Microsoft Word - Hammock FINAL v.2.docx


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MARY DOE EX REL. SATAN?: PARODY, RELIGIOUS 
LIBERTY, & REPRODUCTIVE RIGHTS 
 
CHRISTEN E. HAMMOCK*
 

Abstract 
 

In 2015, a woman known as “Mary Doe” challenged a Missouri abortion restriction 
requiring her to wait seventy-two hours after receiving certain “informed consent” 
materials before she could obtain an abortion. Mary Doe challenged the restrictions in 
federal and state court on religious grounds as a member of the Satanic Temple. This 
paper examines the Satanic Temple’s litigation through the lens of parody—a literary 
technique that involves repeating another text’s form or content in order to critique it. 
Mary Doe’s litigation mirrored that of Hobby Lobby v. Burwell, in which a for-profit 
corporation claimed a religious accommodation from the ACA’s contraceptive mandate. 
The litigation forces two comparisons—between mainstream religious beliefs and other 
strongly held matters of conscience, and between abortion and other constitutional 
claims—and illuminates the “distortions” that often appear in reproductive rights 
litigation.
 

INTRODUCTION 
 
In 2015, a woman known as Mary Doe challenged an amendment to Missouri’s 

statute governing informed consent for abortion. The amendment instituted a seventy-
two-hour waiting period and required providers to distribute printed materials stating that 
“the life of each human being begins at conception. Abortion will terminate the life of a 
separate, unique, living human being.”1  
 

Doe’s lawsuit took a unique approach to challenging Missouri’s abortion restrictions. 
Instead of alleging that the law violated Equal Protection or constituted an “undue 
burden” under Planned Parenthood of Southeastern Pennsylvania v. Casey,2 Doe argued 
that the law violated the federal Constitution’s Establishment Clause, and impermissibly 

 
* Christen Hammock is a 2020 graduate of Columbia Law School and incoming litigation associate at 
Simpson Thacher & Bartlett, LLP.  
 
1 H.B. 1307 & 1313, 97th Gen. Assemb., 2nd Reg. Sess. (Mo. 2014). 
 
2 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). 



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47 

burdened her free exercise rights under the First Amendment and the Religious Freedom 
Restoration Act because of her religious beliefs as a member of the Satanic Temple.  

 
 The Satanic Temple is a non-theistic religion founded in 2012. Its purported mission 
is to “encourage benevolence and empathy among all people, reject tyrannical authority, 
advocate practical common sense and justice, and be directed by the human conscience to 
undertake noble pursuits guided by the individual will.”3 Temple members do not 
“believe” in Satan. Instead, they appreciate “the literary Satan best exemplified by Milton 
and the Romantic Satanists” as a “symbol of the Eternal Rebel in opposition to arbitrary 
authority, forever defending personal sovereignty even in the face of insurmountable 
odds.”4 The Temple holds regular services in Salem, Massachusetts, and members 
sometimes perform rituals to express their values, like Black Masses and “unbaptisms” 
meant, respectively, to celebrate personal liberty and “renounce superstitions that may 
have been imposed upon them without their consent as a child [sic].”5 The Temple 
specifically rejects the notions that “religion belongs to supernaturalists” and that “only 
the superstitious are rightful recipients of religious exemption and privilege.”6 
 

This principle is perhaps best demonstrated by the Temple’s reaction to the 2014 
Supreme Court case Burwell v. Hobby Lobby Stores, in which the Supreme Court granted 
a religious accommodation from the Affordable Care Act’s contraceptive mandate to a 
for-profit company.7 When the opinion was released, the Temple set up an online system 
for women to apply for religious “exemptions” from laws that require abortion providers 
to give patients inaccurate information as part of the “informed consent” process.8  
 

The Temple’s legal advocacy, including Mary Doe’s challenge to Missouri’s abortion 
restrictions, operates in a strange cultural place. On one hand, their legal challenges are 

 
3 About Us, THE SATANIC TEMPLE, https://thesatanictemple.com/pages/about-us [https://perma.cc/B684-
L4CT]. The Satanic Temple is distinct from the Church of Satan, which was founded by Anton LeVey in 
1966 and counts The Satanic Bible as its guiding text. Peter H. Gilmore, Overture, in THE SATANIC 
SCRIPTURES (2007). 
 
4 FAQ, THE SATANIC TEMPLE, https://thesatanictemple.com/pages/faq [https://perma.cc/UM8M-TBFY].  
 
5 Id.  
 
6 Id.  
 
7 Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014).  
 
8 Emma Green, Satanists Troll Hobby Lobby, THE ATLANTIC (July 30, 2014), https://bit.ly/2tnVvV3 
[https://perma.cc/MED2-UG6L]. 



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funny. To someone in favor of abortion access without unnecessary constraints, there is 
something gratifying about imagining former Missouri Attorney General Joshua 
Hawley—a conservative Evangelical Christian who represented the plaintiffs in Hobby 
Lobby v. Burwell—defending against a claim that religious commitment to Satanic ideals 
dictates a religious accommodation from laws restricting abortion access.9  
 

On the other hand, though, their claims are not preposterous. The Religious Freedom 
Restoration Act (RFRA) was originally intended to protect small, unpopular religious 
groups, and the Supreme Court has often deferred to plaintiffs in assessing the “sincerity” 
of their religious beliefs, even in the face of inconsistencies.10 Although the Temple’s 
federal and state cases were ultimately dismissed, the litigation has resulted in two major 
victories thus far.11 First, a Missouri state appeals court ruled in favor of Mary Doe in 
2017, holding that the case “raises real and substantial constitutional claims” and thus 
should not have been dismissed for failure to state a claim.12 This illustrates that, at the 
very least, Mary Doe’s claims pass the “giggle test” that separates reasonable from 
unreasonable claim.13 Second, in oral arguments before the Missouri Supreme Court, the 
Attorney General admitted that “mandatory” ultrasounds for abortion patients are, in fact, 
optional.14  

 
9 Kurt Erickson, Josh Hawley and the Fight for Religious Freedom, ST. LOUIS POST-DISPATCH (Aug. 11, 
2018), https://bit.ly/2MyGOdR [https://perma.cc/YDD8-LT6H]; Amended Brief of Respondent, Doe v. 
Greitens, 530 S.W.3d 625 (Mo. Ct. App. 2017) (No. WD80387) (listing Joshua D. Hawley as Missouri 
Attorney General and one of the “Attorneys for Respondents”). 
 
10 See 42 U.S.C. § 2000bb (2018); see generally Douglas Laycock & Oliver S. Thomas, Interpreting the 
Religious Freedom Restoration Act., 73 TEX. L. REV. 209 (1994); A.A. v. Needville Indep. Sch. Dist., 611 
F.3d 248, 261 (5th. Cir. 2010) (holding for a Native American student whose religious beliefs compelled him 
to wear his hair “visibly long” and noting that “the sincerity of a religious belief is not often challenged. . . . 
When sincerity is challenged, though, courts are reticent to draw the sort of line the [defendant school 
district] now requests” (internal citations omitted)); see also Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 
450 U.S. 707, 715 (1981) (“[The plaintiff] drew a line, and it is not for us to say that the line he drew was an 
unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he 
is ‘struggling’ with his position or because his beliefs are not articulated with the clarity and precision that a 
more sophisticated person might employ.”). 
 
11 Doe v. Parson, 567 S.W.3d 625 (Mo. 2019); Satanic Temple v. Parson, 735 F. App’x 900 (8th Cir. 2018). 
 
12 Greitens, 530 S.W.3d at 574. 
 
13 Jim McElhaney, No Laughing Matter: Failing the Giggle Test Might Leave You Crying, A.B.A. J. (Nov. 1, 
2011), https://bit.ly/2EdeCYa [https://perma.cc/5R3W-2VWM]. 
 
14 Oral Argument at 15:20–15:29, Parson, 567 S.W.3d 625, https://www.courts.mo.gov/page.jsp?id=119842 
(on file with author).  



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Few scholars have chosen to examine the Temple’s litigation and advocacy work, 
perhaps reflecting a general unwillingness to take Satanists seriously as a religious group 
with cognizable constitutional or RFRA-based claims. This, I argue, is a mistake. 
Especially given the Temple’s (brief) victory in the Missouri appeals court, it seems clear 
that Satanists have potentially found a workable legal strategy to challenge abortion 
restrictions. Nevertheless, a serious, single-minded analysis of the Temple’s legal claims 
does not fully capture a crucial element of its broader rhetorical strategy and its 
implications for conceptualizing religious and reproductive freedom. To remedy this, this 
paper reads the Satanic Temple’s litigation through the lens of parody—defined as a 
critical repetition of another text that is often (but not always) humorous and polemical. 
This perspective can account for the rhetorical impact of the Temple’s litigation while 
leaving room to seriously consider its substantive claims. 
 

Part I surveys parody as a literary and rhetorical strategy and considers parody’s 
potential as a political and legal strategy. Part II discusses the lawsuits’ legal contexts, 
including the historical relationship between First Amendment religious claims and 
abortion, as well as the trend of mandating ultrasounds as part of “informed consent” to 
have an abortion. Part III examines and expands on the procedural and substantive claims 
made by the Satanic Temple and argues that parody is a crucial element of the Temple’s 
success. By effectively “repeating” religious liberty claims like those made by the Hobby 
Lobby plaintiffs in the abortion context, the Temple’s challenges change the focus of the 
legal conversation from abortion rights (which are often insufficiently protected by 
courts) to religious accommodation (to which courts have been overly deferential even in 
the face of scientific error).15 By overcoming “abortion exceptionalism”16 that often 
proliferates both culturally and in lower court decisions, the Temple’s parody helps get 
abortion litigation “unstuck” from Casey’s undue burden test and opens up space for 
creative legal arguments against abortion restrictions, which go beyond pure questions of 
access.17 

 
15 Caroline Mala Corbin, Abortion Distortions, 71 WASH. & LEE L. REV. 1175, 1205 (2014) [hereinafter 
Corbin, Abortion Distortions]. 
 
16 The term “abortion exceptionalism” has been used by many scholars to describe how abortion gets treated 
differently by both lawmakers and courts. See, e.g., Ian Vandewalker, Abortion & Informed Consent: How 
Biased Counseling Laws Mandate Violates of Medical Ethics, 19 MICH. J. GENDER & L. 1, 3 (2012).  
 
17 In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Supreme Court 
articulated the “undue burden” standard, which has governed abortion jurisprudence for the last three 
decades. Casey disposed of Roe v. Wade’s trimester framework and opened up a space for states to regulate 
abortion in the name of women’s health and safety as long as those regulations did not present an “undue 
burden” on the fundamental abortion right. Casey’s “undue burden” test was apparently strengthened by the 
Supreme Court decision Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). This Note primarily 



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I. Parody And/In/Of the Law 
 

This section considers parody as a literary technique that operates politically and 
legally. As disciplines, law and literature intersect and overlap in both study and practice. 
Dating back to the 1970s, the “law and literature” movement is one of the “most enduring 
sites of interdisciplinary” approaches to the legal field.18 Indeed, the two disciplines 
complement each other: law “give[s] literature praxis” while literature “give[s] law 
humanity and critical edge.”19 Law is a constant theme of literary works, and emerging 
fields like “applied legal storytelling” reflect the value of using narratives such as victim 
impact statements and mitigation testimony to advance justice.20 This paper takes a 
descriptive approach to the Satanic Temple’s litigation, which uses parody as a strategy 
to strengthen its rhetorical and legal arguments. Specifically, I examine the Satanic 
Temple’s litigation challenging Missouri’s informed consent for abortion statute as 
parody. The question answered here is not “Should the Satanic Temple use the justice 
system to make this rhetorical point?” but rather “What does it mean that such a claim 
has been seriously considered by courts, and what are the implications for both 
reproductive rights and religious liberty?” Before answering those questions, this section 
briefly surveys “parody” as a literary and political technique.  

 
A. Parody: What It Is and What It Isn’t  
 

The parameters of what constitutes parody are a frequent topic of literary scholarship. 
In common parlance, parody often brings to mind jokes that derive their humor from 
imitation of something else, like the Scary Movie franchise’s invocation of horror film 

 
refers to the “undue burden” test as it relates to Casey, because 1) most of the mandatory ultrasound and 
biased counseling laws were challenged prior to Whole Woman’s Health, and 2) Whole Woman’s Health was 
primarily concerned with concrete barriers to abortion access, not the intangible burdens alleged in the Mary 
Doe litigation.  
 
18 NEW DIRECTIONS IN LAW & LITERATURE, at introduction (Elizabeth S. Anker & Bernadette Meyler eds., 
2017); Julie Stone Peters, Law, Literature, and the Vanishing Real: On the Future of an Interdisciplinary 
Illusion, 120 PMLA 442 (2005).  
 
19 Peters, supra note 18, at 448.  
 
20 See, e.g., Jeanne M. Kaiser, When the Truth & the Story Collide: What Legal Writers Can Learn from the 
Experience of Non-Fiction Writers About the Limits of Legal Storytelling, 16 J. LEGAL WRITING INST. 163 
(2010). 
 



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tropes or rewrites of classic novels like Pride and Prejudice to include zombies.21 In 
Ancient Greece, parody (a word created from roots para, meaning “alongside” or 
“counter,” and odos, meaning “song”22) was part of a broad practice of citation and 
allusion.23 Some of the earliest incarnations of parody were mock-heroic poems that 
imitated Homer for comedic purposes.24 Some scholars argue that parody is inherently 
polemical,25 while others take care to distinguish between parody and other related formal 
techniques like satire and pastiche.26 Parody can be general (The Colbert Report’s send-
up of conservative talk show hosts) or specific (Alec Baldwin’s portrayal of Donald 
Trump on Saturday Night Live) and is often humorous. This humor derives from 
“extreme distance” between a sacred or important topic and its parodic repetition.27 In 
other words, part of the “work” parody performs comes from comparing two different 
subjects (e.g., genres, poems, or people) and examining unexpected differences or 
similarities. Irony, parody’s “major rhetorical strategy,” refers to an “incongruity between 
what is expected and what happens.”28 For the purposes of this paper, I define parody as a 
humorous, formal doubling that uses irony as a tool to provoke comparison and critique.29 

 
21 SCARY MOVIE (Wayans Bros. Entertainment 2000); SETH GRAHAME-SMITH, PRIDE AND PREJUDICE AND 
ZOMBIES (2009).  
 
22 Parody, in PRINCETON ENCYCLOPEDIA OF POETRY AND POETICS (Ronald Greene ed., 4th ed. 2012).  
 
23 SIMON DENTITH, PARODY: THE NEW CRITICAL IDIOM 2–3, 10 (2000).  
 
24 Id. at 11. 
 
25 LINDA HUTCHEON, A THEORY OF PARODY 4–5 (2000) (discussing previous definitions of parody as 
“parasitic and derivative” with a “target . . . to be mocked or ridiculed”). 
 
