POLITICO Nightly: The unlikely blueprint for knocking down abortion bans

 

View in browser   BY ALICE MIRANDA OLLSTEIN Presented by Abortion rights activists rally near the Supreme Court in January. | Celal Gunes/Anadolu Agency via Getty Images SLEEPER APPROACH — With the one-year anniversary of the Supreme Court’s decision overturning Roe v. Wade fast approaching, a unique legal strategy has emerged for challenging state abortion restrictions: Progressive clergy and congregants are taking red states around the country to court over near-total abortion bans they say infringe on their religious rights . “We are taught that bodily autonomy is sacred,” Rev. Krista Taves, a minister at Eliot Unitarian Chapel in Kirkwood, Missouri and a plaintiff in one of the lawsuits, told POLITICO. “For an outside force to dictate what we can do with our bodies and to our bodies is antithetical to my faith and my freedom of conscience.” Taves’ case is one of nearly a dozen currently moving forward in Florida, Indiana, Kentucky, Missouri, Texas, Wyoming and other states, with rulings and oral arguments expected over the coming months. Most of the lawsuits are seeking religious exemptions from state bans, arguing that they prevent the free exercise of religions that value the right to terminate a pregnancy. But a few are attempting to have them struck down in their entirety, claiming that lawmakers violated the Establishment Clause by blurring the line between church and state and imposing one view of when life begins on the entire population. Some cases are making additional free speech arguments — representing clergy who say state laws banning anyone from “aiding and abetting” an abortion prevents them from offering counseling to parishioners grappling with whether to terminate a pregnancy. Legal experts say that the emerging strategy has little chance of restoring federal abortion protections that were lost when the Supreme Court overturned Roe . But the challengers — who include Jews, Muslims, Unitarians, Episcopalians, Satanists and other people of faith — have some surprising advantages at the state level. Pandemic precedent: A series of Covid-19-related court rulings over the past few years may pave the way for more religious exemptions. Several courts, including the Supreme Court, issued decisions during the pandemic holding that whenever states create secular exemptions to laws — like indoor gathering restrictions or vaccine mandates — they have to justify not offering religious exemptions as well. Citing those rulings, the lawsuits challenging abortion bans argue that because states are offering secularly-motivated exemptions to abortion bans — such as for rape and incest — they must also offer exemptions for people with religious objections. Beefed up religious protections in red states : The enhanced protections for religious freedom conservative states have enacted over the past few years could help overturn those states’ abortion restrictions. In Indiana, for example, a group of Jewish, Muslim and other religious plaintiffs sued the state over its near-total abortion ban, arguing that it violates the Religious Freedom Restoration Act signed by then-Gov. Mike Pence in 2015. A lower court judge sided with them in December and blocked the state’s ban from taking effect. Then, earlier this month, the Indiana judge granted the challengers class action status, meaning a win for them could apply to anyone in the state whose religion supports abortion access in cases prohibited by state law. But the challengers’ victory is far from certain.  GOP-controlled states and outside conservative groups are mobilizing to defend their abortion restrictions, arguing that people of faith may be entitled to exemptions from civil laws like mask mandates, but not criminal ones regarding abortion. “As Justice Ruth Bader Ginsburg explained in one Free Exercise case, the right to swing your arm ends just where the other man’s nose begins,” said Denise Harle, senior counsel with Alliance Defending Freedom, a conservative legal group that has filed briefs defending state abortion restrictions from faith-based challenges in Wyoming and Florida. “Even if you have religious freedom, there is a line at which you are doing actual deadly harm and destroying human life, so it’s appropriate to limit what can be done in the name of religion.” Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com . Or contact tonight’s author at aollstein@politico.com or on Twitter at @AliceOllstein .   