its scope.
APRIL 2016- At this time—shortly after the 53rd anniversary of the infamous Roe v. Wade decision legalizing abortion on demand in the United States—the American Catholic Lawyers Association (ACLA) reiterates its commitment to overturn this unjust decision. The practice of killing unborn children, at any stage, is murder, and the Federal Government overstepped its bounds in finding a so-called “right” to murder unborn children in the Federal Constitution. Roe is unconstitutional, immoral and supremely unjust. We pledge to work to restore the right of all children to live and the right of the States to prosecute anyone who participates in the murder of unborn children.
In that regard, the ACLA condemns the practices of Planned Parenthood for its part in the murder of the unborn. Equally abhorrent is its practice of trafficking in the body parts of the babies it murders. ACLA has reviewed the various items of evidence that are available regarding the allegations that Planned Parenthood violated laws regarding trafficking in fetal remains and the recent Grand Jury proceedings in that matter. The Grand Jury did not indict Planned Parenthood, and apparently didn’t even vote on the allegations against Planned Parenthood. Rather, they indicted the pro-life investigators David Daleiden and Sandra Merritt, whose work helped to expose Planned Parenthood’s conduct.
ACLA believes there was more than enough evidence for a Grand Jury to indict Planned Parenthood. For example, a federal statute, 42 USC section 274(e), makes it a crime to: “transfer any human organ for valuable consideration” across state lines. The available video evidence shows Planned Parenthood representatives admitting that they harvest fetal parts at their clinics, and that money is exchanged in connection with this. The video evidence records one worker stating a clear profit motive: “If [abortion providers] can do a little better than break even, and do so in a way that seems reasonable, they’re happy to do that.”
42 USC 289 G provides that the woman donating her child’s body must give consent in writing, and the doctor killing the child must verify in writing that no “alteration of the timing, method or procedures” used to kill the child was made solely for purposes of obtaining the tissue. Yet the video evidence from a fifth video taken by the undercover investigators shows a director of Planned Parenthood admitting alterations: “Yeah, and so if we alter our process, and we are able to obtain intact fetal cadavers, then we can make it part of the budget…”
It is also clear that no rational prosecutor could guide and permit a Grand Jury to find that the investigators who uncovered these abhorrent practices were themselves guilty of legal violations. First, it was the Governor of Texas who ordered the Prosecutor to investigate the alleged criminal actions of Planned Parenthood. No authority was ever given to the Prosecutor or the jury to indict the investigators or anyone else. That lack of authority is enough to raise issues of abuse of process and to invalidate any indictments of anyone but Planned Parenthood.
Second, the laws that the Grand Jury found that the investigators violated cannot apply in this situation. For example, the Texas Penal Code, Title 8, Chapter 37, prohibiting falsification of government documents, was designed to prohibit serious crimes like identity theft. The felony section that the Grand Jury used to indict the investigators for their use of a fictitious driver’s license to gain entrance to Planned Parenthood, bans falsification with “intent to defraud or harm.” The use of a pseudonym by undercover investigators is obviously not prohibited by this law—their clear intent was to pursue truth and justice through undercover journalism, not to “defraud or harm.” Indeed, Texas law provides a defense where the false information has “no effect on the government’s purpose for requiring the governmental record.” Texas Penal Code 37:10 section 3(f).
Moreover, the other charge on which the Grand Jury indicted the pro-life investigators, Texas Penal Code section 48:01: Prohibition Against the Purchase and Sale of Human Organs, prohibits only “knowingly or intentionally offer[ing] to buy, offer[ing] to sell” human organs for consideration. How a Grand Jury could be led to their conclusion that the investigators violated this statute is baffling. Undercover investigators routinely offer to engage in illegal transactions to determine whether a crime is being committed by the other party. Such offers are clearly devoid of all intent to violate the law, and to hold otherwise would invalidate much of the law enforcement activity in this country.
For these reasons, ACLA believes that the outcome of the Grand Jury investigation here was erroneous at best and misguided and an abuse of process at worst.
