How the Satanic Temple is using ‘abortion rituals’ to claim religious liberty against Texas’ ‘heartbeat bill’
Joseph P. Laycock, Assistant Professor of Religious Studies, Texas State University
How the Satanic Temple is using ‘abortion rituals’ to claim religious liberty against Texas’ ‘heartbeat bill’
Hannah Grabenstein
The Satanic Temple unveils its statue of Baphomet, a winged-goat creature, at a rally for the first amendment in Little Rock, Ark., Thursday, Aug. 16, 2018. (AP Photo/Hannah Grabenstein)
Hannah Grabenstein
The Satanic Temple unveils its statue of Baphomet, a winged-goat creature, at a rally for the first amendment in Little Rock, Ark., Thursday, Aug. 16, 2018. (AP Photo/Hannah Grabenstein)
Mexico’s Supreme Court rules that abortion is not a crime
AP FILE
AUSTIN, Texas (AP) — The Supreme Court allowing a new Texas law that bans most abortions is the biggest curb to the constitutional right to an abortion in decades, and Republicans in other states are already considering similar measures.
The law prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks — before some women know they're pregnant. Courts have blocked other states from imposing similar restrictions, but Texas' law differs significantly because it leaves enforcement up to private citizens through civil lawsuits instead of criminal prosecutors.
Here's what to know about the new Texas law that took effect Tuesday, which already has abortion clinics in neighboring states reporting a surge in the number of Texas women seeking the procedure:
AP FILE
AUSTIN, Texas (AP) — The Supreme Court allowing a new Texas law that bans most abortions is the biggest curb to the constitutional right to an abortion in decades, and Republicans in other states are already considering similar measures.
The law prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks — before some women know they're pregnant. Courts have blocked other states from imposing similar restrictions, but Texas' law differs significantly because it leaves enforcement up to private citizens through civil lawsuits instead of criminal prosecutors.
Here's what to know about the new Texas law that took effect Tuesday, which already has abortion clinics in neighboring states reporting a surge in the number of Texas women seeking the procedure:
Mexico’s Supreme Court rules that abortion is not a crime
AP FILE
Answer: It allows any private citizen to sue Texas abortion providers who violate the law, as well as anyone who "aids or abets" a woman getting the procedure. Abortion patients themselves, however, cannot be sued.
The law does not make exceptions for rape or incest. The person bringing the lawsuit — who does not have to have a connection to the woman getting an abortion — is entitled to at least $10,000 in damages if they prevail in court. Texas Right to Life, the state's largest anti-abortion group, launched a website to receive tips about suspected violations and says it has attorneys ready to bring lawsuits.
AP FILE
Answer: It allows any private citizen to sue Texas abortion providers who violate the law, as well as anyone who "aids or abets" a woman getting the procedure. Abortion patients themselves, however, cannot be sued.
The law does not make exceptions for rape or incest. The person bringing the lawsuit — who does not have to have a connection to the woman getting an abortion — is entitled to at least $10,000 in damages if they prevail in court. Texas Right to Life, the state's largest anti-abortion group, launched a website to receive tips about suspected violations and says it has attorneys ready to bring lawsuits.
Mexico’s Supreme Court rules that abortion is not a crime
AP FILE
Answer: The new Texas law could affect thousands of women seeking abortions, though precise estimates are difficult. In 2020, Texas facilities performed about 54,000 abortions on residents. More than 45,000 of those occurred at eight weeks of pregnancy or less. Some of those abortions still could have been legal under the new law, if they occurred before cardiac activity was detected.
AP FILE
Answer: The new Texas law could affect thousands of women seeking abortions, though precise estimates are difficult. In 2020, Texas facilities performed about 54,000 abortions on residents. More than 45,000 of those occurred at eight weeks of pregnancy or less. Some of those abortions still could have been legal under the new law, if they occurred before cardiac activity was detected.
