In September last year the state of Texas decided to take a step back in time to its Wild West roots with the enactment of a six-week “heartbeat” abortion ban. What makes the new law a stroke of creative legal genius is not just that it sets the cut-off for abortion at a time when most women don’t even know they’re pregnant, but also that it replaces the sheriff with brigades of abortion bounty hunters.
By relying on private vigilantes to enforce the law, the Lone Star State avoids the risk of federal judicial review by placing abortion in civil, rather than criminal court. According to Texas law SB 8, private citizens can sue anybody they suspect who “aids or abets” an abortion. This could include anyone from the unwitting Uber driver who takes a woman to the clinic, to the parents of a teenage girl who pay for the procedure, to the doctor who prescribes pills approved by the Food and Drug Administration for a medical abortion. And the person need not reside in the state of Texas to run afoul of the law. An out-of-state friend who kindly agrees to babysit while the mother drives 300 miles to her nearest provider can also become the target of an abortion hunter.
For each lawsuit won, the bounty hunter earns $10,000 plus legal costs. If they lose the case, they pay nothing.
The risk of a lawsuit from a zealous anti-choice cowboy isn’t the only thing preventing women from accessing their constitutional right to an abortion. Texas law requires women to make two visits to an abortion provider. This wouldn’t be a problem if clinics were as ubiquitous as megachurches, but unfortunately, in a state that boasts it is bigger than France, there are only 19 clinics for 29 million people. There are 207 megachurches.
The state also requires women to undergo a medically unnecessary sonogram and receive state-mandated information about unsubstantiated medical risks, embryonic development and adoption. Once the information pamphlets have been given and the sonogram performed, the woman must wait 24 hours before receiving the abortion. The law says the day-long wait can be waived and reduced to two hours only if the woman lives at least 100 miles from the nearest clinic.
The Texas laws are widely viewed as the most restrictive in the nation and have inspired copycats in other states. On 10 December the Supreme Court declined to strike down the six-week ban on abortions but said it would allow abortion providers to challenge the law.
And thus enters the Devil’s advocate. Literally.
The Satanic Temple (TST) is one of many institutions fighting for abortion rights in the state of Texas. Those curious to learn more about the sect would be interested to know that a belief in Satan is an optional requirement for membership. As is belief in any deity, for that matter.
The US government does not hold that a belief in God or any supernatural being is necessary for an organisation to pass for a religion. For a working definition of religion, scholars can bypass the theologians and look no further than the IRS website for a list of what qualifies as a religious exemption to taxation. TST fulfils the requisite requirements, including something akin to Sunday school for the religious instruction of the young.
The first of seven Satanic Temple tenets says that individuals should “strive to act with compassion and empathy toward all creatures in accordance with reason”. Other tenets include a belief that the body is “subject to one’s own will alone”, a respect for the freedom of others, and that “one should take care never to distort scientific facts to fit one’s beliefs”.
Because TST holds bodily autonomy and a belief in science as parts of its central creed, the organisation vehemently believes in the right to abortion. Not only do adherents believe in abortion, but TST has gone so far as to create an abortion ritual to protect the right to end a pregnancy. In a lawsuit filed in February 2021, lawyers for TST argued that Texas’s law requiring a medically unnecessary sonogram and a 24-hour waiting period violates the third and fifth tenet of its creed.
The US Constitution does not guarantee an explicit right to an abortion. In 1973, the Supreme Court decided in Roe vs Wade that previous rulings had already recognised a constitutional right to privacy, and that this right included a woman’s decision to terminate a pregnancy.
[See also: A dark day for abortion in America]
According to Matthew Kezhaya, lawyer for TST, what makes the Texas lawsuit different from all other abortion rights cases is that the Satanists are trying to move the abortion debate away from the nebulous area of privacy rights and into the textual confines of the First Amendment to the US Constitution, which protects freedom of expression and belief.
“The reason this is important is because right now there are six out of nine judges on the Supreme Court who don’t like abortion, but they really like free exercise of religion and free speech,” said Kezhaya.
“What we are saying is if the two-hour waiting period kept somebody from attending mass and drinking the wine in a sacrament, it would prevent people from practising their religion. That law wouldn’t stand a chance with this [Supreme] Court. We are arguing that for the Satanic Temple, abortion is a religious right. We just want equal treatment.”
As Fox News’s outrage over the alleged hate crime of a burned Christmas tree demonstrates, there are few things right-wingers love fighting more than a “war on Christianity” and Christian values. Fortunately for them, their crusade is not limited to defending Christmas but is also enshrined in national laws.
In a 1990 decision, the Supreme Court held that a native American man could be denied unemployment benefits after being fired for violating a state drug ban to use peyote, even though its use was part of his religious beliefs. Three years later, a coalition of left and right-wing religiously minded politicians came together to pass the Religious Freedom Restoration Act (RFRA).
The federal law prohibits the government from taking any action that burdens an individual’s exercise of religion unless the action serves a compelling interest of the state. If the law is found to burden an individual’s right to religion, the state must then establish that the law “is the least restrictive means of furthering a compelling government interest”.
This law has been used to the great advantage of Christian fundamentalists. In 2012, the US Department of Health and Human Services issued a mandate that all private insurers must provide contraception free of charge to employees. Owners of Hobby Lobby, a Christian craft store, objected to the requirement because they said they believed IUDs (such as the coil, which blocks a fertilised egg from implanting in the lining of the uterus) induced abortions. In a split five-to-four decision, the more conservative judges of the Supreme Court ruled in Burwell vs Hobby Lobby that for-profit organisations have a constitutional right to religious freedom to deny female employees birth control.
By filing lawsuits against restrictive abortion measures, the Satanists are arguing that the same laws that protect Christians from supplying anti-Jesus morning after pills should equally apply to those who believe in a sacred right to bodily autonomy.
So far, no judge has answered the question of whether Satanists deserve the same right to religious freedom as Christians. In 2015, TST and one of its female members sued the state of Missouri because they said a law requiring abortion providers to give out pamphlets stating “life begins at conception” violated their religious beliefs. Judges for the US Court of Appeals for the 8th Circuit said the case “lacks constitutional standing” because the female TST member was not pregnant at the time of the lawsuit, and then dismissed the case.
Joseph Laycock, associate professor of philosophy and scholar of new religious movements at Texas State University, said that judges are eagerly trying to avoid answering the question of whether RFRA laws give Satanists the right to have abortions on demand.
“When Missouri said life begins at conception, what they really meant was unique DNA. But DNA is not a person. A cancer cell, for example, has unique DNA,” said Laycock.
Kezhaya said he intends to file a complaint against Texas’s six-week abortion ban/bounty hunter reward scheme in the coming weeks. Texas women who believe in bodily autonomy as much as the Texas senator Ted Cruz says he believes in Jesus might consider pre-emptively joining the Satanic Temple and preserving their religious right to an abortion.