June 19, 2019

Tenth Circuit: Question of Whether Letter to Abortion Provider Conveyed “True Threat” Best Decided by Jury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dillard on Tuesday, July 28, 2015.

In January 2011, Angel Dillard delivered a letter to Dr. Mila Means, a family practitioner in Wichita, Kansas, who had recently decided to start providing abortions. In her letter, Dillard warned Dr. Means that she should check under her car every day “because maybe today is the day someone places an explosive under it” and referenced Dr. Means’ friend, Dr. Tiller, who had been killed as he attended church services, warning that “if he could speak from hell” Dr. Tiller would advise her against providing abortions. Dr. Means’ office manager received the letter and immediately notified the police. A copy of the letter was also forwarded to the FBI; they interviewed Defendant but did not take any follow-up actions. Shortly after receiving the letter, a member of Dr. Means’ staff found an Associated Press article on the internet discussing how Defendant had recently befriended Dr. Tiller’s murderer and indicating that Defendant admired the killer for following his convictions and stopping abortions from happening in Wichita.

In April 2011, the government brought this civil enforcement action against Defendant, seeking fines and preliminary and permanent relief. The district court denied the government’s motion for a preliminary injunction. Defendant moved to dismiss, arguing the government lacked standing and could not show a violation of the Freedom of Access to Clinic Entrances Act of 1994 (FACE), which the district court denied. While the discovery process was ongoing, Defendant moved for summary judgment, arguing no reasonable person could have construed her letter as a true threat against Dr. Means because it did not threaten imminent violence or convey a likelihood of execution. The district court agreed and granted summary judgment. The government appealed and Defendant cross-appealed, arguing the district court should have granted her earlier motion to dismiss.

The Tenth Circuit, on de novo review, analyzed the strictures of FACE and its prior case law to determine whether the threat conveyed in Defendant’s letter was a “true threat.” The Tenth Circuit noted that it has consistently found that the fact-intensive inquiry necessary to determine whether a true threat is conveyed is properly determined by a jury. The Tenth Circuit evaluated the district court’s determination that the threat in Defendant’s letter was not a true threat because it was conditional, suggesting a bomb might be placed under Dr. Means’ car only if she did not reconsider her decision to provide abortion services. The Tenth Circuit found that a conditional threat could still qualify as a true threat. The Tenth Circuit likewise rejected the district court’s analysis that because the threat was not imminent it was not a true threat. The Tenth Circuit similarly found that a direct statement of personal intent is unnecessary to convey a true threat, noting “[a] defendant cannot escape potential liability simply by using the passive voice or couching a threat in terms of ‘someone’ committing an act of violence.” The Tenth Circuit determined that a jury could reasonably have found Defendant’s letter to convey a true threat and reversed the district court’s grant of summary judgment.

Defendant argued the Tenth Circuit could affirm on the alternate ground that the government presented no evidence that she subjectively intended to threaten Dr. Means. The Tenth Circuit was unpersuaded, noting frequently the most probative evidence is objective evidence of what actually happened rather than the subjective state of mind of the actor. The Tenth Circuit found the government presented evidence from which a jury could reasonably find Defendant intentionally mailed Dr. Means a letter containing a threat of violence.

The Tenth Circuit turned to Defendant’s cross-appeal, in which she argued the district court erred in denying her motion to dismiss because (1) the government lacked standing, (2) the First Amendment bars the action, (3) FACE violates the Commerce Clause both facially and as applied, and (4) the RFRA prevents this application of FACE. The Tenth Circuit quickly dismissed the first argument, finding the government’s standing is not derivative of the victim’s and the government has standing as long as it has reason to believe someone is, has been, or could be injured by conduct proscribed by the statute. As to the second argument, the Tenth Circuit found the district court correctly held the First Amendment’s definition of “true threat” is coterminous with FACE’s definition of “threat” so any conviction under FACE would necessarily fall outside the First Amendment’s protections. Defendant failed to raise her Commerce Clause and RFRA arguments below, so the Tenth Circuit declined to address them on appeal.

The Tenth Circuit briefly addressed the parties’ motions to seal portions of the record on appeal. These were granted in part and denied in part.

