In an opinion issued late last Saturday in Bella Health v. Weiser, federal district judge Daniel D. Domenico ruled that medical providers who believe that they have a religious duty to help women who wish to try to reverse a chemical abortion are entitled to a preliminary injunction that shields them from discipline for providing the hormone progesterone for that purpose. Judge Domenico’s opinion skillfully weaves together recent Supreme Court rulings that have “added considerable nuance and complexity” to the Free Exercise analysis under Employment Division v. Smith (1990).
Judge Domenico explains that the Colorado law that would bar the use of progesterone to reverse a chemical abortion (while allowing it for various other uses to sustain pregnancy) is not “neutral and generally applicable” for purposes of Smith. Judge Domenico cites and draws on the en banc Ninth Circuit’s recent distillation of the “three bedrock requirements” of the Free Exercise Clause.
First, the law “treats comparable secular activity more favorably than Bella Health’s religious activity.” Colorado asserts an interest in protecting patients from off-label uses of prescription drugs that lack evidence of efficacy and safety, but it “has provided little, if any, evidence that the legislature has regulated the off-label use of hormones or other drugs prophylactically in the way it has done here.” Further, similar scientific uncertainty exists as to other uses of progesterone that Colorado allows to sustain pregnancy.
Second, the law “contains mechanisms for exemptions that undercut [its] expressed interests.” Medical boards had discretion to allow some use of progesterone for abortion-pill reversal, and they retain discretion to allow other drugs for abortion-pill reversal.
Third, the law’s “object and effect is to burden religious conduct in a way that is not neutral.” The legislature was aware that the law’s burden “would primarily fall on religious adherents.”
For each of these three reasons, the Colorado law is subject to strict scrutiny. Colorado makes no argument that it satisfies that standard.