Finally, in light of the fact that all evidence given to the Jury comes through the Prosecutor, who has a duty fairly and justly to inform and guide the Jury, we must question the actions of the Prosecutor in this case. There are very dubious circumstances surrounding the use of the Prosecutor, Devon Anderson, currently assigned to this matter, including but not limited to: (a) she is the same Prosecutor that “guided” a Grand Jury investigation that led to no indictment against Kermit Gosnell, a notorious late term abortionist, despite evidence showing him gruesomely murdering already born babies; (b) she is the same Prosecutor who accepted numerous donations from Chip Lewis, Kermit Gosnell’s attorney, (c) she is the same Prosecutor who has a Planned Parenthood board member working on her staff; (d) she is the same Prosecutor who allegedly never even had the Grand Jury vote on the charges against Planned Parenthood; and finally; (e) she is running unopposed for re-election as a Republican but only announced the results of the Grand Jury after the time had expired for an opponent to register to run against her in the primary.
To avoid manifest injustice, we call on the Governor of Texas to appoint a special prosecutor to discover how such a clearly absurd, unjust, illogical and erroneous result emerged from these Grand Jury proceedings. The Planned Parenthood investigation should be reopened by a prosecutor who is independent and free from any appearance of bias, and a new Grand Jury should be impaneled to consider charges against Planned Parenthood, not against those who have exposed its activities.
October 16, 2015 - ACLA Oklahoma affiliate counsel, Professor Brian McCall, and local counsel Matt Kane have filed an extensive appellate brief on appeal to Oklahoma's highest criminal court from the conviction of Catholic pro-life advocate Joan Bell for "disorderly conduct" and "failure to obey a lawful command." At the time of her arrest on September 2014, Mrs. Bell was peacefully protesting a nationally publicized "Black Mass" being held inside the Oklahoma City Civic Center. Her protest consisted of keeling and praying the Rosary on the public landing outside the Center, where others were allowed to be present without police interference.
As the appeal brief argues: "Appellant’s conduct in silently kneeling and praying in front of the Civic Center to protest the 'Black Mass' going on inside was lawful, peaceful and constitutionally protected. Moreover, the convictions cannot be sustained under the rule of lenity, which requires that the operative terms of the subject municipal ordinances be construed liberally in favor of appellant and strictly against the City, especially in the First Amendment context present here."
As of June 2016, a decision in this important case is still pending.
July 2015 - ACLA has won another victory for pro-life activism in federal court. A civil rights lawsuit ACLA filed in federal court on behalf of pro-life activist John Ferrao, has been settled under an important agreement for the protection of First Amendment liberty. Under the terms of the settlement, Rockland County, NY and Rockland Community College will provide First Amendment training to their law enforcement personnel. The training will involve a slide presentation outlining the First Amendment rights of protesters on public property and will make it clear to law enforcement personnel that a pro-life advocate cannot be prevented from demonstrating on public property merely because his message is unwelcome or is deemed offensive by some people. The training material includes these points, which should guide every law enforcement official in the country:
"If only every police department and other law enforcement agency followed these guidelines in the first place, there would be no need for civil rights litigation on behalf of pro-life advocates," said ACLA President and Chief Counsel, Christopher A. Ferrara. "We are gratified that we were able "to effect important social change in this case."
On May 21, 2014, ACLA filed amicus curiae (friend of the Court) brief on behalf of the American College of Pediatricians in the pending Supreme Court case of Welch v. Brown. Read the brief here.
The brief requests that the Supreme Review the refusal by the Ninth Circuit Court of Appeals to declare unconstitutional an unprecedented California law that prohibits licensed psychotherapists from engaging in “sexual orientation change efforts” (SOCE) with minors aimed at eliminating unwanted feelings of “same-sex attraction,” yet permits therapy that “affirms and supports” so-called “homosexual orientation.”
The brief, filed by ACLA’s Supreme Court counsel James Bendell of Coeur d’Alene, Idaho, argues that the Ninth Circuit “has departed from this Court’s controlling precedents by holding that this plainly content-based speech restriction does not restrict speech but only conduct, and that the law need not be shown actually to address any proven harm or actually to advance any legitimate state interest.” New Jersey has enacted a virtually identical law, currently being challenged in the Third Circuit Court of Appeals.
“The California law, like the one in New Jersey, actually seeks to dictate what a psychotherapist may and may not say to a minor patient with unwanted feelings of ‘same-sex attraction’—no therapy to eliminate those feelings, but only therapy to support those feelings. “This is an unheard-of restriction on First Amendment freedom of speech and has to be seen as the final stage in the culture wars against the traditional moral order,” said ACLA Chief Counsel Christopher A. Ferrara.
