The Circle Starts to Close: The Religious Freedom Restoration Act, Abortion, the Catholic Bishops, and the Satanic Temple

Posted in: Reproductive Law

When the Religious Freedom Restoration Act (“RFRA”) was first being considered over twenty years ago, the Catholic bishops did not jump in to support it with both feet. They were concerned it would be invoked by some believers to create an avenue to obtain abortion on demand.

The General Counsel to the United States Catholic Conference at the time, Mark Chopko, testified before the House Committee on the Judiciary a year before RFRA was first enacted in 1993 that the bishops were concerned that RFRA might “be used to promote access to abortion.” He predicted that abortion rights claims would be made under RFRA and worried aloud: “Even if only a few claims to obtain abortions do succeed under [RFRA], what restraint will remain on district and state attorneys to deny abortions to others who offer affidavits conforming their claims, beliefs, and motions to the prior successful claims? These claims will be numerous and far-reaching in their impact.”

For the bishops at the time, the “lives of the unborn [were] too important to put at risk under [RFRA].” In other words, regardless of all the other religious agendas to defeat certain laws, like fair housing laws, the bishops were intent on opposing RFRA unless it contained an exception for the abortion laws. Before the Senate Subcommittee on the Judiciary, he added that he was concerned “whether RFRA can be used to upset even moderate abortion regulation.”

Obviously, they did not succeed on this score. No abortion law exception was inserted into RFRA. Nor did the bishops wait long following RFRA’s enactment to invoke its advantages when it suited their interests. It was the Catholic bishop of San Antonio, Texas, who brought the early RFRA lawsuit to overcome the historic preservation laws of Boerne, Texas, that eventually rendered it unconstitutional in Boerne v. [Archbishop] Flores.

Their enthusiasm for RFRA is at an all-time high now as the bishops and Catholic institutions generally are sinking who-knows-how-much money into lawsuits invoking RFRA to prevent all of their employees and students from receiving cost-free contraception coverage.

The bishops may now be ruing the day they lost the legislative battle to keep abortion laws from being subject to RFRA, and the evangelicals, who were on board RFRA from day one, may now wonder what they have wrought with RFRA. Their problem is that RFRA does not and cannot (consistent with the Constitution) provide its extreme standard solely to some religious believers and not others.

Enter the Satanic Temple

The Satanic Temple is famous for its offer to install a statue of Satan to join the Ten Commandments monument on the Oklahoma state house grounds. The ACLU is litigating the Ten Commandments monument, though, which put the application for Satan on hold, but a sculptor is at work nonetheless.

Now it has entered the picture following Burwell v. Hobby Lobby, arguing state informed consent restrictions on abortion—which can include misleading health information in addition to advocating for the woman to make any other choice—violate its religious beliefs. As I have explained elsewhere, it was inevitable that believers could and would raise arguments under RFRA that undermine the agendas of many of those behind it. Now it is worth examining closely how the evangelical Green family of Hobby Lobby paved the way for the Satanic Temple.

Hobby Lobby and the Satanic Temple on Abortion

The RFRA doctrine raises five issues: (1) is the entity protected by RFRA; (2) is the believer sincere; (3) does the law impose a substantial burden on the believer; and (4) can the government prove that the law serves a compelling interest (5) in the least restrictive means?

There is a federal RFRA applicable to federal law and the District of Columbia, which was at play in Hobby Lobby, and some states also have state RFRAs, that have similar features.  The federal RFRA could be invoked by pro-choice believers against the Partial-Birth Abortion Act, which was based on unreliable medical science and disregarded women’s health, as Justice Ginsburg’s dissent in Gonzales v. Carhart established.   State informed consent laws could also be attacked through a state RFRA.   The following focuses on the Satanic Temple’s reference to informed consent laws, but the reasoning applies equally well to the Partial-birth Abortion Act and other federal laws that burden access to abortion as well.

Is the Satanic Temple protected by RFRA? Check. In Hobby Lobby, the Supreme Court held that a for-profit, nonreligious corporation could assert rights under RFRA. That issue is does not arise here, because the Satanic Temple is a religious organization clearly intended to be covered by RFRA.

