Amicus Briefs


EPPC scholars regularly file amicus briefs in key cases to promote a true and full account of human nature and human flourishing in American constitutional law. Compiled below are some of our amicus briefs in cases addressing the right to life, marriage, gender ideology, religious freedom, free speech, and the rule of law. 

EPPC brief efforts are led by EPPC scholars and attorneys Edward Whelan, Rachel N. Morrison, Eric Kniffin, Mary Hasson, Carter Snead, and Erica Bachiochi. Scholars coordinate with EPPC’s existing programs on The Constitution, the Courts, and the Culture, HHS Accountability Project, Person and Identity Project, Bioethics and American Democracy, and Life and Family Initiative

Abortion

Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration

This case involved a challenge by the Alliance for Hippocratic Medicine against the FDA’s approval of the abortion pill. At five different stages of the litigation, Ed Whelan filed amicus briefs on behalf of EPPC explaining that the so-called Comstock Act provisions, 18 U.S.C. §§ 1461 and 1462, prohibit sending abortion drugs by U.S. mail or by common carrier and that rebuts the contrived opinion by DOJ’s Office of Legal Counsel on which the FDA relies. At the Supreme Court merits stage, Rachel N. Morrison and Eric Kniffin filed a brief on behalf of Democrats for Life of America, arguing that the FDA’s actions on mifepristone are part of the Biden administration’s and HHS’s pattern and practice to protect and expand access to abortion drugs in violation of federal and state law.

Center for Medical Progress v. National Abortion Federation

This case challenges a lower-court injunction blocking the Center for Medical Progress from releasing video and audio recordings it made while investigating the sale of fetal tissue procured from abortions. The court found that CMP had waived its First Amendment rights when it signed standard forms to attend NAF conferences. EPPC’s brief shows that in non-abortion contexts the Ninth Circuit has said that courts must “indulge every reasonable presumption against waiver of fundamental constitutional rights” and that plaintiffs like the National Abortion Federation must prove that waiver was “freely given” “by clear and compelling evidence.” The brief argues that the Ninth Circuit’s failure to use the same high standard here is another example of post-Dobbs “abortion distortion” and calls on the Supreme Court to hear this case and uphold CMP’s First Amendment rights.

Center for Medical Progress v. Planned Parenthood Federation of America

This case challenges a district court judgment granting Planned Parenthood $2 million in damages and $14 million in attorney’s fees because the Center for Medical Progress (“CMP”) published evidence that Planned Parenthood was involved in illegal and unethical conduct. EPPC’s brief shows that in non-abortion context, the very same court—the Ninth Circuit—has held that the First Amendment protects undercover journalist’s speech unless the plaintiff could prove the speech was false. The brief argues that the Ninth Circuit’s double-standard is an example of an “abortion distortion”: as Justice Scalia noted, courts had given “abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents,” creating “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.” EPPC’s brief urges the Supreme Court to hear this case and uphold CMP’s First Amendment right to free speech.

Dobbs v. Jackson Women’s Health Organization

This case successfully overturned Roe v. Wade and clarified that there is no federal constitutional right to abortion. Three Supreme Court amicus briefs were filed by EPPC and its scholars. First, EPPC filed an amicus brief arguing that stare decisis considerations cut overwhelmingly in favor of overturning Roe v. Wade and Planned Parenthood v. Casey. Second, Carter Snead filed an amicus brief with his colleague Mary Ann Glendon arguing against the constitutionality of previability abortions by appealing to abortion jurisprudence’s alienation from the text, history, or tradition of the US Constitution, considers stare decisis principles in justifying the overturn of Roe v. Wade, and positively argues for the essential unconstitutionality of elective abortion because of its unwarranted effect on an indisputably human life. Third, Erika Bachiochi partnered with law professors Terra Collett and Helen Alvaré to lead a brief on behalf of 240 women scholars and professionals, including EPPC fellows Mary FioRito and Mary Rice Hasson, and prolife feminist organizations, rejecting the idea that women need access to abortion to participate equally in the economic or social life in the nation. 

Tennessee v. U.D. Department of Health and Human Services

This case involves a challenge by the state of Tennessee to HHS’s rescission of Tennessee’s Title X funding solely because the state will not counsel and refer for abortions that are illegal under state law. Rachel N. Morrison and Eric Kniffin filed an amicus brief on behalf of EPPC in support of Tennessee, arguing that HHS’s action is part of the Biden administration’s pattern and practice to unilaterally promote its abortion-at-all-costs agenda and preempt state abortion laws in violation of federal law and contrary to the Supreme Court’s direction in Dobbs to return the issue of abortion “to the people and their elected representatives.”

