Spero Law LLC

We recently filed an amicus brief in the Ninth Circuit on behalf of a diverse coalition of religious and tribal organizations supporting a request for rehearing by the entire Ninth Circuit of a case involving threatened destruction of an Apache sacred site. An excerpt: [B]ecause of the federal government’s long history of “divestiture of land” from Native Americans, “their most sacred sites are completely within the government’s control.” Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1301 (2021). These sites are unique, leaving Native Americans without adequate alternative areas to engage in religious exercise. So while a Buddhist or a Jew may attend another temple or synagogue—and their places of worship are not generally on public lands—many Native Americans have no other options. “Without access to particular sites, essential practice of native religion may not be merely burdened, but effectively prohibited altogether.” Id. Yet the en banc majority held that “it is not enough . . . to show that the Government’s management of its own land and internal affairs will have the practical consequence of ‘preventing’ a religious exercise.” Collins Op. 30. Members of the en banc majority seemed to acknowledge that this holding particularly infringes Native Americans’ religious practices. E.g., VanDyke Op. 162 (“only some religions would benefit”); Nelson Op. 111. One response—that ruling for the Apache Stronghold would somehow discriminate against other religions—misses the point. Limiting RFRA as the majority decision did uniquely harms particular religious beliefs. What matters to RFRA is the burden imposed by the government, not the distribution of religious practices and their manifestations among all the religions. RFRA addresses those substantial burdens, whether they be many for a particular religion or few. By analogy, the Supreme Court’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer vindicated the religious exercise rights of a Lutheran church that operated a preschool and daycare. 582 U.S. 449 (2017). It did not thereby discriminate against religions that happened not to build playgrounds or operate preschools, for those religions faced no similar harm from the government action. If other government actions infringed on those other religions’ exercise rights, then they too should have valid claims in those cases. And if not, then all the better—we should celebrate the free exercise of religion rather than enable the government to impose more restrictions in pursuit of equal burdensomeness. Thanks to Fahad Alwahab for research assistance!

Yesterday, we filed an amicus brief in the Fourth Circuit on behalf of Family Research Council and Concerned Women for America against an abortion drug company's preemption challenge to West Virginia's abortion laws. The brief explains the FDA's statutory history to rebut claims that federal drug labeling laws implicitly preempt state abortion laws. The brief also addresses arguments by historians and health law scholars, showing that their briefs elide relevant history, ignore the legal questions, and, in several cases, depart from their own prior positions. A sample: [T]he Scholar Amici pretend that their only interest here stems from their “expertise,” as they “have published extensively and have been quoted widely on topics related to the U.S. Food and Drug Administration.” Br. 1. Courts are “not required to exhibit a naiveté from which ordinary citizens are free.” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2575 (2019) (cleaned up). Several of these scholars have elsewhere written that the very argument that they make here—that FDAAA preemption should “partially invalidate general abortion bans” and “force states to allow the sale and use of medication abortion”—is “uncertain.” David S. Cohen, Greer Donley, & Rachel Rebouché, The New Abortion Battleground, 123 Colum. L. Rev. 1, 56 (2023). But they eagerly desired such challenges, despite the threat “that preemption for abortion-inducing drugs could have effects that impact other state regulation of health products,” undermining “[c]onsumer safety.” Id. at 64–65. After all, the scholars reasoned, “the [pharmaceutical] industry already is bringing these lawsuits,” so “[i]t would be a missed opportunity to not take advantage of these cases to . . . expand[] abortion access.” Id. at 65. Another Scholar Amicus explained just last year that “FDA traditionally regulates drug products and their labeling and marketing, not the circumstances of their prescription, administration, and use”: “These elements have been traditionally viewed as part of the practice of medicine, an area left to state regulation.” This amicus went on to explain that the “FDA’s REMS authority” is “limited,” making it “essential that state licensing boards be brought into the regulatory ecosystem”—because they “can impose further requirements.” In their brief here, the scholars omit any citation to these 2023 writings, but their change of tune makes their actual interest clear: “expanding abortion access.” Indeed, a couple weeks ago, these scholars were exulting over their “[l]ong term strategy” that “begins today”: “Dobbs must be overturned.” These individuals can pursue “expand[ed] abortion,” as harmful to unborn children as it is. But no one should pretend that their interest in this case stems from any other goal, including some neutral “expertise.” Thanks to George Palau for help on the brief!

We recently filed a Supreme Court cert petition from a COVID case involving an arrest for unmasked advocacy. The petition raises interesting (and open) questions about how to determine the expressive nature of conduct. Thanks to George Palau and Fahad Alwahab for research help! From the intro: Like many parents, Gwyneth Murray-Nolan was a parent of children who had been intensely harmed by the sustained, isolating requirement of mandatory masking in public schools during COVID. And like many parents, she took action. Advocating against her local school district’s failure to challenge an executive order interpreted as requiring universal masking of schoolchildren, including those with special needs, she had spoken at the local Board of Education meeting over at least six months—along with advocacy before legislators and many others. Each time, she was unmasked, no matter the threats issued in the meetings for that choice. Reasonable observers well understood why she was unmasked: to convey her message that mandatory masking was harming children and to express solidarity with those children. By the start of 2022, mandatory masking was on its way out, even in places like New Jersey. But though the New Jersey governor had announced that the executive order would expire in March, Ms. Murray-Nolan’s school district stuck to its policies. She attended the January 2022 meeting, when the Board threatened to call the police on her—then cancelled the public comment portion of the meeting after other attendees took off their masks in solidarity with Ms. Murray-Nolan. So Ms. Murray-Nolan filed a lawsuit to protect her advocacy before the February meeting. By that point, Board and meeting observers knew well why she came unmasked: to express her message. Yet shortly after she arrived unmasked at the February meeting, she was arrested and taken to jail. She sued for First Amendment retaliation. 

