The Satanic Temple et al v. Jeremiah Jay Nixon et al.

Filing 21

OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants' Motion to Dismiss, [Doc. No 9 ], is GRANTED. Signed by District Judge Henry Edward Autrey on 7/15/2016. (CASE TERMINATED.) (GGB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE SATANIC TEMPLE, et al.,
Plaintiffs,
v.
JEREMIAH “JAY” NIXON, et al.,

Defendants.

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No. 4:15CV986 HEA

OPINION, MEMORANDUM AND ORDER
This action for declarative and injunctive relief is before the Court on
Defendants' Motion to Dismiss Plaintiffs' Complaint for lack of standing and
failure to state a claim, [Doc. No. 9]. Plaintiffs in this case seek (1) declaratory
judgment that certain Missouri Statutes are void and (2) injunctive relief against
Defendants' enforcement of the statutes. For the reasons announced below,
Defendants' motion to dismiss will be granted.
Facts and Background
Plaintiffs’ Complaint alleges the following:
Members of The Satanic Temple include women who have had or will get
an abortion in Missouri. Plaintiff Mary Doe decided and may again decide to get
an abortion in Missouri. The only place a woman can get an abortion in Missouri is

at the offices of Planned Parenthood of the St. Louis Region and Southwest
Missouri (“Planned Parenthood”), in St. Louis City, Missouri.
The statute here applicable, Mo. Rev. Stat. § 188.027.1(2), requires that
prior to providing a woman with an abortion, Planned Parenthood must deliver to
her a booklet prepared by the Missouri Department of Health and Senior Services
(the “Booklet”). The Booklet states, in pertinent part, “The life of each human
being begins at conception. Abortion will terminate the life of a separate, unique,
living human being” (the “Missouri Tenets”).
Plaintiffs allege that the Missouri Tenets communicate the religious belief
that human tissue in utero that is not viable (“Human Tissue”) is, starting at
conception, a unique human being with a life of its own, separate and apart from
the woman whose uterus it occupies. Implicit in this belief is that the destruction of
Human Tissue is morally wrong.
The Missouri Tenets are believed by some but not all people in Missouri,
including without limitation members of the Catholic Church and some evangelical
and fundamentalist Christian congregations.
The Booklet contains detailed descriptions and images of the anatomical and
physiological characteristics of Human Tissue at two-week gestational increments
from conception to full term.
Mo. Rev. Stat. § 188.027.1(4) requires that prior to providing a woman
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with an abortion, Planned Parenthood “shall provide the woman with the
opportunity to view . . . an active ultrasound of the unborn child and hear the
heartbeat of the unborn child if the heartbeat is audible” (the “Ultrasound
Opportunity ”). The Ultrasound Opportunity must include “the dimensions of the
unborn child, and accurately portray [] the presence of external members and
internal organs, if present or viewable, of the unborn child.”
Mo. Rev. Stat. § 188.027.1(4) requires Planned Parenthood to wait seventy
two hours after the Ultrasound Opportunity before providing Plaintiff with an
abortion (the “72 Hour Waiting Period”).
Mo. Rev. Stat. § 188.027.12 requires Planned Parenthood to wait twenty
four hours after the Ultrasound Opportunity before providing a woman with an
abortion if the 72 Hour Waiting Period is enjoined by the Court (the “24 Hour
Waiting Period.”).
Mo. Rev. Stat. §188.027.3 also requires a woman to certify in writing that
she has received the Booklet and the Ultrasound Opportunity before she may get
an abortion (the “Certification Requirement”).
The Booklet, the Ultrasound Opportunity, the 72 Hour Waiting Period, the 24
Hour Waiting Period and Certification Requirement are referred to by Plaintiffs as

