Trump’s Conflicts of Interest: What Are They, and Why Do They Matter?

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The fact that President Donald Trump has taken office with an unprecedented number of conflicts of interest, which he has failed not only to resolve but even to properly address, is a matter on which prominent critics from both parties can agree. His ascension to office has been a particularly fraught one—according to an analysis by USA Today, Trump has been party to over 4000 lawsuits in the past 30 years, and is currently embroiled in about 75 ongoing suits. All of this is a distraction from the many other issues plaguing this administration, and the issues that threaten the wellbeing of the American people.

Why aren’t more people talking about his conflicts of interest? Trump was elected because people perceived him as both a savvy businessman, and as someone who (against his previous record) would fight for the rights and livelihood of blue-collar voters. But surely his refusal to separate himself from his many money-making ventures is an indication that he still has his own financial interests very much at heart, at the expense of his constituency. Even without the ethical entanglements of his many conflicts of interest, the fact that he is still going to, for example, be an executive producer on The Apprentice is a clear sign that he is not exactly prioritizing the duties of the highest office in the land.

Below, a layperson’s summary of his conflicts, and why they pose a problem not only to his administration, but to the interests of the American people Trump is supposed to serve:

The Emoluments Clause
It’s in the Constitution, folks. (Remember the Constitution? We still care about that, right?) Article I, Section 9: prohibits an elected official of the United States from accepting any gift, office, title, or present from a King, Prince, or foreign State. This clause was written into the Constitution by our founding fathers (Republicans! Remember how much you claim to revere the founding fathers?) as a response to the threat of foreign influence on the United States, then a young and fledgling nation. It was intended to prevent private financial interests from holding sway over the decision-making of elected officials. On this we should all be able to agree: opening the door to foreign influence through monetary channels will lead to vast potential for corruption, weakness, and bias. With Trump and the Trump Foundation, there’s a finger in pies all over the world, many of which we don’t even understand clearly because Trump has maintained a shroud of secrecy over much of his finances. What we do know is that his personal financial interests both create a dependency on foreign states and their economic interests, while also allowing for foreign states to buy influence or access to him. President Trump stands to benefit personally from financial decisions made by foreign governments and their economic agents. Given that he has refused to divest himself from these personal stakes, he will almost certainly use his political office to benefit himself—a temptation that would sway a far more ethical man than Trump. He will also open himself up to influence from foreign state agents who can sway decisions that will affect his personal finances. Below, a few examples of potential violations of the emoluments clause, from a report by the Brookings Institute:

  1. “Mr. Trump’s businesses owe hundreds of millions to Deutsche Bank, which is currently negotiating a multi-billion-dollar settlement with the U.S. Department of Justice, a settlement that will now be overseen by an Attorney General and many other appointees selected by and serving at the pleasure of Mr. Trump.”
  2. “The Industrial and Commercial Bank of China—owned by the People’s Republic of China—is the single largest tenant in Trump Tower. Its valuable lease will expire, and thus come up for re-negotiation, during Mr. Trump’s presidency.”
  3. Foreign diplomats who stay at the Trump Hotel in Washington DC perceive it as a direct line to presidential influence, and can spend millions of dollars booking its suites and ballrooms. Even if Trump donates these profits to the US Treasury as he has promised, the fact that foreign dignitaries spent the money creates an opening for them, and a sense of obligation on the part of the Trump Foundation. Ultimately the issue at stake is influence and access, not just fair-market-value.
  4. President Trump will be a producer on NBC’s The Apprentice. While this is far from his largest conflict of interest problem, it is perhaps his most undignified. One would assume that the President of the United States and proclaimed leader of the free world has better things to do with his time than run a reality TV show, but even his cozy association with the network and the multinational brands sponsoring the show raise questions (and eyebrows).

