Assessing TST’s case

How badly did The Satanic Temple lose their Indiana abortion-ban lawsuit? Incredibly badly.

Pursuant to the Order granting Defendants’ Motion to Dismiss the First Amended Complaint on October 25, 2023, the Court now enters FINAL JUDGMENT in favor of Defendants and against Plaintiff such that Plaintiff’s claims against Defendants are DISMISSED for lack of jurisdiction without leave to amend, and Plaintiff shall take nothing by way of its First Amended Complaint.

The Satanic Temple, Inc. v. Rokita, Closed Judgment 

This is very much, “You lose! Good day, sir!” in court speak.

So, how did we get here?

Well, the state of Indiana argued that none of that stuff about the Indiana Religious Freedom Restoration Act (RFRA), Fifth, Fourteenth, or Thirteenth Amendments mattered because The Satanic Temple didn’t do the basic work of establishing standing.

Failure to state a claim is a defense asserting that even if all the factual allegations in a complaint are true, they are insufficient to establish a cause of action and the case should therefore be dismissed.

law.cornell.edu

As we mentioned on the first page, the “irreducible constitutional minimum” of standing is that:

• the plaintiff has suffered concrete injury;
• that injury is fairly traceable to actions of the defendant; and
• it must be likely—not speculative—the injury will be redressed by a favorable decision.

If you don’t do these basic things, nothing else matters because the court has to have some way to sift through matters they can decide and those they can’t decide.

They are not “technicalities of law”; this is the fundamental, bare minimum of working in the courts.

More to the point, The Satanic Temple often fails even when it is given every benefit of the doubt; that is, even when the court accepts its claims as true (despite TST often making claims eventually shown to be fallacious).

The exception is when something like standing is challenged because then the Temple, as Plaintiff, has to affirmatively show they do deserve to bring the suit.

I. STANDARD OF REVIEW
The Constitution limits the jurisdiction of the federal courts to “Cases” and “Controversies.” The case-or-controversy requirement counts the element of standing as one of its essential components. The fundamental requirements of standing are the same in every case: injury in fact, causation, and redressability.

Generally, while reviewing a motion to dismiss for lack of standing, the district court “must accept as true all material allegations of the complaint, drawing all reasonable inferences there from in the plaintiff’s favor” as a facial matter. The general rule permits an exception to these favorable presumptions, which arises where “standing is challenged as a factual matter.” Once evidence calling the plaintiff’s standing into question is proffered, “[t]he presumption of correctness that we accord a complaint’s allegations falls away[.]” Then, “no presumptive truthfulness attaches to plaintiff’s allegations.” And “the plaintiff bears the burden” of demonstrating standing by “coming forward with competent proof.'” “[C]ompetent proof” means a showing by a “preponderance of the evidence.”

Further, when the factual prerequisites of jurisdiction are at stake, “the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” A district court may “resolve factual disputes and make any findings necessary to determine the court’s adjudicatory competence.” Beyond only the pleadings, “the court may . . . view any evidence submitted to determine if subject matter jurisdiction exists.”When the standing question involves disputed factual matters, “the district court may find the facts,” and it is “review[ed] . . . for clear error.”

As a factual matter, Defendants challenge the Satanic Temple’s standing in two ways. First, Defendants argue that the Satanic Temple does not show that “anyone would use it to procure abortions.” Second, Defendants argue that the Satanic Temple does not show that its clinic “exists or is reasonable likely to exist in the near future.” These disputed facts are at the heart of the injury-in-fact inquiry, the “[f]irst and foremost” element of standing. Consequently, the Satanic Temple bears the burden to prove those disputed facts by a preponderance of the evidence. In this light, the Court presents the case’s background and conducts the Court’s analysis.

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 (citations removed)

In other words, The Satanic Temple can’t just do what it so often does in media, to its sycophantic membership, or in other aspects of its complaint. It can’t DECLARE! something and be believed absent supporting evidence.

But, standing is a very basic thing. If TST can’t show it, it has no business suing the state, or at least the court has no business allowing it to continue.

II. BACKGROUND
A. Federal and State Laws Regulating Telehealth Abortions
Multiple sources of law impose restrictions on providing abortion-inducing drugs by mail. Federally, the Comstock Act of 1873, still in force today, makes it a criminal offense to mail any “article or thing designed, adapted, or intended for producing abortion.” (“Mailing obscene or crime-inciting matter”). A first offense against the Comstock Act can lead to imprisonment for up to five years; for each subsequent offense, up to ten years.

