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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, February 14, 2019

Satanic Temple Religious Liberty Argument vs. Abortion Law Fails

And Also: Somewhat related, perhaps, is the whole Rep. Ilhan Omar kerchuffle based on a tweet where she said AIPAC (the Jewish, or rather some form of them, lobbyist group) is "all about the Benjamins." She respectfully apologized, which as this Republican noted, basically settles the matter.

He is right specifically on how sometimes a comment is going to cross the line, especially one said on the fly.  We say loads of things; one's overall record should be our guide. She brings a good perspective to Congress and will get pushback for saying things seen as unpleasant. And, unfairly (hey, Trump!) she will get some special attention, so to continue to be a respected voice, will have to take a bit more care. She can handle it.
In addition to the 72-hour waiting period, Missouri’s informed consent law requires a woman to review a pamphlet about fetal development, including language that says life begins at conception. The woman must also be offered the chance to see an ultrasound and hear the baby’s heartbeat.
Not surprisingly, the Missouri Supreme Court rejected (the quote is from the article) a challenge by a member of the Satanic Temple to the state's informed consent abortion law. Rejecting both an Establishment Clause and a religious freedom challenge.

"Satanic" here is sort of misleading branding since the mission "is to encourage benevolence and empathy among all people, reject tyrannical authority, advocate practical common sense and justice, and be directed by the human conscience to undertake noble pursuits guided by the individual will." This probably is the point though I think there is some serious content behind their ironic name (less so Pastafarians or something).  This is also the case, as I noted in the past, for "Universal Life" ministers that can be in effect self-ordained online and seen as something of a joke but later are popular wedding officiants as seen by a range of NYT wedding announcements as expressions of individual beliefs.

Anyway, the underling religious arguments are valid and especially with stronger RFRA claims (that go beyond what the Free Exercise Clause requires), there is a place for them.  Harris v. McRae rejected specific Establishment Clause claims, not all of them, and didn't even reach the Free Exercise Clause for standing purposes. The dissent ignored the issue though Justice Stevens later flagged the first issue in various opinions. Also, in Planned Parenthood v. Casey, the fact abortion is basically a matter of conscience was also recognized. The claims here might be seen as "hey if Hobby Lobby gets protections, why not me" tit for tat that just underline the problems with the doctrine, but there is something to it.

The basic point is that the choices involved in abortion are deep down matters of personal conscience that quite often don't just have a by chance overlap with religious beliefs. Take the "human being" and "life at conception" message that is part of the case at hand. These are not scientifically neutral statements of fact or something.  As expressed here, maybe the religious liberty claim is too weak (though if the state requires materials with it, the opinion is weak arguing it isn't really the state's message as such). But, it is still bad policy to require such divisive moral tinged messages, the words for many not applicable to fertilized eggs.

The overall question of abortion overall is even more freighted with religious significance and burdening the rights of some here is not only a free exercise problem.  Again, maybe this specific case (that avoided the earlier standing issue because the woman wishing to choose made the claim, not some organization deemed not to have standing) is weak. For instance, just providing an option of an ultrasound (as compared to a law that requires it) is arguably protective of religious liberty.  It still might be a problem because it is burdensome to clinics on other grounds.

Finally, as a state case, federal doctrine is not all that is at stake. The three day waiting period in general very well might be unduly burdensome, especially given specific facts, even under Planned Parenthood v. Casey. And, Justice Stevens' concurrence there specifically pointed out the problem and there the law was for one third as long:
The mandatory delay thus appears to rest on outmoded and unacceptable assumptions about the decisionmaking capacity of women... A woman who has, in the privacy of her thoughts and conscience, weighed the options and made her decision cannot be forced to reconsider all, simply because the State believes she has come to the wrong conclusion.
Note again how "conscience" along with privacy/liberty and equal protection concerns are raised in this context. The line between "conscience" and "religion" is often thin,* especially when a person specifically raises it in a religious context such as here.  The state court rejected the claim, however, because the three day waiting period did not have the purpose or alleged effect of interfering with her religious liberty.  If someone had to wait three days to choose what religion to be baptized in, such an argument might be a tad weaker. Again, I think the argument  has merit, but the best argument is against such a long waiting period in general. Still, WHY it is a problem will have a religious component.

A truly unduly burdensome abortion regulation very well in somewhat borderline cases can be more so if the person also has a religious liberty claim. This also would arise if for some reason state constitutional claims specifically are being made. Finally, however, the argument is likely best made when stronger ideologically based materials are at issue. The Supreme Court treating crisis pregnancy clinics differently here need to infect lower courts.  Nonetheless, like back in the day how religious liberty was a factor in such things as integrated marriage, religion is part of the issue here. And, it is fine -- including to show how an evenhanded application of RFRA would work -- to push the issue.

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* We often hear of "freedom of conscience" though traditionally that was assumed to have religious content. There is some concern that "conscience" is too open-ended, especially for certain types of exemptions. But, that often is a matter of the exemptions themselves (see, e.g., for vaccines). 

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