In early August, Indiana’s Republican Governor Eric Holcomb signed an extreme abortion ban into law. Instead of the 22-week ban previously in place, the new law would prohibit the procedure with very few exceptions. The law went into effect on September 15.
In a lawsuit filed this week against Holcomb and Indiana Attorney General Todd Rokita, the Satanists say they represent a number of women who wish to remain anonymous and who believe having an abortion is consistent with their religious views. Stopping them from exercising that option, then, violates their First Amendment rights.
Consistent with TST Tenets III and V, all of the Involuntarily Pregnant Women who are TST members believe the fetal tissue they carry in their uterus—from conception until viability—is part of their body and not imbued with any humanity or existence separate and apart from that of the Involuntarily Pregnant Woman herself.
Consistent with the TST Tenets III and V, none of the Involuntarily Pregnant Women who are TST members wants to carry an “unborn child” as that term is used in Indiana Code §16-18-2-128.7 in her uterus and believes she should abort that “unborn child” if given the opportunity to do so safely and legally.
Pregnant TST members can and do get abortions, where they are legal, to terminate an unwanted pregnancy as an exercise of their religious beliefs pursuant to the Satanic Abortion Ritual…
We’ve heard that premise before in previous TST cases. But here’s where things get interesting. The Satanic Temple isn’t just making a “religious freedom” argument here. They’re making a whole host of arguments, throwing everything against the wall in the hopes that something sticks.
They argue that Indiana’s law violates a woman’s property rights by taking something of hers (her uterus) without offering compensation. The Satanists say women have the right to remove their uteri, rent it out (surrogacy), become pregnant, use birth control to avoid pregnancy, and have an abortion, but Indiana is getting in the way of all that.
They argue that Indiana’s law subjects women to “involuntary servitude,” by forcing her to use her body to carry the pregnancy through to birth, in violation of the Thirteenth Amendment.
They argue that Indiana’s law discriminates between women who become pregnant by accident (and cannot get an abortion) and women who become pregnant through rape or incest (and can get an abortion), in violation of the Fourteenth Amendment’s equal protection clause.
They argue that Indiana’s law discriminates between women who become pregnant despite using birth control (and cannot get an abortion) and women who use in vitro fertilization (and are exempt from the law), in violation of the Fourteenth Amendment’s equal protection clause.
Finally, they argue that Indiana’s law violates the state’s Religious Freedom Restoration Act by punishing the Satanic Abortion Ritual.
The Satanic Temple’s co-founder Lucien Greaves told me why his group is taking this unusual approach:
… On the one hand, novel arguments are good because they also present legitimate legal questions that we believe are only rightly answered in our favor. On the other hand, novel arguments can be a hindrance because they tend to confuse people into thinking there is something unprecedented in our claiming religious freedom from restrictive laws that violate our beliefs and practices. There is not.
Aside from the fact that we’re The Satanic Temple, our religious liberty suits have generally been far from unique, and in many cases they’ve mirrored successful litigation utilized by Christian Nationalists, but employed to preserve pluralism… That is to say, Christian Nationalist litigation will secure some piece of “religious freedom” that turns out to be interpreted to only be available to Christians alone, and then we have to litigate for equal rights in order to try and preserve pluralism and actual religious liberty…
There is nothing faulty in our strategy. There is something very faulty with our courts, however. The fact is, our claim in Indiana prevails on the religious liberty question alone. If the court fails to recognize this, the court fails to act as a neutral arbiter of law, and we drift further into the nightmare dystopia being created by this unfolding theocratic coup.
The hacks who will refer to this lawsuit as an obscure and bizarre ploy are full of shit.
Will the lawsuit work? It’s doubtful. Similar lawsuits have failed in the past, but the Satanists have never attempted this many arguments at once. Still, “religious freedom” never seems to apply to less popular religions. We saw judges bend over backwards to accommodate Christians who wanted to keep their churches open during the pandemic. And yet when Satanists insist having an abortion is an exercise of their faith, it’s hard to believe the courts will care.
But it’s also possible the lawsuit won’t matter.
On Thursday, a judge put the abortion ban on hold, saying it likely violates parts of the state’s Constitution. The case is now in the hands of the Indiana Supreme Court. There’s also another lawsuit alleging a religious freedom violation, so the Satanists aren’t alone.
One of these attempts should do the trick, I would hope. One is all it takes. But I’ll be curious to see if any judge rules on the merits of the Satanists’ various arguments.
(via Religion Clause)