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The bottom line?
Well, political decisions will now affect Trump’s bottom line, and his bottom line may very well affect his political decisions—especially since his transfer of management to his children is an inadequate response to his violations of the clause. Ultimately, ownership of these financial ventures still rests with President Trump. Handing things over to his sons is hardly distancing himself. If he, his sons, or the company that bears their name could personally benefit down the line from a small (or large) adjustment to national policy, he might well think: why not? Indeed, this has already been the case: in a rather absurd turn of events, it’s been reported that “Mr. Trump opposes wind farms because he has decided that they ruin the view from his golf course in Aberdeen, Scotland. Recently, Mr. Trump openly lobbied Nigel Farage—a British political ally of his—to oppose wind farms in the United Kingdom, an issue that does not otherwise appear to be of relevance to American foreign policy.” You might think wind farms are not, in the end, the biggest deal to the American public. But Trump has used his position to influence even a matter that seems to come down to mere aesthetics. This indicates that he will not hesitate if the stakes are more real for him.

It is impossible that his decisions as President will not be affected, in ways both large and small, by the stakes that he personally holds in a tangled web of multinational financial interests governed by foreign states. Has a particular foreign government dealt fairly with one of his businesses? Does he stand to benefit from a particular policy, if it is enacted? These and other considerations blur the boundaries, to say the least, between his sworn duty to act in the best interest of the American people and his own personal gain. And as we know, President Trump has never been shy about how proud he is of those gains, and how much he prizes them. His refusal to disclose his personal finances is a clear sign that he doesn’t plan to stop prioritizing them anytime soon.



Note: This article was jump-started when I heard an episode of Fresh Air featuring Norm Eisen (special counsel on ethics and government reform under President Obama) and his friend Richard Painter (former chief ethics lawyer for President George W. Bush). You can see more sources, and more of that conversation, below:

Ethics Lawyers on NPR

http://www.npr.org/2017/01/20/510616166/as-trump-takes-office-he-still-faces-questions-about-conflicts-of-interest

http://fortune.com/2016/11/15/donald-trump-conflicts-interest-ethics/

https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf

Justice Sotomayor Dissents in Landmark Fourth-Amendment Stop and Search Case

If you think this case doesn’t affect you, you’re not paying close enough attention.

The implication of the court’s ruling, Sotomayor explained, is that “you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

Supreme Court Justice Sonia Sotomayor added to her growing list of notable dissents on Monday with a blisteringly fierce objection to a major Fourth Amendment decision. Sotomayor’s dissent touched on individual rights, police authority, and how people of color feel when they’re constantly stopped, searched and catalogued by the state. For good measure, she…

via Sonia Sotomayor cited ‘The New Jim Crow’ in a dissent that’s the best thing you’ll read today — Fusion

Intersecting Gender Discrimination, Religious Rights, and the Definition of “Persons”, or: What Happens at Gitmo?

S.T. delves deep into a very sticky legal situation with no clear answer: what happens when court rulings like Citizens United and Hobby Lobby (which deal with “personhood”) run into cases at Guantanamo Bay? And what do women have to do with it?

When I think of Hobby Lobby cases, I think of cases concerning birth control, abortion, and bosses’ “rights” to decide what women can and cannot do with their bodies. Previously, I wrote about The Satanic Temple’s law suit in Missouri. In the past year, Burwell v Hobby Lobby has been used in attempts to justify refusing service to LGBTQ customers and firing women who’ve had abortions (but in big news, women who are denied birth control coverage by their bosses can now get it anyway). But it’s not always corporations or small businesses suing for the right to discriminate. In the past year, some interesting suits have emerged from, of all places, Guantanamo Bay, the U.S. military base that currently houses 116 detainees. One case in particular raises questions about religion, prison rights, and women’s rights.

Continue reading “Intersecting Gender Discrimination, Religious Rights, and the Definition of “Persons”, or: What Happens at Gitmo?”

Weekly Link Roundup

Internet gleanings.

Only the most desperate white racists openly identify as racists. Invariably, these white people come from a social stratum deprived of all that whiteness tries to connote: wealth, beauty, power, cleanliness, grace. But because it is uncomfortable for white people to define such things too clearly, the phrase “white trash” had to be invented to cover them. The phrase, developed to describe all Southern whites outside the aristocracy, has shifted in tandem with economic and social changes so that it now applies to a demographic sliver. Yet this reduction in range has not corresponded to a reduction in the disgust it evokes in whites of putatively higher status.

