The State of Olympus, Petitioner v. Mindy Vo, Respondent

Notable Items:

Issue(s) Before the Court:

1. Whether the United States Constitution guarantees a right of privacy that includes a right to use contraception, including whether Griswold v. Connecticut and Eisenstadt v. Baird should be revisited?
2. Whether Olympus’s “REAP WHAT YOU SOW Act” (RWYSA) as applied to Respondent violates the Free Exercise Clause of the First Amendment to the United States Constitution, including whether Employment Division, Department of Human Resources of Oregon v. Smith should be revisited?

Appellant / Petitioner's Claim(s):

Appellee / Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• A full recounting of the facts is available below

Procedural History:

• Ms. Vo was charged with use of prohibited birth control and with distribution of prohibited birth control, both in violation of the RWYSA.
• At trial, Ms. Vo moved to dismiss the charges, arguing the RWYSA was unconstitutional.
• Ms. Vo pleaded not guilty but was convicted of both charges.
• Ms. Mindy Vo, Appellee, was convicted of two charges of violating Olympus’s newly enacted “Reducing Endemic Afflictions & Poverty While Halting Adultery To Yield Olympus’s Unparalleled State Of Wholesomeness Act” (The REAP WHAT YOU SOW Act or RWYSA), §1984(a), Olympus Statutes (2022).
• The Olympus 13th Circuit Court of Appeals overturned Appellee’s convictions on the grounds that The REAP WHAT YOU SOW ACT violated Ms. Vo’s right to privacy and right to free exercise of religion under the United States Constitution.
• The State of Olympus appeals that decision.
• We review all questions of law de novo.
• For the reasons below, we affirm the judgment of the Olympus Court of Appeals.

Rationale for RWYSA

• Promoting morality, including, but not limited to, reducing adultery and sexual intercourse between partners who are not married.
• Promoting the health of women and men alike.
• Encouraging people to take responsibility for their actions.
• Promoting a “culture of life.”
• Saving public money otherwise spent on health care costs associated with treating sexually transmitted infections (STIs).

Full Recounting of Facts

• On June 29, 2022, the State of Olympus enacted the “Reducing Endemic Afflictions & Poverty While Halting Adultery To Yield Olympus’s Unparalleled State Of Wholesomeness Act” (The REAP WHAT YOU SOW Act or RWYSA), §1984(a), Olympus Statutes (2022).
  1. Criminalizes the use, sale, prescription, distribution, and/or possession with the intent to distribute of all methods of temporary birth control except for male and female condoms, classifying any violation as a Class A misdemeanor.
  2. Private pharmacies and hospitals are specifically forbidden to provide birth control other than condoms.
  3. Only physicians can provide instructions on how to use non-condom birth control.
  4. Bans new implantation of birth control devices as of the effective date of the statute but allows the use and possession of existing implanted devices only as long as they remain medically effective.
  5. Establishes criminal penalties for each violation of the law, including a mandatory fine of not less than $500 and not more than $10,000, possible loss of professional licenses associated with the criminal violation, and/or up to one year in prison.
  6. The RWYSA included exceptions for persons who cannot use condoms for medical reasons or other physical reasons. ... prescription from a specially state-licensed physician and from a public, state-run hospital.
• Mindy Vo, a resident of Olympus, owns and operates a pharmacy. In this capacity, she distributes birth control and advises customers about how to use birth control.
• The first two pregnancies ended in miscarriages. During the third, Ms. Vo developed preeclampsia and underwent an emergency cesarian. Ms. Vo does not qualify for any exceptions under the RWYSA.
• Ms. Vo is a practicing member of the Church of Balance (COB). ... the COB instructs its members ... to have no more than two children per family. ... have a responsibility to use birth control to ensure that they do not contribute to overpopulation. ... encouraged to help others protect the natural balance, including helping others to procure and use birth control.
• Abstinence and use of birth control are the only methods of preventing overpopulation acceptable to COB members.
• Ms. Vo’s doctor, Coby Menard, has warned her that if she becomes pregnant again, her life could be at risk. He also advised her that sterilization would not be appropriate for medical reasons.
• On July 7, 2022, Ms. Vo traveled to Dr. Zatarain’s [out of state] office and obtained birth control pills for her personal use. The birth control she obtained is forbidden by the RWYSA.
• ... Ms. Vo visited an out of state pharmacy wholesaler and purchased a substantial quantity of birth control pills to be distributed at her pharmacy in Olympus City.
• On July 13, 2022, back in Olympus City, Ms. Vo live streamed herself ingesting one birth control pill and then selling birth control pills to several customers in her pharmacy. The customers did not qualify for any exceptions under the RWYSA.
• She was arrested the same day by Olympus State Police officers. Ms. Vo was charged with use of prohibited birth control and with distribution of prohibited birth control, both in violation of the RWYSA.
• Ms. Mindy Vo, Appellee, was convicted of two charges of violating Olympus’s newly enacted “Reducing Endemic Afflictions & Poverty While Halting Adultery To Yield Olympus’s Unparalleled State Of Wholesomeness Act” (The REAP WHAT YOU SOW Act or RWYSA), §1984(a), Olympus Statutes (2022).
• There are no questions of material fact and no procedural questions at issue in this case.
• Further, all parties have stipulated that Ms. Vo’s religious beliefs are sincerely held.
• ... there is no viable claim under state law that the RWYSA violates the Olympus Constitution or any Olympus state law.
• ... neither the federal Religious Freedom Restoration Act (RFRA), Title X of the Public Health Service Act, nor any other federal statute apply to the facts of this case.
• A list of the material facts is available above