26 These distinctions often rely on specific formal features, for example whether the transformation between 
original text and the parody is “playful or satirical” (parody/travesty) or “imitation rather than direct 
transformation” (pastiche/parody). Following Dentith’s lead in concluding that “the value of this kind of 
distinction . . . is ultimately limited,” this paper is not concerned with the minute differences between these 
literary forms. DENTITH, supra note 23, at 14. Thus, this paper focuses less on the specific formal features of 
parody and more on the “social and historical ground in which th[e] interaction [between original and 
parodied texts] occurs, and the evaluative and ideological work performed by parody.” Id.  
 
27 Id. at 11.  
 
28 Parody, supra note 22; Irony, OXFORD COMPANION TO THE ENGLISH LANGUAGE (Tom McArthur ed., 2d ed. 
2018).  
 
29 This definition is drawn from the work of a number of different scholars. See, e.g., DENTITH, supra note 23, 
at 6 (defining parody as “part of a range of cultural practices which allude, with deliberate evaluative 
intonation, to precursor texts”); HUTCHEON, supra note 25, at 6 (defining parody as “repetition with critical 
distance, which marks difference rather than similarity”).  



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Importantly, this definition leaves room for humor and serious critique to coexist. So, for 
example, when I refer to the Satanic Temple’s litigation as “parody” (or go so far as to 
label the Temple a “parody religion”), I do not mean to suggest that its members’ 
religious beliefs should not be taken seriously or that their claims are purely rhetorical 
and have no legal merit. Instead, I classify the Temple’s legal efforts as “parody” in an 
attempt to capture the conscious and critical comparisons that its litigation provokes.  

 
B. The Cultural Politics of Parody  

 
Parody often functions in explicitly political ways. One famous example is the 

Comedy Central late-night lineup from the late 1990s to 2015, which included nighttime 
“news” shows The Daily Show and The Colbert Report, which parodied conservative talk 
show hosts. Whether parody is fundamentally conservative or subversive presents one of 
the most contentious issues in scholarly examinations of parody. Because parody 
necessarily repeats (and therefore, on some level, reinforces) its target text, some have 
argued that it is a fundamentally conservative technique.30 In the literary context, for 
example, new “literary and social innovation” is often mocked in order to “polic[e] the 
boundaries of the sayable in the interests of those who wish to continue to say what has 
always been said.”31 

 
I argue that parody—like most formal techniques—is inherently neutral and can be 

used either to prop up existing power structures by lampooning radical ideas or cut 
against authority by making it a subject of laughter. Although parody is frequently 
employed by people and groups aligned with progressive or liberal viewpoints, there is 
nothing about parody that is necessarily progressive or liberal. For example, the Babylon 
Bee describes itself as “your trusted source for Christian news satire” and includes both 
explicitly political content (an article called “Horrified Nation Suddenly Realizes Ocasio-
Cortez Will Probably Be President In Six Years”) and playful jokes about Christian 
culture (“Church Bassist Admits He Just Plays Journey Riff For Every Worship Song”).32 
Shortly after Obergefell v. Hodges, a Utah man filed a lawsuit seeking the right to marry 

 
30 HUTCHEON, supra note 25, at xii (“Because parody always implicitly reinforces even as it ironically 
debunks, it will always be ideologically suspect to some.”). Scholars do not mean politically conservative, 
but reinforcement of the status quo.  
 
31 DENTITH, supra note 23, at 20.  
 
32 Church Bassist Just Admits He Plays Journey Riff for Every Worship Song, THE BABYLON BEE (Feb. 8, 
2019), https://bit.ly/2Nv8pKf [https://perma.cc/74RG-BW4B]; Horrified Nation Suddenly Realizes Ocasio-
Cortez Will Probably Be President in Six Years, THE BABYLON BEE (Feb. 8, 2019), https://bit.ly/2VlodBS 
[https://perma.cc/Z4A4-3YXN]. 



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53 

his laptop.33 The plaintiff in that case likely thought he was subverting the power of the 
Supreme Court by extending its ruling to an absurd position. Members of the LGBT+ 
community, on the other hand, would probably classify that lawsuit as a fundamentally 
conservative effort to preserve “traditional” marriage. Thus, depending on whom one 
perceives to be authoritative, the same parodic text might be aligned with stasis or 
subversion.  

 
When parody targets political institutions—regardless of who controls them—it can 

have a disruptive effect on structures of government like the legislature and judiciary. 
Giamario argues that the parodies performed by parodists like Stewart and Colbert 
“generate laughing bodies politic,” a phrase Hobbes used to describe the impact of 
laughter on democracy.34 At its core, democracy substitutes a “political body” for one’s 
“natural body” and authorizes the former to “ensure its benefit and protection.”35 
According to Hobbes, then, power depends on both “the willingness of subjects to honor 
their promises not to interfere” and “the good behavior and faith of subjects.”36 
Sometimes, though, a democratic system of government produces laws with intolerable 
consequences for its citizens—especially those who feel as though they have not been 
adequately represented in the process. Laughter, then, is a way of “express[ing] an 
illusory sense of power that disrupts and confuses the processes by which power relations 
are deciphered on a broader social scale.” 37 When ordinary citizens feel empowered to 
laugh at government action, “[p]owerful figures and institutions feel threatened because 
they can no longer safely count on those who laugh at them to maintain ordinary levels of 
deference and submission.”38 Such a “rebellious moment” reminds those in power that 
their legitimacy comes from the voluntary submission of their constituency.39 

 

 
33 Complaint, Sevier v. Thompson, No. 2:16-cv-00659 DN-EFJ (D. Utah June 20, 2016), ECF No. 1. 
 
34 Patrick T. Giamario, The Laughing Body Politic: The Counter-Sovereign Politics of Hobbes’s Theory of 
Laughter, 69 POL. RES. Q. 309, 316 (2016). Hobbes used this phrase negatively, but Giamario argues for its 
positive democratic potential. 
 
35 Id. at 315 (internal citations and quotations omitted).  
 
36 Id.  
 
37 Id. at 316.  
 
38 Id.  
 
39 Id. 



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While parody often targets politics generally, it is especially interesting in the 
“official” legal context. For example, state representatives have pushed back on abortion 
restrictions by filing their own bills subjecting, for example, vasectomies and 
masturbatory emissions to state regulation. A Texas lawmaker introduced a “Man’s Right 
to Know” act, which proposed a similar “informed consent” booklet for vasectomies.40 A 
Kentucky lawmaker would require a man hoping to get a Viagra prescription to “make a 
sworn statement…on the Bible that he will only use [a drug for erectile dysfunction] 
when having sexual relations with his current spouse.”41 The Democratic state 
representative explicitly said that she was filing the bill as a “response to measures 
against abortion in the current legislative session, including…[a twenty-four-hour 
counseling] bill.”42 Similarly, Oklahoma Representative Constance Johnson introduced 
an amendment to Senate Bill No. 1433, entitled the “Personhood Act.” Her amendment 
proposed adding the following language: “provided, however, any action in which a man 
ejaculates or otherwise deposits semen anywhere but in a woman’s vagina shall be 
interpreted and construed as an action against an unborn child.”43 

 
A Georgia lawmaker proposed H.B. 116 to “prohibit the performance of vasectomies 

in Georgia.”44 The bill included the following “factual” findings: “(1) Thousands of 
children are deprived of birth in this state every year because of the lack of state 
regulation over vasectomies” and “(2) There is substantial evidence that unregulated 
vasectomies result in fewer unwanted pregnancies and, by extension, fewer births.”45 The 
bill’s legislative purpose—“[T]o assert an invasive state interest in the reproductive 
habits of men in this state and substitute the will of the government over the will of adult 
men”—was more obviously pointed.46  

 
40 H.B. 4260, 85th Leg., Reg. Sess. (Tex. 2017). 
 
41 Deborah Yetter, Ky. Bill Forces Men to Get Wife’s OK Before Getting Viagra, USA TODAY (Feb. 17, 
2016), https://www.usatoday.com/story/news/politics/2016/02/17/viagra-bill-abortion-debate/80502870/ 
[https://perma.cc/H5GE-J6B6]. 
 
42 Id.  
 
43 Constance Johnson, Proposed Amendment to S.B. No. 1433, 53rd Leg., Reg. Sess. (Okla. 2012). 
 
44 H.B. 1116, 151st Leg., Reg. Sess., at 1 (Ga. 2012). 
 
45 Id. 
 
46 Id.; see also Christopher Quinn, Vasectomy Bill Goes Viral, ATLANTA J.-CONST. (Feb. 23, 2012), 
https://www.ajc.com/news/state--regional-govt--politics/vasectomy-bill-goes-
viral/uBYaCmINnOiBmgKVClAMqO/ [https://perma.cc/78FW-BQ73]. 



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These parodies accomplish by comparison what critiques of the individual bills could 
not. After all, state restrictions on abortion like enhanced “informed consent” and 
extreme requirements for abortion facilities often seem mundane and bureaucratic on 
their own. By repeating these regulations in a less fraught context (e.g., a vasectomy, 
which is typically perceived as a safe and reasonable procedure), these parodic bills invite 
crucial comparison and criticism. That comparison, in turn, provokes a critical question: 
Why do courts allow abortion—and abortion patients’ decision-making—to be regulated 
in this way? Is there a secular reason for the distinction?  

 
II. Abortion, Religion, and Informed Consent  

 
Two distinct fields of law intersect in Mary Doe’s challenge: religious liberty and 

reproductive rights. Although religion and abortion are deeply culturally entangled, using 
the First Amendment’s Religion Clauses as tools to challenge abortion restrictions has 
largely been abandoned as a legal strategy since Casey was decided.47 This section 
orients Mary Doe’s claims in the broader historical development of both legal fields and 
concludes that Mary Doe’s litigation largely tracks the original purpose of the Religious 
Freedom Restoration Act, and highlights the gaps and complications in reproductive 
rights jurisprudence.  

 
A. The First Amendment & Abortion: A History Lesson  
 

The First Amendment’s freedom of religion guarantee includes both positive and 
negative religious liberty—freedom to worship (or not) without interference by the state 
(known as the Free Exercise Clause), and freedom from an established religion by the 
state (known as the Establishment Clause).48 Together, these prohibitions on establishing 

 
47 See, e.g., ACLU of Mass. v. Sebelius, 821 F. Supp. 2d 474 (D. Mass. 2012), rev’d on other grounds by 
ACLU of Mass. v. U.S. Conf. Catholic Bishops, 705 F.3d 44 (1st Cir. 2013) (finding case moot because 
contract was expired). The most recent cases cited by the District Court in that case that discussed abortion in 
the First Amendment religious context were Bowen v. Kendrick, 487 U.S. 589 (1988), and Harris v. McRae, 
448 U.S. 297 (1980). Similarly, academic writing about the relationship between abortion and religion—with 
the exception of writing on Hobby Lobby—has died down since the early 1990s. Yale Law School’s Linda 
Greenhouse recently called the religious freedom argument a “non-starter [that] judges just don’t want to 
hear.” Stephanie Russell-Kraft, The Right to Abortion—and Religious Freedom, THE ATLANTIC (Mar. 3, 
2016), https://www.theatlantic.com/politics/archive/2016/03/abortion-rights-a-matter-of-religious-
freedom/471891/ [https://perma.cc/8E2V-VZRP]. 
 
48 U.S. CONST. amend. I, cls. 1, 2 (“Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof. . . .”). 



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an official religion or limiting the free exercise of religious belief are known as the 
“Religion Clauses.”  

 
There are two First Amendment arguments against abortion restrictions as violation 

of the Free Exercise and the Establishment Clause, respectively. The first is that having 
an abortion is either permitted or compelled by one’s religious beliefs, and that making 
the decision to have an abortion should not be subject to state interference.49 The other is 
that restrictions on pre-viability abortions are rooted in (and motivated by) religious 
beliefs specific to Catholic and evangelical Protestants and thus establish or endorse that 
religious ideology.50 In the years leading up to Casey, the Court either ignored or soundly 
dismissed claims that restrictions on abortion could be interpreted as endorsing religions 
that believe life begins at conception or inhibiting an abortion patient’s belief that 
abortion is necessary.51  

 
1. Harris v. McRae (1980) 

 
In Harris v. McRae, plaintiffs alleged that the Hyde Amendment—which restricted 

Medicaid funds from being used for abortions—violated both the Free Exercise and 
Establishment Clauses.52 The free exercise claim was different from the Temple’s in that 
it generally distinguished between “pro-choice” and “anti-abortion” faiths but did not 
allege any specific religious belief impacted by the Hyde Amendment.53 The plaintiffs 
argued that abortion, although not a “religious rite or ritual,” still “ranks as a paramount 
concern in all major religions”—either a “grave sin” for the anti-abortion faiths, or a 
“consideration of questions of the preservation of the health and well-being of existing 
life and of responsible parenthood [that] likewise rank among the highest obligations of 

 
49 See, e.g., Brief of Appellees, Harris v. McRae, 448 U.S. 297, 156–66 (1980) (No. 79-1268). 
 
50 See, e.g., Webster v. Reprod. Health Servs., 492 U.S. 490, 501 (1989). 
 
51 See generally, e.g., id.; Harris, 448 U.S. 297; see also Paul D. Simmons, Religious Liberty & Abortion 
Policy: Casey as Catch-22, 42 J. CHURCH & ST. 69 (2000).  
 
