How the Satanic Temple Could Bring Abortion Rights to the Supreme Court

One of the overarching themes of the Supreme Court’s recent term was that it was surprisingly liberal on several major issues: upholding gay rights, striking down an abortion restriction, and rejecting the President’s request to be immune from having to turn over his financial records. All of this is true, but that doesn’t make this Court liberal. Rather, despite these rulings, this is still a very conservative court. And one area this has been evident is religious freedom.

In a series of three cases, the Court ruled that religion has a particularly special place in American law. So special, in fact, that religious entities can be exempt from generally applicable anti-discrimination laws, can refuse to follow Obamacare mandates about coverage of preventive medical care, and can force the state to send them public funds for students at their religious schools. This has been a trend for the John Roberts Supreme Court — religious entities have won claims of religious liberty in 12 of the 13 cases to come before the Court since 2012.

Not surprisingly, in each of the cases decided this year, it was the dominant Christian religion that won in its claims of religious liberty. So it’s reasonable to ask whether the Supreme Court (or any court) would feel the same way about religious liberty claims brought on behalf of minority religions.

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Enter The Satanic Temple. The Satanic Temple is a religion that believes in benevolence and empathy among all people, rejects tyrannical authority, and advocates for common sense and justice. For years now, The Satanic Temple has fought to expand religious liberty notions that the conservative Supreme Court has applied to Christians to apply to its members as well.

Particularly, The Satanic Temple has fought this battle over abortion. The third tenet of the religion is “One’s body is inviolable, subject to one’s own will alone.” Thus, The Satanic Temple claims that the obstacle course of abortion restrictions that states impose on the procedure should not apply to its members because doing so violates their sincerely-held religious beliefs. As the church’s reproductive rights spokeswoman puts it, “No Christian would tolerate a law that insists state counseling is necessary before someone can be baptized. Our members are justly entitled to religious liberty in order to practice our rituals as well.”

The Satanic Temple has made these claims in multiple state and federal court cases on behalf of members who were pregnant and sought an abortion at the time the lawsuits were filed. So far, it has been unsuccessful. It lost in 2019 before the Missouri Supreme Court, which ruled that the challenged Missouri abortion law does not require any patient to actually have an ultrasound (though one must be offered) or read the state pamphlet (though it must be provided). In June this year, the federal appeals court that covers Missouri ruled that the Satanists cannot be exempt from generally applicable and neutral state laws just because their religious beliefs disagree with the law.

The Satanic Temple, who may wind up appealing this to the Supreme Court, isn’t backing down, and it issued a press release earlier this month again claiming that it is exempt from state abortion restrictions. The church is clearly reading the tea leaves about how the Supreme Court is treating religious liberty. It’s also counting on the Court ultimately being evenhanded with its religious liberty jurisprudence — if it benefits the country’s dominant religion, it should benefit all religions. There’s reason to doubt whether the Court will apply these principles neutrally, but if it does, The Satanic Temple may eventually win.

At issue is a 1990 Supreme Court precedent that says that a “neutral” and “generally applicable” law does not infringe on religious liberty when applied to someone who has a contrary religious belief. In that case, a state law against peyote smoking could be applied to a Native American who said that doing so was important to his religion. The Court said that because the law was not written particularly to harm Native Americans (neutral) and applied to everyone (generally applicable), the claim of religious freedom lost.

This case has been the subject of attack from the day it was decided. The left claimed that it allowed the state to persecute religious minorities. The right claimed that it allowed the state to persecute Christians. As a result, there has been a concerted effort to overturn this precedent at the Supreme Court. There has also been a movement to pass state laws that would protect religious liberty claims. In 2014, the Supreme Court applied the federal version of this religious liberty law (which only applies to other federal laws) to allow Hobby Lobby to refuse to provide contraceptive coverage to its employees, even though the federal Affordable Care Act mandated doing so.

The Satanic Temple is trying to use these laws and this movement to exempt its members from abortion laws. The argument is the same as Hobby Lobby’s, though it’s about state abortion laws rather than federal insurance laws. The church also hopes that the Supreme Court’s precedent about “neutral” and “generally applicable” will be overturned. That precedent has been chipped away and called into question, but so far it remains good law. A case the Supreme Court will hear this coming term could change that. In that case, a Catholic foster care agency wants the freedom to discriminate against gay parents, contrary to Philadelphia’s anti-discrimination laws.

In other words, The Satanic Temple is taking the Christian right’s crusade for religious liberty seriously and saying that if it’s good for Christianity, it has to be good for everyone. It’s only a matter of time before the Supreme Court answers the question whether they actually believe in religious liberty for all.

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