In Indiana, as early as 2013, if a physician were permitted to administer an abortion, the “physician [must have] examine[d] [the] pregnant woman in person before prescribing or dispensing an abortion inducing drug”; “‘in person’ d[id] not include the use of telehealth or telemedicine services.” Likewise, as early as 2013, abortion clinics were required to seek licensure in the state. A person who “knowingly or intentionally . . . operate[d] . . . an abortion clinic that [was] not licensed” committed a Class A misdemeanor. In 2022, Indiana enacted into law S.B.1, which, with little exception, criminalizes most abortions in the state. All of those restrictions remain the law today.

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 (citations removed)

It’s going to come back up in this case that there is much more to challenge than just the latest law. TST is not solely prevented from doing what it claims it wants to do because of S.B. 1.

Now we move on to look at The Satanic Temple’s New Mexico telehealth abortion clinic with the liberal catnip name of “Samuel Alito’s Mom’s Satanic Abortion Clinic”.

Most news coverage doesn’t get much further than repeating that it exists and “outrages” someone. But the court is actually examining what it is and does because that’s important.

B. The Satanic Temple’s Telehealth Abortion Clinic
The Satanic Temple, in its own words, “venerates, but does not worship, the allegorical Satan described in the epic poem Paradise Lost – the defender of personal sovereignty against the dictates of religious authority.” Members of the Satanic Temple adhere to the Satanic Temple’s Tenets, including Tenet III: “One’s body is inviolable, subject to one’s own will alone.” The Satanic Temple promotes its Tenets by “protecting the exercise of [the Tenets] from government intrusion.” Such promotion includes providing access to abortions.

In late 2022, the Satanic Temple formed an abortion clinic, called the “Samuel Alito’s Mom’s Satanic Abortion Clinic” (“the Clinic”). The Clinic supports the Satanic Temple’s effort to create a wider health network. TST Health. The Clinic “does not maintain an office or other physical space,” but through online telehealth, it serves patients who are physically located in New Mexico: To receive the Clinic’s services, an individual must be “[i]n New Mexico at the time of the online visit,” “[h]ave a New Mexico mailing address,” and “receive the [abortion-inducing drugs] in New Mexico.” The Clinic allegedly seeks to extend beyond the borders of New Mexico to reach the State of Indiana. In Indiana, the Clinic allegedly would help Members perform the Satanic Abortion Ritual.

The Satanic Abortion Ritual is a ritual of “destruction.” It is designed to “cast off notions of guilt, shame, and mental discomfort” regarding having an abortion. The Ritual invites its Members to consult materials representing “great sacrifices in the struggle to establish reproductive rights” in order to “subdue stigmas” the patient “might feel from those who oppose abortion.” As the Member induces her abortion, she is urged to read the Satanic Tenets aloud.

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 (citations removed)

As it comes to the New Mexico Telehealth clinic, we pointed out long ago that the actual business registration probably would not hold up to scrutiny due to the use of fake names.

But we’ve also said “The Satanic Temple cannot help you get an abortion, and it does not deserve your support.”

The Satanic Temple cannot help you get an abortion, and it does not deserve your support

This is still true, even with the telehealth clinic.

As you may notice, you have to be in New Mexico and have a mailing address there to use it, and New Mexico is a place where abortion is legal — a place where established, financially transparent organizations already exist as better options.

Something that will come up as an issue is that The Satanic Temple needs some connection to Indiana if it’s to claim that a federal court in Indiana should be hearing this case.

“We’re one of the places people in New Mexico can get abortion pills mailed from” will not suffice to make that connection.

C. This Litigation
On September 21, 2022, on behalf of its Members and in its own right, the Satanic Temple sued Governor Eric Holcomb and Attorney General Todd Rokita to enjoin S.B. 1. Governor Holcomb and Attorney General Rokita filed a Motion to Dismiss, arguing, among other things, that the Satanic Temple lacked standing. The Satanic Temple then amended its Complaint. The First Amended Complaint no longer named the Governor as a Defendant but added Marion County Prosecutor Ryan Mears as a Defendant. Acknowledging this amendment, the Court then denied the earlier Motion to Dismiss as moot, leaving the First Amended Complaint the operative pleading.