Mexico’s Supreme Court rules that abortion is not a crime
AP FILE
Answer: The key difference is the enforcement mechanism. The Texas law relies on citizens suing abortion providers over alleged violations. Other states sought to enforce their statutes through government actions like criminal charges against physicians who provide abortions.
Texas is one of 14 states with laws either banning abortion entirely or prohibiting it after eight weeks or less of pregnancy. The rest have all been put on hold by courts. Most recently, a court halted a new Arkansas law that would have banned all abortions unless necessary to save the life of the mother in a medical emergency. Other states with blocked laws banning abortions early in pregnancy are Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, South Carolina, Tennessee and Utah.
AP FILE
Answer: The key difference is the enforcement mechanism. The Texas law relies on citizens suing abortion providers over alleged violations. Other states sought to enforce their statutes through government actions like criminal charges against physicians who provide abortions.
Texas is one of 14 states with laws either banning abortion entirely or prohibiting it after eight weeks or less of pregnancy. The rest have all been put on hold by courts. Most recently, a court halted a new Arkansas law that would have banned all abortions unless necessary to save the life of the mother in a medical emergency. Other states with blocked laws banning abortions early in pregnancy are Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, South Carolina, Tennessee and Utah.
Mexico’s Supreme Court rules that abortion is not a crime
AP FILE
Answer: Texas has long been a major battleground over abortion rights and access, including a 2013 law that closed more than half of the 40-plus abortion clinics in the state before it was blocked by the Supreme Court.
Emboldened by victories in the 2020 elections, Republicans responded with a hard-right agenda this year that included loosening gun laws and further tightening what are already some of the nation's strictest voting rules. Anti-abortion groups say the new law was in response to frustration over prosecutors refusing to enforce other abortion restrictions already on the books.
Before Republican Gov. Greg Abbott signed the law in May, voters in Lubbock, Texas, approved an ordinance similarly intended to outlaw abortion in the city by allowing family members to sue an abortion provider.
AP FILE
Answer: Texas has long been a major battleground over abortion rights and access, including a 2013 law that closed more than half of the 40-plus abortion clinics in the state before it was blocked by the Supreme Court.
Emboldened by victories in the 2020 elections, Republicans responded with a hard-right agenda this year that included loosening gun laws and further tightening what are already some of the nation's strictest voting rules. Anti-abortion groups say the new law was in response to frustration over prosecutors refusing to enforce other abortion restrictions already on the books.
Before Republican Gov. Greg Abbott signed the law in May, voters in Lubbock, Texas, approved an ordinance similarly intended to outlaw abortion in the city by allowing family members to sue an abortion provider.
Mexico’s Supreme Court rules that abortion is not a crime
AP FILE
Answer: The Supreme Court's action does not reinstate any stricken abortion laws in other states. But "essentially, the Supreme Court has now given other states a roadmap for circumscribing Roe vs. Wade," said Steven Schwinn, a constitutional law professor at the University of Illinois Chicago.
Indeed, some Republican lawmakers already are talking about following suit.
In Arkansas, Republican state Sen. Jason Rapert on Thursday tweeted that he planned to file legislation mirroring Texas' law for the Legislature to take up when it reconvenes this fall. But it's unclear whether that will be allowed, because the session's agenda currently is limited to congressional redistricting and COVID-19 legislation.
In Mississippi, Republican state Sen. Chris McDaniel said Thursday that he would "absolutely" consider filing legislation to match the Texas law.
"I think most conservative states in the South will look at this inaction by the court and will see that as perhaps a chance to move on that issue," McDaniel said.
The Mississippi Legislature is scheduled to start meeting in January. The Supreme Court will hear arguments this fall on a 2018 Mississippi law that would ban most abortions after 15 weeks of pregnancy -- a case that is a direct challenge to Roe v. Wade.
AP FILE
Answer: The Supreme Court's action does not reinstate any stricken abortion laws in other states. But "essentially, the Supreme Court has now given other states a roadmap for circumscribing Roe vs. Wade," said Steven Schwinn, a constitutional law professor at the University of Illinois Chicago.