“California and the Ninth Circuit have disregarded every applicable Supreme Court precedent regarding unconstitutional speech restrictions based on the content of speech. We believe the Supreme Court must intervene in order to prevent a massive distortion of the law in the Ninth Circuit, the Third Circuit and throughout the nation, and we hope our brief will help persuade the Court to grant review of this unprecedented legislative attempt to dictate political correctness,” said Mr. Bendell.
After years of federal court litigation, including discovery proceedings and voluminous motions, on March 24, 2014, ACLA attorneys negotiated a financial settlement of the civil rights lawsuit they filed on behalf of Nurse Tanya Britton.
The suit, brought under Mississippi’s Conscience Act and the federal Civil Rights Act, alleged that Nurse Britton had been wrongfully fired by the University of Mississippi Medical Center on account of her conscientious refusal to participate in the administration of contraception, tubal ligations and abortions.
“I am most appreciative of the ACLA representing me in settling my Mississippi freedom of conscience law suit, and I am grateful for the ACLA’s dedication and diligence in protecting the rights of Catholics throughout this nation,” said Nurse Britton following the settlement.
The litigation now concluded is believed to be the first of kind under the Mississippi Conscience Act.
On February 12, 2014 ACLA’s Pennsylvania litigation counsel, Denis Brenan, scored yet another victory for the pro-life cause when he won the acquittal of three pro-life advocates falsely accused of “trespass” during their advocacy for life outside a notorious abortion mill in Bethlehem, PA.
The three advocates were found not guilty of trespass after the testimony revealed that they had not demonstrated beyond a posted “no trespassing” sign and that they had never been given any warning that they were trespassing.
The acquittal of all three advocates came after a trial in the Magisterial District Justice Court.
“Thanks to Denis’s fine work, these pro-life advocates will be spared the indignity and legal disability of a criminal record and will be free to continue their advocacy for life in an increasingly hostile legal environment,” said ACLA Chief Counsel Christopher A. Ferrara.
In a crucial ruling, the Appellate Division of the Second Department in Brooklyn, New York, has granted ACLA’s motion for a stay of enforcement of a subpoena issued by the New York Attorney General to Expectant Mother Care (EMC), the life-saving apostolate headed by Chris Slattery.
The stay will be in place pending EMC’s appeal from a local judge’s refusal to quash the subpoena, which demands documents, names, email addresses, pro-life literature and other information involving every aspect of EMC’s affairs. A four-judge panel of the Appellate Division unanimously granted the stay of enforcement, allowing EMC to avoid a violation its rights while the appeal is being considered.
“The principal alleged grounds for the Attorney General’s subpoena is that EMC’s free sonograms for expectant mothers, which it has been providing since the 1980s, constitute the “unauthorized practice of medicine,” said ACLA Chief Counsel Christopher A. Ferrara, argued successfully for the say. “But sonogram operators do not even require a license in the State of New York because they are not doctors and do not ‘practice medicine.’”
ACLA has also filed an opening brief and a reply brief in support of the appeal, which argue that the subpoena is a gross violation of EMC’s First Amendment right to advocate against abortion and to provide free counseling and other assistance to women contemplating abortion.
ACLA is handling this matter in conjunction with attorneys from the American Center for Law and Justice, who have applied to be admitted pro hac vice on the appeal.
ACLA affiliate counsel Denis V. Brenan has filed a federal civil rights lawsuit against Hanover Township, Pennsylvania, the Colonial Regional Police Department, and named officials on behalf of Catholic pro-life advocate Nathaniel Kubick.
The suit was prompted by acts and policies of the defendants that have interfered with pro-life advocacy by Mr. Kubick and other defenders of life, including a flatly unconstitutional demand that they obtain a “permit” to protest against a local abortion mill.
The suit alleges that the local permit ordinance is being misapplied to Mr. Kubick and his fellow advocates because has nothing to do with demonstrations of this sort, which take place on public sidewalks or rights of way. By its own terms the ordinance applies only to parades and other mass gatherings that might obstruct highways and require traffic control.
Freedom of information requests made before the suit was filed revealed that Hanover Township has never applied this ordinance to any demonstrators except pro-life advocates. The defendants have even demanded that a lone pro-life advocate obtain a “permit” to pray outside this abortion mill.
The suit further alleges that the defendants have established an imaginary line that pro-life advocates are not permitted to cross, even though they have every right to be on the public property declared “off limits” by the police. The defendants have also forbidden pro-life advocates to use any means of amplifying their voices, even a cardboard or plastic megaphone of the sort commonly used by protesters all over the country.
