Will the State of Missouri trample on the rights of its citizens to perpetuate an unconstitutional indoctrination program — or will the courts correct this injustice?
Originally published September 8, 2017 on Medium
For over two years, The Satanic Temple (TST) has pursued a lawsuit against the Governor and Attorney General of Missouri, alleging that the State’s mandated “informed consent” materials, ultrasound, and 72-hour waiting period violated a member of The Satanic Temple’s First Amendment rights. This September, TST’s abortion lawsuits in the State of Missouri will reach a turning point when the Missouri State Court of Appeals and the United States Court of Appeals for the Eighth Circuit will hear oral arguments in a case that could change state regulations for religiously motivated abortions.
On May 8, 2015 TST filed both state and federal lawsuits against the State of Missouri on behalf of Mary Doe, a pregnant woman seeking an abortion. Missouri law requires that all women seeking to lawfully terminate their pregnancy must be given reading materials claiming that life begins at conception. They must also endure a 72-hour waiting period between their initial appointment and actual abortion procedure. TST objects to these restrictions on religious grounds because they violate the organization’s belief in the inviolability of one’s body.
Missouri’s Religious Freedom Restoration Act
TST’s case in state court leverages the Religious Freedom Restoration Act (RFRA), which was used by Hobby Lobby when they argued that having to provide their employees with health insurance that covered birth control offended their religious beliefs. The Missouri requirements similarly impose practices that violate the religious beliefs of Mary Doe.
RFRA prohibits the government from substantially burdening the free exercise of religion of a person or organization unless the government 1) has a compelling interest to do so, and 2) is using the least restrictive means possible to further that compelling interest.
The State of Missouri has claimed that TST cannot use RFRA in support of their case because Mary merely disagreed with the mandated informed consent materials and was not motivated by her religious beliefs as a Satanist to seek an abortion. However, this is untrue. Mary decided to get an abortion in accordance with her religious beliefs and proceeded to do so on May 8, 2015. She went to Planned Parenthood, asked them to immediately provide her an abortion during the visit and delivered a letter of religious exemption absolving the clinic of any responsibility for doing so. Instead, she was forced to receive reproductive propaganda that contained information regarding the State’s beliefs on the beginning of life and to wait 72 hours before her procedure. Thus, the law interfered for at least three days with Mary obtaining an abortion motivated by her religious beliefs.
Mary believes in the following two Satanic Temple tenets:
One’s body is inviolable, subject to one’s own will alone.
Beliefs should conform to our best scientific understanding of the world. We should take care never to distort scientific facts to fit our beliefs.
As such, Mary should be able to go into a medical clinic, ask for an abortion without an ultrasound, without receiving a reproductive propaganda booklet and without enduring an arbitrary waiting period. The informed consent laws prohibit her from doing so. Not only do the informed consent laws prohibit her from obtaining an abortion in accordance with her religious beliefs, they have also placed a substantial burden upon her. Mary was forced to choose between acting in a matter motivated by her religious beliefs or forego an abortion. Additionally, she had to pay for the ultrasound and waiting period, suffering from state-imposed guilt, doubt, and shame.
The U.S. Supreme Court has ruled that a substantial burden exists where the State “puts substantial pressure on an adherent to modify his behavior and to violate his beliefs.” This is a clear example of the imposition of a substantial burden under RFRA.
However, the State is permitted to burden Mary’s free exercise of religion if it has a compelling interest to do so and is using the least restrictive means possible. Even if the State claims they have a compelling interest in preserving “unborn life,” the burdens are certainly not the least restrictive means possible. In fact, studies show that mandated waiting periods and informed consent materials have very little impact on birth and abortion rates. This point seems contrary to proponents of the law, including former Representative Bryan Pratt:
“If you sat a woman down that’s going to have an abortion and give her the facts, the real facts of the abortion procedure [and] what happens — that that unborn child can feel pain, that here’s the type of procedure and you allow them the opportunity to see the ultrasound— it’s my belief gentlemen, and that’s what will happen, is that fewer and fewer women will have abortions in the State of Missouri.”
It’s this “belief” that brings us to the second violation listed in The Satanic Temple’s lawsuit.
The Establishment & Free Exercise Clauses
All women seeking an abortion in Missouri must receive reproductive propaganda under the State’s informed consent law, and be informed that “[t]he life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being.”
Excerpt from the first page of Missouri’s Informed Consent Booklet
However, according to Mary’s sincerely held religious beliefs, she does not believe that fetal tissue is equivalent to the life of a separate, unique, living human being. According to TST’s appeal brief:
“One of the most contentious philosophical, religious, and political debates of our time is when does human tissue in utero become imbued with sufficient stature as a “human being” to be treated in the same manner as the baby that lives and breathes separate and apart from the mother. The Informed Consent Law expressly adopts and aggressively promotes the Missouri Tenet and thus weighs in on the side of those who believe a “human being” begins at conception and abortion is murder. The Informed Consent Law dictates — by legislative fiat — a definition of “human being,” which the Establishment Clause preserves for resolution solely in the hearts and minds of individuals.”
The individual’s concept regarding personhood is the fractured foundation for many debates regarding reproductive legislation. Beliefs about the beginning of life are purely philosophical and religious in nature. There’s no scientific consensus about this point. In a 2015 Wired article, Scott Gilbert, a developmental biologist concludes, “Science has very little to do with the answer.” Abortion opponents such as former Representative Pratt and others like to use the terms “unborn,” “child,” and “human life,” interchangeably as if they were all the same. But that’s obviously not the case. A fertilized egg isn’t the same as a toddler and the Supreme Court has ruled on this point in Roe V. Wade when the court said that a fetus is not a person but “potential life,” and thus does not have constitutional rights of its own. In fact, the Supreme Courthas refused to hear cases which have sought to define an embryo as a human being from the moment of conception as there is no secular purpose for defining life in this way.