Is the Satanic Temple sincere about its belief against coercive informed consent laws? Check. The next issue that could arise in a RFRA case is whether the believer is sincere. There were and are many reasons to question the sincerity of the Greens, who covered contraception before the Affordable Care Act mandated it and whose company is heavily invested in the companies that make the contraceptives to which they object, but the federal government failed in Hobby Lobby to pursue this legitimate tack, likely for political reasons. In any event, there can be no question that the Satanic Temple is sincere about its beliefs regarding the coercive informed consent abortion laws to which it objects.

Here are their beliefs relevant to abortion: “The Satanic Temple believes that the body is inviolable—subject to one’s own will alone.” Further, “we strive to make all decisions regarding personal health based on the best scientific understanding of the world, regardless of the religious or political beliefs of others.” These beliefs were not concocted recently, and there is no evidence of hypocrisy.

Do the coercive informed consent abortion laws substantially burden these beliefs? Check, after Hobby Lobby. Before Hobby Lobby, this would have been harder for the Satanic Temple, because “substantial” meant substantial, and it had never meant that a believer could point to the practices of others to prove the substantial burden on them. Now, “substantial” can also mean attenuated. Hobby Lobby’s “substantial burden” was that some dollars from its billions in annual revenues would pay for some types of contraception that their employees might use. In other words, the burden arose from their fungible funds entering a stream of fungible healthcare funds and then being used by some of their female employees in ways they will never know.

A Satanic Temple adherent believes that people have an “inviolable” right to control their own bodies and that medical care should be delivered on the basis of the best medical science and not others’ “religious or political” beliefs. When a coercive informed consent law is contrary to the wishes of the woman demanding an abortion or includes untrue medical statements, e.g., abortion causes breast cancer or that there is a “post-abortion syndrome,” these beliefs are burdened. They actually have a better argument on “substantial burden” than did Hobby Lobby, because the burden is direct.

Can the government show that a coercive informed consent abortion law serves a compelling interest? In Hobby Lobby, the Court did not even bother to consider this issue, but rather simply assumed it. So we will assume it here. What is the interest we are assuming is compelling? Let’s say it is providing as much information—true or false—as possible so the woman will consider all of the options before obtaining the early term abortion that is her right under Roe v. Wade and Planned Parenthood v. Casey.

Can the government show that the coercive informed consent abortion law is the least restrictive means to serve that compelling interest? The Hobby Lobby majority reasoned that if there was any way the government could fill the gap by other means, its chosen way was not the “least” restrictive. How else could the government fulfill its goal of providing full information without substantially burdening the Satanic Temple believer? That’s easy! Delete all of the medically unsound verbiage from the informed consent materials and let the woman make her own decision about obtaining an abortion. Better yet, since the majority went out on a limb in Hobby Lobby for the insubstantially burdened believer there, let’s throw in here that the government should also have to pay for the Satanic Temple believer’s abortion, because the faith requires no burdens on the woman’s decision whether to have an abortion.

The Satanic Temple wins, and who loses? All of the evangelicals and Catholic bishops who lobbied like crazy to put such coercive and insulting conditions on women’s choices over their own bodies in the first place. The bishops were correct in 1992: RFRA cuts both ways. It turns our laws into legal Swiss cheese.

The Need for Protestants and Jews and Others to Flip the Priorities: Integrity Over Image

The truth is that many Protestants and Jews also believe that women should be able to make their own choices about abortion and contraception and that many current abortion restrictions are immoral, insulting, and draconian. They view women in a non-patriarchal and respectful way, and they believe that medical science can legitimately be a limit on abortion, but not mean-spirited politics or religion. In short, they should get on the Satanic Temple train.

Of course, it is unlikely they will, because they may shy away from the optics of joining forces with a religious group that is, well, a bunch of Satanists. Notice that the Satanic groups were not included in the Coalition for the Free Exercise of Religion to whom we owe a debt of gratitude for inflicting RFRA on the United States. Nor were a wide range of other groups that aren’t as pleasing to the public eye, either. Why? Because RFRA was sold as a benign law and religion has been sold for decades in the United States as a benign force. Both can be, but not by necessity.

It would be so refreshing for mainstream Protestant and Jewish organizations and believers to stand up and say, yes, we will join forces with whoever will stand for women’s right to choose, even if it is the Satanic Temple. Time for integrity to trump image.

Just because women and the United States as a whole lost the Hobby Lobby battle does not mean they must lose the war.