Texas’s controversial anti-abortion law known as the “Heartbeat Bill” went into effect at midnight on Sept. 1, 2021. Less than 24 hours later, the U.S. Supreme Court declared it would not block the law.
In response, The Satanic Temple, a nontheistic group that has been recognized by the IRS as a religion, announced that it would fight back by invoking the Religious Freedom Restoration Act, or RFRA, to demand exemption from abortion restrictions on religious grounds. RFRA laws, which came into effect in 1993, restrict the government’s ability to burden religious practices.
Like the Heartbeat Bill itself, The Satanic Temple’s efforts to circumvent abortion restrictions on religious grounds involve a creative and complicated legal strategy. As a scholar who studies the ways in which The Satanic Temple’s provocations affect public debates about religious freedom, I anticipate their latest legal argument will challenge some assumptions about RFRA and the freedoms it was designed to protect….
The 1990 Supreme Court case Employment Division v. Smith considered arguments that a member of the Native American Church had a religious right to use peyote, a controlled substance.
The court ruled that freedom of religion was no excuse from compliance with a generally applicable law – a law that applies equally to everyone and does not single out specific groups. With this decision, it appeared that the free exercise of religion guaranteed in the First Amendment meant very little.
In response, Congress wrote the Religious Freedom Restoration Act, which was signed into law in 1993.
Under RFRA, the government cannot burden the free exercise of religion unless: 1) it has a compelling reason for doing so, and 2) the government acts in the least restrictive way possible to achieve its purpose.
Four years later, in Boerne v. Flores, the Supreme Court ruled that RFRA applied only to the federal government and not to individual states. So many states, including Texas, passed similar legislation, sometimes called “mini-RFRAs.”
In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that under RFRA, the federal government could not require the Christian company Hobby Lobby to fund insurance that provided their employees with certain forms of birth control. This decision inspired The Satanic Temple by linking the question of religious liberty with that of reproductive rights….
Since abortion is part of the abortion “ritual,” The Satanic Temple argues, subjecting a woman to a waiting period is akin to the government interfering with a baptism or communion. In February 2021, The Satanic Temple filed a new lawsuit against Texas, arguing that the state was violating the religious liberty of its new plaintiff, referred to as “Ann Doe….”
The Satanic Temple now has an even more creative strategy. The Food and Drug Administration, which controls the distribution of the abortion pills mifepristone and misoprostol, is subject to the federal RFRA law. The Satanic Temple sent a letter to the FDA explaining that its prescription requirements illegally burden their abortion ritual. Currently, these drugs are only available with a doctor’s prescription, and the doctor must adhere to any state restrictions before providing them….
The above comes from a Sept. 22 posting on The Conversation.