Vitagliano v. County of Westchester, New York

This case challenges a county ordinance that prohibits sidewalk counselors from within eight feet of anyone near an abortion clinic without express consent. The law was passed five days after the Supreme Court’s Dobbs decision and is materially identical to a state law the Supreme Court upheld in Hill v. Colorado (2000), a decision that liberal scholar Laurence Tribe called “slam-dunk wrong.” Eric Kniffin and EPPC filed an amicus brief highlighting the close cooperation between Planned Parenthood and Westchester County and urging the Court to overturn Hill as one of the most egregious examples of how abortion politics has distorted the Court’s free speech jurisprudence.

Animal Cruelty

National Pork Producers Council v. Ross

This case narrowly weighs the permissibility of constrictive “gestation crates” on industrial pig farms and more broadly considers whether the restriction of such practices through ballot measures like Proposition 12 in California imposes an undue burden on producers. Carter Snead, along with social commentator Mary Eberstadt and Matthew Scully of National Review, filed an amicus brief arguing that a basic respect and decency toward animals is consistent with the deep tradition of Western thought, and this legitimate moral interest can be articulated by legislation like Proposition 12, which thus does not unduly restrict industry practices and the market at large. 

Contraceptive Mandate

Zubik v. Burwell and Priests for Life v. HHS

This case involved a legal challenge by the Little Sisters of the Poor and the other religious nonprofits to the Obama administration’s so-called “accommodation” on its HHS contraceptive mandate. EPPC filed an amicus brief showing specifically that the Obama administration’s rules fail to satisfy the strict-scrutiny test imposed by the federal Religious Freedom Restoration Act. 

Sebelius v. Hobby Lobby

This case involved religious-liberty challenges to the Obama administration’s HHS mandate on contraceptives. EPPC filed a brief addressing, and thoroughly refuting, the Obama administration’s claim that for-profit corporations are inherently incapable of an “exercise of religion” for purposes of the protections afforded by the federal Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment. 

Free Speech

Masterpiece Cakeshop v. Scardina

This case began when an activist attorney tried to force Jack Phillips and Masterpiece Cakeshop to create a custom cake symbolizing a gender transition. After the Colorado Court of Appeals ruled that Phillips’ refusal to create the cake violated Colorado’s nondiscrimination law, he appealed to the Colorado Supreme Court. Eric Kniffin filed an amicus brief that surveys First Amendment precedent to explain why creating a custom cake of this nature constitutes speech and why the government therefore cannot punish Jack Phillips for refusing to use his talents to celebrate a gender transition.

Archdiocese of Washington v. Washington Metropolitan Area Transit Authority

The case involved a challenge to the Washington Metropolitan Area Transit Authority’s (WMATA) refusal to run the Archdiocese of Washington’s proposed Advent campaign advertisement. EPPC filed an amicus brief in support of the Archdiocese of Washington arguing that WMATA’s refusal violated the First Amendment. 

Center for Medical Progress v. National Abortion Federation

See the entry under Abortion.

Center for Medical Progress v. Planned Parenthood Federation of America

See the entry under Abortion.

Vitagliano v. County of Westchester, New York

See the entry under Abortion.

“Gender Transition” Interventions

Houston County, Georgia v. Lange

On May 13, 2024, the Eleventh Circuit held that Houston County, Georgia’s group health plan, which excludes coverage for “sex change” procedures, facially discriminates against transgender persons in violation of Title VII: “Because transgender persons are the only plan participants who qualify for gender-affirming surgery, the plan denies health care coverage based on transgender status.” EPPC filed an amicus brief in support of Houston County’s petition asking the entire Eleventh Circuit to rehear the case en banc. EPPC’s brief, filed by Eric Kniffin and Mary Hasson, asks the court to grant the County’s petition and issue a new decision that affirms that employers, courts, and other decisionmakers may take into account the best evidence about how to help people with gender dysphoria. As EPPC notes, the Cass Review recently concluded that “gender transition” medicine is supported by “remarkably weak evidence. . . . The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.”