“This is yet another example of how local authorities all over the country are abusing their authority and engaging in unconstitutional harassment of advocates for life,” said ACLA Chief Counsel Christopher A. Ferrara. “Where pro-life advocates are concerned, local police are constantly making up ‘rules’ as they go along – rules that apply only to those who protest the mass murder of innocent human beings in their own mothers’ wombs.”
The suit requests a federal court injunction striking down the unconstitutional requirement of a “permit to protest,” as well as nominal damages and attorney’s fees from the defendants.
In 2012, ACLA Maryland affiliate counsel Howard Walsh III commenced a civil rights lawsuit against the City of Aberdeen, Maryland, and an individual police officer.
The suit arises from an incident in which, as the complaint alleges, the officer seized the pro-life protest signs of the plaintiff, Catholic pro-life activist Kurt Linnemann, and hurled them into the street, after falsely asserting that the sidewalk on which the signs were being displayed was “private property.”
The complaint further alleges that the officer’s conduct violated Mr. Linnemann’s First Amendment right to freedom of speech, his Fourth Amendment right to be free from unreasonable seizures of his property, and his equivalent rights under the Maryland Declaration of Rights, and that the City failed to provide the officer with adequate training on respect for constitutional rights.
In November, in federal court, the defendants brought a motion seeking dismissal of the lawsuit. The ACLA will file a comprehensive brief opposing the motion.
Please pray for our success in opposing the motion to dismiss and for a speedy and just conclusion to this action in defense of First Amendment freedoms for pro-life Catholics.
The historic spring 2012 settlement in the ACLA’s civil rights suit filed against numerous Maryland state troopers on behalf of a group of Catholic pro-life advocates, falsely arrested and jailed in 2008 because of their graphic signs, is being implemented.
The entire State Police force, including recruits at the academy, is undergoing training in the basics of respect for First Amendment rights in a public forum.
The training includes a PowerPoint presentation and classroom lectures, including slides that warn the troopers not to repeat the mistake they made in our case.
Thanks to your support, there is every chance that the massive violation of First Amendment rights suffered by our Catholic pro-life clients will never occur again at the hands of a Maryland State Police officer.
In a 14-page decision issued on May 31, 2012, U.S. District Court Judge Daniel P. Jordan III, of the Southern District of Mississippi ruled that a civil rights lawsuit filed by ACLA attorneys on behalf of Catholic nurse Tanya Britton against the State of Mississippi and various individual defendants will not be dismissed and must proceed against the State and three of the named individual defendants.
The suit alleges that Nurse Britton was wrongfully discharged from her employment as a registered nurse in the post-partum, ante-partum, and gynecology/oncology units of the Wiser Hospital for Women and Infants, part of the University of Mississippi Medical Center, because she refused in conscience to provide prescribed contraceptives or participate in sterilizations, and further advised her supervisors that she would not assist in abortions.
The suit further alleges that “throughout her employment before the actions giving rise to this suit, Ms. Britton’s religious beliefs were accommodated by having other nurses on duty perform in her stead services related to sterilization, contraception, and abortion.”
The suit includes claims against the defendants for violation of Nurse Britton’s rights under the First Amendment of the United States Constitution and Mississippi’s Health Care Rights of Conscience Act. In fact, this suit appears to be the first ever brought under the Health Care Rights of Conscience Act, which prohibits transfers, shift changes, loss of specialty, and terminations because of conscientious objections by medical service providers, including nurses, who decline to participate in medical procedures contrary to their “religious, moral or ethical principles.”
In denying defendants’ motion to dismiss, Judge Jordan held that “the Court can draw a reasonable inference that defendants Lawson, Richardson, and Bass were personally involved in the disputed employment decisions” and that if the allegations of the complaint are proven, “the State is responsible for their acts and omissions” under the Conscience Act.
The Court also found that said defendants could be held liable for the individual conduct in violation of federal law as alleged.
“We look forward to proceeding with pre-trial discovery in this important case for the conscience rights of Catholics,” said ACLA Mississippi affiliate counsel James T. McCafferty after Judge Jordan’s decision was handed down.
Briefing in the case was handled by ACLA President and Chief Counsel Christopher A. Ferrara, who remarked that “this case appears to represent the first judicial interpretation of Mississippi’s Conscience Law, an important measure for the protection of the right of medical professionals to decline to participate in procedures that violate the fundamental tenets of their religion.