This is where the First Amendment’s Establishment and Free Exercise Clauses come into play, which prohibit the government from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” These clauses not only forbid the government from establishing an official religion, but also prohibit government actions that unduly favor one religion over another. They also prohibit the government from unduly preferring religion over non-religion, or non-religion over religion. The Missouri Tenet adopts the religious belief that the life of a human being starts at conception, and in doing so, violates the Establishment Clause. Forcing Mary to comply is clearly an infringement on her sincerely held religious beliefs, and a Free Exercise transgression.
The State has defended its position by claiming that the law merely happens to “coincide or harmonize with the tenets of some religions,” and does not actually promote a religious belief. Clearly, this is an absurd proposition. With no secular motivation to distinguish “when life begins,” the State has made an ethical choice to promote and legislate a particular religious viewpoint. The Court would be grossly irresponsible to ignore this intention.
Representatives for the state have also argued that Mary was not forced to read the informed consent materials, she was only required to receive them. Therefore, her religious rights have not been violated. If this is the case, what’s the point in requiring these materials at all? Further, what’s the point of mandating any law if there’s no expectation of action from citizens? The motivation behind Missouri’s informed consent law is to coerce women into motherhood, and this is made clear by those who proposed and supported the bill:
Mary Doe’s Story
When Mary discovered she was pregnant, she made a decision to have an abortion because it was best for her and her family. There’s only one abortion clinic in Missouri, so she had no choice but to travel several hundreds of miles to the nearest clinic, which she did by bus with her child. She was forced to request time off from work and pay for transportation and a hotel. When she arrived at the clinic, she explained her religious views and presented an exemption form to waive the ultrasound, reproductive booklet and waiting period. However, state law prevented her from obtaining an abortion in accordance with her beliefs.
Instead, Mary was required to pay $500+ and be offered an ultrasound and opportunity to listen to the fetal heartbeat; she was told that life begins at conception, and that abortion is murder. If she maintains her belief, that abortion is not murder, she will be punished — sent away for three days, where she will incur additional costs at a hotel in the hopes that she will feel enough guilt and shame under the state indoctrination efforts to continue her pregnancy. When she returns to the clinic, she won’t be able to have her medical procedure without signing a state-mandated checklist proving that she’s received the reproductive propaganda along with a list of abortion alternatives. After her procedure, she will have to recover while traveling back home with her child and return to work immediately.
Many proponents of informed consent laws like to compare the mandate to their own personal experience with surgical procedures. They might liken it to elective knee surgery in which they were provided time to consider options before scheduling an appointment. The difference here is that the State hasn’t explicitly forbidden them from having the surgery of their choice for any number of days. It also doesn’t force them to undergo a biased counseling session prior to making a choice about their body. In fact, medical ethics standards would forbid it.
This insertion of the State into the communications between physician and patient intrudes on a woman’s autonomy and dignity, interferes with the physician’s professional practice and corrupts the informed consent process.
What does the State Want?
The State claims that the informed consent law and mandated waiting period is in place to help women make difficult decisions and prevent the number of abortions. However, a national survey of abortion patients conducted in 2008 by the Guttmacher Institute found that 92% of women reported that they had made up their mind to have an abortion prior to making an appointment. In a 2014, the Journal Obstetrics & Gynecology published a study of more than fifteen thousand women who visited Planned Parenthood clinics in Los Angeles, and 98.4% of the women who saw their ultrasounds went on to get an abortion anyway. Similar studies have shown that women do not change their minds after viewing informed consent materials.
What about the waiting period? This too is ineffective at reducing abortion rates. In Mississippi, multiple studies have found that the requirement has been associated with a decline in the state’s abortion rates and an increase in the number of residents going out of state for an abortion. The law also forces women to wait longer to terminate their pregnancy, increasing the likelihood of health risks and additional costs. Further studies show that the measure is unpopular among women who reported fewer benefits and more problems from the waiting period than they had anticipated.
If the intention is, truly, to reduce unwanted pregnancies in order to put an end to abortion in America, there are some quantifiable solutions: improve contraceptive access, education and economic prospects. However, none of these measures have been pursued. With this information, it becomes painfully clear that the State’s intentions are purely coercive. The Missouri legislation is intended to promote a religious belief that abortion is murder, and if women seek to obtain an abortion, they should be ashamed and punished.
Mary has clearly suffered as a result of Missouri’s Informed Consent laws. Do we want to live in an America that forces women to suffer unnecessarily under the moral dictates of the State when making personal decisions about their future and wellbeing of their families? Is it necessary to traumatize women in an attempt to reduce abortion rates, when there are so many more effective ways to reduce unwanted pregnancy? Are Mary’s beliefs as a Satanist, albeit untraditional, undeserving of protection under the law? These are the difficult questions we implore you to consider, and we wait in anticipation for the State of Missouri to decide where they stand.
What you can do.
Share this article with others and consider donating to The Satanic Temple’s legal fund. Legal fees for Mary’s case are not pro-bono and have reached the tens of thousands. Donations may be made through The Satanic Temple’s website at: http://bit.ly/2x8hbs7
Oral arguments at The Missouri State Court Western Appellate District will be held on Monday, September 11, 2017 at 10:30am at Missouri Court of Appeals Western District Division 3, 1300 Oak Street, Kansas City, MO.
The United State Court of Appeals for the Eighth Circuit will hear oral arguments on Wednesday, September 20, 2017 at 9:30am before Judges Roger L. Wollman, Michael J. Melloy and Raymond W. Gruender in Division I.