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the Missouri Lectionary. The purpose of the Missouri Lectionary is to “inform” a
woman who has decided to get an abortion that the Missouri Tenets are true.
Plaintiffs contend that the effect of the Missouri Lectionary is to: A. Encourage a
pregnant woman who has decided to get an abortion to believe the Missouri Tenets
and forgo an abortion; and B. Compel a woman who has decided to get an abortion
to wait and consider the Missouri Tenets and Missouri Lectionary for at least three
(3) days before getting the abortion; and C. Create doubt, guilt and shame in the
mind of a pregnant woman who does not believe the Missouri Tenets.
Planned Parenthood is required by law to deliver the Missouri Lectionary to
pregnant women who seek its abortion services. The Missouri Lectionary is
delivered at a time when a pregnant woman has already decided to get an abortion.
Planned Parenthood delivered the Missouri Lectionary to Plaintiff Mary Doe
when she was pregnant and sought an abortion in Missouri. Planned Parenthood
will deliver the Missouri Lectionary to Plaintiff Mary Doe if she becomes pregnant
again and seeks an abortion in Missouri. Planned Parenthood delivered the
Missouri Lectionary to pregnant members of The Satanic Temple when they
sought an abortion in Missouri. Planned Parenthood will deliver the Missouri
Lectionary to pregnant members of The Satanic Temple when they seek an
abortion in Missouri.
Plaintiffs’ religious beliefs (the “Satanic Tenets”) are: A. A woman’s
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body is inviolable and subject to her will alone; B. She makes decisions regarding
her health based on the best scientific understanding of the world, even if the
science does not comport with the religious or political beliefs of others; C. Human
Tissue is part of her body; D. She alone decides whether to remove Human
Tissue from her body; and E. She may, in good conscience, have Human Tissue
removed from her body on demand and without regard to the current or future
condition of the Human Tissue.
Adherents to the Satanic Tenets do not believe the Missouri Tenets are true.
Specifically, they do not believe: A. The life of a human being begins at
conception; B. Abortion terminates “the life of a separate, unique, living human
being;” or C. The removal of Human Tissue from a woman’s body is morally
wrong.
The Missouri Tenets and Missouri Lectionary are irrelevant to adherents to
the Satanic Tenets in making a decision to get an abortion because they believe
Human Tissue can be removed from their bodies on demand and, in good
conscience, without regard to the current or future condition of the Human Tissue.
Neither the Missouri Tenets nor the Missouri Lectionary is medically
necessary for an adherent to the Satanic Tenets or any other woman to make an
informed decision to get an abortion.