A message from Alliance For Justice & Alliance for Justice Action Campaign: Clarence Thomas Broke the Law. While Justice Thomas was helping strike down abortion and voting rights and sensible gun laws, a far-right, billionaire donor was rewarding him with secret, all-expense paid luxury vacations, unfair real estate deals, and free private school tuition for a relative. It’s not just unethical. It’s illegal. It’s time for Justice Thomas to resign. Sign our petition.   WHAT'D I MISS? — Coast Guard to continue search-and-rescue for missing Titanic tourist sub: Search-and-rescue operations for the Titan, a missing submersible carrying five people that vanished en route to the Titanic shipwreck, are not transitioning into recovery , the Coast Guard said this afternoon. Titan, the 21-foot tourist submersible, lost contact with its parent ship, the Canadian-owned Polar Prince, on Sunday morning. The U.S. and Canadian Coast Guards have joined forces with commercial, research and private vessels and aircraft, as well as teams from other countries, to search a span of the North Atlantic now twice the size of Connecticut. — Justice Samuel Alito faces scrutiny over trips with GOP donor: Supreme Court Justice Samuel Alito is facing new scrutiny following a ProPublica report published late Tuesday that reveals an expensive and previously undisclosed luxury fishing trip that the justice took with a prominent conservative donor over a decade ago. Alito wrote a defensive op-ed preemptively denying wrongdoing in The Wall Street Journal earlier Tuesday. According to ProPublica’s investigation, Alito in 2008 flew on billionaire Paul Singer’s private jet on a trip that included room and board at Alaska’s pricey King Salmon Lodge. That was paid for by then-owner Robin Arkley II, who is a prolific donor to conservative legal causes, like Singer, according to the report. Singer had connections with corporate entities who later made cases in front of the Supreme Court and won with Alito’s support. — Rep. Lisa Blunt Rochester launches bid for Senate seat in Delaware: Rep. Lisa Blunt Rochester today announced a bid to succeed retiring Sen. Tom Carper in Delaware , laying the path for the Democrat to potentially become the third Black woman to ever serve in the Senate. Blunt Rochester joined the House in 2017 and was the first woman and person of color to represent Delaware in Congress.   SUBSCRIBE TO POWER SWITCH: The energy landscape is profoundly transforming. Power Switch is a daily newsletter that unlocks the most important stories driving the energy sector and the political forces shaping critical decisions about your energy future, from production to storage, distribution to consumption. Don’t miss out on Power Switch, your guide to the politics of energy transformation in America and around the world. SUBSCRIBE TODAY .     NIGHTLY ROAD TO 2024 DEMS TO MANCHIN: DON’T — Joe Manchin loves to keep his political options open — and now, as the West Virginia centrist flirts with a third-party campaign for president, his Democratic colleagues are taking him seriously enough to try to talk him out of it , POLITICO reports. Manchin is never one to quash a mystery surrounding his future, whether it’s pursuing his old job as governor or how he’d vote in former President Donald Trump’s first impeachment trial. Yet even as many doubt he’ll go through with a White House bid, Democrats also fear it could hand the GOP both the Senate and the White House if he does. Manchin’s refusal to silence talk of a White House bid, potentially funded by centrist group No Labels, gives him leverage over party leaders: The more they need him to seek Senate reelection, the more attention he can get for his priorities. TOP SURROGATE — Gavin Newsom didn’t just roll out the welcome mat for Joe Biden when the president landed in San Francisco this week for public events and fundraisers, writes POLITICO. During Biden’s three-day swing through the Bay Area, the California governor forcefully embraced his new role: a top Biden surrogate . The trip came days after Newsom took that defense directly into what many Democrats consider the beating heart of enemy territory — over an hourlong interview with Fox News’ Sean Hannity. The Biden world is taking notice. It wasn’t that long ago when Newsom annoyed Democratic leaders by failing to sufficiently tamp down speculation that he planned to challenge Biden for the 2024 nomination. Then, Newsom frustrated them anew by suggesting they weren’t prepared to take on escalating Republican attacks on issues Democrats hold dear, including abortion rights. JUSTICE DENIED — Donald Trump has promised that if he wins back the presidency he will appoint a special prosecutor to “go after” President Biden and his family. But he’s not the only Republican running for president who appears to be abandoning a long-established norm in Washington — presidents keeping their hands out of specific Justice Department investigations and prosecutions. After Trump’s vow to direct the Justice Department to appoint a “real” prosecutor to investigate the Bidens, The New York Times asked each of his Republican rivals questions aimed at laying out what limits, if any, they believed presidents must or should respect when it comes to White House interference with federal law enforcement decisions . Their responses reveal a party that has turned so hard against federal law enforcement that it is no longer widely considered good politics to clearly answer in the negative a question that was once uncontroversial: Do you believe presidents should get involved in the investigations and prosecutions of individuals?   