The Satanic Temple’s First Amended Complaint attacks only S.B. 1. Alleging that it intends to provide abortions to Members in Indiana, the Satanic Temple states that S.B. 1 unlawfully interferes with the rights of its Members. The Satanic Temple claims that S.B. 1:

• violates the Indiana Religious Freedom Restoration Act by preventing a Member from exercising her Satanic Tenet-based religious beliefs to have an abortion;
• further violates the Indiana Religious Freedom Restoration Act by imposing a substantial burden on the exercise of the Satanic Abortion Ritual;
• violates the Equal Protection Clause by providing no exceptions for those who are pregnant by accident, and discriminating in favor of those who are pregnant by rape or incest;
• violates the Takings Clause by providing no compensation for the value of occupying a woman’s reproductive system, “taking” the right to otherwise use a woman’s uterus; and
• violates the Thirteenth Amendment by providing no compensation to an involuntarily pregnant woman for “providing the labor necessary to give birth,” imposing on such women the conditions of slavery.

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 (citations removed)

Again, there are some… “novel” arguments that The Satanic Temple argued in this case. The “Takings Clause” one about “providing no compensation for the value of occupying a woman’s reproductive system” remains absolutely wild, even though TST failed to set up the case well enough to actually get to it.

You have to wonder what even success would have looked like here. The state paying people some marginal amount for their forced births but only if the pregnant person could affirmatively prove it was unwanted and they were planning to be surrogate in the next nine months?

The judge goes on to highlight The Satanic Temple’s enormous chutzpah about how it thinks it ought to able to act in court.

Likening its cause to historical litigation by the National Association for the Advancement of Colored People, the Satanic Temple has maintained its suit on behalf of its Members in secrecy. Its Members are unnamed; its declarations are under pseudonym; and its executive director is unidentified, “not disclos[ing] [his/her] real name” for fear of “domestic terrorists.” The Satanic Temple justifies the suit’s secrecy based on … the alleged leak of confidential information by Attorney General Rokita in a prior abortion case; and the Satanic Temple’s prior exposure to violence.”[E]ven [for] high government officials,” the Satanic Temple asserts, “the passions stirred up by the culture war over abortion can overcome . . . good judgment.”

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 (citations removed)

So, it’s already incredibly bold and presumptuous for The Satanic Temple to compare themselves to the National Association for the Advancement of Colored People. But if there was ever a time where the leadership of the NAACP used pseudonyms to protect their identities, please point us to that.

The order is going to talk about NAACP v. Alabama in more detail later, but it’s notable that The Satanic Temple is unwilling to go on the record with anyone’s government name, other than their attorneys. It’s that dangerous to be identified and associated with TST, they’re claiming.

We’d point out that The Satanic Temple is much less circumspect about blasting out into the public the personal information of Satanists TST dislikes, such as ourselves, such as critics who speak to the media, or others they target like the Satanic Housewife. Contact info like home address.

The Satanic Temple is telling the court, “It’s so dangerous to be identified as a Satanist in this political climate, we won’t even use the real name of our owners!” But TST loves to go on Fox News to talk about the After School Satan clubs they invite other people’s children to come attend at a specific time and place known to the public.

Basically, Cevin Soling and Doug Misicko are rank cowards, is what we’re saying, and the rest of the “leadership” of The Satanic Temple is little better. If you want to claim you’re a “bona fide religion”, drop the fake names and have some basic accountability like everyone else.

The court ends up not especially happy with TST about this either.

The fact that the Satanic Temple (1) does not name the Members on whose behalf it brings this suit and (2) lacks a current Indiana abortion clinic are both at the center of Defendants’ Motion to Dismiss for failure to state a claim and lack of standing. In their briefing, Defendants argue that the Court should permit “jurisdictional discovery as to whether The Satanic Temple has standing.” To that end, the parties submitted evidence, including affidavits and declarations, filings and exhibits, and interrogatories and admissions. The Court also ordered supplemental briefing on how recent Supreme Court decisions affect the Satanic Temple’s standing. Throughout the standing analysis, the Court will turn its attention to the submitted evidence and supplemental briefing that is relevant to the case’s ultimate resolution.

The threshold question in this case, as in every case, is the power of the Court to entertain the lawsuit; accordingly, motions that challenge that power are dealt with first. Accordingly, the Court turns first to the parties’ arguments regarding standing.

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 (citations removed)

In the part of the case where The Satanic Temple should have been focusing on shoring up standing to make sure they could even get to the so-called “underlying substance”, TST instead was focused on covering the ass of its leaders and keeping them from any accountability or scrutiny.

The Temple was given plenty of opportunity to amend its case and submit good evidence. Instead, it refused to identify any real people involved in their organization and tried to make a probability-based argument.