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Women can and do routinely have safe abortions on demand throughout the
country using established medical procedures and without consideration of the
Missouri Tenets or the Missouri Lectionary.
Plaintiffs allege the following allegations establish a claim for a violation of
the Establishment Clause:
All people have the right to formulate, hold, change or reject their own belief
of whether Human Tissue is the life of a separate and unique human being that
began at conception (the “Freedom to Believe When Human Life Begins”). All
women who are contemplating getting an abortion in Missouri have the right,
pursuant to the First Amendment, to exercise their Freedom to Believe When
Human Life Begins and act upon their belief without interference or influence by
the State of Missouri.
The creation, distribution and enforcement of the Missouri Lectionary
promotes the Missouri Tenets in violation of the Establishment Clause of the First
Amendment because the State of Missouri is using its power to regulate abortion to
promote some, but not all, religious beliefs that Human Tissue is, from conception,
a separate and unique human being whose destruction is morally wrong.
The purpose and effect of the Missouri Tenets and Missouri Lectionary are
to promote the religious belief that Human Tissue is, from conception, a separate
and unique human being whose destruction is morally wrong. The Missouri
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Tenets and Missouri Lectionary foster an excessive entanglement between the
State of Missouri and adherents to the religious belief that Human Tissue is a
separate and unique human being from conception whose destruction is morally
wrong.
Neither the Missouri Tenets nor the Missouri Lectionary promote the
religious belief that Human Tissue is part of a woman’s body that may be removed
on demand in good conscience and without consideration of the current or future
condition of the Human Tissue.
Defendants are acting under color of state law in the creation, distribution
and enforcement of the Missouri Lectionary to promote the Missouri Tenets.
Defendants have infringed on Plaintiffs’ rights under the Establishment
Clause in violation of 42 U.S.C. §1983 in the creation, distribution and
enforcement of the Missouri Lectionary to promote the Missouri Tenets.
Plaintiffs have been and will be irreparably injured by that violation because
the Missouri Tenets and Missouri Lectionary are forced upon them with the intent
and purpose to influence their Freedom to Believe When Human Life Begins.
Plaintiffs set out the following allegations in support of their Free Exercise
violation claim:
The Missouri Tenets and Missouri Lectionary discriminate between
a viewpoint that adheres to the Missouri Tenets and those viewpoints that do not.
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Specifically, Missouri Tenets and Missouri Lectionary do not mention the Satanic
Tenets or the scientific fact that an umbilical cord makes Human Tissue part of a
woman’s body. The Missouri Tenets and Missouri Lectionary interfere with the
exercise by Plaintiffs of their religious beliefs. That interference includes, without
limitation, compelled exposure to religious beliefs they do not have and delaying
the implementation of their decision to abort Human Tissue. The Missouri
Lectionary and Missouri Tenets cause Plaintiff Mary Doe and pregnant members
of The Satanic Temple to endure delay, doubt, guilt and shame when they exercise
their religious beliefs to abort Human Tissue in accordance with the Satanic
Tenets.
Plaintiffs claim Defendants have infringed on Plaintiffs’ rights under the
Free Exercise Clause in violation of 42 U.S.C. §1983 in the creation, distribution
and enforcement of the Missouri Lectionary to promote the Missouri Tenets.
Plaintiffs claim they have been and will be irreparably injured by that violation
because the Missouri Tenets and Missouri Lectionary interfere with the exercise of
control over a woman’s body in accordance with the Satanic Tenets.
Plaintiffs seek a declaration that the Missouri Tenets are null and void; a
declaration that Mo. Rev. Stat. §§ 188.027.1(2), (4) and (5); 188.027.3; and
188.027.12 are null and void; a declaration that any woman may obtain an abortion
without complying with Mo. Rev. Stat. §§ 188.027.1(2) (4) and (5); 188
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.027.3; and 188.027.12; a declaration that any person may provide any woman
with an abortion, including without limitation Planned Parenthood, without
complying with Mo. Rev. Stat. §§ 188.027.1(2)(4) and (5); 188.027.3; and
188.027.12.
Plaintiffs also seek an injunction against Defendants from enforcing
Mo. Rev. Stat. §§ 188.027.1(2), (4) and (5) and 188.027.3 or 188.027.12 against
any woman or any person who provides her an abortion.
Discussion
In support of their motion to dismiss, Defendants first assert that Plaintiffs
lack standing. A motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1) may be either a “facial” challenge based on the face of the pleadings,
or a “factual” challenge, in which the court considers matters outside the pleadings.
See Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v. United States, 918
F.2d 724, 729, n. 6 (8th Cir. 1990); C.S. ex rel. Scott v. Mo. State Bd. of Educ., 656
F. Supp. 2d 1007, 1011 (E.D. Mo. 2009). Here, Defendant's challenge is based on
the face of the pleadings and is therefore a facial attack. In evaluating a facial
attack, “the court restricts itself to the face of the pleadings and the non-moving
party receives the same protections as it would defending against a motion brought
under Rule 12(b)(6).” Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910,
914 (8th Cir. 2015) (quoting Osborn, 918 F.2d at 729 n. 6). The court must accept
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as true all of the factual allegations in the complaint, but it need not accept legal
conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Under Article III, § 2 of the United States Constitution, federal jurisdiction
is limited to “Cases” and “Controversies.” U.S. Const. Art. III, § 2. “‘One element
of the case-or-controversy requirement’ is that plaintiffs ‘must establish that they
have standing to sue.’ ” Clapper v. Amnesty Int'l U.S.A., 133 S. Ct. 1138, 1146
(2013) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). The “irreducible
constitutional minimum” of standing consists of three elements. Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.” Id. “The plaintiff, as the
party invoking federal jurisdiction, bears the burden of establishing these
elements.” Id. (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)). Where a
case is at the pleading stage, the plaintiff must “clearly...allege facts demonstrating
each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
Defendants urge dismissal for lack of standing because Plaintiffs have not
satisfied the pleading requirements to establish they have standing to bring this
action. Plaintiffs do not seek monetary damages, rather, the remedies they seek are
for declaratory and injunctive relief. Because of this, Defendants argue that
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Plaintiffs have failed to satisfy the concrete injury element of standing juris
prudence. Plaintiff Doe is not now pregnant, there is no guaranty that she will
become pregnant in the future, and that if she does, she will seek an abortion, thus,
Plaintiffs’ injuries are not sufficiently concrete for the Court to order the requested
relief.
The Eighth Circuit Court of Appeals has recognized that
“a threatened injury must be certainly impending to constitute injury in
fact,” and that “allegations of future injury must be particular and concrete.”
Johnson v. Missouri, 142 F.3d 1087, 1089 (8th Cir.1998) (alterations and
internal quotation marks omitted).
Miller v. City of St. Paul, No. 15-2885, 2016 WL 2956753, at *3 (8th Cir. May 23,
2016). Because Plaintiffs have failed allege a threatened injury that is certainly
impending and that any future injury is particular and concrete, Plaintiffs have
failed to sufficiently establish standing to challenge the Missouri statutes.
Defendants’ Motion to Dismiss for lack of subject matter jurisdiction is well taken.
Conclusion
Based upon the foregoing analysis, the Court concludes that Plaintiffs lack
standing to pursue their action, and therefore, the Court is without subject matter
jurisdiction.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, [Doc. No
9], is GRANTED.
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Dated this 15th day of July, 2016.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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