Idaho says Satanic Temple doesn’t have standing in abortion challenge

(CN) — It’s a matter of state versus Satan in an abortion access challenge that came before a three-member panel of the Ninth Circuit Court of Appeals on Wednesday, with Idaho accusing the Satanic Temple of lacking standing to challenge its abortion ban.

“This case is about coerced motherhood and money,” James Mac Naughton, an attorney representing the Satanic Temple, told the court.

But before Mac Naughton got too far into his argument, U.S. Circuit Judge Mary McKeown questioned him about the Temple’s standing.

“Maybe you can explain to me what have you alleged that give you the predicates of associational standing?” the Bill Clinton appointee asked.

The Satanic Temple is a nonprofit group organized as a religious institution based in Massachusetts. Rather than worship the biblical Satan, the group asserts it venerates the allegorical Satan described in John Milton’s poem “Paradise Lost” as a defender of personal sovereignty in the face of religious authority.

After the Supreme Court overturned Roe v. Wade in 2022, Idaho’s trigger ban on abortion went into effect, prohibiting abortion in nearly all cases.

The Satanic Temple created an abortion clinic in New Mexico, titled “Samuel Alito’s Mom’s Satanic Abortion Clinic,” that uses telemedicine to prescribe and deliver abortifacients, or abortion pills, to patients who complete its Satanic Abortion Ritual program.

The clinic can’t serve patients in Idaho because its staff would face felony penalties, which is the basis upon which the Satanic Temple sued state leaders. The Satanic Temple argued that its members who become involuntarily pregnant through the failure of their birth control have a right to seek an abortion and have a property interest in their uterus.

A federal court in Idaho didn’t agree with the Satanic Temple and dismissed its complaint in early 2024, finding the state’s abortion bans are constitutional and that the temple didn’t have standing as an abortion provider.

On appeal, Mac Naughton explained to the Ninth Circuit that part of the challenge in establishing standing is finding an involuntarily pregnant woman willing to have her name disclosed should that be required through the course of litigation.

Finding someone who satisfies the first part isn’t a problem, Mac Naughton said.

“If you drew a line five miles out from this courthouse and did a radius, there are, sight unseen, dozens of involuntarily pregnant women,” Mac Naughton said. “It’s just a matter of biology.”

In lieu of an involuntarily pregnant woman, the Satanic Temple argues that it has standing because the ban impacts its members in Idaho.

“The reality is there, there are women who are being coerced into becoming mothers in the state of Idaho as I stand here today, and some of them are [Satanic Temple] members,” Mac Naughton said.

U.S. Circuit Judge John Owens, a Barack Obama appointee, questioned Mac Naughton about the extent of organizational standing and whether, for instance, an alumni association within the state could challenge it on the basis that it has members who are young women.

“Absolutely,” Mac Naughton responded.

Alan Hurst, an attorney from the Idaho Attorney General’s Office, argued that the Satanic Temple hasn’t established redressability because even if it received everything it asked for, it still can’t ship abortion pills to Idaho.

“They don’t have facilities to do this in person,” Hurst said. “They have no plans to get facilities to do this in person.”

Idaho law, unchallenged by the temple, requires those prescribing or practicing medicine to have a state medical license. It also requires an in-person visit with a pregnant person both before and after prescribing them an abortion pill.

“What you’re saying is if somebody, immediately after a situation, believes that she needs a pill, she would need to come under the Satanic Temple’s proviso — she would have to go to New Mexico?” McKeown asked.

“That’s correct,” Hurst clarified and further argued that the Temple isn’t mailing abortion pills to states that have legalized abortion.

Hurst argued the temple hadn’t established it had standing because it hadn’t proven its Satanic Abortion Ritual has taken place in the state, nor that it has promoted it in the state or that anyone in particular is interested in it in Idaho.

“We know that the clinic does not have a preexisting activity of providing abortions in Idaho because the clinic only provides abortions to people who are physically present in New Mexico,” Hurst said.

Mac Naughton, in response, said the clinic was limited to New Mexico to avoid the possibility of jail time for its providers. The plan is to hire a doctor with an Idaho license and start providing telemedicine services for Idaho residents.

As for the in-person visit requirement before prescribing an abortion pill, Mac Naughton clarified that the temple is asking for redress and for the court to strike the criminal penalties associated with violating the requirement.

“We’ve got a doctor. We can do this. This is not a someday proposition,” Mac Naughton said. “We can put it in place by the beginning of next week easily.”

The Ninth Circuit panel, which also included Clinton appointee U.S. Circuit Judge Ronald Gould, did not indicate when it would rule.