Indeed, some Republican lawmakers already are talking about following suit.
In Arkansas, Republican state Sen. Jason Rapert on Thursday tweeted that he planned to file legislation mirroring Texas' law for the Legislature to take up when it reconvenes this fall. But it's unclear whether that will be allowed, because the session's agenda currently is limited to congressional redistricting and COVID-19 legislation.
In Mississippi, Republican state Sen. Chris McDaniel said Thursday that he would "absolutely" consider filing legislation to match the Texas law.
"I think most conservative states in the South will look at this inaction by the court and will see that as perhaps a chance to move on that issue," McDaniel said.
The Mississippi Legislature is scheduled to start meeting in January. The Supreme Court will hear arguments this fall on a 2018 Mississippi law that would ban most abortions after 15 weeks of pregnancy -- a case that is a direct challenge to Roe v. Wade.
Mexico’s Supreme Court rules that abortion is not a crime
AP FILE
Answer: Some states already have turned to citizens to enforce new laws.
A Missouri law that took effect last week allows citizens to sue local law enforcement agencies whose officers knowingly enforce any federal gun laws. Police and sheriff's departments can face fines of up to $50,000 per occurrence. The law was backed by Republicans who fear Democratic President Joe Biden's administration could enact restrictive gun policies.
In Kansas, a new law prompted by frustration over coronavirus restrictions allows residents to file lawsuits challenging mask mandates and limits on public gatherings imposed by counties. Last month, the Kansas Supreme Court allowed enforcement of the law to proceed while it considers an appeal of a lower court ruling that declared the law unconstitutional.
Utah also took a similar strategy on pornography last year, passing a law that allows citizens to sue websites that fail to display a warning about the effects of "obscene materials" on minors. Though adult-entertainment groups warned it was a violation of free speech, many sites have complied with the law to avoid the expense of a possible onslaught of legal challenges.
Citizens filing their own lawsuits has long been a fixture of environmental and disability-rights law, said Travis Brandon, an associate professor at Belmont University College of Law. Environmental groups, for example, help file suits against businesses accused of violating federal pollution permits.
In California, Proposition 65 allows people who might have been exposed to potentially carcinogenic materials to both file their own lawsuits and collect a kind of "bounty" if they win. Those laws are different, though, in that people generally must show they have been directly affected by a violation of the law, a feature missing from the new Texas measure, Brandon said.
AP FILE
Answer: Some states already have turned to citizens to enforce new laws.
A Missouri law that took effect last week allows citizens to sue local law enforcement agencies whose officers knowingly enforce any federal gun laws. Police and sheriff's departments can face fines of up to $50,000 per occurrence. The law was backed by Republicans who fear Democratic President Joe Biden's administration could enact restrictive gun policies.
In Kansas, a new law prompted by frustration over coronavirus restrictions allows residents to file lawsuits challenging mask mandates and limits on public gatherings imposed by counties. Last month, the Kansas Supreme Court allowed enforcement of the law to proceed while it considers an appeal of a lower court ruling that declared the law unconstitutional.
Utah also took a similar strategy on pornography last year, passing a law that allows citizens to sue websites that fail to display a warning about the effects of "obscene materials" on minors. Though adult-entertainment groups warned it was a violation of free speech, many sites have complied with the law to avoid the expense of a possible onslaught of legal challenges.
Citizens filing their own lawsuits has long been a fixture of environmental and disability-rights law, said Travis Brandon, an associate professor at Belmont University College of Law. Environmental groups, for example, help file suits against businesses accused of violating federal pollution permits.
In California, Proposition 65 allows people who might have been exposed to potentially carcinogenic materials to both file their own lawsuits and collect a kind of "bounty" if they win. Those laws are different, though, in that people generally must show they have been directly affected by a violation of the law, a feature missing from the new Texas measure, Brandon said.
