The Missouri Supreme Court could throw the state’s abortion procedures into chaos if it scraps an existing statute.
The high bench heard an argument Tuesday in Jefferson City challenging the “informed consent law”, which places requirements on women before they can obtain the procedure.
The law calls for the person seeking an abortion to be given a booklet about the operation, to have access to an ultrasound, and be required to wait three days before receiving the procedure.
An attorney representing a woman referred to as Mary Doe argued her case under religious grounds, which he says is the first-time informed consent laws have been challenged in such a way.
Mary Doe professes to be a member of the Satanic Temple, which according to the group’s website, encourages goodwill among all people, rejects tyrannical authority and advocate for practical common sense and justice.
According to court documents, Mary Doe of Greene County went to the Planned Parenthood facility in St. Louis in 2015 and handed personnel a letter stating her beliefs, and asked them to forego the consent laws in her case. She filed her lawsuit against the state when Planned Parenthood followed the law and went through the required process called for by the rules.
Mary Doe contend the state’s informed consent rules violate the Missouri Restoration of Religious Freedom Act, and barring that, violate religion clauses in the U.S. Constitution. The Establishment Clause of the First Amendment prohibits the government from making any law “respecting an establishment of religion.”
The attorney for Doe says the state’s claim that life begins at conception itself constitute a religious belief.
Arguing for the state, Missouri Solicitor General John Sauer said courts have long held such an assertion is not a religious statement.
“All these decisions reject the notion that, when the state says life begins at conception, it’s in some way adopting a religious belief as opposed to a political, philosophical and scientific belief,” said Sauer. “There is a very strong line of Supreme Court decisions. No decision to the contrary has been cited on the other side.”
The state further contends that the trial court correctly determined in the case that there was no wrongdoing under the Missouri Restoration of Religious Freedom Act. The lower court found that Mary Doe failed to establish that the state restricted her from engaging in her own religious activity.
Two judges, Chief Justice Zel Fischer and Judge Laura Denver Stith, were the most vocal in questioning the validity of Mary Doe’s claim that the informed consent law violates her religious rights. Judge Stith wanted an explanation how Mary Doe was forced to act contrary to her religious beliefs.
“Assuming they’re her religious beliefs and that she holds them, and that they’re in conflict with a statement made in the statute, she wasn’t forced to say she agreed with them,” said Stith. “She was given a brochure, but wasn’t required to read it. And she wasn’t, according to the state, required to pay for the sonogram.”
Arguing for Mary Doe, attorney James Mac Naughton, insisted the informed consent law, specifically the requirement to wait three days for an abortion, imposes a substantial burden on her religious beliefs.
“Mary Doe, in the exercise of her religious belief, asked for an abortion on demand, a medical procedure,” said Mac Naughton. “‘Give me an appendectomy.’ There’s no need, there’s medical need in that instance, to make somebody wait three days.”
In a noteworthy exchange, the court seemed to be clarifying in real time whether the law suggested or required an ultrasound be obtained. Judge Stith asked State Attorney Sauer to explain.
Judge Stith: “Is this an official position of the state, that it’s not required, it was just required by Planned Parenthood?” Sauer: “I think the official position of the state is that the plain language of the statute is what should govern, and I believe that that is the plain language of the statute. Opportunity must be offered, an opportunity to view and an opportunity to hear.”
Mary Doe’s abortion was performed at the Planned Parenthood clinic in St. Louis.
After the court proceeding, Mary Doe’s attorney Mac Naughton wondered how the state could operate under vague conditions. “How does the person at Planned Parenthood, who’s on the ground implementing this stuff, how do they know what the state’s rules are?”
Naughton said that if the Missouri Supreme Court decided against his client, the next move would be to file a petition with the U.S. Supreme Court.
Meanwhile, a companion federal lawsuit was filed by a person also calling herself “Mary Doe”, challenging Missouri’s informed consent laws. The federal court dismissed the suit as not having any grounds to challenge the Missouri law. That case is now under review at the Eighth Circuit Court of Appeals in St. Louis.
A new wrinkle was added to the state’s informed consent law by the legislature this year. In addition to the three day waiting period, performing doctors must meet with abortion patients three days (72 hours) before a procedure to explain risks.
The Missouri Supreme Court will hand down its decision in the Mary Doe case in the upcoming weeks.