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As if the Fourth U.S. Circuit Court of Appeals isn’t busy enough this week. Not only will it decide on ObamaCare, it got the above question, too, in a case in which The Family Foundation filed an amicus brief last year. Now asked, another three judge panel will decide the constitutionality of the prayer policy of the Forsyth County, N.C. — but with national implications.

The policy, drafted by the Alliance Defense Fund, allows for anyone of any faith to pray before county government meetings on a first come, first serve basis. The content of the prayers are not reviewed by government officials. Plaintiffs represented by the ACLU contend that, because most of the “prayers” at the meetings over an eighteen month period were “sectarian,” the policy is unconstitutional. According to ADF attorneys, plaintiffs have argued in briefs that any prayer before public meetings is unconstitutional.

Judges Harvie Wilkinson, Paul Niemeyer and Barbara Keenan comprise the panel. If their questioning of attorneys arguing the case is any indication of where they stand on the issue, Judge Keenan is clearly in the ACLU camp. Appointed to the court by President Obama, she was particularly hostile toward ADF’s arguments and clearly favored the idea of “inclusive” prayers if there were going to be any prayers at all. Judge Niemeyer appeared much more favorable toward public prayer, stating that prayers without mentioning a specific deity are “just words.” Judge Wilkinson seemed like the swing vote, questioning both sides on multiple issues throughout the hour and ten minute hearing.

The details of this case date back to March 2007 when the ACLU and Americans United for Separation of Church and State filed suit against North Carolina’s Forsyth County Board of Supervisors, stating:

[the Board] does not have a policy which discourages or prohibits those whom [the Board] has invited to deliver prayers from including references to Jesus Christ, or any other sectarian deity, as part of their prayers.

As ADF Senior Legal Counsel Mike Johnson, who argued in favor of the policy, aptly pointed out, “An invocation according to the dictates of the giver’s conscience is not an establishment of religion. If it was, you’d have to argue that the drafters of the U.S. Constitution were violating the Constitution in the prayers and invocations that they themselves offered.” (Mike Johnson testified, at Family Foundation request during the 2009 General Assembly, on behalf of the rights of state police chaplains to pray in Jesus’ name. See video.)

A primary issue in the case is whether or not a voluntary prayer before a government meeting is “government” or private speech. If private, it is clearly protected by the First Amendment. But by the ACLU’s logic, anything said at a government meeting by a private individual is government speech just by virtue of saying at that meeting.

Several Virginia legislators also signed on to an amicus brief in support of religious liberty in Joyner v. Forsyth County. They include Delegates Kathy Byron (R-22, Lynchburg), Bill Carrico (R-5, Galax), Bob Marshall (R-13, Manassas), and Brenda Pogge (R-96, Yorktown); and Senators Mark Obenshain (R-26, Harrisonburg) and Jill Holtzman Vogel (R-27, Winchester).

Governor Bob McDonnell, no stranger to the television political talk shows since his 2009 landslide election, will appear on the granddaddy of them all Sunday with an appearance on NBC’s Meet the Press. He’ll have some atypical company in fellow guests left-winger David Axelrod, one of President Barack Obama’s closest and most trusted confidants, and Democrat-Turned-RINO-turned-independent left wing New York Mayor Michael Bloomberg. Topics include the 2012 presidential race and the economy. Expect host David Gregory to ask Governor McDonnell, the vice chairman of the Republican Governors Association, about his interest in the 2012 GOP vice presidential nomination. The governor also has been vocal about the U.S. Supreme Court’s consideration and eventual refusal to expedite the hearing of Virginia’s legal challenge to the federal health care takeover (see statement). Late last year, Federal Judge Henry Hudson ruled the law unconstitutional (as has a federal judge in Florida). The Fourth U.S. Circuit Court of Appeals is scheduled to hear the federal government’s appeal in Richmond next week. Check your local listings for the Meet the Press broadcast. Check back here for ObamaCare coverage next week.

In a bit of breaking news, the Fourth U.S. Circuit Court of Appeals agreed to an expedited hearing of the federal government’s appeal of Virginia’s legal challenge to the federal health care law. Here’s Attorney General Ken Cuccinelli’s news release:

RICHMOND (January 26, 2011) — The U.S. Court of Appeals for the Fourth Circuit today granted a joint motion from Attorney General Ken Cuccinelli and the federal government to expedite the hearing of Virginia’s suit against the federal health care law. The case is tentatively scheduled for hearing sometime between May 10 and 13. This replaces a briefing order previously issued by the court.

“Right now, there is a great deal of uncertainty for states, individuals, and businesses. Major decisions are already being made and money is already being spent to comply with a law that may not be around two years from now. We need this suit resolved as quickly as possible, for the good of our citizens and our economy,” said Cuccinelli.

Cuccinelli is still weighing whether or not to request that the U.S. Supreme Court take the case directly and skip the Fourth Circuit altogether.

The court ordered the following briefing schedule:

Opening briefs due February 28

Response briefs due March 28

Reply briefs due April 11

More information on the health care lawsuit can be found at the attorney general’s health care archive, here. Virginia won round one late last year when Federal Judge Henry Hudson of the Eastern District of Virginia declared the statute unconstitutional. The Obama administration’s appeal is of that decision.

Attorney General Ken Cuccinelli issued an official advisory opinion Friday that states the Commonwealth of Virginia has the legal authority to regulate abortion centers. The opinion was in response to a formal inquiries by Senator Ralph Smith (R-22, Botetourt) and Delegate Bob Marshall (R-13, Manassas) asking the attorney general for a legal opinion as to whether Virginia has the administrative authority to regulate facilities and providers in which and who perform first trimester abortions.