Two women hold mock pro-life signs in what they call an ‘Abortrait room’ at the Satanic Temple’s headquarters to protest abortion laws. Joseph Prezioso / AFP via Getty images
Texas’s controversial anti-abortion law known as the “Heartbeat Bill” went into effect at midnight on Sept. 1, 2021. Less than 24 hours later, the U.S. Supreme Court declared it would not block the law.
In response, The Satanic Temple, a nontheistic group that has been recognized by the IRS as a religion, announced that it would fight back by invoking the Religious Freedom Restoration Act, or RFRA, to demand exemption from abortion restrictions on religious grounds. RFRA laws, which came into effect in 1993, restrict the government’s ability to burden religious practices.
Like the Heartbeat Bill itself, The Satanic Temple’s efforts to circumvent abortion restrictions on religious grounds involve a creative and complicated legal strategy. As a scholar who studies the ways in which The Satanic Temple’s provocations affect public debates about religious freedom, I anticipate their latest legal argument will challenge some assumptions about RFRA and the freedoms it was designed to protect.
The Heartbeat Bill
In the pivotal 1973 abortion case Roe v. Wade and Planned Parenthood v. Casey in 1992, the Supreme Court established that abortion is a Constitutional right. However, states can still pass laws that severely restrict access to abortion. The question is how severely.
Texas’s new law was designed to effectively shut down all abortion while protecting the state from judicial review.
First, the bill bans abortion after six weeks – the point at which Texas lawmakers claim a fetus’s heartbeat can be detected. Most women are not aware they are pregnant before six weeks, and Texas abortion providers estimate 85% of abortions in the state are performed after this period.
Second, the law allows anyone to sue those they can accuse of “aiding and abetting” an abortion for US$10,000. Critics of the law claim this is an intimidation tactic designed to threaten the clinics with so much potential liability that legal abortion becomes impossible.
But outsourcing enforcement to the public is also intended to protect the state. Proponents of the bill claim that since no state official is enforcing the law, abortion providers have no one to sue.
The Religious Freedom Restoration Act
The 1990 Supreme Court case Employment Division v. Smith considered arguments that a member of the Native American Church had a religious right to use peyote, a controlled substance.
The court ruled that freedom of religion was no excuse from compliance with a generally applicable law – a law that applies equally to everyone and does not single out specific groups. With this decision, it appeared that the free exercise of religion guaranteed in the First Amendment meant very little.
Under RFRA, the government cannot burden the free exercise of religion unless: 1) it has a compelling reason for doing so, and 2) the government acts in the least restrictive way possible to achieve its purpose.
Four years later, in Boerne v. Flores, the Supreme Court ruled that RFRA applied only to the federal government and not to individual states. So many states, including Texas, passed similar legislation, sometimes called “mini-RFRAs.”
In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that under RFRA, the federal government could not require the Christian company Hobby Lobby to fund insurance that provided their employees with certain forms of birth control. This decision inspired The Satanic Temple by linking the question of religious liberty with that of reproductive rights.
The Satanic Temple and RFRA
The Satanic Temple began in 2013 and has launched a number of political actions and lawsuits related to the separation of church and state. Texas is home to four congregations of The Satanic Temple, more than any other state.
Although The Satanic Temple does not believe in or worship a literal Satan, they revere Satan as described in the works of English poet John Milton and the Romantic movement, an intellectual movement that originated in late 18th-century Europe, as a powerful symbol of rebellion against authority.
The Satanic Temple’s seven tenets include the belief that “one’s body is inviolable, subject to one’s own will alone.” It interprets state restrictions on abortion access as a burden on this sincerely held religious belief.
In 2015, The Satanic Temple began a series of lawsuits against the state of Missouri, where women seeking abortions must view sonograms and then review a booklet stating, “The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being.” After this, the women must spend 72 hours considering their decision before finally receiving an abortion.
The Satanic Temple argued that this practice was an unconstitutional effort by the state to impose its religious views onto vulnerable women. Furthermore, it claimed that under Missouri’s RFRA law, Satanic women could not be forced to comply with these procedures. Instead of answering whether RFRA protected members of The Satanic Temple from abortion restrictions, the court dismissed these cases on procedural grounds.