The Mississippi legislature is to be commended for providing that not even state agencies may violate this right of conscience.”
Please pray for a successful outcome in this key case.
Some months ago, the ACLA filed a civil rights suit under New Jersey’s Law Against Discrimination on behalf of Anthony Martini, a licensed professional counselor.
The suit alleged that Mr. Martini was fired from his counseling position on account of his conscientious Catholic opposition to a policy of treating psychiatric patients contemplating “sex change” operations as if they were really members of the sex to which they want to “change.”
The suit further alleged that Mr. Martini was also subjected to a pattern of religious discrimination by a supervisor who accused him of “imposing” his Catholic morality by merely answering questions about what the Church teaches.
The supervisor, the complaint alleged, also confronted Mr. Martini over his Catholic beliefs on abortion, contraception, homosexuality, transgender reassignment and other issues, while defending her own non-Catholic beliefs and insisting that her contrary beliefs were valid.
“My wife and I would like to express our heartfelt gratitude for the wise counsel you provided, and the proficient manner the case was brought to a just settlement [in 2012]…We thank you for defending our faith and religious rights in this matter!,” Mr. Martini told us.
The ACLA is defending a veteran pro-life activist on a charge that he “obstructed pedestrian traffic” for simply offering pro-life literature to women approaching a Bronx, New York, abortion mill.
ACLA’s client was arrested, handcuffed, and taken to the local police precinct at the command of a female police sergeant who had ordered him to stand behind metal barricades stored by the abortion mill on its premises and regularly deployed to thwart the approach of pro-life advocates to women about to enter the clinic.
Our client reportedly explained to the officers at the scene that he could not stand behind the barricades because they would have prevented him from getting his pro-life message to the women and offering them literature as he has been doing for years at the location.
There was no court injunction or any other legal basis for ordering this 75-year-old anti-abortion activist to stand behind a NYPD metal barricade the abortion clinic keeps on its premises and then sets up to stop pro-life advocates from effectively communicating with women during the crucial final moments before they enter the abortuary.
Like all other ACLA cases in which pro-life advocates are subjected to the criminal process for simply exercising their First Amendment rights on public sidewalks – which are quintessential public forums – this case will be defended vigorously at the bench trial scheduled for January 24, 2013.
During the summer of 2012, as the world knows, the United States Supreme Court issued its “ObamaCare” decision. In a stunning and alarming upset, Chief Justice John G. Roberts joined four associate justices to uphold the “individual mandate” to purchase health insurance or suffer a federal penalty.
The ACLA, prior to the fateful decision, filed with the Supreme Court a friend-of-the-court brief which opposed the mandate by supporting the legitimate rights of individual autonomy and religious conscience – understood, of course, in a Catholic sense, as we made clear in our brief.
In the process of preparing the brief, ACLA attorneys recognized that if the defenders of the individual mandate saw that the Court was not receptive to the argument that the mandate is a valid exercise of Congressional power to regulate interstate commerce, they might seize on the flimsy alternative argument that the mandate, with its penalty for failure to buy health insurance, is a “tax” within the taxing power of Congress merely because it is imposed and collected by the Internal Revenue Service (IRS). And this argument, we worried, might be made even though President Barack H. Obama had actually insisted that the mandate was not a tax!
Our worse fears were confirmed: the Court upheld the mandate precisely on the basis that it was a “tax” permitted by the Taxing Clause of the Constitution, even if it could not be upheld as a legitimate regulation of interstate commerce under the Commerce Clause.
The implications of this ruling are catastrophic for the freedom of Americans.
The Supreme Court has now set a precedent wherein Americans can be penalized by a tax for simply not doing what the government wishes, even if it violates one’s conscience to do so.
But the High Court acknowledged the ACLA’s argument in one respect, and to that degree we scored a victory. Chief Justice Roberts’s majority opinion held that the Commerce Clause does not authorize the mandate precisely because of its impact on personal autonomy: “Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it.” And so, he wrote:
“Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and – under the Government’s theory—empower Congress to make those decisions for him.”
“That,” the Chief Justice said, “is not the country the Framers of our Constitution envisioned.”
But then, in a sudden turn-around, Roberts avoided the ACLA’s argument by holding that the ObamaCare individual mandate is not a mandate, but “only” a tax. Why? Because the mandate does not actually order individuals to buy insurance, but merely imposes a “tax” on those who choose not to buy it:
“The mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.”