The district court’s grant of summary judgment was reversed and remanded for further proceedings. The district court’s denial of Defendant’s motion to dismiss was affirmed. The record was sealed in part with instructions. Judge Baldock wrote a thoughtful dissent; he would have affirmed the grant of summary judgment because Defendant’s “ill-advised” letter conveyed a threat that was conditional, not imminent, and impersonal.

Tenth Circuit: En Banc Rehearing Denied Sua Sponte in Little Sisters Case

The Tenth Circuit Court of Appeals issued a denial of en banc rehearing sua sponte on September 3, 2015, in the three combined cases of Little Sisters of the Poor v. BurwellSouthern Nazarene University v. Burwell, and Reaching Souls International v. Burwell. Although plaintiffs filed petitions for certiorari directly to the Supreme Court, the Tenth Circuit sua sponte considered en banc rehearing of the case. A majority of the active judges on the court voted to deny. Judges Kelly, Hartz, Tymkovich, Holmes, and Gorsuch voted to grant rehearing.

Judge Hartz wrote a separate dissent from the denial of en banc rehearing, which was joined by Judges Kelly, Tymkovich, Gorsuch, and Holmes. In his dissent, Judge Hartz opined that the opinion in Little Sisters of the Poor v. Burwell gravely misconstrued the issues. Judge Hartz found that the imposition of hefty fines for failure to comply with the opt-out provision of the Affordable Care Act’s birth control mandate constituted a substantial burden, and that the majority mistakenly characterized the plaintiffs’ sincerely held religious belief as being in opposition to the provision of birth control, rather than that execution of the opt-out documents is itself sinful. The majority’s reasoning held that there was no religious objection to the execution of the forms. Judge Hartz believed this was in error. He believed that the majority’s position was a dangerous approach to religious liberty, and opined that the majority opinion “will not long survive” because it is “contrary to all precedent concerning the free exercise of religion.” Judge Hartz would have set aside the panel decision and returned the case to determine whether the certification requirement is the least restrictive means of furthering a compelling government interest.

Tenth Circuit: Utilizing Religious Accommodation Is Not Substantial Burden on Religious Exercise

The Tenth Circuit Court of Appeals issued its opinions in Little Sisters of the Poor v. BurwellSouthern Nazarene University v. Burwell, and Reaching Souls International v. Burwell on Tuesday, July 14, 2015.

Plaintiffs in the three companion cases are non-profit religious organizations who contend that the religious exemption to the Affordable Care Act’s birth control mandate substantially burdens their free exercise of religion. The Affordable Care Act requires employer-sponsored health plans to meet minimum coverage requirements, including covering preventive health care services. Coverage of women’s preventive health care services must include all FDA approved contraceptives, sterilization procedures, and patient education and counseling. An exemption for nonprofit religious employers was created in the Act, and a religious employer can receive the exemption if it (1) has religious objections to providing some or all of the contraceptive services mandated by the Act, (2) is organized and operates as a non-profit entity, (3) holds itself out as a religious organization, and (4) self-certifies that it satisfies the first three criteria. In order to utilize the exemption, organizations must submit a form to their health insurance issuer or third-party administrator notifying the insurer that the organization is exempt from the contraception mandate. This triggers a requirement that the insurer fulfill the contraception mandate without sharing costs with the exempt organization.

The religious organizations objected to the exemption procedures, contending that by sending the form to their insurers, they were complicit in the provision of contraception because sending the form triggers the insurers’ responsibility to provide contraception coverage. Plaintiffs argued that by sending the form and triggering the insurers’ coverage requirement, their right to free exercise of religion was substantially burdened. The district courts reached different conclusions in each of the three cases before the Tenth Circuit, denying a preliminary injunction in the Little Sisters case but granting it in the Southern Nazarene and Reaching Souls cases.

In the Little Sisters case, the district court determined that complying with the accommodation scheme would not impose a substantial burden on the businesses’ religious exercise. The court’s analysis of the preliminary injunction factors “began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied” and found it was the court’s duty to determine how the regulations operate as a matter of law. The district court concluded the accommodation scheme does not require Little Sisters to provide or participate in the provision of contraceptive coverage.

In Southern Nazarene, the district court analyzed the plaintiffs’ likelihood of success on the merits and determined the form imposed a substantial burden on plaintiffs’ sincere religious exercise. The court determined the government failed to show a compelling governmental interest or showed its approach was the least restrictive approach, and granted the preliminary injunction.