A. Standing on Behalf of the Satanic Temple’s Members
Defendants argue that the Satanic Temple does not have associational standing because it has not identified its Members. Defendants argue that the Satanic Temple “does not specify how many female members are pregnant, whether the members who were pregnant 9 months ago are still pregnant despite the passage of time, whether the women can take advantage of S.B. 1’s exceptions, and whether the women still need relief…” The State notes that the Satanic Temple “has not identified its members, sued on behalf of particular members, filed declarations from them, or given them an opportunity to direct the course of the litigation. “Consequently, Defendants assert, the Satanic Temple cannot show that it “‘has identified members and represents them in good faith,’ much less that unidentified members have standing to sue.” In the place of identified members, the State continues, [TST] cannot resort to using statistical probability.

In response, the Satanic Temple argues that “no authority requires that identity be made by name.” The Satanic Temple states that it proceeds on behalf of its Members anonymously because “neither the Court nor Defendants can guarantee their identity will remain secret.” Further, the Satanic Temple argues that the First Amendment grants members a “right to keep his or her membership” in the Satanic Temple a “secret.” As a legitimate organization, the Satanic Temple argues, it includes the “involvement of its members in its programs and funding,” supporting the fact that it is “representing its members in good faith.” In the place of identification, the Satanic Temple offers a statistics-based declaration as “the requisite proof” that ninety-four Members of the Satanic Temple will be “individually harmed by the Indiana Abortion Ban every year and at least one” is “pregnant at any given point in time.”

In reply, Defendants reiterate that the Satanic Temple “has never identified a single member with standing. In fact, it has refused to identify the member(s) it believes provides a basis for standing.” Further, Defendants assert that an organization cannot establish standing through statistical probability; without specific facts to support identifiable members, the State argues, the Satanic Temple “has failed to meet its burden” to support each disputed element of standing with “competent proof.”

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 (citations removed)

The court moves on to examine the idea that The Satanic Temple meets the standard of “associational standing”; however, the injury being suffered “must be ‘specific’ to an ‘identified member.’ “

In general, a plaintiff must assert “her own legal rights, not those of a third party.” That general rule permits an exception – for “associational standing” on behalf of the plaintiff organization’s members. An organization has associational standing when:

a) its members would otherwise have standing to sue in their own right;
b) the interests it seeks to protect are germane to the organization’s purpose; and
c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

For the first prong, whether a member would have standing to sue in her own right, the Supreme Court has cautioned that allegations of injury must be “specific” to an “identified member.”

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 (citations removed)

As we mentioned above, an important difference with the NAACP was that Alabama was coming after it for its membership lists and the executives still named themselves.

Is The Satanic Temple really more at risk than Black civil rights orgs in the 1950s? Really?

The court opinion does not ever get into this, but to even reach that claim of having 11,000 members in the state of Indiana, you have to accept that signing up for an online newsletter with your email account one time and not going back to a separate page to affirmatively revoke that membership (unsubscribing doesn’t cut it!) is in any way meaningful.

The Satanic Temple argues that it need not identify specific Members because the First Amendment allows each Member not to disclose her affiliation, citing NAACP v. Alabama, 357 U.S. 449, 459 (1958).Yet the Supreme Court has explained that such anonymity is permitted “only where all the members of the organization are affected by the challenged activity.” Here, the challenged abortion law allegedly affects only some, but not all, of the Satanic Temple’s Indiana membership, only ninety-four out of over 11,000 members. Further, in NAACP, the organization was willing to “divulg[e] the identity of its members who . . . [held] official positions.” Here, the Satanic Temple is not willing to divulge any such identity. Its “Executive Director” hides “[his/her] real name” for fear of “domestic terrorists.”¹

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 (citations removed)

A footnote at the end of this portion points out, as we have in the past, that the thing a serious litigant is supposed to do if they fear a member being targeted is use a particular person suffering the injury but protect that person with a pseudonym — as The Satanic Temple has already done in (failed) abortion lawsuits!

Footnote 1: The Court takes seriously the potential risks of retribution faced by unpopular parties accessing the judicial system. For that reason, the Court provides a mechanism that parties must use to request leave to proceed under a pseudonym. Utilizing the organization itself as a functional pseudonym is no replacement for abiding by the requirements imposed by Local Rules and within the guidelines of the Seventh Circuit. (“This rule provides a vehicle for a litigant’s identity to be disclosed to the court and to the opposing party but not to the public at large pending the outcome of the court’s determination of whether the litigant is entitled to proceed anonymously.”); (“The danger of retaliation is often a compelling ground for allowing a party to litigate anonymously.”);

It is possible for a litigant to proceed anonymously while concurrently providing specific allegations. This should be no surprise to the Satanic Temple; its members have litigated under pseudonym in prior proceedings. E.g., Doe v. Parson, 960 F.3d 1115 (8th Cir. 2020) (Satanic Temple member who intended to have abortion sued using pseudonym in suit for declaratory judgment against informed consent law).