52 Brief of Appellees, Harris, No. 79-1268, 1980 WL 338642, at *151–86. The case was argued and decided 
before both Smith and RFRA. 
 
53 The plaintiffs also argued that the Hyde Amendment discriminated against those who do not believe that 
life begins at conception. For those who do hold that belief, they can continue their pregnancy according to 
the dictates of their conscience. Women of the “pro-choice persuasion,” on the other hand, “are hindered or 
precluded . . . in the exercise of their religious and conscientious scruples.” Id. at *160.  
 



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human beings toward one another and toward God.”54 The plaintiffs quoted the district 
court as holding that terminating a pregnancy is already an “exercise of the most 
fundamental of rights” but is “doubly protected when the liberty is exercised in 
conformity with religious belief and teaching protected by the First Amendment.”55 The 
plaintiffs also analogized the abortion decision to case law regarding non-religious 
conscientious objectors. In those cases, the Court recognized that a non-religious belief 
could “occup[y] in the life of its possessor a place parallel to that filled by the God of 
those admittedly qualifying for exemption.”56 Thus, the plaintiff’s argument was 
essentially that the abortion decision is a “matter of such ultimate dimension” that it 
should only be made by the person according to their own private notion of morality and 
conscience—whether religious or not.57 

 
The plaintiffs also argued that the Hyde Amendment violated the Establishment 

Clause by “enact[ing] a distinctly religious belief in response to intense pressure from a 
religiously based and motivated constituency.”58 To avoid an Establishment Clause 
violation, laws must “reflect a clearly secular purpose,” “have a primary effect that 
neither advances not [sic] inhibits religion,” and “avoid excessive government 
entanglement with religion.”59 That a secular law’s purpose overlaps with some religious 
value does not automatically violate the Establishment Clause. For example, some 
religious values have clear secular value, like prohibitions against stealing.60 Other laws, 
originally “motivated by religious forces,” take on secular value after “having undergone 
extensive [changes],” e.g., a prohibition on Sunday labor that was upheld as a secular 
recognition that people deserve a day off each week despite its original “religious 

 
54 Id. at *153. 
 
55 Id. at *152–53 (quoting McRae v. Califano, 491 F. Supp. 630, 742 (E.D.N.Y. 1980)).  
 
56 Id. (quoting United States v. Seeger, 380 U.S. 163, 176 (1965)).  
 
57 Id. at *152–55 (“Pregnancy ineluctably requires immediate, direct, intimate and profound confrontation 
with questions of life and death. The response may be immediate and instinctive or the result of a long, soul-
searching process. For some women, the fetus is inviolable, and conscience precludes consideration of 
abortion even at tremendous risk to life and health. For others, pregnancy requires balancing the potential of 
human life against questions of survival, purpose, lifelong responsibility, and ultimately the meaning of 
human existence and fulfillment. For these women, conscience may dictate the necessity of terminating an 
unwanted and health-threatening pregnancy.”). 
 
58 Id. at *167.  
 
59 Id. at *168 (quoting Comm. for Pub. Educ. v. Nyquist, 413 U.S. 756, 773 (1973)).  
 
60 Harris v. McRae, 448 U.S. 297, 319 (1980). 



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character.”61 The Harris plaintiffs noted that, to the contrary, “laws restricting abortion 
which historically served a panoply of secular concerns, are today the product of a single, 
religious concern for the life of the fetus.”62 Instead of evincing Roe’s permissible 
concern for potential fetal life, the Hyde Amendment promoted “concern for the fetus as 
an actual human life,” a proposition “too religiously determined to support valid civil 
enactments.”63  

 
Nearly half of the plaintiffs’ brief was devoted to the Religion Clauses, but the 

Supreme Court dismissed the Establishment Clause argument in a single paragraph.64 
Regarding the free exercise claim, the Court reversed the district court and held that the 
individual plaintiffs did not allege or prove that they “sought an abortion under 
compulsion of religious belief” and thus held they did not have standing.65 The Supreme 
Court also rejected the Establishment Clause claim, holding simply that “the fact that the 
funding restrictions in the Hyde Amendment may coincide with the religious tenets of the 
Roman Catholic Church does not, without more, contravene the Establishment Clause.”66  

 
2. Webster v. Reproductive Health Services (1989) 

 
Similarly, in Webster v. Reproductive Health Services, the Court declined to review 

legislative findings by the state of Missouri that “the life of each human being begins at 
conception” and “unborn children have protectable interests in life, health, and well-
being.”67 The Eighth Circuit held that the legislative findings were “an impermissible 

 
61 McGowan v. Maryland, 366 U.S. 420, 431 (1961).  
 
62 Brief of Appellees, Harris, No. 79-1268, 1980 WL 338642, at *173.  
 
63 Id. at *176–77. 
 
64 Harris, 448 U.S. at 319–20.  
 
65 Id. at 299. The district court decision, McRae v. Califano, 491 F. Supp. 630 (E.D.N.Y. 1980), held that the 
law did impermissibly interfere with the individual decision to terminate a pregnancy based on religious 
conscience, but that it did not establish religion. 
 
66 Harris, 448 U.S. at 298–99 n.3. 
 
67 Webster v. Reprod. Health Servs., 492 U.S. 490, 505–06 (1989). The Missouri statute also required that 
“all Missouri laws be interpreted to provide unborn children with the same rights enjoyed by other persons” 
and prohibited any public funding, employees, or facilities from being used to perform, encourage, or counsel 
abortion. Id. at 501. 



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state adoption of a theory of when life begins to justify its abortion regulations.”68 
However, because the preamble did not “regulate abortion or any other aspect of 
appellees’ medical practice,” the Supreme Court held that the preamble was a mere 
“value judgment,” valid under Roe.69  

 
Justice Stevens dissented from the majority’s opinion on the grounds that the 

preamble clearly violated the Establishment Clause of the Federal Constitution and the 
right to privacy found in “Griswold and its progeny.”70 To both points, Justice Stevens 
wrote that defining “life” as beginning at conception would limit Griswold’s holding to 
contraception that only operates pre-fertilization, and that there was no “secular basis for 
differentiating between contraceptive procedures that are effective immediately before 
and those that are effective immediately after fertilization.”71 There was, however, a 
“theological basis for such an argument.”72 Regarding the Establishment Clause, Justice 
Stevens wrote further:  

 
I am persuaded that the absence of any secular purpose for the legislative 
declarations that life begins at conception and that conception occurs at 
fertilization make the relevant portion of the preamble invalid under the 
Establishment Clause . . . . This conclusion does not, and could not, rest 
on the fact that the statement happens to coincide with the tenets of 
certain religions . . . , or on the fact that the legislators who voted to enact 
it may have been motivated by religious considerations . . . . Rather, it 
rests on the fact that the preamble, an unequivocal endorsement of a 
religious tenet of some but by no means all Christian faiths, serves no 
identifiable secular purpose. That fact alone compels a conclusion that 
the statute violates the Establishment Clause.73 
 

 
68 Reprod. Health Servs. v. Webster, 851 F.2d 1071, 1076 (8th Cir. 1988) (quoted in Webster, 492 U.S. at 
503).  
 
69 Webster, 492 U.S. at 506 (citing Maher v. Roe, 432 U.S. 464, 474 (1977), and discussing Roe v. Wade, 
410 U.S. 113 (1973)). 
 
70 Id. at 566 (Stevens, J., concurring in part and dissenting in part). 
 
71 Id.  
 
72 Id. at 565–66. 
 
73 Id. at 566–67 (internal citations omitted).  



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Since Justice Stevens’ dissent, no Supreme Court opinion—majority or otherwise—has 
made such a strong statement equating statutory “personhood” language with an 
Establishment Clause violation. Indeed, in order to sustain Missouri’s preamble, Justice 
Stevens would have shifted the burden onto the state to “identify[] the secular interests” 
that differentiate a newly-fertilized zygote from pre-conception reproductive materials.74  
 

Justice Stevens’ willingness to draw a connection between Missouri’s preamble and 
Christian theology is unique, but perhaps shouldn’t be. He writes, “Bolstering my 
conclusion . . . is the fact that the intensely divisive character of much of the national 
debate over the abortion issue reflects the deeply held religious convictions of many 
participants in this debate.”75 In light of the deep connection between certain religious 
groups and the pro-life movement, dismissing the overlap between value statements 
about pre-viability fetal life and the religious belief that life begins at conception as 
“coincidence” seems disingenuous. While fifty-eight percent of Americans believe 
abortion should be legal in all or most cases, sixty-one percent of white evangelical 
Protestants believe it should be illegal in all or most cases.76 In comparison, seventy-four 
percent of people who are religiously unaffiliated support legal abortion.77  
 

B. Federal & State Religious Freedom Restoration Acts 
 

Prior to 1990, the Supreme Court applied strict scrutiny to all free exercise claims.78 
Under that test, when an otherwise neutral law burdened a religious practice, the 
government had to show both a “compelling state interest in the regulation of a subject 

 
74 Id. at 568–69. 
 
75 Id. at 571.  
 
76 Hannah Hartig, Nearly Six-in-Ten Americans Say Abortion Should be Legal in All or Most Cases, PEW 
RES. CTR. (Oct. 17, 2018), https://www.pewresearch.org/fact-tank/2018/10/17/nearly-six-in-ten-americans-
say-abortion-should-be-legal/ [https://perma.cc/7Z7W-WAZP]. 
 
77 Id. 
 
78 Sherbert v. Verner, 374 U.S. 398 (1963) (holding that a worker’s compensation regulation requiring 
employees to make themselves available for Saturday work violated a Seventh Day Adventist’s free exercise 
rights); see also Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that applying a truancy law to Amish 
children violated the First Amendment). Although RFRA and free exercise claims are conceptually related, 
the Supreme Court has noted that “[b]y enacting RFRA, Congress went far beyond what this Court has held 
is constitutionally required.” Burwell v. Hobby Lobby Stores, 573 U.S. 682, 706 (2014). Thus, free exercise 
claims are still evaluated under Employment Division, Department of Human Resources v. Smith, 494 U.S. 
872 (1990), and other Supreme Court precedent, while RFRA claims undergo a distinct test with its own case 
law, discussed infra at Part I.B. 



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within the State’s constitutional power to regulate” and that the law was narrowly tailored 
to meet that objective.79 In 1990, the Supreme Court decided that applying strict scrutiny 
to all free exercise claims was inappropriate, and instead applied rational basis to a claim 
that denying unemployment benefits because of “misconduct” related to religious 
ingestion of peyote was a violation of free exercise.80 

 
In response to this ruling, Congress passed the Religious Freedom Restoration Act 

(RFRA) in 1993. The Congressional findings include a provision stating that “in 
Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually 
eliminated the requirement that the government justify burdens on religious exercise 
imposed by laws neutral toward religion.”81 The purposes of RFRA were to “restore the 
compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and 
Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases 
where free exercise of religion is substantially burdened,” and to “provide a claim or 
defense to persons whose religious exercise is substantially burdened by government.”82 
RFRA was the result of a broad coalition of Republicans and Democrats who saw 
government encroachment on religious expression as a problem for all religions, big and 
small.83 RFRA immediately sparked litigation not only from individuals claiming their 
religious rights were being violated, but also from states and localities arguing that the 
statute was an unconstitutional use of federal power.84 In City of Boerne v. Flores, the 
Supreme Court decided that Congress could only use its enforcement power under 
Section Five of the Fourteenth Amendment for protecting rights as interpreted by the 
judiciary.85 Because RFRA went beyond the religious protections guaranteed by the 
Constitution as interpreted by the Supreme Court, RFRA was unconstitutional as applied 

 
79 Sherbert, 374 U.S. at 403 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)). 
 
80 Smith, 494 U.S. 872.  
 
81 42 U.S.C. § 2000bb(a)(4) (2018).  
 
82 Id. § 2000bb(b)(1).  
 
83 Laycock & Thomas, supra note 10, at 210–12.  
 
84 James A. Hanson, Missouri’s Religious Freedom Restoration Act: A New Approach to the Cause of 
Conscience, 69 MO. L. REV. 853, 854–55, 854 nn.8–13 (2004) (citing both academic and judicial perspectives 
on RFRA’s constitutionality). 
 
85 521 U.S. 507 (1997). 



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to the states.86 Post-Boerne, twenty-one states enacted their own versions of RFRA.87 
Some explicitly adopted the federal language, while others expanded free exercise 
protections (e.g., by lowering the standard for violations from “substantial burden” to 
“simple burden”).88 Missouri’s RFRA—under which Mary Doe brought one of her 
claims in state court—was passed in 2003.89 The language of Missouri’s RFRA is similar 
in effect to the federal statute. It states that “a governmental authority may not restrict a 
person’s free exercise of religion” unless the government meets two conditions:  

 
(1) The restriction is in the form of a rule of general applicability, and 
does not discriminate against religion, or among religions; and 
(2) The governmental authority demonstrates that application of the 
restriction to the person is essential to further a compelling governmental 
interest, and is not unduly restrictive considering the relevant 
circumstances.90 

 
The statute goes on to define “exercise of religion” as “an act or refusal to act that is 
substantially motivated by religious belief, whether or not the religious exercise is 
compulsory or central to a larger system of religious belief.”91 That language operates in 
reaction to different state judicial interpretations of RFRA as requiring religious activities 
to be compulsory or central to be protected, rather than merely discussing whether the 
religious belief is “sincere.”92  
 

Pro-life coalition members were initially hesitant to support the federal RFRA’s “free 
exercise” language because they thought it might create a statutory right to abortion if 

 
86 Id.  
 
87 State Religious Freedom Restoration Acts, NAT’L CONF. OF ST. LEGISLATURES (May 4, 2017), 
https://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx [https://perma.cc/758A-
4NGP]. Alabama amended its state constitution to include language similar to the federal RFRA. Hanson, 
supra note 84, at 862. 
 
