In Missouri, women seeking an abortion at the one open abortion-providing clinic in the state have to make two trips to the clinic, 72 hours apart: The first is to receive counseling that “includes information designed to discourage her from having an abortion,” the Guttmacher Institute says, and the second after the required waiting period is for the procedure.
The Satanic Temple says that the restriction places an undue burden of one Missouri member, identified by the group only under the pseudonym of “Mary.” Late last week, the national group and the local Missouri chapter of the Temple were raising funds for potential legal costs, as well as meals, transportation and day-care costs for “Mary’s” child, according to a video posted by St. Louis Satanic Temple head Damien Ba’al.
The Riverfront Times spoke to “Mary,” who did not use her real name in the interview. She’s a 22-year-old mechanic who lives four hours away from the state’s Planned Parenthood clinic in St. Louis:
“I personally would have liked to have the procedure done as soon as possible,” says Mary, who’s nearly 12 weeks pregnant. “But with all the difficulties, how hard it is do this, it’s been put off for several weeks. If you’re right on the edge of the state you’ve got to go 500 miles just to get to St. Louis, and you have to make arrangements.”
Like many of the Satanic Temple’s campaigns, the news certainly grabbed a lot of attention after the Friendly Atheist blog flagged the story last week.
But could the argument stand in a court of law?
“I think it’s possible in theory for someone to raise a religious conscience argument for having an abortion,” Thomas Berg, a professor of law at the University of St. Thomas in Minnesota, said in an interview with The Washington Post on Friday, “but it’s unlikely to matter much legally.”
According to Berg, an expert on Religious Freedom Restoration Act-style laws, the Satanic Temple’s proposal essentially relies on the same question one would ask to determine whether the 72-hour waiting period violates the earlier decisions at the Supreme Court: Does the law impose a substantial burden on the individual seeking an abortion?
“If 72 hours is a substantial burden on religious conscience, it’s also a substantial burden under the privacy decisions.” Berg added, noting that any court considering such a challenge would likely rely on the privacy protections outlined in Roe and Casey (major Supreme court cases that upheld abortion rights) because they’re more established.
This isn’t the first time the idea of a religious right to an abortion has come up. Abortion came up in the early 1990s, as Congress was considering RFRA, the Religious Freedom Restoration Act that has more recently come under scrutiny in the context of gay rights.
The U.S. Conference of Catholic Bishops and the National Right to Life Committee both opposed earlier forms of the RFRA measure out of concern that it would also enshrine a religious right to an abortion, especially if existing protections for the procedure were overturned in the courts.
“They were worried courts would find a right to abortion under RFRA,” Berg said.
The debate held up the bill for years, Berg said. But the argument became less of a concern after the supreme court’s Planned Parenthood of Southeastern Pennsylvania v. Casey decision. The debate went away in 1992 after the Supreme Court upheld the constitutional right to have an abortion after considering constitutionality of abortion regulations in Pennsylvania.