Back to the main body text, wherein the judge follows up on a citation and corrects TST’s attempted misapplication of a quote from an appellate court’s opinion:

The Satanic Temple then quotes the Seventh Circuit as stating, “the requirement for an individual member to have standing still allows for the member on whose behalf the suit is filed to remain unnamed by the organization.” That statement is correctly quoted, but its context is improperly omitted. In the very next sentence, the Seventh Circuit observed that in light of Supreme Court precedent, it would “reserve for another day whether that statement survives.” The Seventh Circuit then referred to sister circuits which “expressly require names for associational standing on the pleadings.”

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 (citations removed)

Not helping TST’s argument is they do this for everyone on their side of the suit, not just one special exception. The pseudonymous “Dr. J.D.” was at least identified to the court, but they are “not employed by, or contracted with, the Clinic; when asked to identify such licensed physicians, the Satanic Temple answered ‘none.’ “

With so many other deficiencies already, this is going to hurt TST.

Although the Satanic Temple must identify individual Members specifically, the Satanic Temple attempts to identify them statistically, based on the work conducted by “Dr. J.D.” Though identified to the Court, Dr. J.D, like the alleged Members of the Satanic Temple, is not identified to the public. Dr. J.D. is not employed by, or contracted with, the Clinic; when asked to identify such licensed physicians, the Satanic Temple answered “none.” Dr. J.D. appears to have no personal knowledge of the Satanic Temple’s members; the doctor is simply “advised” of the Satanic Temple’s procedures. Based on being advised of these procedures, Dr. J.D. estimates the number of injured Members using the following average metrics: the number of Satanic Temple Members of child-bearing age; the 2017 Indiana fertility rate; the 2021 Indiana abortion rate; the percentage of pregnancies that are unintentional; and the percentage of pregnancies that occur due to failure of birth control. “[T]o a reasonable degree of medical certainty,” Dr. J.D. opines, at least one member the Satanic Temple is involuntarily pregnant each year. These calculated allegations do not inspire confidence. Most basically, a population average does not guarantee an individual result. It is statistically possible for the average number of pregnancies to be greater than zero, and for exactly zero Members to be pregnant. Additionally, even if these calculations were accurate, the result does not foreclose the possibility that someone who is involuntarily pregnant might voluntarily decide to bring her pregnancy to term.

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 (citations removed)

“These calculated allegations do not inspire confidence.”

Oof.

Having read some reactions of outraged TST members, this is something they really need to understand about law. It’s not enough that The Satanic Temple probably has a member who suffered injury: they need one actually.

The ambiguity inherent in the Satanic Temple’s analysis illustrates the exact difficulty the Supreme Court has cautioned to avoid: “In part because of the difficulty of verifying the facts upon which such probabilistic standing depends,” the Supreme Court “has required plaintiffs claiming organizational standing to identify members who have suffered the requisite harm—surely not a difficult task” when there are allegedly so many members. The Supreme Court has unequivocally prohibited statistical standing lest “[t]his novel approach to the law of organizational standing . . . make a mockery of [the Supreme Court’s] prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm,” which requires “naming the affected members.”

Even if it were “possible–perhaps even likely–that one individual w[ould] meet” the criteria of standing, speculation through statistics is no replacement for specifics.

Although standing is permissible for “abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations,” the Satanic Temple has failed to meet its burden to prove that there are actual or potential Indiana patients at all. The Satanic Temple states it is “highly likely” that one or more Indiana Members would use the Clinic, and it also states that it has received “hundreds of inquiries from [Satanic Temple] [M]embers”; tellingly, however, it specifies no Indiana Member who has called the Clinic, not even anonymously. When asked whether an Indiana Member has ever received abortion-inducing drugs from the Satanic Temple, the Satanic Temple, “to the best of its knowledge,” answers no, but “can neither admit,” “deny,” nor “vouch for” that fact.

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 (citations removed)

This section concludes with the statement “The Satanic Temple has failed to prove by a preponderance of the evidence the facts necessary to support associational standing.”

Overall, the Satanic Temple invites a paradox of inferences. “To a reasonable degree of medical certainty,” it points to statistically identified Members, which the Supreme Court forbids; yet it declines to “vouch for” specifically identified Members, which the Supreme Court requires. Such equivocal allegations fall short of overcoming a factual challenge to standing. All the Satanic Temple adds is an unidentified doctor opining on unidentified members, identifying them only through statistical probability. This, the Supreme Court has explained, simply will not do. The Satanic Temple has failed to prove by a preponderance of the evidence the facts necessary to support associational standing.²

Footnote 2: Because the Satanic Temple has not established associational standing, the Court need not and does not engage in an evaluation of potential injuries to Members that the Satanic Temple claims they actually or imminently might incur.