88 Hanson, supra note 84, at 863.  
 
89 Id. at 870. Missouri’s RFRA was codified at MO. REV. STAT. § 1.302. 
 
90 MO. REV. STAT. § 1.302.1. 
 
91 Id. § 1.302.2. 
 
92 Hanson, supra note 84, at 875. 



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Roe v. Wade were eventually overruled.93 That fear depended on a larger philosophical 
question: whether abortion can be considered a “religious choice.”94 If abortion can be 
considered a matter of religious liberty (or even a matter of religious duty, as when the 
mother’s life is at stake), then government restrictions on abortion might be considered a 
violation of the patient’s First Amendment rights. This might be because “different faiths 
disagree about the permissibility of abortion” or because “there is a duty to act 
conscientiously.”95  

 
Ultimately, RFRA included language that satisfied both sides of the abortion debate. 

The final bill insisted that “the abortion debate will be resolved in contexts other than this 
legislation. . . . To be absolutely clear, the bill does not expand, contract or alter the 
ability of a claimant to obtain relief in a manner consistent with free exercise 
jurisprudence, including Supreme Court jurisprudence [i.e., Casey], under the compelling 
governmental interest test prior to Smith.”96 Missouri’s version of RFRA does not include 
similar language. Ironically, the concern now is that RFRA is being used to restrict third-
party rights and privileges implicated by RFRA accommodations, especially in the 
reproductive rights context. Some scholars have expressed concern that state RFRAs 
could be used to either challenge antidiscrimination laws meant to protect people from 
discrimination based on sexual orientation or to refuse health care to transgender 
patients.97 The most obvious examples are the Hobby Lobby and Zubik cases, in which 
plaintiffs claimed that even facilitating coverage of certain contraceptives made them 
complicit in the sin of abortion.98 Although the Hobby Lobby decision largely shifted 
costs and responsibilities to insurers and administrators, recent rules promulgated by the 

 
93 Laycock & Thomas, supra note 10, at 230–31 (“Pro-life witnesses opposed to the bill urged an amendment 
that would restrict coverage to conduct ‘compelled’ by religion. But witnesses supporting the bill 
successfully opposed such an amendment.”). 
 
94 Id.  
 
95 Id.  
 
96 Id. at 237–38 (citing House Comm. on the Judiciary, Religious Freedom Restoration Act of 1993, H.R. 
Rep. No. 88, 103d Cong., 1st Sess. 9 (1993) (explanatory bracket added)). 
 
97 Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion 
and Politics, 124 YALE L.J. 2516, 2553–66 (2015). 
 
98 The plaintiffs in these cases were challenging the “contraceptive mandate” of the Patient Protection and 
Affordable Care Act, which required employers to offer insurance plans covering all “essential” benefits, 
including all FDA-approved contraception. The plaintiffs objected specifically to “morning-after pills” 
because they considered them to be abortifacients. Burwell v. Hobby Lobby Stores, 573 U.S. 682, 691 
(2014).  



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Trump administration and upheld by the Supreme Court exempt anyone with a religious 
or moral objection to contraception from the ACA’s mandate—leaving employees to pay 
for their own contraception.99  

 
C. “Distortions” in Reproductive Rights Jurisprudence  
 

The Mary Doe litigation exists at the intersection of two trends in the legal landscape 
of reproductive health: informed consent laws designed to dissuade pregnant people from 
obtaining abortions, and the controversy surrounding the Affordable Care Act’s 
contraceptive mandate and its impact on religious organizations that object to certain 
birth control methods. In her article Abortion Distortions, Caroline Corbin discusses 
these two legal phenomena as examples of “distortions” that develop in cases involving 
abortion. In the context of religious accommodations, Corbin argues that courts have 
been overly deferential to bad science in religious accommodation cases.100 On the other 
end of the spectrum are “informed consent” laws for abortion that mandate biased, 
inaccurate counseling—in particular, the idea that abortion causes mental health 
problems and higher rates of suicide.101 Despite evidence that these laws are based on bad 
science, courts have routinely upheld them because they do not present an “undue 
burden” under Casey.102 This section reviews these scientific and legal distortions in turn. 

 
1. Burwell v. Hobby Lobby Stores  

 
In 2010, the Obama administration set about implementing the recently-passed 

Patient Protection and Affordable Care Act (ACA). The statute included a provision 
requiring all insurance plans to provide “minimum essential benefits,” including 
preventive care, with no cost-sharing.103 The administrative agency charged with deciding 
what constituted an “essential benefit” determined that all contraceptive devices cleared 
by the FDA—including emergency contraception and intrauterine devices—should be 

 
99 Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 149 S. Ct. 2367 (2020) (upholding 
Trump administration rules exempting employers with “moral” or “religious” objections from the ACA’s 
contraceptive mandate).  
 
100 Corbin, Abortion Distortions, supra note 15, at 1205–06.  
 
101 Id. at 1178.  
 
102 Id. at 1191–92.  
 
103 42 U.S.C. § 300gg–13(a) (2018). 



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covered.104 Knowing that certain religious organizations would object to covering 
contraceptives, the Obama administration set up an accommodation process that would 
allow insurers or third-party administrators to provide contraceptive coverage without 
requiring the religious institution or non-profit to be involved.105 On the other hand, for-
profit corporations with more than fifty employees are required to offer employer-
sponsored insurance plans that cover minimum essential benefits, including contraceptive 
coverage.106 

 
Hobby Lobby Stores, Inc.—a closely-held for-profit corporation that operates over 

500 arts and crafts stores and employs over 13,000 people—challenged the contraceptive 
mandate under RFRA and the Free Exercise Clause.107 Hobby Lobby’s owners claimed 
that being required to provide certain “abortion-causing drugs and devices” substantially 
burdened their religious liberty and could not survive strict scrutiny.108 In 2014, the case 
made its way to the Supreme Court, which held that a closely-held for-profit corporation 
qualified as a “person” under RFRA and that the contraceptive mandate did indeed 
substantially burden their religious liberty.109 

 
As Corbin points out, the Hobby Lobby decision allowed those plaintiffs to assert not 

only their religious beliefs but their own set of facts about how specific contraceptive 
devices operate.110 The Hobby Lobby plaintiffs announced a “belie[f] that human beings 
deserve protection from the moment of conception, and that providing insurance 
coverage for items that risk killing an embryo makes them complicit in abortion.”111 
Thus, in order for an insurance plan to conform to their religious beliefs, it would have to 
exclude not only abortifacients, but “drugs or devices that can prevent an embryo from 
implanting in the womb—namely, Plan B, Ella, and two types of intrauterine devices” 

 
104 Burwell v. Hobby Lobby Stores, 573 U.S. 682, 697, 701–02 (2014).  
 
105 Id. at 698–99.  
 
106 Id. at 696–97.  
 
107 Hobby Lobby Stores v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012).  
 
108 Id. at 1285.  
 
109 Hobby Lobby, 573 U.S. at 706. 
 
110 Corbin, Abortion Distortions, supra note 15, at 1205. 
 
111 Brief for Respondents at 9, Hobby Lobby, 573 U.S. 682 (No. 13-354). 



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that can “end life after conception.”112 In one of the consolidated cases, the plaintiffs 
referred to morning-after pills as “widely known . . . abortifacients in that they frequently 
function to destroy fertilized eggs, which Plaintiff considers to be abortion on 
demand.”113  

 
The problem with this argument, as Corbin succinctly argues, is that “they are 

wrong.”114 Pregnancy does not begin until a fertilized egg implants in the uterus, not 
when sperm first meets egg.115 Indeed, less than one-half of zygotes (the sperm and egg 
pair) make it through the fallopian tubes to the uterus.116 Morning-after pills do not “kill” 
fertilized eggs or prevent them from implanting; like other forms of birth control, they 
merely stop fertilization from occurring in the first place, albeit at a higher dose than 
most daily pills.117 The controversy over the mechanisms of emergency contraception 
came from a preliminary label printed in the early days of the morning-after pill, 
indicating that the medications might prevent implantation.118 Because the mechanism 
was unclear at that point, the FDA required that disclosure. Now, however, “[e]very 
reputable scientific study to examine Plan B’s mechanism has concluded that these pills 
prevent fertilization from occurring in the first place.”119 

 
Although courts have been rightfully hesitant to question whether a plaintiff’s 

religious belief is sincere, the courts “can and should question the accuracy of their 
science.”120 Thus, the courts should have dismissed the plaintiff’s claims: If the 
medications in question do not kill fertilized eggs, then courts should not seriously 

 
112 Id. at 9, 14.  
 
113 Corbin, Abortion Distortions, supra note 15, at 1197–98 (quoting Complaint, Sharpe Holdings v. U.S. 
Dep’t of Health & Hum. Servs., No. 2:12-CV-92-DDN (E.D. Mo. Dec. 31, 2012), 2012 WL 6738489). 
 
114 Id. at 1198.  
 
115 Id. at 1198–99 (discussing Brief for Physicians for Reprod. Health et al. as Amici Curiae Supporting 
Petitioners, Hobby Lobby Stores v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (No. 12-6294), affirmed sub. 
nom. Hobby Lobby, 573 U.S. 682 (2013) (No. 13-354)). 
 
116 Id. at 1199. 
 
117 Id. at 1200.  
 
118 Id.  
 
119 Id. at 1200.  
 
120 Id. at 1205. 



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entertain a claim that covering those drugs on an insurance plan equals complicity in 
killing fertilized eggs.121 Corbin argues that allowing a religious liberty claim to proceed 
based on “obvious scientific error” is a distortion of First Amendment jurisprudence that 
only developed because of abortion exceptionalism.122 Corbin makes this point through 
her own kind of parody—an analogy to a fictional chain of “Hobby Bobby” stores owned 
by a family that holds “very strong precepts against killing animals.”123 Would a claim 
that providing cholesterol medication that the family mistakenly believes is made from 
animal by-products get any traction as a religious liberty claim? Corbin thinks not, but 
“[s]omehow . . . this reasoning becomes plausible in the context of women and their 
reproductive rights.”124  

 
2. “Woman’s Right to Know” Acts & Compelled Speech 

 
The same year that Hobby Lobby was decided, Missouri passed a statute extending 

their mandatory abortion “reflection period” from twenty-four to seventy-two hours—the 
longest in the country, tied only with Utah and South Dakota. The bill called the 
“Woman’s Right to Know Act,” requires abortion providers to offer patients a booklet of 
“informed consent” materials and the opportunity to view an ultrasound.125 The booklet 
includes the following statement: “The life of each human being begins at conception. 
Abortion will terminate the life of a separate, unique, living human being.”126 The booklet 

 
121 Id. 
 
122 Id. at 1206. 
 
123 Id. at 1206–07. 
 
124 Id. at 1209.  
 
125 MO. H.B. 1307, 1313 (codified as MO. REV. STAT. § 188.027 (2014)); MO. DEP’T OF HEALTH & SENIOR 
SERVS., INFORMED CONSENT BOOKLET (Oct. 2017),  
https://health.mo.gov/living/families/womenshealth/pregnancyassistance/pdf/Mo.InformedConsentBooklet-
Revisedpgs.12-15August2019jkOGCReviewed.pdf [https://perma.cc/M5AQ-6WL6] [hereinafter “IC 
Booklet”]. The Missouri law challenged in the Mary Doe litigation is far from unique. As of the writing of 
this Note, twenty-six states have enacted mandatory ultrasound requirements for pregnant patients seeking an 
abortion as a result of pro-life groups writing and lobbying for specific legislation. Guttmacher Inst., State 
Laws & Policies: Requirements of Ultrasound (Aug. 1, 2020), https://www.guttmacher.org/state-
policy/explore/requirements-ultrasound# [https://perma.cc/8E9G-9EVF]; see also Americans United for Life 
(“AUL”), Defending Life (2019) (on file with author).  
 
126 IC Booklet at 1. This language is identical to “informed consent” language mandated by South Dakota, 
North Dakota, Kansas, and Oklahoma. Ams. United for Life, Defending Life from Conception to Natural 
Death (2019) [hereinafter “Defending Life”] (on file with author). 



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also purports to provide abortion patients with “basic facts” to aid them in their decision. 
These “facts” include definitions for terms like “embryo” and “fetus,” information about 
child support and state agencies that facilitate adoption, as well as visual depictions of the 
pregnancy at each stage of development.127 In addition, the same physician who performs 
the abortion “shall provide the woman with the opportunity to view . . . an active 
ultrasound of the embryo or fetus, and to hear the heartbeat if it is audible.”128 After the 
patients have reviewed this information, they must wait seventy-two hours to obtain an 
abortion.129  

 
Although abortion providers in Missouri declined to challenge the law, providers in 

other states have argued that forcing abortion providers to make ideological, non-medical 
statements (e.g., abortion terminates the “life of a separate, unique, living human being”) 
violates their First Amendment rights against compelled speech.130 The other First 
Amendment “distortion” comes in part from what Borgmann calls “undue burden 
preemption”: the erroneous tendency of lower courts to allow Casey’s “undue burden” 
standard to preempt other constitutional claims, just because they involve abortion.131 In 
Casey, the Supreme Court created a sort of heightened scrutiny applicable only to 
abortion restrictions. Rather than applying strict scrutiny or rational basis, the Casey court 
determined that abortion regulations that have “the purpose or effect of placing a 

 
127 IC Booklet at 1. 
 
128 Id. at 2.  
 
129 Crucially, this bill requires that patients receive the informed consent materials and ultrasound in person at 
the same clinic that ultimately performs the procedure. Because Missouri only has one abortion provider in 
St. Louis, patients coming from outside the city often have to make multiple long trips and pay for hotel 
rooms, which presents serious obstacles for low-income women and women with children or inflexible work 
schedules. Nadja Popovich, 72 Hours and Counting: Missouri’s Last Clinic Confronts New Abortion Reality, 
THE GUARDIAN (June 22, 2015), https://bit.ly/2SXqiGO [https://perma.cc/8AYM-ARPZ].  
 
