The Missouri Supreme Court has denied The Satanic Temple’s (TST’s) appeal in their abortion rights case and has ruled to uphold the lower court’s dismissal of the case, which sought to enjoin Missouri’s informed consent law.
Court Rules that RFRA Claims Do Not Apply Because Materials are Optional
The ruling, in my opinion, appears to have hinged on the state’s ‘clarification’ from Missouri’s Solicitor General during oral arguments that the informed consent materials are optional instead of mandatory.
“Moreover, the informed consent law neither requires a pregnant woman to read the booklet in question nor requires her to have or pay for an ultrasound. It simply provides her with that opportunity.”
When that ‘clarification’ was made in January of last year it signaled what would, ultimately, be the nail in the coffin for this case because an option is not a requirement. However, there was nothing to do but wait on the decision at that point.
In a piece featuring a post-argument interview with Jex Blackmore the Pacific Standard noted how this ‘clarification’ dramatically altered perception of the law as it was being followed:
“Solicitor General D. John Sauer told the court that an ultrasound is not a legally required prerequisite for receiving an abortion. Instead, according to the state’s interpretation of the law, the abortion-seeker must only be asked if she would like the opportunity to hear the fetal heartbeat. Previously, abortion clinics in Missouri had interpreted the law as requiring an ultrasound for the purposes of hearing a fetal heartbeat in order for an abortion to be performed.”
TST’s Position has been Consistent Throughout Deliberation
In fact, this last minute ‘Clarification’ came up during our liveblog coverage of the oral arguments. However, this ruling is the result of those oral arguments. There was nothing else to be done but wait on the court’s decision.
In an email to Friendly Atheist TST’s Spokesperson and Cofounder Lucien Greaves addressed this by reiterating comments that were made during the oral arguments:
The implications of this ruling are clear: the state upholds the right to proselytize, and they also maintain the right to place activities motivated by religious belief — in this case, arriving at the decision to terminate a pregnancy based upon deliberative reference to our tenets — on their own time schedule.
I doubt, however, that the Court would be dismissive of the imposition of the dissemination of state-endorsed literature clearly inspired by a minority religious viewpoint, nor do I feel they would rule in favor of an employer who decided to move the Christmas holiday to July for the convenience of the corporation.
The upshot, however, is that the Court has asserted in their ruling that women seeking to terminate a pregnancy are not required to receive an ultrasound or listen to the fetal heartbeat, they are only required to be offered the opportunity. This was unclear before, but this precedent clearly indicates that women may deny this “opportunity.”
What about the Waiting Periods?
The ruling by the court is that the waiting period argument doesn’t meet a RFRA test. TST’s claim wasn’t based on the undue burden of having to wait the 72 hours and instead rested on the notion that the waiting period was a violation of her religious liberty to abortion-on-demand. The court found that because there was no religious reason to delay the abortion (i.e. there was no claim that the abortion had to take place at a particular time for a religious reason) that the waiting period doesn’t impose a burden on the religious belief.
The idea here seems to be that Mary Doe had no religious reason why she needed the abortion ‘that day’, so any imposition in scheduling the procedure didn’t qualify as requiring a religious exemption. That sucks, but the waiting period issue has been shot down in Iowa and upheld in Oklahoma so there’s already conflicting cases in different court districts regarding that issue as a matter of ‘undue burden’. TST has no part of those cases and, in my opinion, that’s probably for the best.
It’s the End of the Road
So yes, after 3+ years in the courts a last-minute ‘clarification’ during oral arguments dismantled the strongest part of TST’s case. There’s really nowhere else for this case to go. Mary Doe, TST’s plaintiff in the case, already said she doesn’t want to pursue the case any further so even if some legal mind out there believes they could make a case in federal court there is no willing plaintiff to defend. It’s disappointing, but as Lucien Greaves said during our liveblog coverage last winter:
“I think Mr. MacNaughton gave this a very solid run, and any ruling against The Satanic Temple is a shortcoming of the judges, not in our position or the law.”