Background

The Satanic Temple, Inc. (“the Satanic Temple”) seeks to provide mail-order drugs for its members in Indiana to have abortions. Indiana, however, criminalizes most abortions. Ind. Code § 16-34-2-1(a) (“S.B. 1”). The Satanic Temple has sued Attorney General Todd Rokita and Marion County Prosecutor Ryan Mears (“Defendants”), seeking injunctive and declaratory relief on behalf of itself and its members who have become pregnant involuntarily (“Members”). The Satanic Temple alleges that S.B. 1 violates the Indiana Religious Freedom Restoration Act (“RFRA”) by prohibiting its Members from performing its Satanic Abortion Ritual; the Fifth Amendment by committing a taking of its Members’ uteruses; the Fourteenth Amendment by discriminating against its Members who become pregnant unintentionally in favor of women who become pregnant by rape or incest; and the Thirteenth Amendment by forcing upon its Members the conditions of slavery. Defendants have filed a Motion to Dismiss the First Amended Complaint for failure to state a claim and lack of standing. [Filing No. 36.] The Motion is ripe for the Court’s review.

The Satanic Temple Inc. v. Rokita, Order on Motion for Leave to File AND Order on Motion to Dismiss for Failure to State a Claim

The way the court summarizes the lawsuit is a pretty succinct re-statement what’s going on.

By all means, read The Satanic Temple’s first and amended complaints for yourselves. Don’t rely on us or the court to summarize it for you.

However, our plain language version is that TST argued that it has religious tenets (particularly “One’s body is inviolable, subject to one’s own will alone” and “Beliefs should conform to one’s best scientific understanding of the world. One should take care never to distort scientific facts to fit one’s beliefs”) that TST says protect the class of “Involuntarily Pregnant Women”, a class some amount of their female members certainly must be.

Now, why TST uses the terminology “women” rather than “people” so as to include pregnant men and nonbinary folk as well, we can’t say. They may have actually been restricted by Indiana law in some way, but it certainly seems like a missed opportunity to engage in inclusive language and represent more queer TST members.

At least for The Satanic Temple, though, this is pretty standard stuff.

Where the case becomes peculiar is that in the original complaint, TST grounds its argument in a violation of the Fifth Amendment and the potential lost money that an involuntarily pregnant person might suffer because they could not during that time take advantage of for-profit gestational surrogacy (“Count One: The Indiana Abortion Ban Unconstitutionally Takes the Property of Involuntarily Pregnant Women Without Just Compensation”).

This just feels icky, but probably comes from TST lead attorney W. James MacNaughton’s background in business law, and since he has more experience there than in successful reproductive rights litigation, it may have been the best option if the Temple wasn’t going to actually invest in retaining a legitimate lawyer with relevant competency to lead it.

The second claim is that those involuntarily pregnant people are being forced into involuntary servitude in violation of the Thirteenth Amendment prohibiting slavery. The third claim is that people who become pregnant by ways other than rape or incest are unfairly privileged over those who become pregnant by other means in violation of the Fourteenth Amendment’s Equal Protections Clause; and the last claim is that TST’s “Satanic Abortion Ritual” is prohibited by Indiana’s abortion ban which violates the state’s Religious Freedom Restoration Act (RFRA).

The amended complaint also works in The Satanic Temple’s New Mexico telehealth abortion clinic, and TST argues it is prevented from delivering abortion medication to members in Indiana.

There are problems with all of this, which we’ll get to on the next page — or more honestly, the judge will — but that’s what’s going on in this lawsuit on the terms the Temple would like to be arguing.

Something important for all journalists writing about this sort of thing to mention, though, is that this is not the first time The Satanic Temple has tried to challenge abortion laws in some conservative state while attempting to make use of their local Religious Freedom Restoration Act protections.

