ST. LOUIS (CN) – A lawyer for a Satanist argued before the Eighth Circuit on Thursday that Missouri’s law requiring physicians to give women a pro-life booklet and an ultrasound before providing an abortion violates her First Amendment rights.
The woman, known as Judy Doe, filed suit against the state in February 2018. U.S. District Judge Henry Autrey dismissed the complaint, prompting an appeal to the Eighth Circuit.
W. James Mac Naughton, representing Doe, told the three-judge panel, “We have a specific targeted action against a specifically targeted individual against a specifically targeted religious belief.”
Mac Naughton filed a previous lawsuit in 2015 on behalf of another woman with nearly identical arguments. The Eighth Circuit dismissed that case due to lack of standing because the woman was not pregnant at the time of filing.
The panel asked Mac Naughton how this case was different. He said his new client has standing because she was pregnant at the time of filing the complaint.
The judges also asked Mac Naughton about what the physician can say when delivering the booklet.
“The physician delivers the booklet, but what you’re basically doing by having the physician do it is give him clerical garb and preach Catholic dogma,” the attorney said.
The panel pressed on, asking why the physician can’t say he’s practicing Catholic dogma.
“If it said it in the booklet that would be one thing,” Mac Naughton replied. “If it said in the booklet, ‘Here are all the philosophical basis on which you can decide that your fertilized egg is a human being. Here is the Buddhist tradition. Here’s the Muslim tradition. Here’s the Jewish tradition.’ This would be a different case, but it’s not. It takes a very specific philosophical religious statement.”
The panel questioned Mac Naughton on a Supreme Court decision that permits states to take sides on providing pro-life information to a woman considering an abortion.
“They can do what my home state New Jersey does,” Mac Naughton told the court. “They can just give a woman an abortion without lecturing her about whether she’s a good person or a bad person, committing murder or not committing murder. They can look at what it is correctly, a medical procedure.”
Deputy Solicitor Peter Reed represented Missouri in Thursday’s hearing.
“Doe’s establishment clause claim fails to get off the starting blocks because it does not allege that Missouri’s informed consent law is one respecting the establishment of religion,” Reed told the panel.
He argued that Missouri has an interest in protecting voluntary informed consent regarding medical procedures, and that the Satanic Temple is an advocacy group instead of an organized religion.
“Our position is that the complaint only alleges secular beliefs or personal policy preferences,” he said.
Reed finished his case by attempting to poke holes in Doe’s undue burden claim.
“There’s no requirement that she read the booklet or that she open it,” Reed told the court. “There’s no requirement that she view an ultrasound. All that’s required is that she sign an acknowledgment that a booklet was provided and an opportunity was provided. An opportunity does not burden a religious belief as pled in this complaint.”
Doe had argued in her complaint that an unborn child that is not viable, as defined by Missouri law, is just tissue under her religious beliefs. She said she “makes decisions regarding her health based on the best scientific understanding of the world, even if the science does not comport with the religious or political beliefs of others.”
The woman said that her “body is inviolable and subject to her will alone,” and that “she alone decides whether to remove the tissue from her inviolable body.”
Her lawsuit claimed that the Religious Freedom Restoration Act – which is what Hobby Lobby used to successfully exclude itself from offering contraception coverage to its workers – does not define religious belief. The U.S. Supreme Court’s 2014 decision in Burwell v. Hobby Lobby held that privately owned companies are not required to provide birth control to their employees as mandated by the Affordable Care Act.
U.S. Circuit Judges Duane Benton, a George W. Bush appointee, and L. Steven Grasz and David R. Stras – both Donald Trump appointees – made up the three-judge panel. The court took the arguments under advisement and there is no timetable for a ruling.