See the Religion Clause blog post below; the court also applied
the post-Smith “individualized exemption exception” under the federal Free
Exercise Clause.
As best I can tell, this means the states now break down as
follows:
State decisions expressly holding that there’s no strict
scrutiny (5): MD, NE, NH, NJ, OR.
State decisions expressly holding in favor of weak intermediate
scrutiny (1): NY.
RFRA (16): AL (constitutional amendment), AZ, CT, FL, ID, IL,
LA, MO, NM, OK, PA, RI, SC, TN, TX, VA.
Strict scrutiny under general state free exercise clause (12):
AK, IN, KS, ME, MA, MI, MN, MT, NC, OH, WA, WI.
State decisions expressly noting uncertainty (4): CA, HI, UT, VT.
No RFRA and no state constitutional decisions (even noting
uncertainty) (12): AR, CO, DE, GA, IA, KY, MS, NV, ND, SD, WV, WY.
Please let me know if I’m miscategorizing any. Thanks,
Eugene
Feed: Religion Clause
Posted on: Thursday, May 05, 2011 4:00 AM
Author: Howard Friedman
Subject: Medicaid Denial of Bloodless Liver Transplant Violates Free Exercise
Rights of Jehovah's Witness
In Stinemetz v. Kansas Health Policy
Authority<http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2011/20110504/105366.pdf>,
(KS App., May 4, 2011), a Kansas state appellate court held that the Kansas
agency administering the state's Medicaid program violated the free exercise
rights of a Jehovah's Witness when it refused, for lack of medical necessity,
to authorize coverage of an out-of-state liver transplant using a method that
does not involve blood transfusions. Jehovah's Witnesses object on religious
grounds to transfusions. The bloodless technique, not available in Kansas, is
less expensive that an in-state procedure involving transfusions that KHPA was
willing to fund. The court held:
There is nothing in the language of K.A.R. 30-5-70(c)(2) or any of the Kansas
Medicaid regulations to indicate that the regulations either were enacted or
are enforced in such a way as to target Jehovah's Witnesses. The regulations
are neutral and of general applicability, but the regulations have the
incidental effect of burdening Stinemetz' particular religious beliefs. Under
the Employment v. Smith test, enforcement of the Kansas Medicaid regulations
need not be justified by a compelling governmental interest to avoid violating
Stinemetz' rights under the Free Exercise Clause of the First Amendment.
But even the Employment v. Smith test carves out an "individual exemption
exception." .... Because the Kansas Medicaid regulations allow for an
individual exemption on a case-by-case basis in defining medical necessity, the
KHPA cannot refuse to extend that exemption to cover Stinemetz' religious
hardship without providing a compelling reason. Here, the KHPA has failed to
suggest any state interest, much less a compelling interest....
Stinemetz has even greater protections ... under § 7 of the Kansas Constitution
Bill of Rights.... To determine whether government action violates an
individual's right to the free exercise of religious beliefs under the Kansas
Constitution, a court must determine: (1) whether the individual's religious
beliefs are sincerely held; (2) whether the state action burdens the
individual's free exercise of religious beliefs; (3) whether the state interest
is overriding or compelling; and (4) whether the State uses the least
restrictive means of achieving its interest.... [T]he KHPA's denial of
Stinemetz' request for prior authorization for the out-of-state liver
transplant violated her rights under § 7 of the Kansas Constitution Bill of
Rights.
Yesterday's Topeka (KA)
Capital-Journal<http://cjonline.com/news/2011-05-04/court-rules-khpa-violated-freedom-religion>
reported on the decision. (See prior related
posting<http://religionclause.blogspot.com/2011/04/free-exercise-challenge-to-kansas.html>).
View
article...<http://religionclause.blogspot.com/2011/05/medicaid-denial-of-bloodless-liver.html>
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