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Missouri Family E-News November 29, 2010

Challenge to Sexually Oriented Business Law is Struck Down

A state judge has dismissed a challenge to Missouri's new law regulating sexually oriented businesses filed by a group of sex shops and nude dancing clubs.

Opponents of the law claimed that it was unconstitutional, arguing that the Missouri Legislature had failed to follow proper procedures in enacting the new statute. The controversy surrounded the preparation of the fiscal note for the bill, and whether a hearing had been held on the sufficiency of the fiscal note. A fiscal note is an estimate of the costs to state and local governments as a result of passage of a new law.

Circuit Judge Byron Kinder ruled that the Missouri Constitution does not require the preparation of a fiscal note, nor a hearing on its development. Kinder further ruled that the failure of the General Assembly to hold such a hearing cannot prevent passage of a bill, nor render the legislation defective.

The law adopted by the General Assembly this past session put in place tough new restrictions on strip clubs, and so-called "adult" video stores and arcades. The new law forbids total nudity, prohibits contact between dancers and patrons, bans the sale of alcohol on the premises, and shuts the businesses down at midnight. The law also requires that any sexually oriented business be located at least 1000 feet from any school, church, park, day care center, personal residence, or any other sexually oriented business.

The new statute was enacted to empower local communities to combat the negative secondary effects of such businesses. Numerous studies have shown that strip clubs and sex shops are a breeding ground for drug trafficking, sexual exploitation, crimes against persons and property, and neighborhood blight.

The Circuit Court will still be hearing other challenges to the law in February. Operators of sexually oriented businesses throughout Missouri, who call themselves the Missouri Association of Club Executives, allege that the new statute violates the First Amendment free speech rights of business owners and employees. The provisions in Missouri's new law have been upheld in previous federal court decisions.

Federal Court Endorses Pledge of Allegiance in Public Schools
A federal appeals court has upheld a New Hampshire law calling for the recitation of the Pledge of Allegiance in that state's public schools.

The law, known as the New Hampshire School Patriot Act, had been challenged by the Freedom from Religion Foundation. The atheist group contended that the law was an unconstitutional establishment of religion because the Pledge of Allegiance contains the phrase "under God."

Chief Judge Sandra Lynch, writing for a unanimous appeals court panel, stated that the primary effect of the law is not advancement of religion, but "the advancement of patriotism through a pledge to the flag as a symbol of the nation."

"In reciting the Pledge, students promise fidelity to our flag and our nation, not to any particular God, faith, or church," Judge Lynch wrote. "It takes more than the presence of words with religious content to have the effect of advancing religion, let alone do so as a primary effect."

David Cortman, senior counsel for the Alliance Defense Fund, welcomed the decision. "The Pledge of Allegiance shouldn't be banned from the nation's public schools simply to appease an atheist group's political agenda. We do not need to scratch 'In God We Trust' off our coins, remove references to our Creator from the Declaration of Independence...or remove 'under God' from the Pledge of Allegiance."

Federal Court Rules Against Pro-Life Nurse in Late-Term Abortion Case

A federal appeals court has ruled that a nurse who was forced to participate in an abortion against her will has no right to pursue legal action against her employer. The Second U.S. Circuit Court of Appeals decided that while the actions by a hospital abortion in New York may have been illegal under federal law, the law in question does not provide for private individuals to sue their employers.

The case involves pro-life nurse Cathy Cenzon-DeCarlo who was employed by Mount Sinai Hospital in New York. DeCarlo was compelled to participate in a late-term abortion of a 22 week-old unborn child in May of this year despite her objections. DeCarlo's supervisors told her that the procedure was an "emergency" abortion even though the mother was not in any medical danger. DeCarlo is a devout Catholic who had apprised hospital officials of her religious objections to abortion. Yet hospital administrators told her she would be subject to disciplinary action if she did not cooperate, up to and including possible termination.

DeCarlo was forced to assist the abortionist as he dismembered the child with forceps and pulled the body pieces from the mother's body. She was then required to collect the body parts and place them in a specimen container, and take them to the specimen area of the hospital. DeCarlo says the whole experience was like watching a horror film, and that she has experienced great personal agony, nightmares, and sleepless nights over the incident.

The actions of Mount Sinai Hospital would seem to be in direct violation of a federal law known as the Church Amendment. Adopted by Congress in 1973, the same year as abortion the Roe v. Wade decision legalizing abortion, the law was intended to protect the conscience rights of medical personnel who object to the killing of preborn children. That law prohibits employment discrimination against medical personnel who refuse to perform abortion or sterilization procedures on moral or religious grounds.

The Alliance Defense Fund filed suit against Mount Sinai Hospital on DeCarlo's behalf, alleging that Mount Sinai was required to comply with the federal law because it is a recipient of federal funding. The Second Circuit agreed with a federal district court ruling that DeCarlo had no right to sue because the Church Amendment "does not provide for a private, individual cause of action."

Joseph Ruta, lead counsel for the Alliance Defense Fund, says that health care facilities should not be allowed to intentionally inflict emotional distress on an employee. abortion "It is illegal, unethical, and a violation of Cathy's rights of conscience as a devout Catholic to force her to participate in a late-term abortion. An individual's conscience is often what brings health care workers into the medical field. Denying or coercing their conscience will likely drive them right out."

Mailee Smith, staff counsel for Americans United for Life, says the appeals court ruling shows total disregard for the conscience rights of healthcare providers. "The right of conscience is a fundamental right affirmed by our founders as well as by the U.S. Supreme Court. By forbidding Ms. DeCarlo from suing her employer, the Second Circuit has completely eviscerated that right."
Americans United for Life had filed a friend-of-the-court brief supporting DeCarlo's claims on behalf of the National Association of Pro-Life Nurses, the American Association of Pro-Life Obstetricians and Gynecologists, Physicians for Life, the Christian Medical and Dental Association, and the Catholic Medical Association.

The scope and status of the conscience rights of medical professionals has become more complicated due to recent actions by the federal government. In the waning days of the Bush Administration, President George W. Bush implemented strong health abortion care conscience regulations clarifying the Church Amendment and another federal law known as the Weldon Amendment. Shortly after his inauguration, President Barack Obama initiated administrative actions to repeal those regulations.

The subject of conscience rights was a major issue during debate over President Obama's national healthcare legislation. Many believe that the Church and Weldon Amendments do not apply to the new federal health care bill and the insurance abortion exchanges it creates. The healthcare legislation ultimately adopted by Congress prohibited insurance plans from discriminating against any health care entity because of their unwillingness to provide or refer for abortions. But the language does not protect health care workers from discrimination by entities other than health plans, such as federal, state, and local governments, or by hospitals and clinics themselves.

DeCarlo hopes that her lawsuit will continue to shed light on the issue. "I emigrated to this country in the belief that religious freedom is sacred here. Doctors and nurses shouldn't be forced to abandon their beliefs and participate in abortion to keep their job."
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