BLOG3 Times the Left Used Pre-Enforcement Challenges to Advance Their Agenda

By Sarah Kramer Posted on: | March 14, 2017

In December 1997, the state of New Jersey passed a law that banned partial-birth abortions. For the pro-life movement, this was a positive development, but it did not sit well with abortion advocates. On the day the law was set to take effect, Planned Parenthood of Central New Jersey filed suit in the case Planned Parenthood of Central New Jersey v. Farmer.

Let me repeat that: Planned Parenthood filed suit before anyone was prosecuted under the new law.

And when this pre-enforcement challenge was filed against a law that threatens liberal objectives, the Left didn’t bat an eye.

Yet when Alliance Defending Freedom files a pre-enforcement case to challenge unconstitutional laws that threaten freedom of speech and conscience, our opponents cry, “What are you doing? Nothing bad has even happened to your clients!”

Here’s the reality. Our clients are facing steep fines or even jail time if they operate their businesses consistently with their religious beliefs. And that means one thing: we must take a stand. Look at Carl and Angel Larsen from Telescope Media Group in Minnesota or Joanna Duka and Breanna Koski from Brush & Nib in Phoenix. Thankfully, we don’t have to wait until the government fines or jails our clients in order to challenge these laws.

More importantly, the naysayers are wrong when they claim that our clients haven’t been bothered or harmed in any way. Many of our clients, like Joanna and Breanna, have been silenced from publically stating their beliefs about marriage. Whenever the government takes away your freedom to say what you believe, it’s violating your First Amendment rights.

Pre-enforcement challenges are a common tactic. These types of lawsuits have been used since the 1920s, but they became more common after 1970, when the Supreme Court allowed pre-enforcement challenges to laws restricting abortion.

Pre-enforcement challenges advancing left-leaning interests are especially frequent. Here are just a few examples:


1. Doe v. Bolton

This was the companion case to Roe v. Wade and involved doctors who filed a pre-enforcement challenge to a law outlawing abortion. Even though the doctors had not violated the law, they challenged it in court and, unfortunately, eventually won.


2. Planned Parenthood of Wisconsin, Inc. v. Van Hollen

The governor of Wisconsin signed a law in 2013 that required abortionists to obtain admitting privileges at a nearby hospital. On the day the governor signed the law, three days before the law went into effect, Planned Parenthood of Wisconsin filed a pre-enforcement challenge against it.


3. ACLU v. Johnson

The American Civil Liberties Union filed a pre-enforcement challenge to a New Mexico law that banned transmitting material harmful to minors, such as pornography, via computer. The law had not even taken effect yet when the lawsuit was filed.  


We’ve seen these challenges used time and time again to advance objectives on the opposing side.

And now it’s our turn.

We need to be bold in our stand for constitutional freedoms. We cannot sit back and watch our clients lose their freedoms. We must be proactive in our efforts to defend the right of every American to live, work, and create consistently with their faith.

And we won’t rest until that happens.


Learn More about Pre-Enforcement Challenges

This is the second post in an ongoing blog series about pre-enforcement challenges. To view the first post in the series, visit the link below.

You Asked, We Answer: What Is a Pre-Enforcement Challenge?

Sarah Kramer

Digital Content Specialist

Sarah worked as an investigative reporter before joining the Alliance Defending Freedom team.

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