The answer from the attorney general is yes, provided they meet the criteria set forth in U.S. Supreme Court precedent. He cited previous Virginia regulations and the Fourth U.S. Circuit Court of Appeals’ upholding of abortion center regulations in other states.

For years, the Senate Education and Health Committee has killed common sense legislation, passed by large bipatisan House majorities, regulating abortion centers in a manner consistent with other medical facilities. The “Committee of Death” accepts pro-abortion claims that such regulations are “unconstitutional.” But in his statement accompanying the release of the opinion, Senator Smith said, ”This opinion clarifies any legal questions on the issue and sets the stage for regulating abortion clinics like other medical facilities.”

In other words, even if the General Assembly does not act the executive branch may, on its own initiative, regulate abortion centers just as it does other medical facilities (of course, regulations may be changed by each administration, whereas laws are more lasting). Here are some of the more salient points from the opinion (click here for entire opinion, including footnotes): 

Medical facilities that provide abortion services in addition to many other services across a variety of disciplines clearly are subject to regulation by the Board. I note, however, that although the Board classifies “abortion clinics” as outpatient hospitals, neither the Regulations nor the Code define the term. Moreover, unlike later abortions, first-trimester abortions are not required to be performed in licensed hospitals. Health centers limiting their practice to specializing in reproductive services therefore often characterize themselves as “physicians’ offices,” whereby they are exempted from the Board’s licensure requirements. Nonetheless, the Board has broad authority to adopt regulations as may be necessary to carry out the provisions of Title 32.1, and this regulatory authority includes defining an “abortion clinic,” investigating the assertion by a facility that it constitutes physician’s office, and regulating facilities beyond licensure.

Irrespective of the Board of Health’s ability to regulate facilities, the Board of Medicine is vested with authority to regulate the practice of medicine, which includes providing guidelines for certain procedures and the ability to license, investigate, and discipline physicians, including those who perform abortions. The BOM’s Regulations Governing the Practice of Medicine, Osteopathic Medicine, Podiatry and Chiropractic sets forth, for example, requirements for the proper administration of general anesthesia in non-hospital settings, a procedure that may be necessary depending on the abortion method employed. …

In addition to applying regulations governing medical facilities and health care providers in general, the relevant agencies are authorized to impose regulations particular to abortion services. The General Assembly has afforded certain agencies broad authority to regulate in the area of health and has permitted them to classify facilities, procedures and personnel as they deem necessary and to promulgate regulations accordingly. … The potential complications of abortion procedures include hemorrhage, cervical laceration, uterine perforation, injury to the bowels or bladder and pulmonary complications. Furthermore, these complications “must be immediately and adequately treated.” Regulatory boards may distinguish between abortion and other procedures because, “‘abortion is inherently different from other medical procedures,” and “for the purpose of regulation, abortion services are rationally distinct from other routine medical services if for no other reason than the particular gravitas of the moral, psychological, and familial aspects of the abortion decision.”

Based on Virginia’s police power to protect its citizen’s health and welfare, the broad authority granted to the regulatory boards, and the extensive statutory and regulatory scheme currently applicable to physicians performing abortions and the facilities in which such services are available, I conclude that the Commonwealth, by the Virginia Board of Health, the Virginia Board of Medicine, or any other proper agency, has the authority to continue to promulgate regulations affecting the performance of first trimester abortions. … 

Virginia previously exercised this authority, when on November 12, 1981, the Virginia Board of Health adopted “Rules and Regulations for . . . Licensure of Outpatient Hospitals, Performing Abortions Only” . … the United States Court of Appeals for the Fourth Circuit provides clear guidance with respect to what constitutes permissible regulation and what does not.

Below is the news release issued earlier this morning by Virginia Attorney General Bob McDonnell concerning his decision to appeal the 2-1 ruling earlier this month by a three-judge panel of the U.S. Fourth Circuit Court of Appeals to strike down Virginia’s partial birth abortion ban. 

McDonnell Announces Virginia to Petition for Rehearing of Partial-Birth Abortion Case by Full Fourth U.S. Circuit Court of Appeals

-Move Follows Divided Panel Decision by Same Court Striking down Virginia’s Partial-Birth Abortion Ban-

Richmond - Attorney General Bob McDonnell announced today that the Commonwealth of Virginia will ask the full Fourth U.S. Circuit Court of Appeals to review the decision of a divided panel of the court that struck down Virginia’s ban on partial-birth abortion.

Speaking about the decision, Attorney General McDonnell noted, “It is my belief that Virginia’s partial-birth abortion ban, passed overwhelmingly by the people’s elected representatives in the General Assembly, is constitutional. Given the significance of the issues at stake, and the fact that the United States Supreme Court recently upheld a very similar federal ban on the procedure, the full court should review the ruling by the divided three-judge panel.”

On May 20th a three-judge panel of the Court ruled 2-1 against the Commonwealth’s partial-birth abortion ban, passed by the General Assembly in 2003. Following this decision the Commonwealth had two options in proceeding: petition for a rehearing by the full Fourth U.S. Circuit Court of Appeals, or appeal the decision to the Supreme Court of the United States.

The petition for rehearing by the full Fourth Circuit will be filed on Monday, June 2, 2008. The Court is expected to rule in approximately a month or two on whether the full court will review the case on the merits. If it does, it will schedule oral argument, most likely in the fall. The case is titled Richmond Medical Center v. Herring.

We applaud this very appropriate and reasoned appeal to this horrendous decision by the U.S. Fourth Circuit panel which trashes the rights of the most vulnerable and innocent among us; and which lacks deference to the overwhelming will of Virginians through its elected legislature (more than two-thirds of each General Assembly chamber), as well as to the Constitution of the United States as interpreted by the Supreme Court of the United States, which upheld a similar law.