130 See, e.g., Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014); Planned Parenthood of Minn. v. Rounds, 530 
F.3d 724, 735–36 (8th Cir. 2008); Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 
(5th Cir. 2012). 
 
131 The tendency is erroneous because the Court has explicitly held that a plaintiff alleging multiple 
constitutional claims should be heard on each claim separately. The exception to this interpretive rule is 
found in Graham v. Connor, 490 U.S. 386 (1989), which allows a “more specific constitutional provision” to 
preempt substantive due process claims. Borgmann points out that allowing the undue burden standard 
(which is rooted in the substantive due process right to privacy) effectively allows “an unenumerated, 
substantive due process right [to] preempt[] either a textually grounded constitutional claim or another 
unenumerated right.” Caitlin E. Borgmann, Abortion Exceptionalism & Undue Burden Preemption, 71 
WASH. & LEE L. REV. 1047, 1054 (2014). 



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substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” 
constitute “undue burdens” on the patient’s right to privacy.132  

 
The undue burden standard is unique to abortion jurisprudence and distinct from the 

Constitution’s other guarantees, including the right to free speech guaranteed by the First 
Amendment. The First Amendment right to freedom of speech has been interpreted to 
include a right against being compelled to speak by the government.133 Of course, the 
compelled speech doctrine is limited in the commercial context: The government can, for 
example, require companies to include certain warnings about a product.134 And, indeed, 
state governments can dictate that every medical procedure is done only after securing 
“informed consent” from a patient.135 Normally, informed consent involves going 
through the relevant and important risks and benefits of the treatment and any 
alternatives.136 According to the American Medical Association Code of Medical Ethics, 
the “physician’s obligation is to present the medical facts accurately to the patient.”137 
Physicians who have challenged informed consent laws like Missouri’s have argued, to 
the contrary, the laws require them to present medically inaccurate information and force 
them to promote ideology rather than facts. 

 
132 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992). Borgmann calls Casey’s undue burden 
standard the “most obvious[]” example of abortion exceptionalism—the Court “jettisoned strict scrutiny for a 
new constitutional test, custom made for abortion restrictions.” Borgmann, supra note 131, at 1086.  
 
133 U.S. CONST. amend. I, cl. 3; Corbin, Abortion Distortions, supra note 15, at 1189 (“The Free Speech 
clause protects the right to speak as well as the right not to speak. This right against compelled speech was 
first established in a case challenging a state requirement that schoolchildren recite the pledge of allegiance 
every morning. In striking down the law, the Supreme Court famously observed: ‘If there is any fixed star in 
our constitutional constellation, it is that no official, high or petty, shall prescribe what shall be orthodox in 
politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or action their 
faith therein.’ In other words, the government cannot compel anyone to express agreement with government 
ideology. Such compulsion would violate the freedom of conscience the Free Speech Clause was designed to 
protect. It is as anathema as the state censoring speech it disapproves.”) (quoting W. Va. Bd. of Educ. v. 
Barnette, 319 U.S. 642 (1943)). 
 
134 Rebecca Tushnet, More than a Feeling: Emotion & the First Amendment, 127 HARV. L. REV. 2392, 2404 
(2014). 
 
135 See, for example, Pennsylvania’s “informed consent” statute, which states that “a physician owes a duty to 
a patient to obtain the informed consent of the patient or the patient's authorized representative prior to 
conducting the following procedures.” 40 PA. STAT. § 1303.504.  
 
136 See Vandewalker, supra note 16, at 5. 
 
137 AMA Code of Med. Ethics. S. 8.08 (2012) (cited in Corbin, Abortion Distortions, supra note 15 at 1188).  



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As Corbin notes, the “default rule” for compelled speech claims is that the regulation 
is “unconstitutional unless it survives strict scrutiny.”138 However, providers who have 
challenged these “informed consent laws” have had their distinct, First Amendment 
speech-based claims effectively swallowed up by the undue burden standard.139 As 
Corbin points out, “[u]nder normal free speech jurisprudence, these content-based 
requirements would be subject to strict scrutiny and almost certainly struck down.”140 
Lower courts considering providers’ compelled speech claims have attempted to fit these 
First Amendment challenges into the undue burden framework. In Casey, the Court held 
that requiring abortion providers to offer certain “truthful, non-misleading information 
about the nature of the abortion procedure, the attendant health risks and those of 
childbirth, and the ‘probable gestational age’ of the fetus” to their patients “cannot be 
considered a substantial obstacle to obtaining an abortion, and, it follows, there is no 
undue burden.”141  

 
The Fifth and Eighth Circuits have taken this to mean that mandatory ultrasounds are 

fair game. The Fifth Circuit found that an ultrasound and a fetal heartbeat display was 
“medically accurate,” “factual,” and that “truthful, non-misleading” information of that 
kind did not violate Casey.142 Similarly, the Eighth Circuit has held that an informed 
consent requirement stating that “abortion will terminate the life of a whole separate, 
unique, living human being” was simply “biological information about the fetus . . . 
relevant to the patient’s decision to have an abortion.”143 This statement was “factual,” 
said the Eighth Circuit, because “human being” was defined in South Dakota’s code as 
merely being a member of the species homo sapiens—a definition that apparently erased 
any ideological content and did not present a substantial obstacle to obtaining an 
abortion.144 

 
138 Corbin, Abortion Distortions, supra note 15, at 1189–90 (discussing a South Dakota law that included 
language identical to Missouri’s “Woman’s Right to Know Act”). 
 
139 Borgmann, supra note 131, at 1077–78.  
 
140 Corbin, Abortion Distortions, supra note 15, at 1188–89.  
 
141 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882–83 (1992).  
 
142 Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 577 (5th Cir. 2012).  
 
143 Planned Parenthood of Minn. v. Rounds, 530 F.3d 724, 735–36 (8th Cir. 2008).  
 
144 Id. 



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Caitlin Borgmann argues that using Casey’s “undue burden” standard to analyze First 
Amendment compelled speech claims made by abortion providers makes no sense.145 
Although many abortion restrictions specifically impact access, “abortion restrictions . . . 
implic[ate] other distinct rights,” like the right to refuse medical treatment or the right to 
bodily autonomy.146 A doctor’s claim that the government is compelling ideological 
speech exists “independently of whether the requirement hampers or prevents her 
[patient’s] access to abortion” and should thus be subject to strict scrutiny.147  

 
The Fourth Circuit opinion striking down a mandatory ultrasound law reflected this 

assessment, holding that a North Carolina statute requiring abortion providers to display 
and describe a “real-time view” of fetal ultrasound images to patients constituted 
compelled speech and violated the First Amendment.148 As for Casey, the Fourth Circuit 
concluded that the Fifth and Eighth Circuits “read too much into” its holding that the 
Casey Court saw “‘no constitutional infirmity in the requirement that the physician 
provide the information mandated by the State’” in that case.149 This “particularized 
finding hardly announces a guiding standard of scrutiny for use in every subsequent 
compelled speech case involving abortion” and certainly did not “hold sweepingly that all 
regulation of speech in the medical context merely receives rational basis review.”150 
Thus, instead of looking to Casey to determine whether “abortion regulations that compel 
speech to the extraordinary extent present here” presented an undue burden, the Fourth 
Circuit analyzed the requirement as a “content-based regulation of a medical 
professional’s speech which must satisfy at least intermediate scrutiny to survive.”151  

 
 

145 Borgmann, supra note 131, at 1070.  
 
146 Id. at 1084.  
 
147 Id.  
 
148 Stuart v. Camnitz, 774 F.3d 238, 238 (4th Cir. 2014).  
 
149 Id. at 249 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992)). The Court also 
found the Fifth and Eighth Circuits’ discussion of Gonzales v. Carhart, 550 U.S. 124 (2007), “inapposite.” 
Although that case provided “valuable insight into the relationship between the state and the medical 
profession and the role the state may play in ensuring that women are properly informed,” Gonzales was not 
a First Amendment case and therefore said “nothing about the level of scrutiny courts should apply when 
reviewing a claim that a regulation compelling speech in the abortion context violates physicians’ First 
Amendment free speech rights.” Stuart, 774 F.3d at 249.  
 
150 Stuart, 774 F.3d at 249. 
 
151 Id. at 245. 



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D. Mary Doe’s “Right to Know”?  
  

Federal appeals courts are currently split on whether mandatory ultrasound and 
biased counseling laws are unconstitutional as applied to providers. For abortion patients, 
however, the argument is more complex. In other states with similar waiting period 
statutes, litigants have focused on the “undue burden” posed by long waiting periods, 
particularly for low-income patients who live far away from abortion providers.152 
Without considering the waiting period, however, it is difficult to argue that undergoing 
an ultrasound (even if it is unwanted) and receiving certain information (even if it is 
inaccurate) presents a substantial obstacle to an abortion patient. For those who believe 
the abortion decision is deeply personal, however, there is something wrong with the 
government forcing patients to hear inaccurate information as part of the “informed 
consent” process. The question for advocates, then, is how to frame these objections as 
judicially cognizable claims.  

 
1. Images and Ideology 

 
The Fifth and the Eighth Circuits both insist that the informed consent documents and 

mandatory ultrasounds are part of a normal, medically-appropriate informed consent 
process in line with Casey’s approval of “truthful, non-misleading information.”153 In 
other words, these courts have held that sonographic depiction of a fetus and description 
of its physical characteristics are neutral medical information. Indeed, the Fifth Circuit 
wrote that ultrasound images are “the purest conceivable expression of factual 
information.”154 As the Fourth Circuit pointed out, however, simply because the “words 
the state puts into the doctor’s mouth are factual” does not “divorce the speech from its 
moral or ideological implications.”155 Requiring a “real-time view” of the fetus 
“explicitly promotes a pro-life message by demanding the provision of facts that all fall 

 
152 See, e.g., Planned Parenthood of the Heartland v. Reynolds, 915 N.W.2d 206 (Iowa 2018) (crediting a 
poverty expert who illustrated, through two hypotheticals, how a seventy-two-hour waiting period would 
pose particular difficulties for low-income patients, victims of domestic violence, and other patients with 
inflexible jobs or childcare arrangements). 
 
153 Casey, 505 U.S. at 882. 
 
154 Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 570, 577 n.4 (5th Cir. 2012). 
 
155 Stuart, 774 F.3d at 246.  
 



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on one side of the abortion debate—and does so shortly before the time of decision when 
the intended recipient is most vulnerable.”156  

 
Scholars have gone even further than the Fourth Circuit’s ruling to deconstruct the 

ideological content of mandatory ultrasound and informed consent requirements. Carol 
Sanger traces ultrasound technology from a diagnostic tool to a social practice that often 
produces “baby’s first picture.”157 As anyone who has tried in vain to find a tiny head or 
foot that a family member insists is right there knows that ultrasounds nearly always 
require interpretation by a medical professional. Very early images of pregnancy “are not 
always recognizable as that of a baby, or even as a human,” so viewing an ultrasound 
becomes a form of “assisted seeing” in which sonographers “help transform the grainy 
splotches on the monitor into [a] baby.”158 Similarly, physical descriptions are “filtered 
through a cultural sieve” that depends on the language the sonographer chooses and the 
qualities she ascribes to the fetal image.159  

 
Sanger points out that there is no medical reason for showing a patient her own 

sonogram; if informed consent about the size and features of a fetus is truly the goal, why 
“replac[e] an accurate drawing or generic photo with an image of a particular fetus that is 
the woman’s very own?”160 Similarly, Borgmann interrogates why the state needs to 
inform patients that an abortion will “terminate the life of a separate, unique, living 
human being,” since, presumably, patients know that their pregnancy will not eventually 
result in, for example, a dolphin being born.161 

 
The answer, of course, is that the requirements are meant to interpolate pregnant 

patients into the social experience of motherhood. This is not “truthful, non-misleading” 
information about the respective risks of abortion and childbirth. Instead, it is ideological 
messaging meant to dissuade the patient from choosing to go forward with the abortion. 
Should the state be allowed to interfere with the abortion decision in this way? Unlike 

 
156 Id.  
 
157 CAROL SANGER, ABOUT ABORTION 115 (2017).  
 
158 Id.  
 
159 Id.  
 
160 Id. at 110. 
 
161 Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, 89 B.U. L. REV. 939, 
1002 (2009) [hereinafter Corbin, The First Amendment Right]. 



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reading a pamphlet about how many inches long your fetus might be on a given week of 
pregnancy, mandatory ultrasounds ask women to “cooperate in the production of the very 
thing to be seen—coerced production.”162 States thus force pregnant patients to “offer up 
the content of their bodies in the form of an image for inspection before the law permits 
them to end a pregnancy,” effectively forcing the patient to participate in her own 
persuasion.163  

 
Carol Sanger analogizes biased counseling and mandatory ultrasound laws to those 

that implicate First Amendment religious freedom—a comparison that Mary Doe’s claim 
makes literal.164 Religious belief itself is not the exclusive subject of constitutional 
protection; the process of coming to a decision about religious belief is also insulated 
from government action. So, for example, the government cannot force a citizen to read a 
pamphlet about a certain religion or attend religious services, even if “belief” is not 
technically mandated.165 Because abortion is a deeply personal, “self-defining” decision, 
Sanger argues that the “deliberative path a person takes to reach the decision” should also 
be protected.166 

 
2. Compelled Listening  

 
Casey held that certain informed consent provisions were “related to the State’s 

informed consent interest” and that such information “furthers the State’s interest in 
preserving unborn life,” even if it “persuad[ed] some women to forgo abortions.”167 This 
holding is now used to uphold biased counseling laws that provide patients with 
inaccurate information,168 like “disclosing” a nonexistent link between abortion and 

 
162 SANGER, supra note 157, at 118.  
 
163 Id.  
 
164 Carol Sanger, Seeing & Believing: Mandatory Ultrasound & the Path to a Protected Choice, 56 UCLA L. 
REV. 351, 387 (2008).  
 
165 Id. at 387–88.  
 
166 Id. at 387. 
 
167 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 840 (1992).  
 
