The Satanic Temple v. Eric Greitens at Missouri’s Supreme Court
By Jex Blackmore
A day following the 45th anniversary of Roe V. Wade, The Satanic Temple appeared before the Missouri Supreme Court to defend the right to obtain an abortion motivated by religious belief. The hearing is the latest in a two-and-a-half year battle with the state of Missouri that began in 2015, when The Satanic Temple filed 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.
In October of last year, the Missouri Court of Appeals ruled that The Satanic Temple’s case raises real and substantial constitutional claims, landing them in the state’s highest court. A full explanation of the lawsuit can be found in, “Missouri Court will Hear Landmark Case on Satanic Temple Abortion next week.”
Turning the “ultrasound mandate” around
The lawsuit has already made waves as courts, for the first time, consider the impact and application of religious liberty laws as applied to reproductive health mandates. The case has also helped to both clarify and disrupt interpretations of established state laws. On January 23, 2018, in an unprecedented triumph for The Satanic Temple, D. John Sauer, Missouri’s Solicitor General announced in the state’s Supreme Court that ultrasounds are not mandatory to obtain an abortion. This information comes as a surprise to Missouri’s abortion providers who regularly perform ultrasounds they have perceived as mandated by the state. It’s unknown at this time if clinics interpreted the procedure as mandatory because the state’s initial explanation of the law was inaccurate or confusing.
James McNaughton, The Satanic Temple’s attorney, argued that the imposition of an ultrasound and “opportunity” to hear the fetal heartbeat were not only a violation of Mary’s religious beliefs but medically unnecessary and an attempt to inflict shame upon her. Bodily autonomy and a belief in science are two of the seven foundational tenets of the Temple’s belief system. In an audio recording of the arguments published by the court, justices asked the state’s representative:
“Is it the position of the state that an ultrasound does not have to be conducted unless a person says they want the opportunity to hear the fetal heartbeat?” (13:16)
Audio from oral arguments at the Missouri Supreme Court on January 23, 2018
Mr. Sauer affirmed that the state’s interpretation of the statute (MO Rev Stat § 188.027) is that women only be offered the “opportunity,” to have an ultrasound and listen to the fetal heartbeat, and if a woman declines hearing the audio, the ultrasound need not be performed, fulfilling the requirement (15:20).
To be clear, an ultrasound may be performed for medical reasons by a clinic to determine the gestational age, however, medical abortion can safely be accomplished without an ultrasound in the first trimester. This new clarification from the state’s solicitor general will allow clinics to opt out of the ultrasound if not medically necessary and grant patients the right to refuse the “opportunity” to listen to the fetal heartbeat.
“What’s the harm?”
While clarification of the ultrasound requirement is certainly progress in interpreting the law, it does not change the harsh reality that women in this vulnerable situation may experience humiliation and shame when asked to hear a heartbeat. This requirement betrays standard medical procedures and is an attempt to manipulate women into believing that the fetal tissue is morally equivalent to that of a viable human being. Such an equivalence is medically and scientifically inaccurate. The fact that Mary had to opt-out of hearing the fetal heartbeat remains an offense to her personal beliefs, and is an example of state coercion.
The state’s attorney has argued this point on many occasions.
“What’s the harm if Mary had to wait three days for her procedure?”
“What’s the harm if Mary was forced to sign a legal document verifying that she received a booklet that says ‘life begins at conception and abortion terminates the life of a separate, unique, living human being’ if there’s nobody actually forcing her to read the material?”
“What’s the harm if Mary was able to obtain an abortion after all?”
We could ask the same question of many of the inhumane laws from our country’s history; laws that we now regard with shame. What’s the harm in forcing people of color to sit at the back of the bus if they get to use the bus for transportation? What’s the harm in forbidding same-sex marriage if they can cohabitate? What’s the harm of enduring sexual harassment if you still get the raise? What’s the harm in praying in school if you still get an education? In each of these examples, the injuries far outweigh the perceived benefits.
These laws of exclusion are ostracizing, and an attempt by the state to enforce the viewpoint of a particular moral opinion by restricting law-abiding people from living their life in a manner they are entitled to under the Constitution. When it comes to abortion, anti-choice representatives make no mystery of the correlation between their personal religious beliefs and their position on reproductive liberties. Yet, despite their personal beliefs, abortion is legal. Regulatory abortion laws are in place to manipulate, chastise, and coerce women into believing that they are murderers, outsiders, and immoral, according to the opinions of the state.