In Reaching Souls, the district court also analyzed the plaintiffs’ likelihood of success on the merits. The court rejected the government’s argument as a “variation of a proposition rejected” in Hobby Lobby, and emphasized that regardless of whether signing the form actually triggered the provision of contraceptive services, the plaintiffs believed signing the form signaled their tacit approval or complicity. The district court granted a preliminary injunction.

Before reaching the merits of the appeals, the Tenth Circuit highlighted the unusual nature of the plaintiffs’ claims. The Tenth Circuit distinguished the Hobby Lobby case and other RFRA cases, since those plaintiffs could not avail themselves of the religious employer exemption. The Circuit quoted its closest analog case, United States v. Friday, noting “‘Law accommodates religion; it cannot wholly exempt religion from the reaches of the law.'”

The Tenth Circuit admonished the religious organizations, noting that whether the form constitutes a substantial burden is a legal question to be left to the courts, not a subjective matter for an organization to decide. Finding the accommodation permissible under the RFRA, the Tenth Circuit noted that the plaintiffs do not “trigger” contraceptive coverage by opting out of direct provision because federal law, not the act of plan participants, mandates contraceptive coverage. Rather than becoming complicit in the contraceptive scheme, opting out relieves the plaintiffs of all complicity. The Tenth Circuit characterized the form completion as a de minimus administrative task. Although the plaintiffs and the dissent argue that by opting out the plaintiffs cause the legal responsibility for providing coverage to shift to the insurer, the Tenth Circuit found that shifting the responsibility to the insurer relieved the organization of its obligation to provide coverage. The Circuit noted that such arrangements are common and among permissible methods of religious accommodation in a pluralist society.

Analyzing the RFRA, the Tenth Circuit again stressed that “whether a law substantially burdens religious exercise . . . is a matter for courts—not plaintiffs—to decide.” Courts need not question whether a religious petitioner correctly perceived the commands of his or her faith, but rather whether a challenged law or policy substantially burdens religious exercise. The Tenth Circuit noted “accepting any burden alleged by Plaintiffs as ‘substantial’ would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.” The Tenth Circuit found that accommodations such as the exemption at issue may eliminate burdens on religious exercise or reduce them to de minimus administrative tasks.

The Tenth Circuit rejected the plaintiffs’ argument that delivering the form “triggers” contraceptive coverage, emphasizing that federal law, not the form or delivery, mandates coverage. It found that the arrangement shifting responsibility of coverage “is typical of religious objection accommodations that shift responsibility to non-objecting entities only after an objector declines to perform a task on religious grounds.” The Tenth Circuit instructed that a religious accommodation reconciles rule of liberty with rule of law, so that when a religious institution is faced with a conflict between following the law or following religious belief, the religious objector can seek exception from the law without having to break it. The Tenth Circuit noted that shifting the burden from an objecting party to a non-objecting one is the point of accommodation.

The Tenth Circuit next turned to the plaintiffs’ arguments that the act of opting out makes them feel complicit in the overall contraceptive coverage scheme. The Tenth Circuit was not persuaded. Instead, it found that the exemption serves to ensure that plaintiffs are not complicit in the delivery of contraceptive services: “Opting out sends the unambiguous message that they oppose contraceptive coverage and refuse to provide it.” Since the only involvement of plaintiffs in the scheme of contraceptive coverage is the act of opting out, the Tenth Circuit found this did not impose a substantial burden, noting that all opt-out schemes require some affirmative action and having to file paperwork does not alone substantially burden religious exercise. The Tenth Circuit that plaintiffs’ religious objections cannot hamstring government efforts to ensure plan participants receive the coverage to which they are legally entitled.

Turning next to the plaintiffs’ First Amendment arguments, the Tenth Circuit found no merit in plaintiffs’ contention that the exemption requirement simultaneously compels and silences their speech in violation of the First Amendment. The Tenth Circuit applied the same analysis to the First Amendment claims as it applied to the RFRA claims. The Tenth Circuit found the ACA neutral and generally applicable, and determined the exemption “was developed to facilitate the free exercise of religion, not to target religious groups or burden religious practice.”

The Tenth Circuit affirmed the district court’s denial of a preliminary injunction in Little Sisters and reversed the district court’s grant of a preliminary injunction in Southern Nazarene and Reaching Souls. Judge Baldock dissented.