168 Borgmann, supra note 131, at 1069.  



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breast cancer,169 or between abortion and an increased risk of suicide.170 Caroline Corbin 
offers a potential claim to challenge these “disclosures” from the patient’s point of view: 
a right against compelled listening. Although First Amendment jurisprudence does not 
currently recognize this right, Corbin argues that it naturally completes the matrix of First 
Amendment free speech rights, which includes the rights to speak, not to speak, and to 
listen.171 In some circumstances, courts have found that “a listener’s right to not hear 
speech trumps a private speaker’s right to convey speech.”172 This “captive audience” 
doctrine is applied when the audience cannot escape the speech, and, as a privacy matter, 
they “should not have to quit the space to avoid the message.”173  

 
This interest in not hearing ideological government speech is particularly salient in 

the medical context, where information asymmetry, informed consent laws, and the 
doctor-patient relationship combine to create a unique power dynamic. Courts have 
applied the captive audience doctrine in upholding “buffer zone” laws that restrict 
protesters’ ability to heckle patients as they enter clinics.174 In Madsen v. Women’s 
Health Center, the Court analogized “residential privacy” to “medical privacy,” holding 
that the “targeted picketing of a hospital or clinic threatens not only the psychological, 
but also physical, well-being of the patient held ‘captive’ by medical circumstances.”175  

 
Corbin argues that this analysis should be taken a step further to include a right 

against compelled listening to ideological speech when used by the government to 
persuade patients against abortion.176 In general, the right not to listen has to be balanced 
against the right to free speech. When physicians—the ones technically doing the 
speaking—are also opposed to the speech in question, that rationale disappears. 

 
169 AM. COLL. OBSTETRICIANS & GYNECOLOGISTS, COMM. OP. NO. 484: INDUCED ABORTION & BREAST 
CANCER RISK (June 2009), https://www.acog.org/-/media/project/acog/acogorg/clinical/files/committee-
opinion/articles/2009/06/induced-abortion-and-breast-cancer-risk.pdf [https://perma.cc/M8VN-L3A5]. 
 
170 Corbin, Abortion Distortions, supra note 15, at 1181–83.  
 
171 Corbin, The First Amendment Right, supra note 161, at 941.  
 
172 Id. at 943.  
 
173 Id. at 943–44. 
 
174 Id. at 948.  
 
175 Id. (discussing Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994)). 
 
176 Id. at 1007–08. 



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Furthermore, a constitutional right against compelled listening would limit the 
government’s ability to persuade, so it would not implicate the free speech rights of 
private parties.177 Indeed, the individual autonomy interest in a right against compelled 
listening is strong—and similar to Sanger’s proposed protections of abortion decision-
making. Being forced to listen to ideological speech about abortion “interferes with the 
decision-making process by not allowing adults to choose what information to consider in 
developing their thoughts and making up their minds” and can “unduly influence the 
ultimate decision being made.”178 Of course, the government has an interest in ensuring 
that patients have adequate information before making medical decisions; traditional 
informed consent is clearly constitutional. However, this government interest should be 
structured to promote patient autonomy, not to diminish it. Corbin argues that this 
requirement can only be met if the message is “factual, secular, and . . . incontrovertibly 
autonomy-enhancing.”179 Thus, forcing abortion patients to adopt “the state’s moral 
views . . . with strong religious overtones” fails the requirements of a proposed right 
against compelled listening.180 
 

III. Mary Doe’s Claims, Novel & Parodic  
 

A. Parody: The Satanic Temple’s Tool of Choice  
 

The Satanic Temple regularly garners media attention for its creativity and 
litigiousness, leading many to conclude that the whole thing is a joke.181 The Temple 
directly addresses these suspicions on their website’s Frequently Asked Questions page, 
asking, “Is TST a media stunt/hoax/trolling etc.?” and maintaining that their religious 
beliefs are both sincere and serious:  

 
177 Id. at 980.  
 
178 Id. at 982.  
 
179 Id. at 992.  
 
180 Id.  
 
181 See, e.g., Jack Cashill, Judges Cast Out Satanic Temple Plaintiff, Uphold Missouri Abortion Law, KAN. 
CITY SENTINEL (Aug. 30, 2018), https://bit.ly/2IgZFbx [https://perma.cc/HEQ9-R7AF]; Anna Merlan, 
Trolling Hell: Is the Satanic Temple a Prank, the Start of a New Religious Movement—or Both?, VILLAGE 
VOICE (July 22, 2014), https://bit.ly/2X1RQtI [https://perma.cc/6XQ5-5AWB]; Mark Oppenheimer, A 
Mischievous Thorn in the Side of Conservative Christianity, N.Y. TIMES (July 10, 2015), 
https://nyti.ms/2H3M7Ov [https://perma.cc/Z84J-DEX9] (“When [Temple leaders] sit down in an organic 
food cafe and order plates of fettuccini Alfredo, it’s hard to take them seriously as worshipers of the Dark 
Lord of the Underworld.”). 



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Some have conveniently concluded, upon observing The Satanic 
Temple’s media coverage, that attention is the primary objective of our 
activities. While media outreach has helped to raise awareness of the 
campaigns we have initiated, these campaigns have articulated goals 
related [to] issues that are important to us and our membership. So inured 
is the general public to the idea that there is only one monolithic voice of 
“the” religious agenda that any attempt at a counter-balance—or 
assertion of a minority voice—is often viewed as a targeted provocation 
against those who enjoy traditional religious privilege.”182 
 

It seems clear that the Temple’s leadership, at least, does not think of humor and sincerity 
as mutually exclusive. In an interview with the New York Times, Doug Mesner (a.k.a. 
“Lucien Greaves”) said, “We’ve been talking a lot of comedy . . . but I genuinely feel this 
is every bit a religion—this cultural identity, this narrative that contextualizes your life, 
your works, your goals. And you have these deeply held beliefs, that if they are violated, 
it compromises your very self.”183 
 

Their “campaigns” reflect this dual strategy. In particular, the Temple often reacts to 
political and judicial decisions about religion and free speech. When Rick Scott, former 
governor of Florida, promoted a bill to allow voluntary prayer in public schools, the 
Temple created a “mock rally” to support the bill and “say how happy we were because 
now our Satanic children could pray to Satan in school.”184 The Temple also organized a 
“pink mass” at the funeral of former Westboro Baptist Church leader Fred Phelps, a 
response to the Supreme Court case Snyder v. Phelps, which held that the First 
Amendment shielded the Westboro Baptist Church from tort liability after they picketed a 
deceased soldier’s funeral.185 Relying on Good News Club v. Milford Central School, the 
Temple created a program called “After School Satan” (complete with Satan-themed 
coloring books and a sexual education curriculum called “Sex Educatin’ with Satan”), 

 
182 FAQ, THE SATANIC TEMPLE, supra note 4. 
 
183 Oppenheimer, supra note 181.  
 
184 Id. 
 
185 Josh Feldman, NY Satanic Temple Wants to Posthumously Make Fred Phelps Gay, MEDIAITE (Mar. 18, 
2014), https://bit.ly/2X5uovH [https://perma.cc/C4XX-HMF2]; 562 U.S. 443, 460 (2011). 



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which operates in elementary schools that host evangelical-sponsored Good News 
Clubs.186  

 
The Satanic Temple’s Missouri litigation was a similarly targeted response to the 

2014 decision by the United States Supreme Court to extend RFRA protection to closely-
held for-profit corporations in the context of the Affordable Care Act’s contraceptive 
mandate.187 Shortly after that decision, the Temple posted a letter that women could, 
purportedly, take to an abortion provider to “waive” their obligations to comply with 
informed consent laws.188  

 
Then Mary Doe came forward. Mary Doe learned she was pregnant in February 2015 

and started making plans to terminate her pregnancy in March 2015.189 When she arrived 
at a Planned Parenthood health center in St. Louis, she presented the center with the letter 
indicating that she had reviewed the Missouri informed consent documents and 
“absolve[d]” the center of “any responsibility . . . to deliver the Booklet to me [or] to wait 
seventy-two hours before performing an abortion.”190 The letter also included a recitation 
of the “sincerely held religious beliefs” relevant to the abortion decision: 

 
- My body is inviolable and subject to my will alone. 
- I make any decision regarding my health based on the best scientific 

understanding of the world, even if the science does not comport 
with the religious or political beliefs of others. 

 
186 Daniel Cutler, Not Today, Satan: Re-Examining Viewpoint Discrimination in the Limited Public Forum, 
26 WM. & MARY BILL RTS. J. 1241, 1242 (2017); Listing for “The Satanic Children’s Big Book of 
Activities,” THE SATANIC TEMPLE, https://bit.ly/2X6Ol56 [https://perma.cc/6CS5-HXAW]. 
 
187 Press Release, The Satanic Temple, The Satanic Temple Leverages Hobby Lobby Ruling to Claim 
Exemption from State-Mandated Pro-Life Materials as First Initiative in Ambitious Women’s Health 
Campaign (July 28, 2014), [https://perma.cc/XA5C-K2N2]; Interview with W. James MacNaughton, 
Attorney for Plaintiff Mary Doe (Feb. 22, 2019) (“Our case is no different than Hobby Lobby. Our case is the 
flip-side of Hobby Lobby.”).  
 
188 Mary Emily O’Hara, The Satanic Temple Wants to Use Hobby Lobby Against ‘Informed Consent’ 
Abortion Laws, VICE NEWS (July 28, 2014), https://news.vice.com/en_us/article/438pv3/the-satanic-temple-
wants-to-use-hobby-lobby-against-informed-consent-abortion-laws [https://perma.cc/SAX9-63KE]. 
 
189 Judgment at 2, Doe v. Nixon, Case No. 15AC-CC00205 (Mo. Cir. Ct. Dec. 12, 2016).  
 
190 Ex. B, Complaint at 2, Doe, Case No. 15AC-CC00205 (Mo. Cir. Ct. May 8, 2015). 



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- My inviolable body includes any fetal or embryonic tissue I carry as 
long as that tissue is unable to survive outside my body as an 
independent human being. 

- I—and I alone—decide whether my inviolable body remains 
pregnancy and I may, in good conscience, disregard the current or 
future condition of any fetal or embryonic tissue I carry in making 
that decision.191 

 
The Planned Parenthood health center indicated that they still had to comply with the 
law—which required Mary Doe to acknowledge receipt of the materials and wait 
seventy-two hours—so Mary Doe waited (and paid for) three days in a St. Louis motel 
before receiving her abortion.192 While she was waiting, she filed a lawsuit requesting 
that the laws be temporarily enjoined.193 The lawsuit alleged that the Missouri informed 
consent statute substantially burdened Mary Doe’s ability to exercise control over her 
own body (a tenet of her religion and thus an “exercise of religion”) and that the state had 
no compelling reason to do so—a clear violation of RFRA and the Free Exercise 
Clause.194  
 

Most of the response to the lawsuit (some delighted, some disturbed) focused on its 
rhetorical power. As Anna Merlan of Jezebel writes, in order to mean anything, RFRA 
“has to protect fans of Satan too,” which she characterizes as “sweet irony.”195 One 
journalist wrote that the challenge sounds like “the epitome of a frivolous, if not 
blasphemous, lawsuit.”196 Another indicated that this case was not “the first time . . . the 
Satanic Temple [has] piggybacked on a Christian legal victory to make a point about 
equality of conviction.”197 Kara Loewentheil, one of the few scholars to have written 

 
191 Id. at 1.  
 
192 Judgment at 4, Doe, Case No. 15AC-CC00205.  
 
193 Plaintiff’s Memorandum of Law in Support of a Temporary Restraining Order, Doe, Case No. 15AC-
CC00205 (Mo. Cir. Ct. May 8, 2015).  
 
194 Id. at 3–4. 
 
195 Anna Merlan, The Satanic Temple is Suing Missouri Over Anti-Abortion Legislation, JEZEBEL (May 11, 
2015), https://bit.ly/2Eg9ukY [https://perma.cc/JMF2-XK5T].  
 
196 Joseph P. Williams, Satanic Temple Sues Missouri Over Abortion Rights—And Could Win, U.S. NEWS 
(Jan. 16, 2018), https://bit.ly/2tbtTp8 [https://perma.cc/7NSW-TLSN]. 
 
197 O’Hara, supra note 188. 



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about the Temple in legal academia, says that their “waiver” campaign was “seemingly 
facetious,” meant merely to prove the point that “conservatives do not have a monopoly 
on [religious] accommodation” and that “progressives, too, can look to religious 
objection claims under RFRA as a means of effecting change in the legal system.”198 
Loewentheil further argues that the Temple “reads [Hobby Lobby] too broadly” by 
neglecting to consider the impact of other federal and state protections for contraceptive 
access on religious exemptions.199  

 
Indeed, the Temple’s own spokespeople seemed to view the litigation as at least 

partially symbolic. The lawsuit works primarily by drawing comparisons to Hobby Lobby 
and other uses of religious liberty protections in order to promote mainstream Christian 
ideology. Lucien Greaves, a spokesperson for the national Satanic Temple, wrote that 
RFRA is “popular among Christian conservatives who endorse it as essential to 
preserving the spiritual innocence of pious bakers who might otherwise be forced to bake 
cakes for Godless homosexuals.”200 The Satanic Temple’s motivating principle is thus 
fundamentally comparative—that “the same conviction cited in the SCOTUS Hobby 
Lobby decision should apply regardless of where that conviction came from.”201  
 

B. Ironic Oppositions in the Mary Doe Litigation 
 
The idea that Mary Doe’s challenge was solely meant to draw attention feels 

incomplete—after all, a four-year lawsuit is a significant investment of both time and 
money. However, Loewentheil’s serious-minded analysis of their exemption strategy as 
an “overreading” of Hobby Lobby’s holding also does not capture the full impact of Mary 
Doe’s claims. Applying the lens of parody (i.e., reading the Temple’s legal challenges as 
a serious polemical doubling of Hobby Lobby) might lead us to re-categorize this 
“overreading” as intentional, meant to put the Court’s opinion “on display for collective 
reflection.”202 As a logical strategy, parody is not so far afield from the normal process of 
legal reasoning through analogy, which can demonstrate that two scenarios are 

 
198 Kara Loewentheil, The Satanic Temple, Scott Walker, and Contraception: A Partial Account of Hobby 
Lobby’s Implications for State Law, 9 HARV. LAW & POL’Y REV. 89, 90 (2015). Loewentheil’s argument was 
written before the Mary Doe lawsuit was filed.  
 
