Alliance Defending Freedom (ADF) is a conservative Christian legal advocacy group that has been racking up wins at the U.S. Supreme Court. In recent years, ADF was involved in overturning Roe v. Wade, allowing businesses to deny services to LGBTQ+ people, eliminating limits on government support for religious organizations, and permitting employer-sponsored health insurance to exclude birth control.
- ADF is also behind a case challenging the FDA’s approval of mifepristone (medication abortion), which is bound for the Supreme Court in the near future.
ADF’s newest cases focus on expanding the right to use religion to discriminate against others and exempting religious organizations from oversight. These are cases to watch given the judiciary’s hard-right lean in recent years and its tendency to accept as fact any narrative that fits a conservative point of view.
ADF is representing George Badeaux, a Minnesota pharmacist who refused to dispense emergency contraception because doing so conflicted with his religious beliefs.
Andrea Anderson went to Thrifty White pharmacy in 2019 to obtain the morning-after pill after her regular contraception failed. In the small town of McGregor—population less than 400—there is only one pharmacy with two employees. According to Anderson, Badeaux not only declined to fill her prescription, he also “tried to prevent [her] from obtaining that care from others” and “fail[ed] to provide her a reasonable alternative”:
Badeaux clarified that he did not want to fill Anderson’s prescription due to “[his] beliefs.” He did not clarify what his beliefs were or why they interfered with his ability to perform his job as a medical professional. Badeaux did not provide Anderson with information about where or how she could get her prescription filled.
When Anderson pushed Badeaux to help her find an alternative, Badeaux informed her that there would be another pharmacist working the next day, who might be willing to fill the medication but that he could not guarantee that they would help. He also informed her that there was a snowstorm coming and the second pharmacist might not make it into work.
When Anderson asked about other pharmacies she could go to, Badeaux simply told her not to try Shopko in Aitkin because she would probably run into trouble there. Badeaux only told Anderson about other ways in which she would be unable to fill her prescription. At no time did Badeaux provide Anderson with the name of a pharmacy or pharmacist where she could obtain her prescription medication.
Anderson ended up having to drive 3 hours round trip in a snowstorm to get her prescription filled. She sued Badeaux and Thrifty White pharmacy for discrimination on the basis of sex under the Minnesota Human Rights Act. A jury found that Badeaux and the pharmacy did not discriminate against Anderson—but Anderson contends that the district court’s instructions were faulty. She filed an appeal over the summer with the support of Gender Justice and the National Women’s Law Center:
The district court erred in three respects in denying Plaintiff’s motion for judgment as a matter of law. First, the district court improperly concluded that policies permitting businesses to obstruct prescriptions for emergency contraception cause a disparate impact based on sex but are not per se discriminatory. (Order at 12.) Second, the district court erred as a matter of law in holding that a jury could absolve the pharmacy entirely if the pharmacist’s actions were “motivated by his personal beliefs and not unlawful discriminatory intent.” (Order at 13.) Finally, the district court erred in holding that a reasonable jury could conclude that Thrifty White’s policy did not deprive Ms. Anderson of “full and equal enjoyment” of the pharmacy’s services. (Order at 11.)
Badeaux’s ADF team disputes Anderson’s claim that he did not provide her with alternative options and argues that his religious beliefs have nothing to do with discrimination on the basis of sex:
Badeaux wanted Anderson to have all the relevant facts, so that she could make an informed decision and obtain her prescription from another pharmacist at Thrifty White or elsewhere. At the earliest opportunity, Badeaux gave Anderson three alternatives: keep her prescription at Thrifty White, transfer it to the nearby CVS in Aitkin, or transfer it to another pharmacy of her choice..Badeaux never acted to interfere with Anderson obtaining ella. He merely sought to refer prescriptions for “emergency contraception” to another pharmacist and be excused from dispensing those prescriptions himself. And this decision was based on Badeaux’s religious beliefs, not Anderson’s sex..
Badeaux is a Christian who believes that an embryo—with DNA from each parent—is a new human life. Preventing an embryo’s implantation in the uterus would end that human life. So Badeaux objects on conscience grounds to participating in any conduct that might take a human life. That includes— but is not limited to—dispensing “emergency contraception” like ella, which the FDA recognizes “may affect implementation” or “work by preventing attachment (implantation) to the uterus,” Def.’s Ex. 12 at 6, 11.
Crisis pregnancy centers
Earlier this year, Vermont Gov. Phil Scott (R) signed into law S. 37, which protects access to abortion and gender-affirming care in the state. ADF sued on behalf of two crisis pregnancy centers challenging a provision that prohibits misleading advertising by these anti-abortion organizations.
Crisis pregnancy centers (CPCs) are often set up to look like real medical clinics but are actually religious-affiliated organizations designed to persuade pregnant women to carry the baby to term, often using false information about supposed physical and mental risks of abortion. Nationwide, CPCs outnumber abortion clinics 3 to 1. In states that have banned abortion—like Texas—the ratio is even higher.
…when two NBC News producers visited state-funded CPCs in Texas to ask for counseling, counselors told them that abortions caused mental illness and implied abortions could also cause cancer and infertility…
At a CPC near the Mexican border visited by NBC News producers, a female staffer implied that abortions can cause cancer and infertility and played a video saying that abortions cause mental illness.