C.P. ex rel. Pritchard v. Blue Cross Blue Shield of Illinois

This case asks a court to hold that the Affordable Care Act requires a Catholic hospital’s third-party administrator to provide “gender transition” coverage for minors in its health plan. The district court agreed with the plaintiffs, but EPPC’s amicus brief, filed by Eric Kniffin and Mary Hasson, argues that the court got it wrong. Drawing on the Person & Identity Project’s research, the brief argues that one of plaintiffs’ central claims—that “gender-affirming care” is “medically necessary” under well-established “standards of care”—is demonstrably false. The brief summarizes current research and documents the growing international consensus that these medical interventions cause more harm than good. The final section of the brief summarizes two recent developments, the WPATH Files and the Cass Review, that reflect the mounting evidence that “gender transitions” are not in children’s best interests.

State of Texas v. Loe

This case involves a challenge to a Texas law that prohibits physicians and other licensed medical professionals from performing gender transition procedures on minors and restricts the use of public money or public assistance to pay for such procedures. Mary Rice Hasson, Eric Kniffin, and Rachel N. Morrison filed an amicus brief in the Texas Supreme Court explaining that performing “gender transitions” on minors reflects “neither a medical consensus nor the standard of care.” The brief presents current research and surveys state, federal, and international actions to demonstrate that there “is not today, nor has there ever been, a national or international medical consensus in favor of permanent medical interventions on children experiencing gender dysphoria.”

Christian Healthcare Centers v. Nessel (Michigan Civil Rights Commission) 

This case involves a First Amendment challenge by Christian Healthcare Centers to prohibit Michigan from punishing the Centers for ensuring that its employees and its patient care reflect its religious anthropology, which prohibit it from cooperating with an employee’s or patient’s “gender transition.”  

The trial court found that the Center did not facing a credible threat of enforcement and therefore lacked standing. On appeal, Eric Kniffin and Mary Rice Hasson filed an amicus brief on behalf of EPPC arguing that the Center has standing.  Drawing on research by EPPC’s Person & Identity Project, the brief shows that is reasonable for a healthcare institution to decline to participate in social or medical “gender transitions.” The brief also shows that other courts in nearly identical circumstances have found that religious organizations have standing and argues that the lower court’s standing analysis would make it far too easy for government to violate people’s fundamental rights.  

Damiano v. Grants Pass School District No. 7

This case was brought by two Oregon educators who were suspended and then terminated by their school district after they started a grassroots movement, “I Resolve,” to speak out on the district’s policy of socially transitioning kids without parents’ notice or consent. Eric Kniffin and Mary Rice Hasson filed an amicus brief on behalf of EPPC urging the court to reverse the decision below, which granted summary judgment in the district’s favor. Drawing on the Person & Identity Project’s research, the brief argues that the plaintiffs’ advocacy reflects the best social science on how to care for youth identifying as transgender; it is not, as the lower court claimed, “anti-Trans.” The brief also argues that the district’s policy violates parents’ constitutional rights and offers testimony from parents whose public schools had clandestinely pushed their children to socially transition.

Mahmoud v. Montgomery County (MD) Board of Education [Mahmoud v. McKnight]

This case was brought by parents of children enrolled in Montgomery County Public Schools after the School Board denied parents’ request to opt their children out of the Board’s new sexuality and gender curriculum. Eric Kniffin and Mary Rice Hasson filed an amicus brief on behalf of EPPC urging the court to grant the parents’ motion for an injunction pending their appeal. They filed an expanded version of the same brief in support of the parents’ appeal on the merits. EPPC’s amicus brief argues that the district court improperly downplayed the conflict between the curriculum and their religious exercise. It shows that the curriculum does more than teach “diversity” and “inclusion”: it teaches elementary school kids that boys can become girls and to say otherwise is “hurtful,” and the Board likened objecting religious parents to white supremacists and xenophobes. The brief demonstrates that the curriculum is in light with the gender ideology movement and, drawing upon EPPC’s Person & Identity Project, shows that gender ideology is fundamentally incompatible with Christian anthropology and Catholic teaching. 

Littlejohn v. School Board of Leon County, Florida

This case was brought by Florida parents after school district officials secretly met with their middle school daughter to develop a “gender support plan” that let her choose what name, pronouns, and restrooms she would use, and with what sex she would be housed on overnight trips. Eric Kniffin filed an amicus brief arguing that the school’s actions violated the parents’ constitutional rights and telling the story of nine members of Our Duty, a nonprofit that helps parents protect their children from the dangers of gender ideology. The parents’ stories “show that school officials can get diagnoses terribly wrong, ignoring critical mental health issues in favor of a trendy diagnosis that . . . could permanently sterilize and disfigure minor children.”

