Skin in the game

Report from The United State Court of Appeals: The Satanic Temple v. Eric Greitens

Originally published on October 18, 2017 on Medium

One month ago, on September 20th, I traveled to St. Louis, Missouri to visit the largest courthouse in the United States to hear oral arguments in The Satanic Temple’s (TST) federal abortion lawsuit at The United States Court of Appeals for the Eighth Circuit. A week earlier, The Missouri Court of Appeals heard arguments from both sides in a similar case filed by The Satanic Temple on the state level.

In each case, The Satanic Temple, representing a member named “Mary Doe,” asserts that Missouri’s informed consent law and mandated abortion waiting period interfered with Mary’s right to terminate her pregnancy in accordance with her religious beliefs as a Satanist. The lawsuits outline how Missouri’s anti-abortion regulations violate the First Amendment rights of TST members and leverage the protections provided by Missouri’s Religious Freedom and Restoration Act. A detailed explanation of these cases can be found in my last post, “Missouri Court will Hear Landmark Case on Satanic Temple Abortion next week.”

The full 28-minute, 37-second recording of arguments before the The Court of Appeals was made public shortly after the hearing, and it’s worth a listen.

You’ll hear the state’s attorney contend that, “A woman who is not currently pregnant clearly lacks standing to challenge an abortion related regulation,” (15:27) an argument used by the lower court to dismiss the Temple’s case after waiting nine months to ensure that TST’s plaintiff, Mary Doe, was no longer pregnant. Dismissal due to lack of standing is the bedrock of the state’s defense.

In the United States, a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that she is or will “imminently” be harmed by the law. Otherwise, the court will rule that the plaintiff “lacks standing” to bring the suit and will dismiss the case without considering the merits of the claim of unconstitutionality. The lower court upheld this position, which is what TST’s attorney challenged before the Court of Appeals on the 20th. The state’s attorneys have argued that because Mary is no longer pregnant, she cannot say that the law will harm her in the future, and there is no way for us to know if she will ever be pregnant again and seeking an abortion.

The constitutional requisites under Article III for the existence of standing are that the party seeking to sue must personally have suffered some actual or threatened injury that can fairly be traced to the challenged action of the defendant and that the injury is likely to be redressed by a favorable decision.

Essentially, TST’s legal council must prove the following three points before the case can move forward to be considered on its merits:

  1. The party seeking to sue must personally have suffered some actual or threatened injury
  2. The injury must be caused by the law in question
  3. The injury will be remedied by a decision in the plaintiff’s favor

James MacNaughton, TST’s attorney, countered this claim by demonstrating that the law has already harmed Mary through the imposition of shame and guilt. Allowing a religious exemption from those laws both ensures that Mary will not be harmed in the future and the state will acknowledge and correct, by way of the courts, the imposition of a religious viewpoint that ostracises Mary due to her religious beliefs. The panel of three judges clarified the Temple’s position, “they’re saying that it’s no different than having to read the Ten Commandments before having an abortion” (23:14).

While the state’s attorney agreed with this point “I absolutely agree that that is the allegation,” (23:22) he pressed the issue of redressability, stating that “there is no redressable injury when there’s a past exposure to the message and there’s a request for future injunctive relief” (23:50). Claiming once more, that there must be “no doubt of actionable and future injury“ for The Satanic Temple’s case to have standing.

MacNaughton addressed this question at the opening of his argument:

What are you looking for in standing? You’re certainly looking for the authority to find a state law unconstitutional. You need a litigate with skin in the game, basically, that’s it. The question is, how much skin in the game? Do we have to keep going back time after time? How much skin do we have to put in in order to get standing? Just once, twice, three times? (5:24)

He continues to explain how profoundly difficult it is for a woman like Mary to come forward to challenge the state’s laws to begin with:

“Keep in mind here, these are very specific events, these are the outcome of unwanted pregnancies, it’s not like it’s planned. Then, there’s a very limited timeframe to make up your mind if you want to have an abortion. (and in our case, there’s something else to consider…) This culture war is (violent), doctors who give abortions have been shot and Mary Doe, whose true identity is only known by two people…potentially puts herself at risk for standing up and lending her name to this action…so, I come back to the original question: How much skin do we have to put into the game? I submit that we have already put in plenty.” (6:00)

In his statement, MacNaughton addresses what’s most compelling about the state’s defense — the practical application of the case law referenced. While the Supreme Court has required proof of certain impending future injury for other cases that challenged violations of the First Amendment, having to similarly meet this demand as a pregnant woman is hugely problematic.

The state is essentially requesting that Mary Doe’s case be dismissed unless she can:

  1. Prove that she will get pregnant again in the future and will require an abortion and/or
  2. The Satanic Temple amends the lawsuit to include the names of other members who are currently pregnant and seeking an abortion, or will require abortion services in the future with certainty.

These demands are nearly impossible to meet and are immensely unjust. Not only does the state of Missouri force women to comply with the government’s established position that abortion is murder or suffer the consequences of a 72-hour waiting period intended to impose shame and guilt, they offer no recourse. Women are rendered helpless and diminished to a footnote, a casualty of legal loopholes. Because there’s no judicial precedent that addresses the religious concerns of a pregnant woman seeking an abortion, the state will argue tooth-and-nail to dismiss the injuries of its citizens to preserve what they consider “the sanctity of life.”

In the courtroom, there seems to be little doubt that the Missouri law is harmful. Polite silence shifted to breathless frustration among the spectators who sat uncomfortably in the pews as the state’s attorney argued against Mary’s claim. Everybody knows somebody who’s had an abortion, and those who know what it’s like, still feel the ripple of guilt, shame and denigration arbitrarily imposed by state regulations.

“I mean, how many times does Hester Prynne have to wear the Scarlet A? If you say to her, you can take it off, it was wrong to require it to be put upon you in the first place. That will give you sufficient relief — standing. Skin in the game.” (27:52)

We now await the court’s decision.