“Housing discrimination is the unfinished business of civil rights,” says Sherrilyn Ifill, the president of the NAACP Legal Defense and Education Fund. “It goes right to the heart of our divide from one another. It goes right to the heart of whether you believe that African American people’s lives matter, that you respect them, that you believe they can be your neighbors, that you want them to play with your children.”

The Good, The Bad, and The Absolutely Terrifying: The Week in Abortion Legislation

Writer ST rounds up the latest developments in abortion legislation. What are old men without medical degrees telling you to do with your ovaries/womb/vagina? Come with us on a tour.

The Good: It often feels like we are being inundated with terrible news about reproductive rights, but there are good things happening too. For all the gynoticians out there telling us what we can and cannot do with our bodies, there are reproductive-rights champions fighting back at every level.

• On Monday, the Supreme Court upheld a 4th-circuit court ruling stating that North Carolina’s ultrasound law (which required women to view an ultrasound of their fetus prior to receiving an abortion) placed an undue burden on…wait for it…doctors. That’s right: the law was changed not because it limits women’s freedoms, but because forcing doctors to narrate ultrasounds to their patients violates their first-amendment right to freedom of speech. But hey, at least the ruling has a good outcome, right? (I’m appreciative of everything doctors do in this fight, but it’s pretty depressing that women’s agency over their own bodies isn’t enough).

• In unequivocal good news (well, for people who support reproductive rights), women in Oregon will now be able to get a year’s worth of birth control at a time, sparing them from going through this rigmarole every 30 days. Yay Oregon!

• In more potentially good news out of the PNW, Senator Patty Murray introduces a bill to make over-the-counter birth control available while keeping it covered by insurance companies. The bill is called “Affordability IS Accessibility,” and you can sign the petition for it here!

The Bad: In slightly more-familiar territory, the past week has seen another rash of clinic-shut-downs, bans, and insane lawsuits.

• Wisconsin, home to Scott Walker, misogynist extraordinaire, has a bill in the works that would implement a 20-week ban on abortions. While the future of the bill is unclear, Walker has said he will sign it into law, and even if it is later overturned by a federal court, it could do some serious damage (see below for why).

• I guess this is technically good news: apparently, murder charges against a Georgia woman arrested for taking an abortion pill have been dropped—but the mere fact that she was arrested—for murder—in the first place is pretty awful. Unfortunately, it doesn’t seem Kenlissa Jones is fully off the hook, another reason I’m including this with “the bad.”

A new ruling in Texas effectively shut down a majority of the state’s abortion clinics, in addition to banning abortions after 20 weeks and restricting the use of RU4-86, colloquially known as the “abortion pill.” With only 8 clinics left in the state, many Texas women are now hours away from abortion access, adding yet another hurdle to an ever-expanding list.

The Absolutely Terrifying: All I can say here is that I am deeply thankful for the power of veto; while I don’t know what will happen in the senate, I feel at least 90% confident that Obama will not allow the following law to come to be.

In May, the U.S. House of Representatives passed a national 20-week abortion ban, initially introduced by Senator Trent Franks (AZ-R).Now, South Carolina senator and presidential hopeful Lindsay Graham is determined to see this bill through. Perhaps this ban is simply part of a presidential bid, or perhaps it’s part of an effort to get the Supreme Court to overturn Roe v Wade. Either way, it doesn’t bode well for the future of reproductive rights.

And in case you’re not sure why this law would be so terrible, here are some stories from women who have abortions beyond 20 weeks. Abortions after 20 weeks are incredibly rare; roughly 63% of abortions occur before 8 weeks, and less than 2% of abortions occur at the 21st week or beyond. As the above stories indicate, this ban would have very little effect on most women seeking abortions, but would be catastrophic to those who need late abortions for medical reasons.