MacNaughton led three unsuccessful lawsuits in Missouri at the state and federal level: two for plaintiff “Mary Doe” and another for plaintiff “Judy Doe“. While all were dismissed and never even preliminarily successful at any level of litigation, including the state-level suit which was dismissed on the merits, it was the federal-level “Mary Doe” lawsuit that was especially embarrassing because TST did not bother to file it at the right time: while having a pregnant client seeking an abortion.

From that district court opinion in 2018:

Here, Mary Doe was not pregnant at the date the action was initiated and seeks 3only prospective relief. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)(establishing that “the irreducible constitutional minimum of standing contains three elements”: (1) “injury in fact,” (2) “a causal connection between the injury and the conduct complained of,” and (3) a likelihood “that the injury will be ‘redressed by a favorable decision’” (citations omitted)); see also Summers, 555 U.S. at 493 (for plaintiffs seeking injunctive relief, “it must be likely that a favorable judicial decision will prevent or redress the injury”). Mary Doe therefore lacks constitutional standing. Additionally, although “[p]regnancy provides a classic justification for a conclusion of nonmootness,” the doctrine does not apply here because she did not first establish standing.

The Satanic Temple v. Jeremiah Jay Nixon, Opinion from USCA

Even more embarrassingly is whatever happened in TST’s federal abortion lawsuit in Texas, “Ann Doe I”, which failed its way out of court as well but not before the judge admonished the Temple’s lead attorney Matthew Kezhaya for his behavior in the process.

From federal district court in 2023:

This Court is similarly concerned about Attorney Kezhaya’s ability to practice in federal court in a professional and reasonable manner. … The amended complaint he filed is, charitably stated, cryptic. Dkt 39. He then filed a second motion for TRO containing negligible legal analysis, with six pages of the main analysis dedicated to presentation of what’s purported to be a five-act play. See Dkt 40 (motion). That motion itself was filed in a manner and on a schedule at odds with a briefing schedule on which Attorney Kezhaya had been consulted and to which he had agreed. See Dkt 42 (order). Worse still, he followed that motion up with an intemperate letter demanding instanter ruling, while threatening to seek mandamus relief from the Fifth Circuit. See Dkt 41. And most recently, as to a pending motion to dismiss, his response included a photograph apparently intended to shock the reader. See Dkt 52 at 6; see also Federal Rule of Evidence 403.

The Satanic Temple, Inc. v. Hellerstedt, Order

A similar state-level case in Texas’s 459th Civil District Court in Travis County involving “Ann Doe” has not had any motion on it since June 2022 but that complaint was filed an entire year after the federal lawsuit bearing her name and still claiming the matter related to a pregnancy discovered January 2021. Like the federal “Mary Doe” case filed after her pregnancy had been terminated and dismissed for lack of standing, it seems impossible for that second Texas suit to survive a standing challenge should it ever proceed further.

Therefore in addition to the actual arguments that are being made by The Satanic Temple against Indiana’s abortion-ban law, we do need to have a bit wider grasp of what The Satanic Temple has done in the past particularly on the subject of abortion. TST has argued now in seven separate cases and in 11 stages of court including appeals that its claim to being a religion provides it some special protection for people seeking abortion; so far its best results are two cases that have not been dismissed yet and one appeal of an ultimately that just neutrally transferred it to be heard at a higher level.

Yet time and again, reporters will write some variation of the story, “Things are worse than ever when it comes to abortion rights — but The Satanic Temple’s might be the unconventional solution we’ve been looking for.”

For example, Cosmopolitan:

Even with all this, Samuel Alito’s Mom’s Satanic Abortion Clinic marks an audacious step, from abortion activism to abortion care. By TST’s accounting, no other faith-based group in the U.S. has ever launched an abortion clinic. And that’s the game-changing twist here: Unlike other abortion-pill-by-mail providers like Hey Jane or Abuzz, TST is a religion. Meaning its patients, who don’t have to be Satanists themselves, are participating in a religious ritual. That’s a key legal distinction TST hopes to leverage in its historic push to expand its clinic model beyond New Mexico—into states where abortion is otherwise banned.