The Missouri Supreme Court ruled that since the plaintiff, a woman known as “Mary Doe,” was no longer pregnant by the time her case wound its way through the courts, she no longer needed an abortion and therefore had no legal standing to sue. The Satanic Temple appealed this ruling to the U.S. Supreme Court, which declined to hear it.
To prevent similar rulings, ministers for The Satanic Temple created an “abortion ritual,” in which a woman affirms her own autonomy, obtains an abortion, and then concludes the ritual.
Since abortion is part of the ritual, The Satanic Temple argues, subjecting a woman to a waiting period is akin to the government interfering with a baptism or communion. In February 2021, The Satanic Temple filed a new lawsuit against Texas, arguing that the state was violating the religious liberty of its new plaintiff, referred to as “Ann Doe.”
The devil is in the details
The Satanic Temple raises important questions about what counts as a religion. Opponents of the group argue that abortion is a medical procedure, not a protected religious practice. But The Satanic Temple’s lawyer, Matthew Kezhaya, points to a 2009 case, Barr v. City of Sinton, in which Texas pastor Richard Barr was told the halfway house he operated violated a zoning ordinance.
The Texas Supreme Court ruled that excluding Barr’s halfway house from the city violated Texas’s RFRA law. Key to this argument was the court’s statement that, “The fact that a halfway house can be secular does not mean that it cannot be religious.” Likewise, Kezhaya argues, abortion can be both secular and religious, depending on context.
Kezhaya also disagrees that outsourcing the enforcement of abortion to private lawsuits makes the state of Texas immune to judicial review. He compared this situation to “racially restrictive covenants” of the Jim Crow era in which white residents signed legal agreements never to sell or rent their homes to African Americans.
The Supreme Court initially declined to hear cases challenging these covenants because they were considered private contracts. But in 1948, it ruled that a court enforcing these contracts was a state action that violated the 14th Amendment.
The Satanic Temple also has an even more creative strategy. The Food and Drug Administration, which controls the distribution of the abortion pills mifepristone and misoprostol, is subject to the federal RFRA law. The Satanic Temple sent a letter to the FDA explaining that its prescription requirements illegally burden their abortion ritual. Currently, these drugs are only available with a doctor’s prescription, and the doctor must adhere to any state restrictions before providing them.
The Satanic Temple proposed an accommodation in which Satanic women can obtain a doctor’s note indicating only that these medications are safe for them to use, and then receive medication directly from The Satanic Temple rather than a state-approved provider.
In an interview with me in September 2021, Kezhaya, The Satanic Temple’s lawyer, admitted this was experimental territory. Assuming a court approved this accommodation, it could legally make The Satanic Temple a pharmacy, in addition to a religious entity, because it would be distributing controlled medications.
Is RFRA a “loophole?”
The Satanic Temple’s opponents claim it is abusing RFRA and using it as a “loophole” to circumvent the law. However, Lucien Greaves, a co-founder of The Satanic Temple, counters that RFRA was always intended to protect religious minorities from the government. If anyone is abusing it, he claims, it is companies like Hobby Lobby that invoked it to restrict the choices of their employees.
Critics of RFRA, such as legal scholar Marci Hamilton, warn that religious exemptions can turn the law into “Swiss cheese.” In other words, there could be so many religious loopholes that laws become meaningless. Whether or not this is a serious concern, it is certainly true that RFRA must not benefit only the Christian majority.
This is why constitutional law professor Jay Wexler has encouraged the work of groups like The Satanic Temple, stating, “Only by insisting on exercising these rights can Muslims, Hindus, Buddhists, atheists and everybody else ensure that the Court’s new religious jurisprudence does not result in a public space occupied exclusively by Christian messages and symbols. At stake is nothing less than our national public life.”
Joseph P. Laycock does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
Two women hold mock pro-life signs in what they call an ‘Abortrait room’ at the Satanic Temple’s headquarters to protest abortion laws. Joseph Prezioso / AFP via Getty images