Pretty in Pink: Rethinking Elle Woods

Legally Blonde has a lot of feminist bona fides: it passes the Bechdel test with flying colors; the girls in Elle’s sorority, despite confirming to every other sorority-girl stereotype, are not remotely catty and support Elle in all her endeavors; a working-class woman gets a romance plot with a very conventionally-attractive man; when Elle’s male professor turns out to be more of a creep than a role model, a female professor gives Elle the push she needs; and, in my favorite twist on the modern rom-com, the climactic moment normally reserved for the Big Kiss is taken up instead by Elle, high on her court victory, rejecting Warner and walking into the sunshine happy and alone (she does wind up with a man, but it is in the epilogue and not part of the movie itself). But, for me, the most powerful thing about this movie is the way it portrays Elle’s femininity.

I can’t remember a time when I didn’t identify as a feminist. I can’t possibly have known the word as a toddler, but I always wanted to prove I could do whatever my older brothers could, because I needed them to know that girls could do anything boys could do. Despite this, it took me until very recently to identify a subtle, insidious form of misogyny I’d internalized and had been holding onto since childhood: the devaluing of the “feminine.”

The opening sequence of Legally Blonde is all pink products and blond hair. We cut between scenes of college and sorority life – a girl being catcalled by frat guys as she bikes past their house, girls in pink workout gear on treadmills, those Tiffany’s heart bracelets everywhere – and Reese Witherspoon’s silky hair and perfectly manicured hands surrounded by beauty-products and markers of traditionally recognizable, material femininity: Herbal Essences “True Color” Blonde hair-dye; nail polishes; dried roses on a stack of Cosmopolitans; a Homecoming Queen banner; a lovingly decorated “President” sorority paddle. Everything that could be pink is pink, from the bedspread, to the glitter pens used to write on a pink card in a pink envelope, to the doggy-sweater for Bruiser, Elle Wood’s chic Chihuahua.

Just four minutes into the movie, a salesgirl sizes Elle up the way many viewers – my thirteen year-old self included – would: “a dumb blonde with daddy’s plastic.” The salesgirl tries to sell Elle a last-season dress as a new piece, and sweetly and swiftly, Elle shows through her extensive knowledge of fabrics and fashion that she’s no easy mark. Immediately, we see that Elle is deeply seeped in all that is considered feminine, but that however frivolous this knowledge is judged to be, Elle’s sharp, legalistic mind uses her extensive knowledge to her advantage in a wide range of contexts. It is not only that her Barbie-esque exterior leads people to misjudge her intelligence; it is part of her intelligence.

Legally Blonde has a lot of feminist bona fides: it passes the Bechdel test with flying colors; the girls in Elle’s sorority, despite confirming to every other sorority-girl stereotype, are not remotely catty and support Elle in all her endeavors;  a working-class woman gets a romance plot with a very conventionally-attractive man; when Elle’s male professor turns out to be more of a creep than a role model, a female professor gives Elle the push she needs; and, in my favorite twist on the modern rom-com, the climactic moment normally reserved for the Big Kiss is taken up instead by Elle, high on her court victory, rejecting Warner and walking into the sunshine happy and alone (she does wind up with a man, but it is in the epilogue and not part of the movie itself). But, for me, the most powerful thing about this movie is the way it portrays Elle’s femininity.

I can’t remember a time when I didn’t identify as a feminist. I can’t possibly have known the word as a toddler, but I always wanted to prove I could do whatever my older brothers could, because I needed them to know that girls could do anything boys could do. Despite this, it took me until very recently to identify a subtle, insidious form of misogyny I’d internalized and had been holding onto since childhood: the devaluing of the “feminine.” Since girls could do anything boys could do, why wouldn’t they? Why would I play with dolls when I could collect baseball cards? Why would anyone want to be a stay-at-home mom when they could work?  I was so terrified of being associated with femininity – despite being a fairly shy, soft-spoken kid – that when I was twelve and a friend of mine painted my nails for the first time, I wrote in my diary “I have to go to this New Year’s party with mom and dad. My nails are still painted…I hope everyone doesn’t think I’m a girl or something.” I dressed as male characters for several Halloweens, and when we did our “traveling biography” projects in fourth grade, I dressed as Milton Hershey and learned how to tie my own tie.

