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Monday, August 24, 2020

Yeah, about that bizarre "Satanic abortions" story

Earlier this month, you may have seen a few headlines about "Satanic abortions" that made you roll your eyes and flash back to kooky chain emails you received from your uncle in the early 2000s. Allow me to explain what is going on. 

Let's begin by clarifying the nature of the Satanic Temple, which despite the name does not worship Satan or any other supernatural being. It's actually an atheist group which promotes seven tenets, some of which sound pro-life — like support for science and "compassion and empathy toward all creatures" — but in the abortion context, the humanity of unborn children is always sacrificed at the proverbial altar of Tenet #3: "One’s body is inviolable, subject to one’s own will alone." (A full rebuttal of the "sovereign zone" argument for abortion would make this blog post several times longer, so I'll just link to our good friends at the Equal Rights Institute.) 

The Satanic Temple is known for enforcing church-state separation through a variety of legal campaigns. For instance, when towns try to erect Christian symbols on public land, the Satanic Temple will apply to erect a statue of their own (pictured right) as permitted by Supreme Court precedent. The town then has three choices: (1) allow the Satanic statue; (2) stop erecting any religious symbols at all; or (3) discriminate against the Satanic Temple, prompting a lawsuit which the town will inevitably lose. Although this approach has given the Satanic Temple a trollish reputation, it's a win-win-win as far as the law goes. 

They are now trying to replicate that strategy in the abortion context, by presenting abortion as a religious ritual subject to the protections of the Religious Freedom Restoration Act (RFRA). The idea is to create a scenario where a court must either (1) strike down pro-life laws, or (2) undermine RFRA, with either result advancing the Satanic Temple's goals. If you've been reading this blog for a while, you might notice an ironic, unintentional point of agreement between Secular Pro-Life and the Satanic Temple — we have previously argued that pro-abortion beliefs are essentially religious.

But the Satanic Temple is wrong about the law. Their scenario doesn't present the catch-22 they think it does. A judge can and should treat abortion as a religious ritual subject to RFRA, and still uphold the pro-life laws that are being targeted.

To understand why, we need to look at RFRA. Contrary to popular perception, RFRA is not a get-out-of-jail-free card, where people can claim a religious exemption from any law they don't like. To take an extreme example, RFRA will not embrace your attempt to restore Mayan religious practices, complete with human sacrifice atop a stately ziggurat. That's because RFRA does not apply when the government can show that the challenged law "(1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."

If that sounds familiar to you, it should: it mirrors the Supreme Court test that already governs abortion law

When it comes to protecting unborn babies, the Supreme Court has repeatedly recognized what it calls a "state's interest in potential life." That is the compelling governmental interest furthered by pro-life legislation. Although the phrase "potential life" is obviously unscientific nonsense, this legal doctrine has nonetheless created an opening for states to save some actual lives from abortion. The Supreme Court permits pro-life laws so long as they do not create an "undue burden" on a mother's right to abort her child. The measures the Satanic Temple seeks to challenge, like waiting periods and informed consent, received a green light from the Supreme Court years ago under that test.

For the Satanic Temple to succeed, it's going to have to convince a judge that the "least restrictive means" and "undue burden" tests are substantially different and should lead to opposite results. That's some pretty fine hair-splitting if you ask me. I will keep an eye on it, but for now, I suggest you rest easy and take the Satanic Temple's legal threat about as seriously as an early 2000s chain email. 

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