“The Satanic Abortion Clinic That’s Pissed Off Pretty Much Everyone…and Might Beat the Bans Anyway“, by Arielle Domb (Nov. 14, 2023)

We get it: the hope grift sells better for everyone, and when The Satanic Temple inevitably fails, many fewer people will be paying attention. If anyone does, it’s easy enough to just rail against “corrupt judges” or double-standards Satanists have to face because we’re uniquely discriminated against.

Remember just this past summer the Supreme Court ruled in favor of a Christian web designer who didn't want to make gay websites, even though she was never actually put in circumstances where she was asked to?https://t.co/j3VV0dh5H1

— Lucien Greaves (@LucienGreaves) October 25, 2023

This is typical of Misicko and his sycophants, and also why The Satanic Temple will never achieve more courtroom success than their woeful history up to this point.

Three things:

First: “But you’re hypocrites!” is a completely ineffectual argument to people with power. The powerful don’t care because they gain power in order to not have to care; Christian Nationalists aren’t constrained by your ill-opinion of their supposed lack of consistency (also, they are, in fact, consistent about not believing everyone is fully human and fully deserving of equal respect).

Second: while yes, the Supreme Court and captured reactionary federal judiciaries like the Fifth Circuit are shamefully biased, that is the game The Satanic Temple chose to play. No one forced them to do this. All the squawking of “we’re the serious, effective, practical activists!” from TST ignores that conservative activists like the Federalist Society rigged the game to make sure it will not be won even by making perfect argument.

But third and finally: none of that is what happened here. That is, the Satanic Temple did not bother to actually represent a single pregnant TST member (as they did in the past), and a hypothetical client experiencing hypothetical harm is not enough for standing.

In a Law360 article published after the dismissal, TST attorney MacNaughton said he was surprised the case was dismissed.

“My interpretation is that the judge does not want to get to the underlying substance, which is very difficult stuff, unless she’s got a pitch-perfect case for standing,” MacNaughton said. “By pitch-perfect, I mean an individual who stands up and says, ‘I am an involuntarily pregnant resident of the state of Indiana and a member of the TST and I would like to get my abortion through the use of the TST clinic.’ “

“Satanic Temple Can’t Challenge Indiana Abortion Ban“, by Beth JoJack (Oct. 26, 2023)

Yes, surprisingly you do actually need to establish standing first before getting into the underlying substance.

TST is very bad at court cases, and they aren’t losing because they are drawing the wrong judges but because they fundamentally make terrible arguments while litigating badly.

In Rokita, Federal District Court Judge Jane Magnus-Stinson is an Obama-appointee who worked for Indiana Democratic politician Evan Bayh.

Judge Jane Magnus-Stinson: Nominee for the United States District Court, Southern District of Indiana
Judge Jane Magnus-Stinson serves as a United States Magistrate Judge in the Southern District of Indiana, a position to which she was appointed in January 2007. Prior to her appointment, she served 12 years as a Superior Court judge for Marion County, Indiana, where she served on the Court’s Executive Committee, supervised the Probation Department, and was one of six judges presiding over major felony cases. Judge Magnus-Stinson has been an active member of the Indianapolis Bar Association, including as chair of its Pro Bono Standing Committee, co-chair of its Professionalism Committee, and Moderator of its leadership series. Prior to becoming a judge, Magnus-Stinson was counsel and deputy chief of staff to then-Governor Evan Bayh, and before that was in private litigation practice with the Indianapolis firm of Lewis, Bowman, St. Clair and Wagner (now Lewis Wagner). Magnus-Stinson was named Outstanding Judge by the Indiana Coalition Against Domestic Violence and receieved the Outstanding Service Award from the Indiana Coalition Against Sexual Assault. She graduated cum laude from Butler University in 1979 and from the Indiana University School of Law – Indianapolis in 1983.

If The Satanic Temple can’t establish standing for Democratic-nominee federal judges either, maybe TST should look in the mirror.

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