Case Background

• Introduction
• Case Background
• The Final Dismissal (in detail)
• The Satanic Temple’s response

The initial suit is allegedly intended as a challenge to Texas’ then-current abortion regulations at the time under Texas Health and Safety Code 171.012. In this case, the regulations being challenged are:

• The requirement for an abortion seeker to have a sonogram prior to getting an abortion;
• The requirement for that sonogram to then be explained to the abortion seeker, “including a medical description of the dimensions of the embryo or fetus, the presence of cardiac activity, and the presence of external members and internal organs”
• The requirement for an abortion seeker to also wait 24 hours between receiving this sonogram and undergoing the abortion itself

These and similar regulations are known as TRAP laws (targeted restrictions on abortion providers), which are intended to prevent abortions by making the process for getting them as burdensome as possible, without any individual regulation being able to be challenged as an “undue burden” to the then-constitutional right to an abortion.

For a breakdown of how TRAP laws function, see Planned Parenthood’s informer here.

For a further breakdown of how the Supreme Court ruling Planned Parenthood vs. Casey helped make TRAP laws possible, see this explainer from NPR.

On Feb. 5, 2021, The Satanic Temple filed a complaint against the Texas Department of State Health Services, and its executive commissioner John Hellerstedt, claiming that these regulations interfere with its’ members ability to conduct the Satanic Abortion Ritual. The Satanic Abortion Ritual is comprised of both what we might call “traditional” ritual elements, such as meditation and verbal recitation of certain beliefs, and the abortion itself. In addition to representing itself on the idea that it is directly harmed by being in ideological opposition to the TRAP laws, TST also represented a pregnant TST member introduced pseudonymously as Ann Doe, who had been scheduled to have an abortion on Feb. 6, 2021 – the day after this complaint was filed – and who wished to utilize the Satanic Abortion Ritual at the same time.

Per TST’s prayer for relief, the initial complaint is intended to achieve two things. Firstly, TST attempted to obtain temporary injunctive relief exempting Ann Doe from being required to abide by the aforementioned TRAP laws – a court order immediately allowing Doe to undergo her scheduled abortion the following day, without being required to have a sonogram, wait 24 hours, or anything else, on the premise that these regulations interfere with Doe’s exercise of her religious beliefs.

Secondly, and more broadly, the initial complaint was intended to form the basis of a permanent religious exemption from Texas’ abortion regulations for any other TST members in the future (described in the complaint as “TST’s similarly situated members”). Theoretically, this would have been achieved by two additional permanent injunctions – one barring the enforcement of the regulations as unconstitutional, and another one mandating the creation of new regulations that accommodate the Satanic Abortion Ritual.

In its initial suit, TST alleged the following liabilities:

• A hybrid violation of the First Amendment’s Free Speech and Free Exercise clauses by obstructing the religious speech contained in the Satanic Abortion Ritual
• A violation of the Equal Protection Clause, on the premise that requiring abortion seekers to hear a particular “narrative” explanation of a sonogram unfairly discriminated against people interested in conducting the Satanic Abortion Ritual
• A violation of Casey as described above, on the premise that requiring a sonogram constitutes an unconstitutional “undue burden” on Ann Doe
• A violation of Texas’ Religious Freedom Restoration Act on the premise that all of these regulations constitute a “substantial interference” with the free exercise of religion of both Doe and “TST’s similarly situated members”

Over the next several months, the lawsuit unfolds in a way that we, as laymen, would roughly describe as “TST going out of its way to trip over its own feet repeatedly while the court looks on patiently waiting for TST to get its shit together.”

As mentioned above, the initial complaint was filed on Feb. 5 and detailed the need for a temporary injunction in anticipation of Ann Doe’s scheduled abortion on Feb. 6. The injunction request was denied the next day, because the judge determined that TST had made no good faith attempt to serve the complaint through any informal means (such as email); this informal service would be the minimum required to plausibly suggest an actual emergency was ongoing or imminent. Moreover, by filing this complaint the day before the scheduled abortion, TST was determined to essentially have attempted to circumvent the defendants’ own right to due process, namely the right to respond and be heard in kind.

Because Doe had apparently successfully undergone the abortion on Feb. 6, TST could no longer demand injunctive relief in its complaint barring enforcement of Texas’ TRAP laws for Ann Doe in particular, and had to withdraw that demand. TST was granted leave to file an amended complaint a week later, on Feb. 12.

TST’s choice of defendants changes repeatedly and dramatically over this time as well. TST’s initial complaint targets both the Texas Department of State Health Services (TDSHS), and its executive commissioner at the time, John Hellerstedt, MD, ostensibly for being the parties responsible for enforcing the regulations being challenged. However, TST also infamously opted to include naming Planned Parenthood as a defendant as well, with the justification that their inclusion was supposedly necessary in order for PP to be able to utilize the hypothetically forthcoming injunction, and allow Doe to circumvent the TRAP laws at their facility. But once that injunction had been denied, there was no remaining justification for PP to remain a party, and they were removed as a defendant in the subsequent amended complaints.

