MARY DOE EX REL. SATAN? PARODY, RELIGIOUS LIBERTY, & REPRODUCTIVE RIGHTS.

• Author: Hammock, Christen E.

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 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 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)

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)

1. 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, 1 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.

   1. 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 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...