In June of 2022, in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overturned the 50-year-old Roe v. Wade and clarified that there was no constitutional right to abortion.
Within minutes of the court’s ruling, hard-line liberals across the nation were howling about restricted access to abortion and devising new and novel ways to ensure its protection.
The latest creative effort to secure abortion access, mounted by a group of satanists in Idaho, was just defeated in federal court.
In September of 2022, the Satanic Temple sued Idaho Attorney General Raul Labrador and the state of Idaho on behalf of its female members who were “involuntarily pregnant” (either because they were too young to consent or because their birth control had failed) over the state’s abortion law.
The Idaho Fetal Heartbeat Statute makes the act of aborting a protected unborn child a crime when a fetal heartbeat has been detected. The law allegedly conflicted with the satanists’ belief that “one’s body is inviolable, subject to one’s will alone.”
The Satanic Temple threw every legal claim it could against the wall in hopes that something would stick.
The organization sought relief under 42 U.S.C. Sec. 1983 (a law permitting citizens to sue government officials for violating a federally protected right) for violations of certain constitutional rights, including the Takings Clause of the 5th Amendment, which prohibits the government from taking “private property … for public use, without just compensation.”
It argued that the uterus of a pregnant woman was a physical thing in which she had property rights, and the government couldn’t take away those property rights without compensating her.
Yes, you read that right.
They argued that the commercial value of surrogacy in Idaho proved the economic value of the uterine property rights of its female members, and the state had interfered with those rights in violation of the Fifth Amendment.
The satanists also sought relief pursuant to the 13th Amendment, which states in relevant part: “Neither slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction.” The plaintiffs claimed that forcing women to carry their pregnancies to term instead of aborting required them to provide the unborn child with oxygen, nutrients, antibodies, body heat and more, without compensation or consideration—something they said amounted to involuntary servitude.
Next up? A claim that the state abortion ban unconstitutionally discriminated between women who became pregnant by accident and those who became pregnant by rape or incest.
Under the Idaho law, the latter group of women were allowed to abort, but the former were not. Here, the satanists advanced a claim that the state had violated the Equal Protection Clause of the 14th Amendment, which states that no state “shall deny to any person within its jurisdiction the equal protection of the laws.”
They argued that because both sets of women had not wanted to become pregnant, but were treated differently, the state had violated the satanists’ constitutional rights.
Lastly, the satanists brought a claim under Idaho’s Free Exercise of Religious Protection Act for violation of the Satanic Temple members’ rights to partake in the “Satanic abortion ritual.” They claimed that the state was forcing them to violate their “religious belief” that an embryo or fetus was part of a woman’s body with no humanity of its own.
They also claimed that pregnant satanists exercise this “religious belief” by engaging in the “Satanic abortion ritual.”
And what is this ritual? Well, it’s an ordinary chemical or surgical abortion—but with the repetition of certain personal affirmations regarding a satanic woman’s “autonomy and free will.”
In his opinion dismissing the satanists’ case, Chief Judge David Nye of the U.S. District Court for the District of Idaho came just short of calling their legal claims ludicrous.
As an initial matter, Nye addressed the Satanic Temple’s claim that the state had “eviscerated a woman’s fundamental right to engage in protected sex.” He wrote: “Defendants do no such thing. The statutes at issue do not discuss the right to engage in private sexual activities in any way … the challenged regulations here deal with abortion. … [T]here is no longer a federally recognized constitutional right to abortion. There is no right to abortion in the state of Idaho, either.”
Nye then turned to the defendants’ procedural arguments.
He dismissed the state of Idaho from the case since Idaho had not waived its sovereign immunity, and the state could not be sued in federal court without its consent.
Nye then turned to standing—the requirement that a plaintiff show it has suffered a concrete injury, traceable to the defendants’ action, that would be redressed by a favorable decision from a court.
He wrote that the Satanic Temple had no standing as an association on behalf of its members, or even on its own behalf. That was because it had not identified any specific individual who had suffered or would suffer the harms it alleges defendants’ actions were causing—in short, any Idaho members of the Satanic Temple who would be adversely affected by Idaho’s abortion law.
The Satanic Temple also lacked standing on its own as an organization—even though it ran its own “Samuel Alito’s Mom’s Satanic Abortion Clinic,” with a network of providers that prescribed abortifacients.
The judge held that in order to establish standing as an organization, the Satanic Temple would need to prove that its providers were licensed in Idaho, and that one of its members had become “involuntarily pregnant” and wanted to obtain an abortion from the clinic, a causal chain that the court concluded was “too attenuated.”
Nye then did something he didn’t need to do, but seemed to enjoy doing anyway: Even though the satanists had already lost on standing, he went on to address and dispatch their claims on the merits.
As for the Fifth Amendment takings claim, Nye wrote that the American legal tradition has consistently viewed abortion as a crime—not a property taking. None of the “traditional property law principles,” historical practice or Supreme Court precedent had ever recognized a property right for a woman to abort her unborn child, and in fact, no authority recognized a woman’s uterus as traditional “property” at all.
Regarding the 13th Amendment involuntary servitude argument, Nye called it “blatantly absurd.” He wrote:
Women who conceive children through consensual sex do not suffer “the very essence of involuntary servitude outlawed by the Thirteenth Amendment.” … [Plaintiff’s] argument here goes too far. Were the Court to take this logic to its end, it could find that any obligations the law imposes on parents for the support and upbringing of a child would constitute involuntary servitude and justify the termination of the child.
Such a result is blatantly absurd. [The satanists’] involuntary servitude claim must be dismissed.
Nye then turned to the satanists’ 14th Amendment equal protection claim that Idaho had treated rape victims better than involuntarily pregnant women in violation of the Constitution.
The court held that women “who engage in sex just for the pleasure and intimacy it brings” are not a protected class, but that even if they were members of a protected class, which would subject the law to a heightened level of scrutiny, the defendants would have met their burden of establishing that the state’s abortion law was narrowly tailored to achieve its compelling interests in protecting unborn children and preventing abortions.
Nye never addressed the merits of the satanists’ claim that the Idaho law violated the Idaho Exercise of Religious Freedom Act. This was because the satanists had already had a chance to amend their complaint, had seemingly abandoned their state law religious freedom claim, and then asked the judge in a late-in-the-game brief to allow them to assert a free exercise claim under the 1st Amendment.
The judge, clearly out of patience, wrote that if the satanists want to allege any new claims, they would have to do so in another lawsuit.
This isn’t the first run the Satanic Temple has made at federal court in an effort to enshrine abortion as a “constitutional right.” In October of last year, Judge Jane Magnus-Stinson dismissed the Satanic Temple’s claim that Indiana’s abortion ban violated the satanists’ rights under the Indiana Religious Freedom Restoration Act.
Magnus-Stinson wrote that the satanists “failed to demonstrate that its alleged cost of compliance or threat of prosecution amounts to injury,” and having had an opportunity to submit evidence to establish their claim, they “failed on all fronts.”
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