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 (citations removed)

If the Temple actually had 11,000 members in Indiana, presumably it would not have been impossible or even especially difficult to locate one of them who had become involuntarily pregnant and was willing to work with TST to file a lawsuit while pregnant to establish standing and get the case started. But TST did not do that, so all of the “common sense” arguments about how abortion bans hurt actual people could not factor in. This is a failing of TST, not the judge hearing their case.

Moving on to The Satanic Temple’s standing itself, you see that 303 Creative — the case of the Colorado website designer who claimed her rights were being violated by having to create works that recognized same-sex marriage — was brought up by the state of Indiana. Despite this, many critical lay people who did not bother to read the opinion brought the case up on their own as a supposed example of the unfair double standard TST has to face compared with evangelicals and other Christians.

A key detail is that the website designer was suing on behalf of harm done directly to their business. The business was not suing on behalf of a hypothetical harmed person; it was already itself the supposed injured party involved in the lawsuit. There also was no disagreement that Colorado was going to enforce its own anti-discrimination law against the business because of the owner’s established position (of bigotry).

The fallacious claim involving a nonexistent gay couple’s request ostensibly sparking the website designer’s need to challenge the anti-discrimination suit was discovered by a journalist long after the Supreme Court had already heard it, hence no dissenting opinions referenced it, and the state of Colorado didn’t bother to argue it wasn’t going to enforce the law against her, so that wasn’t really in dispute.

Now, absolutely, that’s a shameful case, but here as the opinion notes, The Satanic Temple never bothered to move beyond, “We might have a member who might want to become pregnant for reasons of surrogacy and be prevented from doing so” or “we might want to open a telehealth clinic in Indiana some day“.

B. Standing for the Satanic Temple Itself
Defendants argue that the Satanic Temple does not have standing in its own right, falling short of demonstrating injury in fact, causation, and redressability. Defendants argue that the Satanic Temple has not demonstrated injury in fact; it has failed to show “such a clinic exists or is reasonably likely to exist in the near future” and that the First Amended Complaint does not “specify where the Clinic is located, what services it performs, or where its providers are licensed.” Defendants further assert that the Satanic Temple has not demonstrated causation; “[e]ven before S.B. 1’s enactment, both federal and state law would prohibit The Satanic Temple from providing abortion-inducing drugs by mail.” And Defendants assert that the Satanic Temple has not demonstrated redressability; even if “it had a clinic capable of supporting Indiana patients,” it does not show that “anyone would use it to procure abortions that would be lawful but for S.B. 1.” Defendants conclude that, in contrast to the plaintiff who intended to engage in prohibited conduct in 303 Creative v. Elenis, the Satanic Temple never intended to bring its Clinic to Indiana; if it had, it would have intended to “compl[y] with Indiana’s unchallenged health and safety regulations.”

In response, the Satanic Temple argues that it has met the requirements of standing regarding injury in fact, causation, and redressability. The Satanic Temple argues that it has suffered multiple injuries, including facing the threat of prosecution, expending costs to comply with S.B. 1, diverting resources to respond to S.B. 1, and being frustrated in its mission to spread the Satanic Tenets and the Satanic Abortion Ritual. The Satanic Temple states that Biden v. Nebraska recognizes that frustrations to its mission amount to an injury in fact It asserts that 303 Creative stands for the proposition that the Satanic Temple’s injury stems from the liability “inherent in providing its intended services.” The only obstacle blocking the Clinic, according to the Satanic Temple, is its fear of civil and criminal consequences. As to causation and redressability, the Satanic Temple asserts that it seeks to overturn Indiana’s entire abortion-law apparatus to the extent it causes the Satanic Temple’s injuries.

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 (citations removed)

Again, in contrast to 303 Creative we see that The Satanic Temple can’t use itself as a harmed party in Indiana over Indiana laws because it hasn’t taken steps to make its actions directly relevant to Indiana.