In Female Masculinity, queer theorist Jack/Judith Halberstam observes:

[T]omboyism is quite common for girls…[and] we tend to believe that female gender deviance is much more tolerated than male gender deviance…Tomboyism tends to be associated with a ‘natural’ desire for the greater freedoms and mobilities enjoyed by boys. Very often it is read as sign of independence and self-motivation, and tomboyism may even be encouraged to the extent that it remains comfortably linked to a stable sense of girl identity (5-6).

Halberstam argues that this acceptance of female masculinity, of tomboyism, ends at puberty. And, for the most-part, she’s right; once we become teenagers, girls are certainly expected to look feminine. And mainstream culture still expects them to act feminine. But a sizable chunk of counter-culture wants the “best of both worlds.” It wants, in other words, the “Cool Girl” – a trope made famous by Gillian Flynn’s Gone Girl, but one that certainly existed prior to her novel.

Photo @GoneGirlMovie/Twitter

Gillian Flynn describes the Cool Girl as

 [A] hot, brilliant, funny woman who adores football, poker, dirty jokes, and burping, who plays video games, drinks cheap beer, loves threesomes and anal sex, and jams hot dogs and hamburgers into her mouth like she’s hosting the world’s biggest culinary gang bang while somehow maintaining a size 2, because Cool Girls are above all hot. Hot and understanding. Cool Girls never get angry; they only smile in a chagrined, loving manner and let their men do whatever they want.

This girl, Flynn argues, is a fiction, because, in her words, “no one loves chili dogs that much!” Flynn sees a sad core beneath this persona – “the Cool Girls are even more pathetic: They’re not even pretending to be the woman they want to be, they’re pretending to be the woman a man wants them to be.”

Tracy Moore at Jezebel has a more sympathetic take on the “Cool Girl,” arguing that she is “not a fiction, but a phase.”

Liking beers, hot dogs, sports, partying, and having a general allergy to feelings or Anything Too Serious is not the province of straight men in reality…but generally speaking, it is the cultural province and conditioning of straight men. These are the criteria for general dudeness, and by acknowledging this we must also acknowledge the criteria for general ladyness, which is typically thought of as a softer, gentler, more feelings-driven creature…

So when a woman for whatever reason embraces traditionally straight male interests while retaining aspects of straight female interests, and is hot (she always must be hot)—when she manages, for all intents and purposes, to somehow combine the best of both genders into one bangin’ superpackage of awesomeness—you have what is called a Cool Girl.

From my own experience, inhabiting the role of the Cool Girl is especially appealing to girls who never quite “got” traditional femininity – those of us who, in middle and early high-school, felt out of place, off-kilter, girls whose senses of humor, whose tastes in clothes and movies, whose priorities and hair and just about everything were somehow wrong. Then suddenly, in college, all the things that made me feel like an awkward loser made me feel magical. Girls who “weren’t like other girls” weren’t losers. We were cool. We were desirable. We were special. As Moore writes:

Sometimes it feels good to reject cultural notions of femininity and take up residence on a strange earth and live among the Others—to be told that for a while, you were that sort of girl, the one all the men wanted, admired, and desired, and could never quite grab hold of.

Both Flynn and Moore address the problem of the Cool Girl never getting angry (or never showing it), allowing men to treat her poorly out of a paralyzing fear of seeming clingy or needy. But what is more sinister is that Cool Girl often comes paired with not simply a distaste, but a disdain for all things feminine. For girls who wear makeup all the time (because somehow, the Cool Girl looks hot without trying, or showing that she tries), for girls who want boyfriends, or want their boyfriends to spend time with them, for girls who diet, for girls who drink cosmos or light beer instead of whiskey neat and IPAs, for bubblegum pop, for collections of high heels.