A message from Alliance For Justice & Alliance for Justice Action Campaign:     AROUND THE WORLD Secretary of State Antony Blinken attends a meeting with China's President Xi Jinping at the Great Hall of the People in Beijing. | Pool photo by Leah Millis/AFP via Getty Images SECRETS, SECRETS ARE NO FUN — In the case of the United States and China, loose lips and secret military facilities might sink relationships — no matter how much the Biden administration doesn’t want that to happen, write Alexander Ward and Jonathan Lemire . After a Chinese spy balloon frayed ties between Washington and Beijing, Secretary of State Antony Blinken visited China this past weekend to mend them. But that diplomatic advance was quickly overshadowed by the public revelation that China was in talks with Cuba to create a joint military training base on the island nation 100 miles from Florida’s coast. President Joe Biden followed that hours later by saying his order to shoot down the balloon was “a great embarrassment for dictators” like Xi Jinping, enraging China with his characterization of its leader. Blinken’s trip showed promise towards getting the China-U.S. diplomatic relationship back on track. Almost the moment Blinken set foot on the departing plane, U.S. officials began to float next steps, which would include a Biden-Xi call and, eventually, a meeting to follow their encounter last fall in Bali, Indonesia. Among the options under early consideration, according to officials: an in-person discussion on the sidelines of the G-20 summit in New Delhi in September or at the Asia-Pacific Economic Cooperation gathering in San Francisco two months later. But after news broke Tuesday indicating the China-Cuba military base could host Beijing’s forces near the American homeland, such plans are no longer assured.   STEP INSIDE THE WEST WING : What's really happening in West Wing offices? Find out who's up, who's down, and who really has the president’s ear in our West Wing Playbook newsletter, the insider's guide to the Biden White House and Cabinet. For buzzy nuggets and details that you won't find anywhere else, subscribe today .     NIGHTLY NUMBER 9 points The amount that math scores among the nation’s 13-year-olds declined — from 280 out of 500 to 271 out of 500 — between 2020 and 2023, the largest drop since the federal government began its assessments in 1973. The National Assessment of Educational Progress long-term trend test for 13-year-olds also showed a 4-point decline in reading scores — from 260 in 2020 to 256 in 2023. RADAR SWEEP LIVING MEMORY — In 1941, an historically Black neighborhood known as Queen City was demolished to make way for the Pentagon during a rushed construction in the midst of the Second World War. Now, although there are few former residents of the neighborhood left alive, a public artwork in Arlington is meant to commemorate the neighborhood. Read David Smith in The Guardian about Queen City, its residents and public art. PARTING IMAGE On this date in 1949: The Belgian channel ship Princess Astrid lies on a sandbar four miles off the French coast where it sank after hitting a mine. Five members of the crew were killed in the explosion. | AP Photo Did someone forward this email to you?  Sign up here .   A message from Alliance For Justice & Alliance for Justice Action Campaign: It’s time for Clarence Thomas to Resign. While Justice Clarence Thomas was making the rules the rest of us have to live by, he was also accepting secret lavish gifts like luxury vacations from a far-right billionaire and not properly disclosing them as required by federal law. Anyone who believes the rules don’t apply to him or his billionaire friends has no business sitting on the Supreme Court. Tell Justice Thomas: If you want to make the rules, you don’t get to break them. It’s time to resign. Sign our Petition.     Follow us on Twitter Charlie Mahtesian @PoliticoCharlie Calder McHugh @calder_mchugh Katherine Long @katherinealong   FOLLOW US

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