In reply, Defendants argue that the Satanic Temple has demonstrated no actual or imminent injury sufficient for standing. Biden v. Nebraska, the State argues, “never held that an abstract injury to an organization’s purported mission constitutes injury in fact. It focused on . . . ‘a legally protected interest, like property or money.'” Defendants assert that the Clinic, based in New Mexico, “has never provided abortions to any woman in Indiana,” and has only “generic allegations of an intention to provide abortions to unidentified women at some unspecified time.” Defendants reiterate that the Satanic Temple “faces independent legal barriers to providing abortions in Indiana” under state and federal laws prohibiting unlicensed abortion clinics, prohibiting mail-order abortion drugs, and prohibiting telehealth abortions.

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 (citations removed)

The state is arguing that it isn’t any one thing standing in the way of TST opening up a telehealth abortiion clinic in Indiana, which is very different from a website designer with a business set up pointing to one nondiscrimination law as an impediment to her (and her desire to run a bigoted public business).

Injury in Fact
Injury in fact is the “first and foremost” element of standing. As such, this case’s multiple alleged injuries are addressed first, beginning with the threat of prosecution and the cost of compliance.

a. Threat of Prosecution and Cost of Compliance
If a plaintiff “must comply with the law or face sanctions,” the plaintiff can sue to enjoin the law before facing enforcement through a “pre-enforcement challenge.”

In a pre-enforcement challenge, a future harm amounts to injury in fact if the harm is “certainly impending,” or if the harm poses a “substantial risk” of occurring, but not if the harm is merely “possible.” To prove such a threatened injury, the plaintiff must show a “credible threat of prosecution” of conduct arguably affected with a constitutional interest, and “make[] clear its intention to continue its possibly unlawful conduct”. The intent to engage in possibly unlawful conduct must exceed “‘some day’ intentions”—those “without any description of concrete plans” or “any specification of when the some day will be.” Whether the plaintiff intends to engage in its possibly unlawful conduct is a question of fact.

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 (citations removed)

The state of Colorado was definitely going to “injure” the business in 303 Creative by applying its antidiscrimination law, which is how pre-enforcement is able to work. Legitimate abortion clinics have long used the same mechanism to challenge new anti-abortion laws targeting them. There’s nothing scandalous or hypocritical about that.

We’re going to need to emphasize this a bit more:

The Satanic Temple has no Clinic in Indiana presently: it operates no “licensed . . . abortion clinic in Indiana,” employs no “physicians who are licensed to practice medicine in Indiana,” and provides no “in-person services to patients” in Indiana. Likewise, the Satanic Temple plans no Clinic in Indiana prospectively: it “does not presently intend” to start an in-person abortion clinic in Indiana, and it “does not presently intend” to seek a license for an abortion clinic in Indiana.

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 (citations removed)

Again, the contrast with 303 Creative is made direct and explicit:

Unlike the plaintiff in 303 Creative, who claimed an intent to follow through on her prohibited conduct, the Satanic Temple is far closer to plaintiffs in other cases who failed to demonstrate that they intended to do the same.

The Court finds that the Satanic Temple’s allegations fall short of even “some day” intentions, and that it fails to meet its burden to make clear it intends to engage in conduct that is unlawful under S.B. 1. Without such intent, the Satanic Temple has failed to demonstrate that its alleged cost of compliance or threat of prosecution amounts to injury in fact.

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 (citations removed)

So, not having any particular Indiana members they can show and not having any specific Indiana business they can point to for injury, The Satanic Temple tried to get there another way: by having their New Mexico telehealth clinic but barriers in Indiana, TST’s mission was frustrated.

But that dog won’t hunt.

b. Diversion of Resources
If an organization shows a “drain on the organization’s resources” as a result of challenged government action, the organization can prove actual injury. However, “where the harm is not imminent,” “[m]itigation expenses do not qualify as actual injuries.” As the Court has found above, due to the Satanic Temple’s own lack of intent, it faces no imminent harm from the enforcement of S.B. 1; even if the Satanic Temple had diverted its resources, it has fallen short of proving injury in fact.

c. Frustration to the Satanic Temple’s Mission
No matter how longstanding an organization’s interest, and no matter how sterling an organization’s qualifications, a concrete injury does not include a mere “interest in a problem.” Nor does it include “mere indignation.”

After the Court’s determination that the Satanic Temple’s allegations do not demonstrate injury in fact from the threat of prosecution, the cost of compliance, or the diversion of resources, all that remains is a frustration to promoting the Satanic Tenets and the Satanic Abortion Ritual – in other words – simply a “setback to the organization’s abstract social interests.”

While such a “generalized grievance” may suit the “rarified atmosphere of a debating society,” it does not suffice for standing.

In sum, the Satanic Temple’s allegations fail to prove it has suffered any injury in fact. While this failure alone defeats standing, the Court goes on to consider the remaining elements of standing.