At another CPC in the Dallas area, a volunteer disclosed that the center does not offer abortions and then repeated the falsehood that abortions can cause infertility. Asked about the abortion pill, the volunteer told a producer, “My job is not to scare you … you never get over seeing that baby.” She then pointed to a plastic model of a fetus and said, “Can you imagine one of these in your panties?”
Due to CPCs standard practice of misleading patients and the public, the Vermont legislature wrote a bill placing CPCs under consumer protection laws.
It is an unfair and deceptive act and practice in commerce and a violation of section 2453 of this title for any limited-services pregnancy center to disseminate or cause to be disseminated to the public any advertising about the services or proposed services performed at that center that is untrue or clearly designed to mislead the public about the nature of services provided. Advertising includes representations made directly to consumers; marketing practices; communication in any print medium, such as newspapers, magazines, mailers, or handouts; and any broadcast medium, such as television or radio, telephone marketing, or advertising over the Internet such as through websites and web ads.
ADF lawyers filed suit on behalf of two Vermont CPCs and the National Institute of Family and Life Advocates (NIFLA), which “strongly believes that sharing the Gospel is an essential part of counseling women in pregnancy help medical clinics.” The coalition seeks an injunction to block enforcement of the law:
This case is a challenge by pro-life pregnancy services centers and their membership organization to a state law that unconstitutionally restricts the centers’ speech and provision of services. Pregnancy services centers in Vermont offer women both medical and non-medical information and services and do so free of charge. They empower women who are or may be pregnant to choose to give birth in circumstances where they wish to do so but feel they do not have the necessary resources or social support. They also provide support and resources for new mothers and families in need of assistance…
Plaintiffs request that this Court issue declaratory and injunctive relief against the enforcement of SB 37 because it violates the First and Fourteenth Amendments to the U.S. Constitution by imposing vague and viewpoint discriminatory laws that target speech and conduct and are not narrowly tailored to any asserted state interest.
In Colorado, Darren Patterson Christian Academy filed a lawsuit over the state’s universal preschool program, which provides state-funded preschool for up to 15 hours a week (or more for low-income families, homeless families, or families with special educational needs). However, in order to participate in the program, schools must agree not to “discriminate against any person on the basis of gender, […] sexual orientation, [or] gender identity.” The Academy acknowledges their religious-based hiring practices and ideologies regarding sexual orientation may violate this rule:
The school integrates and follows its Christian beliefs—including those about marriage, sexuality, and gender—throughout all its operations, including in its employment practices and how it operates its preschool facilities.
The school maintains sex-separated bathrooms and dress codes for boys and girls based on their biological differences and cannot agree to use pronouns that do not correspond to the person’s biological sex…
Together, the provisions prohibit Darren Patterson Christian Academy from requiring employees to share and live out its faith and from aligning its internal policies on restroom usage, dress codes, pronouns, and student housing during outdoor expeditions/field trips with its religious beliefs about sexuality and gender.
The Academy joined with ADF to sue the state, arguing that the rule violates its First and Fourth Amendment rights by requiring it to give up its religious beliefs in order to participate in a government program. During a hearing last week, state attorneys pointed out that the school is already receiving funding through the program without having to change its policies. District Judge Daniel Domenico (a Trump appointee) questioned why he should allow the case to continue when the non-discrimination clause isn’t being enforced:
At the outset of the hearing, Domenico noted each side had something to answer for. The academy needed to show the exercise of its religious beliefs was imperiled, which the judge questioned because of its unimpeded participation in the publicly-funded pre-K program… “That’s the quirk of this case,” he told the school’s lawyers. “Your client is part of the program. Your client is getting the money. It’s teaching these students and it’s still imposing those policies just as it was before.”
Despite the lack of injury, ADF is pushing forward with the case—similar to how the organization falsely claimed that a Colorado website developer was forced to make wedding websites for same-sex couples. That case, 303 Creative v. Elenis, ultimately reached the U.S. Supreme Court. The conservative majority ruled in favor of the website developer and ADF, entirely ignoring the false premise of the lawsuit.
Meanwhile, in Michigan, ADF is representing two religious organizations challenging Michigan’s civil rights law that prohibits discrimination on the basis of sexual orientation and gender identity. Christian Healthcare Centers, a faith-based medical nonprofit, and a Catholic school run by Sacred Heart of Jesus Parish claim that the Elliott-Larsen Civil Rights Act could be used to unconstitutionally restrict the practice of their faith. Like in the Colorado case, however, the law has not been enforced to limit the religious rights of either organization.
District Judge Jane Beckering, a Biden appointee, dismissed their lawsuits in August, finding that neither institution presented a credible imminent threat in their suits:
In summary, the ELCRA does not fail to recognize religious freedoms like those asserted by St. Joseph herein. Even assuming arguendo that either of these acts “might” be applied against St. Joseph’s intended conduct in the future, St. Joseph has not plausibly alleged a credible threat of enforcement against it, and mere allegations of a “subjective chill” are alone insufficient to establish an injury-in-fact for standing purposes.
ADF lawyers are appealing the case to the 6th Circuit Court of Appeals.