Appellant Argument

• Glucksberg
• The Court has prescribed how to determine if a liberty or right is implied by the Constitution’s text: Glucksberg at 720-21
  • First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation's history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”
  • Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest.
• It is helpful to begin this consideration with the second element mentioned in Glucksberg ....
• Glucksberg instructs courts to adopt a narrow articulation of the interest at stake. Id. at 722 [does not say narrow...careful != narrow]
• Here, Ms. Vo asserts that she has a fundamental right ... to make decisions about her own reproductive life without interference from the state.
• In light of Dobbs, discussed below, this assertion is simply untrue.
• ... regardless of what Ms. Vo claims and the majority holds, the law before us today allows such choices [regarding reproduction and her own body].
• Stated simply, a careful review of our nation’s history and tradition demonstrates that there is not a right to use whatever method of birth control one may choose.
• The majority mistakenly reads Obergefell v. Hodges, 576 U.S. 644 (2015) to fundamentally alter substantive due process analysis.
• But Obergefell essentially applied a previously identified and uncontroversial fundamental right--the right to be treated equally--to a new context.
• In Dobbs the Supreme Court effectively limited Obergefell to its facts and clearly demonstrated that Glucksberg remains the proper approach (if deeply rooted and implicit in ordered liberty, then careful description) for determining the existence of fundamental rights not explicitly enumerated in the Constitution.
• Under Glucksberg, Ms. Vo has failed to establish a fundamental right ....
• Due Process
• The government’s interests here in promoting morality, promoting public health, encouraging men to take responsibility for their actions, promoting a culture of life, and saving public money, are all legitimate.
• And the means ... are rationally related to furthering the State’s legitimate objectives. Rational basis requires no more.
• Precedent
• Dobbs holds that when evaluating Supreme Court precedent, courts are to examine five factors: (1) the nature of the Court’s error; (2) the quality of the Court’s reasoning; (3) the “workability” of the rules the Court imposed on the country; (4) the disruptive effect of a ruling on other areas of the law; and (5) the absence of concrete reliance that may exist in certain areas of the law such as property or contract law which rest on specific principles.
• Applying these factors, I find that the same points that supported overturning the abortion precedent before the Court in Dobbs support overturning cases such as Griswold and Eisenstadt v. Baird.
• Free Exercise
• Turning to the Free Exercise challenge, it is important to remember that the original Constitution of the United States did not mention religion. [False "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" Art VI]
• The people of the State of Olympus have chosen to prohibit conduct that is not mentioned in the United States Constitution. That is their prerogative.
• To accept Ms. Vo’s claim, is to allow her religious beliefs to override the laws of the state and the will of the people.
• The rule of law upon which society is based need not--indeed it cannot--bow to the Free Exercise Clause. [ Masterpeice Cakeshop, Bremerton, 303 Creative]
• The standard announced in Smith allowed the government to limit religiously motivated conduct so long as the law was generally applicable and neutral (not motivated by animus toward religion).
• The REAP WHAT YOU SOW Act is a generally applicable law that is neutral in its application. Its limits apply to all citizens in all circumstances and provide for limited exceptions related only to health.
• Moreover, they [the exceptions] do not favor any one religion over another. They are neutral and generally applicable.
• And, any impact on religiously motivated conduct is merely incidental.
• Because I am alone in that view, I respectfully dissent.