2. Causation and Redressability
Causation and redressability are the remaining two elements of standing. A plaintiff must prove the defendant caused its injury, and it must be likely that a favorable judicial decision will redress its injury. For causation, the plaintiff need not prove proximate cause, but it still must prove a “fairly traceable” connection between the defendant’s challenged conduct and the plaintiff’s alleged injury. The injury must not have resulted from the “independent action. And the injury must not have resulted from conduct or legal provisions not before the court. For redressability, it is often intricately linked with causation; if there is no causation, then a favorable decision directed toward the challenged conduct will not likely redress the plaintiff’s injury. That is, if “[a] plaintiff . . . would have been no better off had the defendant refrained from” the challenged acts, then the plaintiff “does not have standing.”

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 (citations removed)

The Satanic Temple further hurt its argument by not challenging all of the relevant laws at the appropriate time.

There may have been some constraint on the Temple, but TST’s lawyers also don’t operate in this field and may not have been aware of what they actually needed to do here.

In this case, the Satanic Temple alleges that S.B. 1 imposes the threat of prosecution, the cost of compliance, the diversion of its resources, and the frustration to promoting its mission to spread the Satanic Tenets. Yet, as the Defendants note, other unchallenged federal law and Indiana Indiana laws Indiana laws, provisions not would each independently prohibit the Satanic Temple from lawfully operating its mail-order abortion service.⁴

In addition to falling short of proving injury in fact, the Satanic Temple has failed to meet its burden of proving causation and redressability. The result is a lack of standing. The Court GRANTS Defendants’ Motion to Dismiss the First Amended Complaint.

Footnote 4: While the Satanic Temple has introduced exhibits arguing that federal law does not prevent mailing abortion-inducing drugs, that question of law is sharply contested.

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 (citations removed)

Basically, “You challenged the wrong law here, because even if this one were overturned in your favor, what you want would still be illegal, so it would change nothing, making this not a redressable issue for the court, as you have framed it.”

However “further proceedings” sections really reads like a fed up judge going to town saying, “The Satanic Temple had no idea what the fuck they were doing, and went about everything in completely the wrong way.”

IV. FURTHER PROCEEDINGS
“When a district court concludes that the plaintiff lacks standing—and thus that the court lacks jurisdiction—the judge may either dismiss without leave to amend or dismiss without prejudice.” Because the Satanic Temple has already used its one amendment as of right, the decision to permit further leave to amend is committed to the Court’s “broad” discretion.

The Satanic Temple should have “consider[ed] carefully and promptly the wisdom of amending to meet the arguments in the motion. A responsive amendment may [have] avoid[ed] the need to decide the motion or reduce the number of issues to be decided, and . . . expedite[d] determination of issues.” But far from expediting the determination of jurisdiction, the Satanic Temple did not use its earlier opportunity to cure its standing deficiencies. Instead, it tried to introduce nonresponsive constructive amendments, each slipped into its briefing. Although it alleged claims under RFRA, in its response brief, the Satanic Temple requested leave to “replead” its RFRA counts as First Amendment claims.

Although it challenged only S.B. 1 in its First Amended Complaint, in its response brief, the Satanic Temple asserted that it seeks to enjoin Indiana’s entire abortion-law apparatus to the extent it causes the Satanic Temple’s injuries. Then, in supplemental briefing, the Satanic Temple asserted it wanted to enjoin “any and all Indiana laws” conflicting with the Satanic Temple’s mission to provide abortion services for its Members in Indiana.

It is rarely appropriate to permit constructive amendments “smuggle[d]” through the briefs. Even if this were the rare appropriate case, the Satanic Temple’s requests collide with its central obstacles to standing—no identified Members, and no intent to engage in unlawful conduct—abundantly clear from the Satanic Temple’s own admissions of fact. Judicial admissions are not evidence; judicial admissions “trump[] evidence”; they “ha[ve] the effect of withdrawing a fact from contention” entirely. These fatal flaws should have been apparent to the Satanic Temple long before the close of briefing. Granting leave to amend would practically produce only more briefing, which the Court has already once entertained.

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 (citations removed)

Ouch. But the judge keeps going.

The Satanic Temple had an opportunity to submit evidence. It had notice of its standing defects. And it was given the opportunity to cure them. It has failed on all fronts. Ultimately, the Satanic Temple has failed to prove by a preponderance of the evidence those facts essential for granting standing. Accordingly, the Court DISMISSES the First Amended Complaint for lack of jurisdiction without leave to amend.

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 (citations removed)

In summary, please stop giving these people your money and support.

TST is full of fucking clowns, including their legal team.

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