Face Off FACE Act (Happy Abortion Provider Day?)

IT WAS THE EMPHATIC DUTY AND PROVINCE OF THE COURT, AND YOU HAD THE RIGHT TO REMAIN SILENT

In the famous case of Marbury v. Madison, Chief Justice John Marshal, delivering the majority opinion, stated in an oft cited quotation, most famously in U.S. v. Nixon, "It is the emphatic duty and province of the Judiciary Department to say what the law is." And in the matter of Webb v. Fauci, Record No. 21-6868, bringing two issues on application for prejudgment decision, one directly concerned the issue of abortion and the free exercise of religion.

It received not the publicity of the Dobbs v. Jackson case, which progressives have maintained threatens the right to a woman to have an abortion, overturning the decision in Roe v. Wade--in fact, receiving not even a press note in any publication. Yet, arising under a little-known provision of the Freedom of Access to Clinic Entrances (FACE) Act, which provides to persons of faith, in the free exercise of religion, the very same protections that have been used to create buffer zones and punish with felony convictions those who block the access of a woman attempting to obtain an abortion, under strict liability, for which there is recognized no affirmative defense. Either you blocked the access, or you did not. End of case.

One central issue that arose during the public health crisis most notably during the push for vaccines mandates, was an issue about which I had warned the churches would arise when we brought the first and longest challenge against the lockdown orders in the Commonwealth, a matter only now, after two years, pending being docketed for certiorari, i.e., the issue of a sincerely held faith belief, a term of art that first arose during the Supreme Court decision in Cassius Clay v. U.S., a matter about the decision of a prize fighter to refuse to be drafted into military service during the conflict in Southeast Asia, which became the topic of an HBO movie.

Many churches, without expressing any objection, had not only voluntarily cancelled in person worship, during a year in which voters broke records casting votes, finding over 4.2 million in the Commonwealth of Virginia alone performing what they had described as their "duty", and less than a million choosing the "safe" option to cast a ballot by mail, but also, without objection, accepted the denomination from the government as "nonessential" during a public health crisis. Ignorance is not an excuse under the law, and, in a courtroom that is a legally significant "admission", like the "confession" that the police in Louisiana attempted to extract from a pastor who had refused to cancel his Palm Sunday worship in the first year of the public health crisis. Essentially demanding that the pastor engage in a little white lie, telling the police that he would not hold the service, but not really caring whether he did or not, so long as he was willing to deny his Savior, it was a significant showdown between the church and the state, and a clear violation of the Establishment Clause, but it, too, passed, without serious objection by those purporting to hold a sincerely held faith belief.

And, in this matter that went before the Supreme Court, without any voice from the faith community, essentially, on March 7, 2022, with Justice Alito abstaining from the argument that was presented to Chief Justice Roberts, who could have ruled alone, but rather decided to offer the issue to the full panel on the court--the same day that the Court had reportedly rebuffed the Republicans in an electoral map dispute--the issue of whether a person of faith having his or her access blocked from a place of worship, in their free exercise of religion, as guaranteed by the First Amendment, was equal to the right of a woman seeking to abort her child, and, as of March 7, 2022, without any objection, and Justice Alito abstaining, the highest court in the land decreed that a woman getting an abortion is a right superior to your right to participate in devotional worship in enjoyment of your free exercise right. So, on all evidence, if may be about their rights, while you voluntarily decided that it was not about yours.