By Dave Andrusko
When last we wrote about the legal challenge brought by an adherent of the Satanic Temple to Missouri’s 72-hour waiting period/informed consent law, the Western District Court of the Missouri Court of Appeals had just ruled that because “Mary Doe’s” challenge “raises real and substantial constitutional claims, it is within the Missouri Supreme Court’s exclusive jurisdiction under Article V, section 3 of the Missouri Constitution, and we hereby order its transfer.”
Today the Missouri Supreme Court is hearing arguments. Since we won’t know the Court’s decision for some time, let’s look at the case in more depth, including the appeals court decision.
Missouri’s law has a 72 hour waiting period between the time a woman first meets an abortionist and (if she goes forward) has an abortion. It also requires that a booklet be made available and that the woman be given the opportunity to view an ultrasound and to hear the fetal heartbeat.
The sentence in the booklet which Doe argues “promotes a religious doctrine she does not believe in” says, “(t)he life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being.”
Mary Doe had her abortion in 2015. Her challenge was rejected by Cole County Circuit Court Judge Joe Beteem in 2016.
Her lawyer straightforwardly outlined her objective. “Our view is the waiting period in Missouri and requirement for women to learn all the information about the physical characteristics of the fetus is simply preaching,” W. James MacNaughton told the St. Louis Post-Dispatch . “The goal (of the lawsuit) is to get the restrictions eliminated across the board.”
Writing for the Western District Court of the Missouri Court of Appeals three judge panel, Judge Thomas Newton wrote an 11-page opinion with which judges Ahuja and Martin concurred. The nub of his conclusion is simple enough:
“Neither the Missouri Supreme Court nor the U.S. Supreme Court has considered whether a Booklet of this nature, an Ultrasound, an Audible Heartbeat Offer, and a seventy-two-hour Waiting Period violate the Religion Clause rights of pregnant women,” the court wrote.
If you read closely, it’s not as though Judge Newton can find anything particularly persuasive in Doe’s legal arguments. Worth noting is that in rejecting Doe’s claims, Cole County Judge Beteem ruled that Doe had failed to “state a claim for relief under the Religious Freedom Restoration Act.”
Indeed, in one amusing and convoluted passage, Judge Newton tells us, “That an issue presented is of first impression does not necessarily make it real and substantial, particularly where it ‘is so legally or factually insubstantial as to be plainly without merit.’ [A quote from another case.] ”Still, the issues in this case appear to us to be of first impression and to present a contested matter of right involving fair doubt and reasonable room for disagreement.”
Elsewhere, Judge Newton opines, “On preliminary review, we believe that Ms. Doe’s Establishment Clause claim [that Missouri’s law is an unconstitutional establishment of religion] is real and substantial and not merely colorable.”
“Colorable” is legalize for pretense and hooey.
After her abortion, citing the federal Religious Freedom Restoration Act (RFRA), Doe and the Satanic Temple filed suit against the State of Missouri at both the federal and state levels in an effort to obtain an exemption. Doe’s complaint asserts “The decision [to abort] is substantially motivated and informed by Mary Doe’s belief in the Tenets [of the Satanic Temple],” adding, “Thus its implementation, i.e., getting an abortion, is the ‘exercise of religion’ protected by the Religious Freedom Restoration Act (RFRA).”
In a fine story, Heather Clark provides abundant background both to the case and to the Satanic Temple.
Clark noted of the complaint
that Doe doesn’t believe “as a matter of religious faith” that life begins at conception, but that she rather feels that she is simply aborting “tissue” that is “part of her body, and not a separate, unique, living human being.” However, it also stated that Doe “felt guilt and shame” for declining to hear the heartbeat of her unborn child during the ultrasound that is required 72 hours before the abortion.