Religious Freedom for all?
Despite the painfully obvious injustice of Missouri’s abortion regulations, The Satanic Temple’s attorney must now prove how current laws have specifically violated Mary Doe’s religious beliefs. For this, the Temple has harnessed Missouri’s Religious Freedom and Restoration Act (RFRA). Missouri’s RFRA says that a governmental authority may not restrict a person’s free exercise of religion, defining “exercise of religion” as:
an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.
The state of Missouri has taken issue with Mary’s “exercise of religion,” arguing that she was not forced to act or not act in violation of her religious beliefs. Instead, the state alleges that she merely “disagrees,” with the activities of the state (22:19) in a desperate attempt to dismiss The Satanic Temple’s claim.
According to Mary’s religious beliefs, she should be able to obtain an abortion procedure on demand, without interference or coercion from others, including the state. The three-day delay prevented her from being able to act in accordance with her beliefs, and her religious rights were scandalously violated when she was forced to sign a contract demonstrating that she received information that says life begins at conception — forced to acknowledge that the state believes that she is a murderer. Does she have to believe it personally? No. However, she is punished if she disagrees and put in “time-out,” for 72-hours, during which she is at risk of losing her ability to receive an abortion. Essentially, the government is forcing her to participate in a religious indoctrination program as a prerequisite to obtaining a safe and legal medical procedure. Could she refuse? Yes. Yet if she refuses, she is denied this same legal medical procedure, which is time-sensitive and necessary. As McNaughten clarifies to the justices of the court:
“Her religious belief is that she does not conduct herself in a manner that cedes control of her body to the state of Missouri.” (29:30)
Should the court affirm that there has been a violation, the next question for the courts to determine is if the state of Missouri is permitted to do so. RFRA says that a governmental authority may restrict a person’s free exercise of religion, if the following criteria is met:
(1) The restriction is in the form of a rule of general applicability, and does not discriminate against religion, or among religions; and
(2) The governmental authority demonstrates that application of the restriction to the person is essential to further a compelling governmental interest, and is not unduly restrictive considering the relevant circumstances.
Mr. Sauer contends that the anti-abortion laws meet the rule of general applicability and do not discriminate against members of The Satanic Temple. Is a state-promoted religious viewpoint a form of discrimination if that viewpoint is mandatory? The state of Missouri forces each person who needs an abortion to receive information that life begins at conception, which is not a medical or scientific fact but an opinion that promotes a singular religious viewpoint. This has been addressed by the Supreme Court in the majority opinion in Roe v. Wade, 1973:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
Additionally, forcing women to “consider” this information for 72-hours as a precondition for receiving medical treatment discriminates against those who do not hold the same belief. If women agreed with the religious opinion of the state, it’s unlikely that they would be seeking an abortion. Lastly, are these laws necessary to preserve a governmental interest? If so, why are informed consent laws as they apply to any other medical procedure under standard medical ethics acceptable, except in the case of abortion?
If the government is interested in ensuring that women have all the necessary information to make an informed decision about the abortion procedure, they should rest assured that the medical professionals who provide such services are just as thorough and diligent as any other licensed caregiver. In fact, if legislators really want to ensure a high standard of care for women and youth, they could dedicate resources to ensure that these clinics have everything they need to best meet the needs of their patients. Increased funding would be a solution that meets the least restrictive means to enforce the state’s concern for the “well-being” of women seeking an abortion. Unlike the Hobby Lobby decision, which said that women could obtain contraceptive care from a source other than their employer, women in Missouri have no choice but to comply with these restrictive laws.
There are many approaches to challenge Missouri’s unjust, inhumane, and degrading anti-abortion laws. For Satanists, the laws are a direct assault on their personal beliefs. If corporations are granted the right to believe that birth-control causes abortions (which, by its very purpose to prevent implantation, it doesn’t), and can be exempted from paying employee health insurance as it offends their personal religious beliefs, women like Mary ought to be granted an exemption to receive legal medical care in accordance with her deeply held religious beliefs, free from the opinions and mandates of the state.
We eagerly await the court’s decision and look forward to arguing our case on its merits. It is time that women of alternative faiths are liberated from the state’s oppressive theocratic stranglehold over personal medical health procedures.
The Satanic Temple is accepting donations to offset legal costs, which are not pro-bono. Additional information and donations may be made through their website at: https://religiousreproductiverights.com/
This article was originally published on Medium on January 25, 2018.