Tingley v. Ferguson

This case involves a legal challenge to a Washington state law that effectively mandates that therapists serving minors use a “gender-affirmation-only” approach and that denies effective psychotherapy to minors seeking psychological help to explore alternative pathways, including the possibility of desisting from a transgender identity. Mary Rice Hasson and EPPC President Ryan T. Anderson filed an amicus brief urging the court to consider the serious ethical concerns surrounding the law, which effectively mandates a “gender-affirmation-only” approach and denies effective psychotherapy to minors seeking psychological help to explore alternative pathways, including the possibility of desisting from a transgender identity. 

Dekker v. Weida

This case involves a legal challenge to Florida’s rule prohibiting state Medicaid dollars from funding “gender transition interventions,” including harmful and irreversible cross-sex hormones and surgeries for children. Eric Kniffin and Mary Rice Hasson filed an amicus brief on behalf of EPPC that draws upon the work of the Person & Identity Project to explain that there is no medical consensus regarding an authoritative standard of care for gender dysphoria or transitioning treatments and that such treatments can lead to serious harms, especially for children. Eric Kniffin also submitted another amicus brief on behalf of three “detransitioners” Walt Heyer, Ted Halley, and Billy Burleigh—biological males who suffered deep confusion and distress regarding his gender identity from an early age—sharing how each went through the medical “gender transition” process but found that transitioning did not make them happy or solve their confusion and depression. A third amicus brief was filed on behalf of former civil rights officials, including Rachel N. Morrison, and drew heavily from EPPC’s public comment submitted in opposition to HHS’s proposed Section 1557 rule, explaining that Section 1557 does not require Medicaid funding for gender transition intervention and any holding to the contrary would radically remake American healthcare and harm children.  

American College of Pediatricians v. Becerra

This case involves a legal challenge to an HHS “gender identity mandate,” which under the guise of nondiscrimination, requires healthcare professionals’ performance, insurance coverage, and promotion of “gender-transition interventions” (puberty blockers, cross-sex hormones, and surgeries), including for children. Rachel N. Morrison, Mary Rice Hasson, and Eric Kniffin filed an amicus brief explaining that there is no medical consensus regarding an authoritative standard of care for the treatment of gender dysphoria or for the proper evaluation of the risks and benefits of medically assisted “gender transitions,” and that gender-transition interventions can lead to significant and irreversible harms, especially for minors. 

Eknes-Tucker v. Alabama

This case involves a legal challenge to an Alabama law that protects children from harmful and irreversible “gender transition” treatments (puberty blockers, cross-sex hormones, and surgeries). Rachel N. Morrison and Mary Rice Hasson filed an amicus brief explaining there is no medical consensus regarding an authoritative standard of care for gender dysphoria or transitioning treatments and that such treatments can lead to serious harms, especially for children. 

Franciscan Alliance v. Becerra

This case involves a legal challenge to HHS’s “transgender mandate,” which under the guise of nondiscrimination, requires healthcare professionals to perform and provide insurance coverage for “gender-transition interventions” (puberty blockers, cross-sex hormones, and surgeries), including for children. Rachel N. Morrison and Mary Rice Hasson filed an amicus brief explaining there is no medical consensus regarding an authoritative standard of care for gender dysphoria, gender transition interventions are harmful, especially for children, and no healthcare organization or professional should be forced to provide harmful gender transition interventions in violation of their medical judgments and religious beliefs. 

Doe v. Madison Metropolitan School District

This case involves a legal challenge to the Madison School District’s transgender policy of keeping secret from parents that their children are “transitioning” at school if parents might not provide a “safe” or “supportive” environment, as determined by school personnel and the child. EPPC joined the Ethics and Religious Liberty Commission of the Southern Baptist Convention, Concerned Women for America, the National Legal Foundation, the Pacific Justice Institute, and several state-level policy organizations, to file an amicus brief arguing that the policy violates the fundamental right so parents to care for and educate their children by depriving them of relevant information and also violates the procedural due process rights of parents by assuming that “unsupportive” parents are negligent or abusive. 

Marriage

Hollingsworth v. Perry and Perry v. Schwarzenegger

This case involved a legal challenge to California’s Proposition 8, which added a new section to the state constitution that stated, “Only marriage between a man and a woman is valid or recognized in California.” EPPC President Ed Whelan submitted two amicus briefs on behalf of EPPC. Both documented the egregious course of misconduct by the district judge below to inform the court to the fact that it should be especially wary of accepting at face value any assertion made by that judge, and the second explained that, if the court is not inclined to reverse the judgment below outright (the disposition we believe to be correct), it should exercise its supervisory power to vacate the judgments below in their entirety. 