Appellee Argument

• Glucksberg
• In 1902, the New York Court of Appeals declined to find that the laws of New York guaranteed a right to privacy. Roberson vs. Rochester Folding Box Co., 171 N.Y. 538, 556 (N.Y. 1902)
• In 1903, New York amended the state’s code to provide the exact privacy right that Roberson had sought.
• [In 1936] ... the Court of Appeals for the Second Circuit invalidated restrictions under federal law (the Comstock Act) requiring that doctors justify prescriptions for birth control as medically necessary. United States v. One Package, 86 F.2d 737 (2d Cir. 1936).
• [In 1965, 1972] Turning to the precedent of the Supreme Court, one finds clear support for the concept of reproductive privacy as a fundamental right. See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972)
• [In 2022] In Dobbs v Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228 (2022), the Supreme Court explicitly let this precedent stand ....
• The same is true for privacy of an intimate nature that does not necessarily raise issues of reproductive freedom per se. (Lawrence v. Texas, 539 U.S. 558 (2003), and Obergefell v. Hodges, 576 U.S. 644 (2015))
• In [1997] Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court held that strict scrutiny is to be used when a law denies a person a fundamental right or liberty. To determine if such a right or liberty is implicated, a court is to “objectively” determine whether the claimed right or liberty is “‘deeply rooted in this Nation's history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’”
• Having determined that reproductive privacy is a fundamental right, we must apply strict scrutiny ....
• It falls to the government “to establish that the challenged law satisfies strict scrutiny.” Tandon v Newsom, 593 U.S. ____, 141 S. Ct. 1294, 1296 (2021). (see article)
• Obergefell
• In Obergefell [2015], the Court employed a far broader method of determining whether government action infringed on a fundamental right than the approach employed in Glucksberg [1997].
• ... the Court returned to a prior conception of courts exercising “reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”
• ... the Obergefell Court’s analysis unlocked both prongs of the Glucksberg test. (deeply rooted and implicit in ordered liberty)
• Obergefell recognized a broader understanding of how to determine whether an asserted right is fundamental. “rights come not from ancient sources alone,” “from a better-informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” “[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress."
• The right to shield one’s body from state interference and control has arrived from just such a better-informed understanding of liberty, as the Court recognized in Griswold v. Connecticut, 381 U.S. 479 (1965) and in Lawrence.
• Griswold
• Several of the amendments found in the Bill of Rights created what he termed “zones of privacy.” These included the First, Third, Fourth, Fifth, and Ninth Amendments.
• ... nothing has risen in the past fifty plus years to suggest either that Justice Douglas was wrong in his conclusions or that this precedent is in some way unworkable or harmful, let alone wrong. Thus, it survives the most recent approach to evaluating precedent promulgated by the Court in Dobbs. (See stare decisis)
• Due Process Clause
• [Due Process] has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. Glucksberg, 521 at 765-766 (Souter, J., Concurring in the Judgment)
• The balance we must strike places reproductive freedom squarely in the camp of what is fair and what is thus protected by the liberties protected under the Due Process Clause.
• Balancing
• The state simply lacks an interest that is legitimate let alone compelling or important. (See list above)
• Free Exercise
• Sherbert v. Verner (1963) forcing citizens to choose between Sherbert’s ability to practice her faith and forfeiting [unemployment] benefits
• Wisconsin v. Yoder (1972) increased protection for religious exercise by holding that the Free Exercise Clause entitled religious believers to an exemption from generally applicable laws that burden religious exercise unless enforcement was compelling.
• Employment Division v. Smith (1990) allowed the government to limit religiously motivated individual conduct [vian generally applicable laws] so long as the law was generally applicable and not motivated by religious animus.
• ... if a law is not neutral or generally applicable, strict scrutiny is the correct test and, as is typically the case, the law fails strict scrutiny.
• The REAP WHAT YOU SOW Act was explicitly designed to declare contraception immoral, a view diametrically opposed to COB and similar religious groups’ conception of conception.
• By allowing some exceptions, the state has lost its claim to general applicability. Supra, at 3. Thus, the state must satisfy strict scrutiny
• We find that the RWYSA does not advance a compelling interest in a manner that is narrowly tailored.
• Moreover, even if rational basis review applies, the RWYSA fails as it is an irrational attempt to further an illegitimate state interest [to declare contraception immoral].
• Recent Supreme Court decisions have called Smith into question.
• Kennedy v. Bremerton School District (2022) : Free Exercise Clause ... protects ... the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through “the performance of (or abstention from) physical acts.”
• Carson v. Makin (2022) : ... a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits ...
• Fulton v. City of Philadelphia (2021) : Alito, Gorsuch, Thomas concurrance “Smith failed to respect this Court’s precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice.”
• We believe that the RWYSA fails to meet the standard formulated in Smith. That said, just as Dobbs reconsidered prior erroneous decisions, the Court should overrule Smith and restore religious practice to the preferred position it has always rightfully deserved.