Since the mandate involves “only” a tax, held Roberts, it was within Congress’s power to enact under the Constitution’s Taxing Clause.
This, the Chief Justice acknowledged, was not the most straightforward interpretation, but he looked to legal precedents holding that if a statute can be interpreted two different ways, one of which will render it unconstitutional and the other constitutional, it should be interpreted to make it constitutional. If it is “fairly possible” to read it that way, that is how it will be read.
The four dissenting justices led by Justice Antonin Scalia vehemently disagreed, protesting that “we cannot rewrite the statute to be what it is not.”
In the dissenting justices’ view, “there is simply no way, without doing violence to the fair meaning of the words used, to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.”
Commentators will argue for years to come whether Chief Justice Roberts’s interpretation was a “fairly possible” reading of the statute. But the more pressing problem is this:
This new precedent could well give Congress carte blanche to get around the limitations of the Commerce Clause by using the Taxing Clause to impose on individuals obligations which under the Constitution it could not otherwise impose.
Now, Chief Justice Roberts admits that “Even if only a tax, the payment remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.”
But, incredibly, he goes on to say that taxes are just part of life, citing Benjamin Franklin’s famous remark that “In this world nothing can be said to be certain, except death and taxes.”
But not to worry, Justice Roberts assures Americans, for the U.S. Supreme Court will never—no never!—allow the power to tax to become the power to destroy.
As the principal author of the ACLA’s amicus brief, the brilliant New Jersey lawyer Bertram P. (Skip) Goltz, Jr., asks: “Does this take into account the American values of individualism and autonomy, not to mention personal conscience, that the ACLA stressed in its friend-of-the-court brief? And how far will the ingenuity of Congress reach to impose other mandates in the form of taxes?”
Indeed! Moreover, if a Catholic surrenders and buys the health insurance instead of paying the tax, he may well have to buy it through one of the ObamaCare-created insurance exchanges that has nested within it an involuntary premium covering abortion.
So what does the future hold? It seems that this new precedent gives Congress a green light to use the Taxing Clause to impose on individuals obligations which under the Constitution it could not otherwise impose.
The Chief Justice assures us that “there comes a time [when] the so-called tax…loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.”
But surely, as Skip Goltz observes, “Congress will be canny enough to write its ‘tax’ laws so as to avoid this. In how many other ways will Americans be mandated—sorry, taxed—into buying things and doing things that violate their consciences? The governmental power to tax has always been given broad leeway by the courts, and so we enter uncharted waters…The waters are uncharted—and likely, rough and stormy as well.”
As the ACLA declares in its mission statement, we are “a non-profit religious organization run by Catholics, to defend the rights of Catholics,” and to provide “free legal services on behalf of Catholics needing legal defense in matters of faith and conscience.”
We are dedicated to establishing the Social Kingship of Christ and to “upholding the Divine prerogatives and moral law.” There has always been much to do in furnishing legal defense in matters of faith and conscience.
Our commitment is great, but our resources are few. As the implications of the Supreme Court’s decision become manifest, we commend ourselves to your prayerful and practical support in what are sure to be challenging days ahead.
BALTIMORE, MD: On July 12, 2011, Hon. Richard D. Bennett of the federal district court for the District of Maryland issued a 49-page opinion in a civil rights action filed by attorneys with the American Catholic Lawyers Association (ACLA) in 2009.
The decision, following extensive motions for summary judgment by both plaintiffs and defendants, holds that the First and Fourth Amendment rights of the seven pro-life advocates who are the plaintiffs (as well as two pro-life advocates represented by the Alliance Defense Fund) were violated as a matter of law when State Troopers arrested and jailed them in Harford County, MD on August 1, 2008 for displaying signs deemed offensive by passing motorists. (Another plaintiff in the action, the organization Defend Life, Inc., is represented by attorneys Tom Brejcha and Pat Gillen of the Thomas More Society in Chicago.) The plaintiffs’ First and Fourth Amendment claims against the Troopers would proceed to a jury trial for the assessment of damages only.
Quoting controlling case law, the Court held that “[A] reasonable police officer faced with the facts confronted by the Defendants would have known that, in ordering the demonstrators to leave Harford County, he would violate the Plaintiffs’ First Amendment rights. Moreover, arresting the Plaintiffs for exercising those rights was a violation of the Plaintiffs’ Fourth Amendment rights. In engaging in this manifestly unlawful behavior, the individual officers could not have reasonably misapprehended the law, nor can it be said that they made a bad guess in a gray area.”