Religious Freedom

Apache Stronghold v. United States

This case began after Congress gave a private corporation the right to mine the area under Oak Flat, a sacred site for the Western Apache. The parties agree that the mining operation will turn Oak Flat into a two-mile-wide, 1,100-foot-deep crater. Apache Stronghold brought suit claiming that the government’s actions violate its rights under the Religious Freedom Restoration Act (RFRA). But the court dismissed the lawsuit because it found that destroying Oak Flat, which Western Apache have used for religious ceremonies for over 2000 years, would not substantially burden the plaintiffs’ religious exercise. EPPC’s amicus brief urges the entire Ninth Circuit to rehear the case to right this wrong. Part one of the brief argues that the court should not have allowed its concerns about speculative harms to infect its substantial burden analysis under RFRA. Part two argues that the powerful facts of this case undermine any concern that finding for the Apache here would make it too hard for the government to manage federal land in the future.

Garrick v. Moody Bible Institute

This case involves whether religious organizations, such as Moody Bible Institute, can immediately appeal church autonomy determinations before a final decision on the merits. A Seventh Circuit panel held that they could not. An amicus brief was filed in support of rehearing en banc on behalf of Rachel N. Morrison as a former attorney at the Equal Employment Opportunity Commission (EEOC) and an expert in religious nondiscrimination and former EEOC General Counsel Sharon Fast Gustafson. The brief explained how the Seventh Circuit panel’s decision will encourage greater EEOC involvement in religious employment disputes at the expense of constitutional protections, which in turn will impose heavy burdens on religious organizations and inevitably lead to greater governmental entanglement with religion. 

Faith Bible Chapel International v. Tucker

This case involves procedural questions regarding protections for religious organizations under the First Amendment’s “ministerial exception.” Two Supreme Court amicus briefs were filed, one by EPPC and one on behalf of Rachel N. Morrison as a former attorney at the Equal Employment Opportunity Commission (EEOC) and an expert in religious nondiscrimination and former EEOC General Counsel Sharon Fast Gustafson. EPPC’s brief urged the court to clarify further the protections afforded by the ministerial exception and to give practical guidance on how those protections affect the procedure for applying the doctrine. Rachel Morrison’s brief explained how the Tenth Circuit’s holding invites EEOC intrusion into religious matters and threatens to erode the First Amendment protections of religious organizations. 

Groff v. DeJoy

This case involves the proper legal standard for when employees should receive religious accommodations in the workplace. Rachel N. Morrison filed two Supreme Court amicus briefs on behalf of herself as a former EEOC employee and an expert on religious accommodations and former General Counsel of the Equal Employment Opportunity Commission Sharon Fast Gustafson, arguing that Title VII provides vital religious accommodation protections and requires a higher standard than the more than a de minimis cost standard for denying religious accommodation requests.  

Dr. A. v. Hochul 

This case involves a legal challenge by medical professionals to the lack of religious exemptions in New York’s vaccine mandate for health care workers. Rachel N. Morrison filed three amicus briefs on behalf of herself as a former EEOC employee and an expert on religious accommodations and former General Counsel of the Equal Employment Opportunity Commission Sharon Fast Gustafson, explaining Title VII’s religious accommodation standard and why New York’s mandate conflicts with Title VII. 

Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel

This case involves whether teachers at two catholic schools qualify as “ministers” under the First Amendment’s “ministerial exception.” EPPC filed an amicus brief urging the Supreme Court to adopt procedural protections in support of the ministerial exception. 

Rule of Law

The School of the Ozarks, Inc. v. Biden

This case involved whether the College of the Ozarks can sue the U.S. Department of Housing and Urban Development (HUD) over a Directive ordering HUD to enforce sex discrimination in housing to include discrimination because of “sexual orientation” and “gender identity.” Rachel N. Morrison and Eric Kniffin partnered with the Cato Institute to lead a Supreme Court amicus brief, which was joined by the National Federation of Independent Business Small Business Legal Center, Inc., Reason Foundation, Taxpayers Protection Alliance, and Manhattan Institute. The brief explained the importance of the procedural requirements of notice-and-comment rulemaking and of protecting the public’s right to participate in the agency rulemaking process and preserving the opportunity to help shape public policy. 

Wisconsin v. Peterson 

This case involves a secretive investigation targeting Governor Scott Walker and his allies. EPPC filed a brief explaining how the reported basis of the secret motion by a special prosecutor to disqualify the state supreme court justices who might put an end to the witch hunt is thoroughly unsound. 

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