On this upcoming Tuesday, January 23rd 2018, the Missouri State Supreme Court will hear oral arguments in Mary Doe vs. Eric Greitens, et al. This is the case in which The Satanic Temple is challenging Missouri’s informed consent laws on the grounds that such materials are a violation of Satanic religious freedom. It’s taken almost three years for this case to wind its way this far into the court system. So here is a timeline review of just how this all came about and what we can expect to hear on Wednesday.
One Day Mary Got Pregnant
Back in 2015 when this whole thing started a woman, “Mary Doe” (so anonymized for her own safety) sought an abortion. Missouri law requires that all women seeking the procedure must be given reading material claiming that life begins at conception, obtain an ultrasound, and they must endure a 72-hour waiting period between their initial appointment and their actual abortion procedure. “Mary”, and The Satanic Temple believe that these restrictions are a violation of their religious freedoms under the Religious Freedom Restoration Act (RFRA) and the First Amendment of the U.S. Constitution.
Basically, the law says that the government is allowed to have a preference for carrying to term over abortion. It also says the state is allowed to require informed consent materials be distributed to those seeking an abortion. What the state isn’t allowed to do is preach a religious opinion to patients and that all informed consent materials must be scientifically accurate.
(Note: in previous coverage it has been pointed out that at least one review of various states informed consent materials are notoriously inaccurate.)
TST’s argument puts forward is that saying life begins at conception is very much a philosophical and not a scientific claim. The justification for the waiting period is to give the patient time to review the materials, but if the motivation behind the materials is to inflict a religious viewpoint on the patient then it’s like saying you can’t have a blood transfusion until you’ve considered what Jehovah’s Witnesses think about them.
A Circuitous Saga of Weasels
In the initial suit the judge “ruled” (pronounced ‘found a weaselly excuse to throw the case out’) that Mary Doe no longer had standing in the case because she was no longer pregnant. This, I suspect, is because the judge really didn’t want to have to rule in The Satanic Temple’s favor but couldn’t really find a plausible way to do that. Rather than deal with the constitutional claims put forth in the case, the judge opted to do the cowardly thing and take advantage of how long the legal process takes to justify avoiding the issue altogether.
That was in August of 2016.
Of course it should be obvious that whether or not someone’s rights were violated has nothing to do with their current situation. If you were to be unlawfully arrested at a protest the judge couldn’t say that you can’t sue because you are not currently protesting. This left The Satanic Temple with a curious set of options. Either wait for another TST member to get pregnant and want an abortion to start the whole process all over again, or appeal the judge’s decision to throw the case out in the first place. It’s a silly argument, but not silly enough that it didn’t take over (yet another) year for TST’s appeal to wind its way through the system and finally get the case referred to the Missouri State Supreme Court.
That brings us up to now.
What to Expect
It’s hard to say what we’re going to hear in the oral arguments next week, but we did get a glimpse when the Thomas Moore Society tried to issue an Amicus Brief (which, by the way, was rejected) in the case after TST’s successful appeal. It seems like the gambit anti-abortion advocates are hanging their hat on is trying to litigate whether or not ‘life beginning at conception’ is a scientific fact or a religious opinion. That being the case we can expect lots of talk about unique DNA, heartbeats, and generally emotive pleas to so-called ‘life’ of the fetus.
On the other-hand, I think that TST is going to argue that even if we accept that there is a point ‘when life begins’ it certainly can’t be at conception. We don’t wait for cellular activity to cease before pronouncing death after all, we define that as the cessation of brain function. So it certainly seems to me like our definition of life has a lot more to do with cognitive function than anything else. More to the point it doesn’t matter, under RFRA, whether or not there is any scientific justification for the opinion that ‘life begins at conception’. The entire thrust of RFRA law is that people are free to practice their beliefs in spite of facts. That’s why Christian charter schools can teach anti-evolutionary nonsense; it’s why bakers can claim they have a right to deny gay couple’s wedding cakes. Imagine, if you will, that in Colorado the burden was on Masterpiece Cakeshop to scientifically prove that gay marriage is a sin. I certainly don’t see any room for that in law.
For a real-time discussion of oral arguments at the Missouri Supreme Court please join us here at For Infernal Use Only beginning at 10:30am Eastern Time Tuesday January 23rd. I will be joined by Megan Kennedy from the Religious Education Series, TST legal councel Stu De Haan, National Director for The Satanic Temple’s Religious Reproductive Rights Campaign Jex Blackmore, and TST Co-Founder Lucien Greaves.
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