The pro-life advocate plaintiffs in the case, Ames, et al. v. Colonel Terrence Sheridan, are being represented by ACLA President and Chief Counsel Christopher A. Ferrara, serving as lead counsel, and ACLA attorneys Denis Brenan and Howard Walsh, III, assisted by local counsel Matt Paavola.
Commenting on the decision, Monsignor Ignacio Barreiro, a member of ACLA’s Advisory Board and interim President of Human Life International, stated: “This is an important judicial decision that protects the natural right of persons involved in an active way in the defense of the right to life of the unborn.”
“We are gratified by the court’s comprehensive decision, and we are preparing to move ahead to a final resolution of this case,” said Mr. Ferrara.
Meanwhile, however, the State Trooper defendants have appealed Judge Bennett’s decision to the Fourth Circuit Court of Appeals. “We will respond appropriately to the Trooper defendants’ brief, and will demonstrate the Judge Bennett’s decision is well-grounded in law and fact,” Ferrara added.
NEW YORK NY: The ACLA is serving as local counsel to the American Center for Law and Justice (ACLJ) in a constitutional challenge to a New York City law that seeks to “regulate” pro-life crisis pregnancy centers (CPCs) out of existence, including the crisis pregnancy center headed by the renowned pro-life advocate Chris Slattery, represented by ACLA in prior matters.
On July 13, 2011, U.S. District Court Judge William H. Pauley, III issued an opinion finding that the CPC plaintiffs are likely to prevail in their challenge to the law, and he has temporarily forbidden its enforcement until there is a final court hearing.
Penalties for non-compliance with the new law include fines, shutting down the CPC, and imprisonment. Furthermore, the law defines a CPC in a way that would allow the City of New York to fine and imprison the volunteers at CPCs based on “criteria” such as offering women pregnancy tests they can buy at any local drugstore without a prescription.
As Judge Pauley found, the onerous City law impermissibly burdens the First Amendment rights of CPCs by compelling them to utter government-required messages that would impose both a financial burden in terms of advertising costs and would “significantly alter the manner in which plaintiffs approach these topics with their audience.”
CPCs provide “life-saving information about alternatives to abortion, such as adoption; and many provide ultrasounds that show expectant mothers that their babies are not mere blobs of tissue but living human beings,” said ACLA chief counsel Christopher A. Ferrara. “The ultrasounds alone have saved countless thousands of unborn children.”
The City of New York has appealed Judge Pauley’s ruling to the U.S. Court of Appeals for the Second Circuit.
South Bend, IN: On May 5, 2011, ACLA President Christopher Ferrara announced that all pending criminal charges against the "Notre Dame 88" represented by the ACLA were dismissed with prejudice by the St. Joseph County, Indiana Prosecutor.
The dismissals were requested by the University of Notre Dame as part of the joint efforts of the University and the ND 88 to reconcile and pledge to move forward together for the sake of the faith and the pro-life cause.
"I wish to thank Christopher Ferrara and the ACLA for their invaluable assistance in the criminal matters, which are now definitively resolved," said Tom Dixon, who was lead counsel in the criminal cases, and who, along with attorneys from the ACLA and the Thomas More Society in Chicago, negotiated this outcome on behalf of the ND 88.
"ACLA's attorneys were honored to assist Tom Dixon and TMS attorneys Tom Brejcha and Peter Breen in bringing these important cases to a successful conclusion, and I look forward to working with them in other pro-life matters in the future," said Ferrara.
JACKSON, MS: ACLA’s Mississippi affiliate, James McCafferty, Esq., has filed a major civil rights suit against the University of Mississippi Medical Center under that state’s Health Care Rights of Conscience Act and other statutes.
The suit alleges that the Catholic nurse plaintiff was subjected to a punitive transfer, a shift change, and then was fired on account of her conscientious refusal to be involved in contraception or sterilization procedures.
A Mississippi conscience law specifically prohibits any adverse employment action based on an employee’s religious or moral objections to certain medical procedures. The law provides for triple damages to remedy discrimination against employees who will not surrender to the Culture of Death.
The suit, recently removed to federal court, also involves as claim under the federal Civil Rights Act.Type your paragraph here.
American Catholic Lawyers Association
Faith & Justice