TST owner rages even as appeals court gives it opportunity to revive case

A few months ago, we agreed with predictions that Salem, Mass.-based The Satanic Temple’s appeal of its failed challenge to an Idaho abortion ban begun in 2022 would fail.

Bloomberg: “Satanic Temple’s Idaho Abortion Ban Appeal Looks Likely to Fail”

Indeed, the Ninth Circuit Court of Appeals was unable to come to no other conclusion than that the nontheistic religious corporation lacked standing in a lawsuit that relied on statistical probability rather than an actual person or entity experiencing harm the court for address.

Courthouse News: Satanic Temple blocked from suing over Idaho abortion ban

The temple’s telehealth medical abortion clinic run out of New Mexico wasn’t enough to give it standing in Idaho, the Ninth Circuit said.
…
The temple runs a telehealth abortion clinic in New Mexico known as “Samuel Alito’s Mom’s Satanic Abortion Clinic,” which provides abortion pills, like mifepristone, over the mail.

But U.S. Circuit Judge Margaret McKeown, a Bill Clinton appointee, wrote for the three-judge panel that the temple “has no patients in Idaho, no clinic in Idaho, no doctors who are licensed to treat Idaho patients, and has identified no Idaho citizen who seeks an abortion from the organization,” and therefore lacks standing to sue.

Embarrassingly, TST co-owner Doug Misicko (as “Lucien Greaves”) gave this quote to the reporter for this story, showing once again why helping The Satanic Temple to pursue litigation is like setting money on fire (except with the potential to establish bad precedent, too).

In an email, Satanic Temple co-founder Lucien Greaves called it a “cowardly ruling.”

“The Ninth Circuit decided to hide behind a misuse of technicality to avoid the core question of law, which is on our side,” Greaves said. “Now they demand that in order for us to get them to do their job, we must put one of our members through the inconvenience, and potential danger, of acting as a plaintiff when the state’s abortion restrictions inevitably conflict with our beliefs in bodily autonomy.”

We’re going to come back to this, but way back when his was filed in October 2022, we looked at the case based on what TST was filing and said:

[H]ere are the two copy-and-paste legal complaints The Satanic Temple filed in Indiana and Idaho ostensibly challenging the abortion bans there.

But neither has a client, so standing seems a challenge.

…

Where do we locate concrete injury, and what can the courts do, for a purely hypothetical member* of The Satanic Temple who might be pregnant and not want to be?

That’s not a rhetorical question, and for all of the people who have written about The Satanic Temple’s Indiana and Idaho abortion ban challenges, to say nothing of the actual lawyer filing it, it seems incredible it’s never come up.

Ultimately, both lawsuits failed for that basic and fundamental reason of no legal standing: TST claimed hypothetical harm without ever bothering to demonstrate real harm. You cannot do that an expect success even when you land judges that are sympathetic to you.

Of course, if you read the full opinion, the Ninth Circuit actually goes out of its way to give TST an olive branch since the opinion ends with:

We agree with the district court that TST lacked standing. However, because the district court also rejected TST’s claims on the merits, it dismissed the complaint with prejudice. Dismissal with prejudice “is improper unless it is ‘clear’ that ‘the complaint could not be saved by any amendment.’” …We remand to the district court for its determination whether TST’s complaint “clear[ly] . . . could not be saved by any amendment.” Harris v. Amgen, 573 F.3d at 737. Of course, we take no position on this issue. We therefore affirm dismissal on standing grounds and remand with instructions.

Basically, the judges are saying TST has yet another chance to get this right. But Misicko is still fuming because there is actually no “TST Idaho” to speak of, and there is no actual path to success to fix this case and win on the merits.

Misicko and TST have their opportunity to go make their case again but do it right instead of hollow and sloppy. But they cannot do that, so Misicko just blames the horrible judges everywhere and trusts no one giving him or his org money will notice.

• District court docket
• Ninth Circuit opinion
• Appellate Court docket