Missouri Supreme Court unanimously upholds state’s 72-hour waiting period against challenge by member of Satanic Temple

By Dave Andrusko

Last August when we last wrote about the curious case of a member of the Satanic Temple’s challenge to Missouri’s 72- hour waiting period/informed consent law, there was good news and more ambivalent news.

The 8th U.S. Circuit Court of Appeals had just ruled that “Mary Doe” could not challenge the law because she was not pregnant at the time of her lawsuit and therefore lacked standing. The judges wrote that “although ‘[p]regnancy provides a classic justification for a conclusion of nonmootness,’ the doctrine does not apply here because she did not first establish standing.”

However, Doe had filled in both state and federal court. Still outstanding was a decision by the Missouri Supreme Court. The court had heard oral arguments from Doe who was still pregnant when she sued.

On Wednesday, the seven member Missouri Supreme Court unanimously “agreed that the woman, identified in court documents as Mary Doe, had failed to show that the state’s informed consent law and 72-hour waiting period violated her beliefs as a member of the Satanic Temple,” according to Rachel Lippmann of St. Louis Public Radio.

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 Mary Doe argued “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.”

After her abortion, citing the Establishment and Free Exercise Clauses of the First Amendment and Missouri’s 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 memorandum filed in state court 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 [Missouri] Religious Freedom Restoration Act (RFRA).”

Not so, said the state’s highest court:

The informed consent law does not adopt any religious tenet, as Ms. Doe claimed. Rather, it requires those seeking an abortion be offered a booklet which, in part, repeats two principles (referred to by Ms. Doe as “tenets”) set out in section 1.205. But Ms. Doe does not challenge section 1.205. 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. And, while Ms. Doe mentions the 72-hour waiting period, she does not allege how that waiting period conflicts with her religion nor that it was an undue burden, nor did she seek to enjoin its enforcement prior to the expiration of that waiting period. The circuit court did not err in dismissing Ms. Doe’s petition for failure to state a claim.

Hemant Mehta, writing for the Friendly Atheist, channeled the Satanic Temple’s grievances. We will discuss the case further on Friday.