The second amicus brief we filed last week in a SCOTUS merits case was on behalf of Family Research Council and Dr. Martha Shuping in a case about FDA's elimination of safeguards for women taking abortion pills. An excerpt: Women are not helped by cutting corners and being abandoned to manage their abortions alone. Any woman considering abortion deserves a real doctor-patient relationship, with an evaluation at the start, to fully assess the facts of her case and life, some of which would not be known without a physical exam at the start. The FDA’s decision to remove protections in 2016 and 2021 endangers women’s health and safety. Restoration of these protections best serves the needs of women’s health and safety, including women experiencing [intimate partner violence].

Today, we filed a Supreme Court amicus brief on behalf of the Prolife Center at the University of St. Thomas exploring the Spending Clause in the context of the federal government's effort to use the the Emergency Medical Treatment and Active Labor Act of 1986 to preempt Idaho's abortion regulations. Thanks to George Palau for help putting the brief together! An excerpt: When Congress offers States funds with conditions attached, that offer may not be coercive, and the conditions must be clear. If a State does not accept the offer, the federal conditions never come into play. And just as one State’s acceptance of a Spending Clause offer could not subject another State to the conditions, a private recipient’s acceptance could not subject a State to the conditions. In other words, a side deal between the federal government and a private recipient does not preempt state law, at least when the State has not accepted the relevant funds or their conditions. If a private recipient cannot fulfill the federal conditions consistent with state law, it can choose to either decline the funds or accept the consequences of violating state law. Any other theory would upend this Court’s Spending Clause limitations, allowing private parties to become laws unto themselves and depriving state law of force and effect even though the State never agreed to any conditions or took funds. 

Last week, we filed this opposition to NYU's motion to dismiss a lawsuit on behalf of John Doe, a current NYU law student who alleges discrimination based on race and sex in NYU's law review selection process. Thanks to George Palau for research help!

Earlier this week, we filed the latest version of our amicus brief on behalf of the Family Research Council in a Ninth Circuit case challenging Idaho's law protecting children from sex-modification procedures. An updated portion: [P]ublic information about WPATH, AAP, and the Endocrine Society raises serious concerns about their motivations. As a New York Times article just described, “the American medical establishment has hunkered down, stuck in an outdated model of gender affirmation” that makes it “difficult to practice responsible mental health care or medicine.” Ideology, not evidence, appears to be these interest groups’ north star. As one man who transitioned at age 15 with “[s]evere medical complications” and tried to detransition after 15 years explained: “You’re made to believe these slogans. . . . Evidence-based, lifesaving care, safe and effective, medically necessary, the science is settled—and none of that is evidence based.”

Last week, we helped file an amicus brief in the Supreme Court on behalf of Rep. Jim Jordan and 44 other members of Congress supporting Missouri and others challenging the Biden Administration's coercion to censor protected speech. An excerpt: [E]ven more recent evidence obtained by the House Judiciary Committee and the Weaponization Subcommittee confirms the conclusions reached below. That evidence shows that the Biden Administration has relentlessly pressured private entities—sometimes in cooperation with other private entities—to censor speech that the Administration disliked. As detailed below, this official coercion has undermined the marketplace of ideas on issues of public importance ranging from COVID to federal elections to Biden family misdeeds. And the suppression “does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers”: conservative voices opposed to the current Administration. Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2347 (2020). “This sort of ‘beggar thy neighbor’ approach to free speech— restricting the speech of some elements of our society in order to enhance the relative voice of others—is wholly foreign to the First Amendment.” Bennett, 564 U.S. at 741 (cleaned up).

Today we filed an amicus brief in the South Carolina Supreme Court on behalf of Liberty Justice Center and others supporting the state's new law expanding educational opportunities. From the introduction: Petitioners’ attempt to equate expanded educational freedom with discrimination is disingenuous. The heartbeat of the school choice movement is compassion for children in difficult circumstances: not just for children stuck in failing inner-city or rural schools, but students who may have access to generally good public schools but find themselves with individualized needs that would be better addressed in an alternative educational setting. Students with special physical or intellectual challenges, victims of bullying, children of active-duty military, religious minorities, and students who perform best in a single-sex learning environment—all benefit from the many options created by school choice policies. This brief will highlight those benefits for the Court through the stories of families who have been enriched by policies similar to South Carolina’s.

Welcome to Spero's spring externs!: Nicholas White is a 2L at The Charleston School of Law, where he serves as a student ambassador and President of the Federalist Society. George Palau is a 3L at Cornell Law School, serving as an Editor of the Cornell Journal of Law and Public Policy. After graduation, he will serve as a law clerk for Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana and then Judge Paul Matey of the U.S. Court of Appeals for the Third Circuit.