Marci Hamilton, a prominent church/state scholar and outspoken opponent of the Religious Freedom Restoration Act, writes about the Satanic Temple’s new strategy for using RFRA to get women out of state anti-abortion restrictions. And she points out a fascinating bit of history about the passage of the act and concerns over this very thing:
When the Religious Freedom Restoration Act (“RFRA”) was first being considered over twenty years ago, the Catholic bishops did not jump in to support it with both feet. They were concerned it would be invoked by some believers to create an avenue to obtain abortion on demand.
The General Counsel to the United States Catholic Conference at the time, Mark Chopko, testified before the House Committee on the Judiciary a year before RFRA was first enacted in 1993 that the bishops were concerned that RFRA might “be used to promote access to abortion.” He predicted that abortion rights claims would be made under RFRA and worried aloud: “Even if only a few claims to obtain abortions do succeed under [RFRA], what restraint will remain on district and state attorneys to deny abortions to others who offer affidavits conforming their claims, beliefs, and motions to the prior successful claims? These claims will be numerous and far-reaching in their impact.”
For the bishops at the time, the “lives of the unborn [were] too important to put at risk under [RFRA].” In other words, regardless of all the other religious agendas to defeat certain laws, like fair housing laws, the bishops were intent on opposing RFRA unless it contained an exception for the abortion laws. Before the Senate Subcommittee on the Judiciary, he added that he was concerned “whether RFRA can be used to upset even moderate abortion regulation.”
Obviously, they did not succeed on this score. No abortion law exception was inserted into RFRA. Nor did the bishops wait long following RFRA’s enactment to invoke its advantages when it suited its interests. It was the Catholic bishop of San Antonio, Texas, who brought the early RFRA lawsuit to overcome the historic preservation laws of Boerne, Texas, that eventually rendered it unconstitutional in Boerne v. [Archbishop] Flores.
Their enthusiasm for RFRA is at an all-time high now as the bishops and Catholic institutions generally are sinking who-knows-how-much money into lawsuits invoking RFRA to prevent all of their employees and students from receiving cost-free contraception coverage.
The bishops may now be ruing the day they lost the legislative battle to keep abortion laws from being subject to RFRA, and the evangelicals, who were on board RFRA from day one, may now wonder what they have wrought with RFRA. Their problem is that RFRA does not and cannot (consistent with the Constitution) provide its extreme standard solely to some religious believers and not others.
It’s the Boerne case that makes the satanists’ strategy a failing one. All of the abortion restrictions they want to get out of are state laws and RFRA doesn’t apply to state laws because of that ruling. And there’s one more reason it isn’t likely to succeed:
The RFRA doctrine raises four issues: (1) is the entity protected by RFRA; (2) is the believer sincere; (3) does the law impose a substantial burden on the believer; and (4) can the government prove that the law serves a compelling interest (5) in the least restrictive means?
Is the Satanic Temple protected by RFRA? Check. In Hobby Lobby, the Supreme Court held that a for-profit, nonreligious corporation could assert rights under RFRA. That issue is does not arise here, because the Satanic Temple is a religious organization clearly intended to be covered by RFRA.
Is the Satanic Temple sincere about its belief against coercive informed consent laws? Check. The next issue that could arise in a RFRA case is whether the believer is sincere. There were and are many reasons to question the sincerity of the Greens, who covered contraception before the Affordable Care Act mandated it and whose company is heavily invested in the companies that make the contraceptives to which they object, but the federal government failed in Hobby Lobby to pursue this legitimate tack, likely for political reasons. In any event, there can be no question that the Satanic Temple is sincere about its beliefs regarding the coercive informed consent abortion laws to which it objects.
Yes, but they’re trying to use this to protect women who aren’t members of the Satanic Temple. And the question is not whether they are sincere but whether a woman who uses this approach is sincere. The Satanic Temple is a very small group of people. And if a woman suddenly joins the temple just before she gives this a try, a court is unlikely to view her actions as sincere.