199 Id. 
 
200 Merlan, supra note 195. 
 
201 O’Hara, supra note 188.  
 
202 Robert Hariman, Political Parody & Public Culture, 94 Q. J. SPEECH 247, 251 (2008). 



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sufficiently similar to warrant application of the same legal rule, or that two scenarios are 
actually so distinct that applying the same rule would lead to an absurd result.  

 
Here, the two “scenarios” that Mary Doe’s litigation purports to link by legal analogy 

rely on ironic opposition.203 First, Mary Doe’s claim replaces “sacred” Christian religious 
belief with a “profane” association with Satan and abortion and argues that the two 
beliefs are sufficiently similar to warrant a similar religious accommodation. Second, the 
“free exercise of religion” she claims is violated—usually a burden on faith—is replaced 
by Satanic tenets incorporating scientific accuracy as a religious belief. Mary Doe 
purposefully confuses the cultural associations between religion and abortion by likening 
Missouri’s biased counseling to a church service, and by arguing that making the abortion 
decision without interference is compelled by her religion.  

 
1. The Sacred and the Profane  

 
The first parodic move the Temple’s litigation makes is to swap out the Hobby Lobby 

plaintiffs—who alleged “sacred,” evangelical Christian beliefs—for a plaintiff with 
“profane” connections to Satan and abortion. This is a classic strategy that marshals 
parody to critique state-sanctioned, organized religion.204 Both rhetorically and legally, 
Mary Doe’s argument goes further than the plaintiffs’ arguments in Harris and Webster. 
The fact that previous cases alleging free exercise violations have only argued that 
abortion is permitted by their religions absent an emergency reflects the deep one-
sidedness of the abortion morality debate. In some sense, Mary Doe is asserting a right 
not to care about her abortion decision, and a compulsion to make a personal medical 
decision with as much or little thought as she chooses.  

 
Mary Doe’s claims are identical in kind to that of the Hobby Lobby plaintiffs: She 

argues that the statute requires her to participate in a process that forces her to 
compromise her religious beliefs, and that they have no good reason to do so. The 

 
203 Perhaps one of the most “fun” ironic elements of the Temple’s claim is that Josh Hawley, former Missouri 
Attorney General and now-Senator, represented the Hobby Lobby plaintiffs and had to defend against the 
Temple’s claims. When he was running for Senator, he ran on a platform of strengthening RFRA and was 
interviewed as saying, “‘I think it needs to be defended and protected,’ . . . adding that the Constitution will 
dictate how far Congress can go in when it comes to adding new religious freedom laws.” Erickson, supra 
note 9. Josh Hawley was not Missouri’s Attorney General when the case was first filed, so it seems unlikely 
that the Temple targeted Missouri for this reason. Sometimes, though, parodies write themselves.  
 
204 See, e.g., Bob Scribner, Reformation, Carnival & the World Turned Upside‐Down, 3 SOC. HIST. 303 
(1978) (discussing parodic carnivals as playing a part in the German Reformation); RYAN D. GILES, THE 
LAUGHTER OF THE SAINTS: PARODIES OF HOLINESS IN LATE MEDIEVAL AND RENAISSANCE SPAIN (2009).  



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irony—and thus the shock value of the litigation—lies in its cultural associations. Mary 
Doe’s lawsuit doubles the form and content of the Hobby Lobby lawsuit but adds critical 
distance through the irony of invoking Satan. Invoking Satan specifically—instead of 
just, for example, arguing that science is your religion—reinforces the doubled nature of 
the claim. After all, Satan is a key character in Christian belief, and hell (where Lucifer 
landed after his rebellion) is often conceptualized as “the farthest distan[ce] from 
heaven.”205 Thus, this extreme opposition invites direct comparison between the two 
claims in a way that instituting and arguing on behalf of a “Church of Autonomy” would 
not.  

 
When the Hobby Lobby plaintiffs alleged a deeply-held religious belief that 

prohibited them from even facilitating insurance coverage of certain contraceptives, the 
courts did not question their sincerity. The Department of Health and Human Services 
argued that it would be difficult to determine the “sincerity” of a for-profit corporation’s 
belief.”206 In response, the Court insisted on Congress’s “confiden[ce] of the ability of the 
federal courts to weed out insincere claims.”207 The Court similarly held that there was 
“no dispute” that the plaintiffs’ claims were sincere, but also that “it is not for us to say 
that their religious beliefs are mistaken or insubstantial.”208 Indeed, this cursory analysis 
on the issue of sincerity is a common tack for courts to take when evaluating religious 
beliefs.209  

 
The same deference was not given to Mary Doe’s claims at the trial court level, even 

on a motion to dismiss where the court is supposed to “assume that all of the plaintiff’s 
averments are true, and liberally grant[] to plaintiffs all reasonable inferences 
therefrom.”210 Instead of analyzing the claims to see if they represented an “honest 
conviction,” the trial court issued a scathing reprimand when it dismissed the claims:  

 
Plaintiff is merely cloaking her political beliefs in the mantle of religious 
faith in order to avoid laws of general applicability she finds imprudent 

 
205 JOHN ROBINSON, A THEOLOGICAL, BIBLICAL, AND ECCLESIASTICAL DICTIONARY 489 (1815). 
 
206 Burwell v. Hobby Lobby Stores, 573 U.S. 682, 717 (2014).  
 
207 Id. at 718. 
 
208 Id. at 725.  
 
209 See supra cases in note 10. 
 
210 Judgment at 4, Doe v. Nixon, Case No. 15AC-CC00205 (Mo. Cir. Ct. Dec. 12, 2016). 



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or offensive. Instead of being a safety hatch to protect minority religious 
beliefs from the tyranny of the majority, Plaintiff’s interpretation of 
RFRA would establish a faith-based “Get Out of Jail Free” card.211 

 
In another instance of irony, the judge articulated exactly the objection that Justice 
Ginsburg (and many progressives) made to the Hobby Lobby majority opinion: that 
corporations “can opt out of any law . . . they judge incompatible with their sincerely held 
religious beliefs.”212 At no point did the trial court judge say why Mary Doe’s religious 
beliefs should be scrutinized more aggressively than those of the Hobby Lobby plaintiffs.  
 

2. Science-as-Religion and Religion-as-Science  
 

Mary Doe takes advantage of another opposition: the science/faith binary. In Hobby 
Lobby, the “faith” aspect was clearly aligned with the petitioner, while the contraception 
“science” aspect, as reflected in the Institute of Medicine’s list of covered products, was 
clearly aligned with the government. Mary Doe’s claim flips this opposition by 
incorporating scientific principles into her religious beliefs and highlighting the religious 
message inherent in the state’s counseling materials. Because science and faith are so 
often set against one another, Mary Doe’s incorporation of science into her “tenets” also 
reinforces the alignment of Missouri’s statute with religious ideology.  

 
Furthermore, most of Mary Doe’s Establishment Clause argument is made implicitly, 

by using religious language to allege facts in her federal complaint. For example, she 
refers to specific language in Missouri’s informed consent document, that “[t]he life of 
each human being begins at conception” and “[a]bortion will terminate the life of a 
separate, unique, living human being” as the Missouri “Tenets.” A “tenet” is equivalent 
to a “doctrine, dogma, principle, or opinion” often associated with religion, philosophy, 
or politics.213 According to Doe, the Missouri Tenets communicate a “religious belief,” 
implicit in which is “the belief . . . that the destruction of Human Tissue is morally 
wrong.”214 As a whole, Doe calls the “The Booklet, the Ultrasound Opportunity, the 72 

 
211 Id. at 8.  
 
212 Hobby Lobby, 573 U.S. at 739–40 (Ginsburg, J., dissenting).  
 
213 Tenet, OXFORD ENGLISH DICTIONARY (2019).  
 
214 Complaint at 3, Satanic Temple v. Nixon, Case No. 4:15CV986 HEA (E.D. Mo. June 23, 2015), ECF No. 
1. 
 



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Hour Waiting Period, . . . and Certification Requirement” the “Missouri Lectionary.”215 
The term “lectionary” is a “a book containing ‘lessons’ or portions of Scripture appointed 
to be read at divine service; also, the list of passages appointed to be so read.”216 When 
described in these terms, the “opportunity” to read the informed consent documents and 
see an ultrasound figures like a church service where Mary Doe must sit and be 
proselytized at, followed by a three-day reflection period. This language makes concrete 
Sanger’s comparison between religious and abortion-related decision-making.  

 
Rhetorically speaking, given the medicalization of abortion restrictions (that is, the 

use of medical discourse and procedure to normalize a certain ideology), aligning 
Missouri’s informed consent process with a religious ceremony becomes particularly 
powerful. For the most part, the restrictions at issue in Casey were “demand-side” 
restrictions, as they focused on convincing abortion patients to “choose life” instead of 
completing the procedure. In the last two decades, however, anti-abortion advocates have 
instead focused on “supply-side” restrictions meant to curtail providers’ ability to treat 
their patients.217 The justification used most often for these restrictions is not an interest 
in potential fetal life, but rather in “women’s health.”218 Only recently, in Whole 
Woman’s Health v. Hellerstedt, did the Supreme Court hold that the interest in women’s 
health has to actually produce a health or safety benefit for abortion patients.  

 
Biased counseling and waiting periods represent a mix of supply- and demand-side 

restrictions, but they are both reflective of the medicalization of abortion restrictions: that 
is, the use of medical discourse and procedure to normalize a certain ideology. Mary 
Doe’s own religious tenets incorporate science. As a matter of religion, she “makes 
decisions regarding her health based on the best scientific understanding of the world, 
even if the science does not comport with the religious or political beliefs of others.”219 
By ironically incorporating “objective” science into her claims about faith, Mary Doe 
encourages the reader to deconstruct this binary opposition. This, in turn, leads the reader 
to question whether Missouri’s “lectionary”—presented as an example of banal, 
medicalized informed consent—might also be incorporating religion into its “science.”  

 
215 Id. at 4.  
 
216 Lectionary, OXFORD ENGLISH DICTIONARY (2019). 
 
217 Theodore Joyce, The Supply-Side Economics of Abortion, 365 NEW ENG. J. MED. 1466 (2011).  
 
218 Reva Siegel & Linda Greenhouse, Casey and the Clinic Closings: When “Protecting Health” Obstructs 
Choice, 125 YALE L.J. 1428 (2016).  
 
219 Complaint at ¶ 31, Satanic Temple, Case No. 4:15CV986 HEA. 



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C. The Mary Doe Litigation: A Reproductive Rights Wishlist  
 

The aim of this section is not a comprehensive review of all the doctrines and case 
law behind every claim presented in litigation. Instead, this section presents each element 
of the Mary Doe litigation as part-playbook and part-inspiration for creative claims in 
abortion rights advocacy. Even though the Satanic Temple has yet to secure a legal 
remedy for the harm Mary Doe alleges, the case did manage to temporarily open up 
mental space in abortion litigation for non-access related claims. Under the tyranny of 
Casey’s undue burden standard, it is much more efficient to focus on whether a 
regulation actually stops patients from obtaining the procedure they need or want. While 
this is certainly a way to mitigate the most harm with the fewest lawsuits, the Satanic 
Temple’s lawsuit invites advocates to dream of the broadest judicial remedies they want 
and brainstorm creative claims to get there.  

 
1. Standing, Stigmatic Harm, & “Substantial Burdens” 

 
The Missouri trial court dismissed Mary Doe’s claim, holding that she had failed to 

allege an “act or failure to act” that would constitute an “exercise of religion” under 
Missouri’s RFRA or the First Amendment’s Free Exercise Clause.220 Doe alleged that 
“[i]t is antithetical to her belief that the condition of the Tissue is determined by the best 
scientific understanding of the world” and that [t]here is no scientific evidence that the 
Tissue is a ‘human being’ that has a ‘unique’ life ‘separate’ from Mary Doe’s body.”221 
Thus, the decision to terminate her pregnancy was a decision about her own body, which 
had to be made by her alone, according to the tenets of the Satanic Temple. Mary Doe 
argued that acknowledging receipt of the booklet by signing a form, undergoing an 
ultrasound, and waiting seventy-two hours prevented her from freely exercising her 
religious belief that required her to come to the abortion decision a certain way.222 

 
The trial court disagreed, holding that the statute did not require Mary Doe to “accept 

or even read about any particular religious belief . . . to obtain her abortion” and that “her 
abortion [was not] conditioned on her rejection of any particular religious belief.”223 
Indeed, the trial court found, the only “act” required of the plaintiff was “to be present 

 
220 Judgment at 7, Doe v. Nixon, Case No. 15AC-CC00205 (Mo. Cir. Ct. Dec. 12, 2016). 
 
221 Plaintiff’s Memorandum of Law in Support of a Temporary Restraining Order at 5, Doe, Case No. 15AC-
CC00205 (Mo. Cir. Ct. May 8, 2015). 
 
