By: Jack Ellis
Two trends in American jurisprudence stand poised to collide: The rise in religious exemptions from our laws[1], and the encroaching restrictions on reproductive rights[2]. The cage match where these two conservative legal aims will come head to head may have an unlikely referee, Satan. The Satanic Temple is a non-theistic religion with 46 American congregations and over 700,000 members (which places it in the top 20 most populous religions worldwide)[3]. The Satanic Temple’s foundational religious philosophy comes from 7 tenets[4]. Among them are:
III. One’s body is inviolable, subject to one’s own will alone.
V. Beliefs should conform to one’s best scientific understanding of the world. One should take care never to distort scientific facts to fit one’s beliefs.[5]
Out of these tenets, The Satanic Temple has developed a Satanic Abortion Ritual for the purpose of “alleviat[ing] some of these stressors and empower the patient to be guided by the Third and Fifth Tenets when pursuing their decision.” [6]
The Temple is now attempting to assert their religious right to perform this ritual and has filed lawsuits in Indiana and Idaho claiming those states’ abortion restrictions violate the religious freedoms of Satanists and those states’ own Religious Freedom Restoration Acts (RFRA).[7] Also in Indiana, the ACLU has filed suit on behalf of Hoosier Jews for Choice on similar grounds.[8]
The Lawyer representing TST in these cases is W. James MacNaughton, an attorney of 50 years who specializes in telecommunications.[9] MacNaughton has laid out a fairly novel approach in their briefs. The brief lays out a religious foundation for the right to an abortion for Satanists, but also proposes a legal argument that the imposition of a pregnancy upon a woman who wishes not to be is a governmental taking under the Fifth Amendment. This is derived from the idea that the woman could otherwise gainfully engage in surrogacy, stating, “The property right to exclude or remove a Protected Unborn Child from a woman’s uterus has substantial commercial value as established by over twenty-five years of experience with gestational surrogacy in Indiana.“[10]
The second argument makes a claim that can be seen as the next step of Dorothy Roberts’ groundbreaking work in identifying reproductive control of enslaved black women as an integral part of their enslavement – that abortion bans are themselves a form of slavery in violation of the Thirteenth Amendment.[11]
In the third (and fourth) count, the complaint brings up yet another novel approach.[12] By allowing exceptions for rape or incest, but not those women involuntarily impregnated by failed birth control or in vitro fertilization, the Indiana ban discriminates against pregnant women based on the condition of how they became pregnant. Because a state can only discriminate with a sufficiently compelling state interest, and Indiana has identified none, such exemptions violate the Fourteenth Amendment. [13]
Finally, the complaint does address the religious aspect of the case in the fifth count of the complaint.[14] Based on the Satanic Tenets, derived from the best current scientific understanding (and not distorted to fit one’s beliefs) any fertilized egg including any zygote, blastocyst, embryo, or nonviable fetus, are part of a woman’s body and therefore subject to their will alone. Therefore, if such a part is unwanted, then a Satanist is entitled to remove it, specifically via the Satanic Abortion Ritual. Therefore, the abortion ban is prohibiting the free religious exercise of Satanists as protected by the state’s Religious Freedom Restoration Act, which states, “. . . a governmental entity may not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability[,]” unless it is in furtherance of compelling government interest and is done in the least restrictive way.[15]
[1] Ian Millhiser, The Supreme Court is taking a wrecking ball to the wall between church and state (Aug 13, 2023), https://www.vox.com/scotus/2023/8/13/23822822/supreme-court-establishment-clause-church-state-separation-carson-bremerton.
[2]Elizabeth Nash & Isabel Guarnieri, Six Months Post-Roe, 24 US States Have Banned Abortion or Are Likely to Do So (Jan 10, 2023), https://www.guttmacher.org/2023/01/six-months-post-roe-24-us-states-have-banned-abortion-or-are-likely-do-so-roundup.
[3]The Satanic Temple, Find a Congregation, https://thesatanictemple.com/pages/find-a-congregation (last visited Oct 31, 2023); Press Release, The Satanic Temple, The Satanic Temple is one of the World’s Fastest-Growing Religions with Over 700,000 Members (2022).
[4] The Satanic Temple, About Us, https://thesatanictemple.com/pages/about-us (last visited 0ct 31, 2023).
[5]Id.
[6] The Satanic Temple, Satanic Abortion Ritual (2020).
[7]Rebecca Boone, The Satanic Temple takes aim at Idaho, Indiana abortion bans (Oct 5, 2022), https://apnews.com/article/abortion-religion-lawsuits-idaho-lobbying-f82f0d311692a9fe5fd4474a282cb4af
[8]Joe Schroeder, The Satanic Temple takes aim at Idaho, Indiana abortion bans (Jun 7, 2023), https://fox59.com/indiana-news/marion-county-judge-approves-class-action-in-aclus-religious-freedom-based-lawsuit-challenging-indianas-near-total-abortion-ban/
[9]ABC News, Satanists Use Hobby Lobby Decision to Play Devil’s Advocate (Jul 30, 2014), https://abcnews.go.com/Politics/satanists-hobby-lobby-decision-play-devils-advocate/story?id=24772548
[10] Complaint at 9, The Satanic Temple v. Holcomb & Rokita, No. 1:22-cv-1859 (S.D. Ind Sep 21, 2022).
[11] Id. at 10; Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997).
[12] Complaint at 11-12, The Satanic Temple v. Holcomb & Rokita, No. 1:22-cv-1859 (S.D. Ind Sep 21, 2022).
[13] Id.
[14] Id. at 13.
[15] Id.