Satanist's 1st Amendment Challenge To Missouri Abortion Law Fails

Thirty years ago, the two prong (Establishment/Free Exercise) religious liberty argument against the Hyde Amendment was rejected in Harris v. McRae though the latter only on standing grounds.  The majority argued it coincided with religious belief but was not wrongful establishment.  The dissent did not even cover the issue though the judge below took both quite seriously and accepted one of them. Justice Stevens separately in Webster argued a state finding that "life begins at conception" violated the EC especially given it was a major religious dispute though the majority said it had no operative effect so left it be.

Planned Parenthood v. Casey noted that the choice at issue here was a matter of "conscience" and spoke of a constitutional "obligation is to define the liberty of all, not to mandate our own moral code.”  The state, more so than under Roe v. Wade, could do things to promote "protecting life of fetus that may become a child."  But, that was accepted before in the Hyde cases. That statement need not be interpreted to override the previous rule that states cannot pick and choose one "theory of when life begins."  As to the Webster decision, here something concrete is being challenged here as compared to a general concern that the statement would limit contraception rights or whatnot.  The religious beliefs of the woman here. 

It is quite possible to so interpret and figure that five justices will uphold it now.  But, the question is not clearly faced and citing how now states are given more power to require ideological materials be given at clinics as part of "informed consent" does not settle the question.  The "meaning of life" is a basic matter of belief and separate from the stuff covered in Casey.  So, I'm not sure about the lower court opinion this post is ultimately about.  (The school dancing case btw had a strong dissent.).  Perhaps, though I won't rely too much of their consistency, the crisis pregnancy case suggests the better argument is that a clinic itself cannot be forced to provide the ideological message (as compared to medical materials even including related to an ultrasound) that conflicts with its own beliefs.  Finally, perhaps, RFRA (including state RFRAs) would put a higher test in place.

There are various ways that the government can (to touch upon page cites in the opinion) do things regarding "protecting life of fetus that may become a child" or the "life of the unborn" without requiring people to obtain or clinics to provide religious laden material.  References to "life" here also is more general than the more divisive and disputed specific legal framing here.  Shades of "under God" as compared to a more detailed theistic statement.  The argument here as I recall in another lawsuit goes further and might oppose receipt of even more information.  That is a harder case though the old rule against materials that go beyond neutral informed consent very well might have been more appropriate.

There is a basic principle against forced receipt of religious/ideological  laden speech here but in a concrete way the specific burden in this case is minor. One can simply toss the material out.  This is not akin to being forced to take an ultrasound or hear a physician actually say that life begins at conception and so forth.  But, I support the general idea that abortion disputes have a religious liberty component on the side of choice.  "Satanist" challenges come off to some as hard to take seriously since it seems to be a sort of parody of religion, not actually worshiping Satan.  This should not lead one to ignore that reproductive liberty includes people making a bunch of decisions that religious sects split over.  Decisions that in various ways, including having an abortion, that might be compelled by them.

This very well can include something as basic as not taking part in medical procedures that go beyond medicine to promote beliefs that one rejects. The line there as to written materials is unclear since there can be a range of things that might clash with a person's beliefs.  As noted in writings by Ronald Dworkin and others, there is something special about life and death that warrants special care.  Again, Justice Stevens' opinion is interesting there.  OTOH, simply thinking neutral information such as embryonic development is unnecessary is another matter. The government can set forth certain informed consent laws.

A somewhat reasonable thing here is to allow the woman in question not to receive any materials with the statement cited (free exercise) while still requiring some general informed consent.  The state can have their belief on record. This sort of "splits the baby" and would not satisfy completely.  Still, it would provide an equal respect to a range of beliefs.  And, again, there can be other laws that cause religious liberty problems.  For instance, the last abortion ruling post covered a restriction on procedure during the second trimester.  Choosing how to abort very well might be a moral and religious matter.

And, yes, I think medical insurance funding should not be split by stance on abortion.  That should be left to the individual on religious liberty grounds.