222 Id. at 2. 
 
223 Id. at 7. 



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when a third party made certain information available to her.”224 Thus, “at worst,” the 
state “created an opportunity—but not an obligation—for Plaintiff to hear State speech 
regarding abortion.”225  

 
Although the trial court characterized the informed consent process as an 

“opportunity,” that interpretation was in dispute until oral arguments before the Missouri 
Supreme Court. When Mary Doe visited Planned Parenthood for her abortion, the health 
center interpreted the law as requiring an ultrasound, especially because the provider 
would not know if a fetal heartbeat was audible until an ultrasound was performed. 
During oral arguments, Missouri’s Solicitor General clarified that the ultrasound was, in 
fact, optional: 

 
[Supreme Court Justice]: The provider understandably wants to be 
careful not to contravene the statute, particularly because of a somewhat 
antagonistic historical relationship between the state and Planned 
Parenthood, I would imagine. So is this an official position of the state, 
that it’s not required? 
[Attorney General, Deputy General Counsel]: I think the official position 
of the state is that the plain language of the statute [is that] an 
opportunity must be offered.226 

 
The federal district court dismissed Mary Doe’s claim for a similar reason. Mary Doe 

sued in federal court to enjoin the law as applied to herself and other abortion patients 
with similar deeply-held beliefs about the abortion decision. The district court dismissed 
Mary Doe’s claim based on a lack of standing; in other words, Mary Doe did not present 
an ongoing “case or controversy,” as required by Article III, that could be remedied by a 
federal court.227 The Eighth Circuit affirmed the district court’s dismissal for lack of 
standing because she was not pregnant when the case was brought and was thus only 

 
224 Id.  
 
225 Id.  
 
226 Oral Argument at 15:36–16:13, Doe v. Parson, 567 S.W.3d 625 (Mo. 2019), 
https://www.courts.mo.gov/page.jsp?id=119842 (on file with author). 
 
227 U.S. CONST. art. III.  
 



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seeking “prospective relief.”228 Although the Eighth Circuit did recognize Mary Doe’s 
claim as based in the Religion Clauses, the harm they recognized was classically Casey: 
Because she had already obtained her abortion, there was no ongoing injury for which 
she could sue.  

 
The “irreducible constitutional minimum” for standing doctrine has three parts.229 

The first is that the plaintiff has suffered an “injury-in-fact,” defined as an “invasion of a 
legally protected interest which is “concrete and particularized” and “actual or imminent, 
not conjectural or hypothetical.”230 The plaintiff must also be able to trace this harm from 
the defendant’s conduct, and it must be likely (and not “speculative”) that a favorable 
decision by the court will redress the harm.231 In Mary Doe’s case, the court’s analysis 
rested on the first and third parts. Because Mary Doe had already obtained her abortion, 
she was not experiencing an ongoing harm that could be remedied by the court.232 What 
constitutes “harm” in standing doctrine is often controversial and confusing. The injury 
must be concrete (i.e., “real”), but it “need not be tangible.”233 Thus, a recreational 
interest in fishing at a local pond or an aesthetic interest in preserving an endangered 
species can support standing, as long as the harm is personal to the individual claimant.234  

 
The type of harm that Mary Doe alleges here is stigmatic harm—the notion that 

government action impermissibly reflects disapproval of a plaintiff’s choice or reinforces 
private discrimination.235 Stigma is a “social phenomenon that is constructed and 

 
228 Satanic Temple v. Parson, 735 F. App’x 900, 901 (8th Cir. 2018). Although pregnancy typically “provides 
a classic justification for a conclusion of nonmootness,” the Eighth Circuit concluded that because Mary Doe 
did not establish standing first, she could not make that mootness argument. Id. at 902. 
 
229 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).  
 
230 Id.  
 
231 Id.  
 
232 Mary Doe could have alleged that the cost of her motel room in St. Louis for three days constituted 
economic harm, but presumably this would have raised qualified immunity problems.  
 
233 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1543 (2016), as revised (May 24, 2016). 
 
234 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 169 (2000). 
 
235 Thomas Healy, Stigmatic Harm & Standing, 92 IOWA L. REV. 417, 421 (2007). 
 



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reproduced locally through various pathways,” not a “universal truth.”236 In the context of 
abortion, society “ascribe[s] [a] negative attribute . . . to women who seek to terminate a 
pregnancy that marks them, internally or externally, as inferior to ideals of 
womanhood.”237 This stigma is frequently invoked in public advocacy campaigns, but is 
rarely the focus of abortion litigation.238 

 
Alleging this kind of harm for standing purposes in constitutional claims is, in some 

sense, wishful thinking. In non-standing cases, however, courts have regularly counted 
“expressive” harms as both real and judicially cognizable. Indeed, courts have 
historically struck down laws that send a “message . . . of racial, gender, or religious 
inferiority expressed by government action” in some of our country’s most important 
cases.239 In Allen v. Wright, the Court rejected stigmatic harm as a basis for challenging 
government support of private discrimination (in that case, private schools that 
segregated).240 As Thomas Healy points out, however, recent court decisions, including 
Lawrence v. Texas, have “suggest[ed] that stigma is a judicially cognizable injury.”241 In 
Lawrence, the Court could have resolved the plaintiff’s harms on equal protection 
grounds (i.e., that treating different kinds of sex differently for criminal purposes was 
arbitrary). Instead, the Court chose to analyze the claims through a substantive due 

 
236 Anuradha Kumar et al., Conceptualising Abortion Stigma, 11(6) CULTURE HEALTH & SEXUALITY 625, 628 
(2009). 
 
237 Id.  
 
238 See, e.g., Barbara Rodriguez, Planned Parenthood to Feature Billboards around Iowa Asking People to 
“Say Abortion,” DES MOINES REG. (Jan. 4, 2019), 
https://www.desmoinesregister.com/story/news/politics/2019/01/04/planned-parenthood-heartland-iowa-
billboard-abortion-women-ban-legislature-lawsuit-cities-des-moines/2485968002/ [https://perma.cc/NEK4-
G26E]. 
 
239 See Note, Expressive Harms & Standing, 112 HARV. L. REV. 1313, 1314 (1999) (discussing the expressive 
harms in Brown v. Board of Education, 347 U.S. 483 (1954), and Mississippi University for Women v. 
Hogan, 458 U.S. 718 (1982)).  
 
240 Allen v. Wright, 468 U.S. 737 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control 
Components, Inc., 572 U.S. 118 (2014).  
 
241 Healy, supra note 235, at 421; see Lawrence v. Texas, 539 U.S. 558 (2003). 
 



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process lens because “the Court felt obligated to eliminate the stigmatic harm” the Texas 
law imposed on gays and lesbians.242  

 
Mary Doe’s harm was primarily articulated in emotional terms. She alleged that on 

multiple occasions, she felt “doubt, guilt, and shame” because of Missouri’s 
messaging.243 Her counsel argued that the messaging made her feel like an “outsider” 
who was making the wrong decision.244 When considered under the “undue burden” 
standard, perhaps the “opportunity” to hear a fetal heartbeat or read that the fetus is a 
unique human being cannot rise to the level of a cognizable harm. After all, as every 
judge in the federal and state cases were quick to point out, Mary Doe got her abortion. 
But considering the “harm” done to Mary Doe as expressive or stigmatic highlights the 
exceptional way judges treat claims related to abortion, and how ill-equipped the undue 
burden standard is to deal with the expressive and stigmatic harms of abortion regulation. 
Whether Doe has pled a “burden” sufficient to support a free exercise or RFRA claim is 
primarily a symbolic question. Indeed, that is likely the reason why the Satanic Temple 
brought that kind of claim: to highlight the wide berth the Hobby Lobby plaintiffs were 
given and how quick judges have been to dismiss a minority religious belief.  

 
The “act” of signing a sheet of paper acknowledging receipt of certain materials is 

often a mundane action taken multiple times over the course of a medical procedure. But 
given the content of the Booklet, even signing one’s name takes on additional 
significance.245 In some sense, the signer must acknowledge the state of Missouri’s 
ideological point of view in continuing with her decision to have an abortion. When the 
materials’ purpose is to “persuade women that the ‘unborn child’ they carry is a ‘human 
being’ who will be murdered by an abortion,” as Doe alleges the Missouri informed 
consent materials do, the abortion decision is compromised, and the harm that results 

 
242 Id.; see also Lawrence, 539 U.S. at 575 (“If protected conduct is made criminal and the law which does so 
remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as 
drawn for equal protection reasons.”). 
 
243 Complaint at ¶ 49, Satanic Temple v. Nixon, Case No. 4:15CV986 HEA (E.D. Mo. June 23, 2015), ECF 
No. 1. 
 
244 Oral Argument at 3:00–3:22, Doe v. Parson, 567 S.W.3d 625 (Mo. 2019), 
https://www.courts.mo.gov/page.jsp?id=119842 (on file with author). 
 
245 This argument parodically repeats the argument made by plaintiffs in Zubik v. Burwell, 136 S. Ct. 1557, 
1559 (2016), that even signing a sheet of paper stating their intention to take advantage of an accommodation 
would force them to participate in something they found to be morally repugnant.  
 



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continues as long as the patient continues to be a person who had an abortion. 246 When 
the decision is religious, as Mary Doe alleges hers was, that kind of interference becomes 
unconstitutionally intolerable.  

 
2. Compelling Government Interest  

 
If a plaintiff can make a preliminary showing that her rights are substantially 

burdened by government action, RFRA dictates a burden-shifting scheme that requires 
the government to 1) present a compelling interest for the burden and 2) demonstrate that 
burdening the plaintiff is the “least restrictive means” of fulfilling that interest.247 None of 
the decisions regarding ultrasound and bias counseling regulations have applied strict 
scrutiny. Importantly, general benefits that might arise from the government’s regulation 
are not sufficient to meet this high standard. Instead, the government “must show by 
specific evidence that the adherent’s religious practices jeopardize its stated interests.”248 

 
Although determining legislative intent is always a difficult task, Missouri state 

representatives who were interviewed during the process seemed mostly preoccupied by 
questions of fetal life and religion. For example, one of the bill’s sponsors indicated that 
the bill is “about the life and death of the unborn child,” and further personalized the fetal 
interest by saying that “the unborn child probably would like to see an extra forty-eight 
hours for the mother to decide on whether or not to have the abortion done.”249 Another 
sponsor explicitly invoked God’s will to explain why he did not include an exception for 
rape and incest. Representative Elmer said, “The crux of it is for me when does life 
begin, and how do you value it? For me, even though that tragic situation may occur, I 
still believe that God is at work in this world and that he’ll let bad things happen and he 
doesn’t cause it.”250 While Representative Elmer’s statements might not be reflective of 
every vote in the Missouri General Assembly, his words illuminate a potentially 

 
246 Judgment at 6, Doe v. Nixon, Case No. 15AC-CC00205 (Mo. Cir. Ct. Dec. 12, 2016).  
 
247 42 U.S.C. § 2000bb-1 (2018). 
 
248 A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248, 268 (5th. Cir. 2010). 
 
249 John Eligon, Missouri Enacts 72-Hour Wait for Abortion, N.Y. TIMES (Sept. 9, 2014), 
https://www.nytimes.com/2014/09/12/us/72-hour-wait-for-abortion-is-enacted-in-missouri.html 
[https://perma.cc/DQW5-QJUU]. 
 
250 Johnathan Shormanb, Mo. Lawmakers Pass 3-Day Abortion Wait Period, USA TODAY (May 14, 2014), 
https://www.usatoday.com/story/news/nation/2014/05/14/missouri-abortion-wait-period/9111267/ 
[https://perma.cc/FS7L-6KL5]. 



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impermissible motive for a law that was touted as mitigating a purely secular concern for 
medical ethics and informed consent.  

 
The official explanation for the bill in Missouri House reports was as follows: “What 

we are trying to do is get information to these women, we are trying to give them healthy 
choices and we are trying to lessen the suicide rate of women that are in turmoil.”251 To 
pass strict scrutiny, the government must show that these interests are compelling and 
that the means of fulfilling them are narrowly tailored to restrict a burden on the 
plaintiff’s religious liberty. At first glance, these secular reasons seem compelling: No 
one would argue that information before a medical procedure or lowering suicide rates is 
not compelling. The Casey Court approved the idea that “psychological well-being is a 
facet of health,” and that health could be regulated by states.252 However, the idea that an 
ultrasound or seventy-two-hour waiting period will reduce suicide rates is a classic 
solution in search of a problem. Numerous studies and reviews have confirmed that there 
is no causal link between abortion and increased rates of suicide.253 Other studies have 
demonstrated that abortion patients with “high decision certainty” do not change their 
minds about the procedure after being shown the ultrasound, so this “means” does not fit 
either “end” of promoting fetal life or women’s health.254  

 
In Mary Doe’s case, she had already made up her mind, and Missouri’s “lectionary” 

was not going to sway her. Indeed, she had already read the Missouri informed consent 
booklet on her own and was apprised of all the risks and benefits of abortion.255 In that 
case, what is Missouri’s compelling interest in going beyond traditional informed consent 
to tell Mary Doe that the fetus she was planning to terminate was “separate” or “unique”?  
 

CONCLUSION 
 

Mary Doe’s parodic strategy is meant to lead us to this question, and although the 
courts have yet to reach it, one can imagine two potential results, each representing 

 
251 Jonathan Lorenz, MO House Sends Abortion Waiting Period Extension to Governor (May 16, 2014) 
(quoting Jeanie Riddle, R-Mokane) (on file with author).  
 
252 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882 (1992). 
 
253 Corbin, Abortion Distortions, supra note 15, at 1178.  
 
254 Mary Gatter, et al., Relationship Between Ultrasound Viewing and Proceeding to Abortion, 123 
OBSTETRICS & GYNECOLOGY 81 (2014). 
 
255 Ex. B, Complaint, Doe v. Nixon, Case No. 15AC-CC00205 (Mo. Cir. Ct. May 8, 2015). 



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different kinds of success. The first is that a court agrees that Mary Doe’s deeply-held, 
conscientious belief about the tissue in her uterus would be burdened by Missouri’s 
abortion messaging, and that the various justifications Missouri might offer are not 
sufficiently compelling to justify that burden—an obvious legal victory that clears the 
path for other claims. The other option is that courts will continue to dismiss her claims, 
on either preliminary motions or the merits, but will offer less-than-satisfactory reasons 
for distinguishing her claims from those of the plaintiff in Hobby Lobby. The distortions 
that plague abortion regulation and jurisprudence are still present in the Mary Doe cases, 
but the litigation’s parodic qualities illuminate the faulty logic that appears whenever 
abortion and religion meet.