Between Feb. 24 and May 4 2021, both parties are engaged in what seems to be an extended period of pretrial conferences – this is a standard procedure that is intended to help all parties, including the judge, clarify what issues are actually in dispute, and to see if other resolutions (like arbitration/mediation) could be available instead.

Without being able to tell why TST couldn’t have demanded or engaged in this discussion before launching a doomed injunction request with less than 24 hours’ advance notice, we’d like to focus on the other outcomes of this conference period instead.

Not only does TST emerge with leave to amend its complaint again afterward – leave to file a third complaint – but when that complaint is finally filed on May 7, the defendants are completely different. Going forward, TST is now suing the Texas Health and Human Services Commission, and its executive commissioner, Cecile Young, on the premise that these parties, not the TDSHS or Hellerstedt, are actually the ones responsible for enforcing the regulations at stake.

Again, it’s not clear why TST couldn’t have verified that they were targeting the right parties back in February when they were drafting the initial complaint. But we also know from firsthand experience that TST is nothing if not shy about the prospect of suing unrelated people as human shields if that’s what TST thinks is practical for recovering “damages.”

On August 6, 2021, TST withdrew its Equal Protection Clause complaint, and also did not contest the dismissal of the TRFRA claim against THHSC for lack of subject-matter jurisdiction. Because the TRFRA claim was the only allegation against THHSC here, THHSC is also subsequently removed as a defendant.

On December 20, 2021, TST’s amended complaint was dismissed without prejudice, on the basis that the impending Dobbs decision would weigh directly on the merits of the remaining allegations. Moreover, the judge stayed the case until after Dobbs, whereupon TST would be allowed to amend its argument yet again, and would be expected to take into account any changes in law that had transpired at the same time.

On August 22, 2022, TST filed its final amended complaint, which is noteworthy for being drastically less detailed than the previous complaints despite it being the only one being evaluated. Whereas the previous complaints are fully 18+ pages of detail comprising the standard (if arguably insufficient) factual background, legal arguments, and liability claims, TST’s post-Dobbs complaint is a sparse 7 pages of blunt assertions and demands in a list of bullet points with none of the factual or legal background provided previously.

This is the complaint that the final ruling was made upon:

At the same time, TST also filed an equally sparse motion for a temporary injunction demanding Young be barred from enforcing any abortion restrictions against anyone in The Satanic Temple. This is similarly noteworthy not just for its brevity, but for fully half of its text being comprised bizarrely of what appears to be a five-act play. This motion was denied about two weeks later, on Sept. 7, for not even attempting to meet the required elements of an injunction request. TST filed a notice of appeal for this motion in particular, and while it’s out of scope for this article, you can find the docket for that here.

Being the only remaining defendant at this point, Young filed her motion to dismiss TST’s complaint as normal. TST not only objected, but also attempted to strike her motion from the record for being behind schedule. This was ultimately denied on Nov. 14, 2022, with the judge citing a tradition of the court’s relative lenience on missing early deadlines when parties are otherwise actively engaged with litigation overall.

Up to this point, TST’s lead counsel, Matt Kezhaya, had been allowed to represent TST in this case pro hac vice – which is to say, outside the states he is licensed to practice in. Pro hac vice status is a privilege granted by the court on the assumption that the lawyer will participate in proceedings in good faith. However, by now, Kezhaya had been sanctioned twice in other federal courts around the country for abusive and unethical legal practice specifically on behalf of TST, as well as indulging in a litany of other intemperate behavior, which we have discussed in some detail here.

On Nov. 15 2022, the court here took notice of that in conjunction with his behavior in this case, and demanded that Kezhaya explain those sanctions and show cause as to why his pro hac vice status in this case shouldn’t be revoked. After receiving the responses, the court delivered an admonishment to Kezhaya on Jan. 12, 2023, with a final warning against further malicious or frivolous filings.

The brief history above makes it appear quite doubtful that Attorney Kezhaya is capable of conforming his conduct to acceptable practice in federal court. His explanations as to the two sanctions entered against him also fail to convince that they weren’t justified. But he has adequately explained that the sanctions don’t (at least at this juncture) warrant revocation of his admission pro hac vice. As such, he may continue as counsel in this litigation.

Attorney Kezhaya is ADMONISHED that his conduct will be scrutinized for propriety, and that frivolous and/or malicious filings will be stricken or summarily denied.

He is further ADMONISHED to conform his conduct and practice to the Federal Rules of Civil Procedure (including Rule 11), the Local Rules of the Southern District of Texas, this Court’s individual procedures (including Attachment 2, with respect to guidelines for professional conduct), and all pertinent ethical rules.

The Satanic Temple vs. Hellerstedt, #65

On July 3, 2023, TST’s final amended complaint against Cecile Young was dismissed. What follows is our own reading of that dismissal, and why we think it paints a clear and damning picture as to why The Satanic Temple is not just incapable of protecting anyone’s religious freedom, but fundamentally disinterested in the concept, and must be regarded as an active threat to the earnest struggle for reproductive justice and religious freedom everywhere.