The tendency to think of “masculine” things — emotional remove, spicy foods and hard liquor, movies with car chases — as better, as more legitimate, cooler, than “feminine” things certainly exists outside of the sphere of the “Cool Girl.” Whether we expect women to adhere rigidly to femininity, or to juggle the aspects of the “masculine” and “feminine” that comprise the “Cool Girl,” or do whatever the hell they want, it is rare that femininity itself as portrayed as strength; at best, a very feminine-seeming character surprises us with her martial arts skill or impeccable aim, a sort of Cool Girl cum Femme Fatale, whose femininity masks her inner strength.

Elle is, again, the apotheosis of all things feminine. She wears pink, subscribes to Cosmopolitan, wants to get married – with a big rock on her finger to boot — wears her heart on her sleeve, and spritzes her resumes – typed on pink paper — with perfume. She is unapologetically feminine, and this does not change throughout her story. Nor is it entirely fair to say she “finds her strength” over the course of the film; she certainly learns a lot about herself, discovering that she’ll make a pretty great lawyer and that she doesn’t need a man.

But that strength was always there. In her unique (for lack of a better word) application video to Harvard Law School, she showcases her comfort with “legal terms in every day situations” by responding to a cat-caller with a swift “I object!” Once she sets her sights on Harvard – for admittedly less-than-ideal reasons – she has complete confidence in her ability to get in, and she rocks the LSAT. Over and over, we see people judge her: the salesgirl at the beginning of the movie; Warren, when he dumps her because she’s not “serious” enough for a future senator’s wife; her guidance counselor who doubts her ability to get into Harvard; her classmates and professors when she pulls a pink, heart-shaped notepad out on her first day of class; the judge when she questions [daughter] about her hair-care routine on the witness stand. And over and over, Elle proves them wrong.

On the first day of class, one of Elle’s professors quotes Aristotle in saying “Law is reason free from passion.” Three years later, as she speaks at her class graduation, Elle says

No offense to Aristotle, but in my three years at Harvard I have come to find that passion is a key ingredient to the study and practice of law — and of life. It is with passion, courage of conviction, and strong sense of self that we take our next steps into the world, remembering that first impressions are not always correct. You must always have faith in people. And most importantly, you must always have faith in yourself.

Elle brings unbridled passion to everything she does. She will never be “cool,” because in addition to her fabulous pink wardrobe, she will always care, and always show it. While Legally Blonde certainly makes an argument for passion – and against cynicism – it doesn’t enforce Elle’s femininity (it is, however, very hetero-normative and very white). But it does celebrate it. It is a girly movie about girly things, where “girly things” is broadened to simultaneously mean manicures and Prada shoes, and serious smarts, talent, and ambition. Legally Blonde elevates “frivolous” femininity to the level of serious, old boys’ club masculinity – for which there is hardly a better symbol than Harvard Law School.

In the Wake of Hobby Lobby: Abortion and the Satanic Temple

The Satanic Temple is suing the state of Missouri for religious freedom – specifically, for the right to have an abortion without the added burden of MO’s 72-hour waiting period. This isn’t quite a first for the Satanic Temple; in the past, they have pushed for the right to display “Satanic” holiday decorations on government property as long as Christian groups could do the same. According to their website, the principle behind both their holiday displays and the current case is calling out the hypocrisy of religious freedom, which often seems to apply to Judeo-Christian denominations above all else.

So what do abortions have to do with Satanism?

If you don’t remember last summer’s terrifying Supreme Court ruling, “Hobby Lobby” (the informal name for “Burwell v Hobby Lobby Stores, Inc) was the case in which the Supreme Court decided that, since corporations are basically people, “closely-held” religious organizations could deny their employees health-care coverage that extends to certain forms of birth control. Here are a few links to refresh your memory.

 Hobby Lobby Wins Contraceptive Case

 Hobby Lobby 101

What The Hobby Lobby Ruling Means for America

The Satanic Temple is suing the state of Missouri for religious freedom – specifically, for the right to have an abortion without the added burden of MO’s 72-hour waiting period. This isn’t quite a first for the Satanic Temple; in the past, they have pushed for the right to display “Satanic” holiday decorations on government property as long as Christian groups could do the same. According to their website, the principle behind both their holiday displays and the current case is calling out the hypocrisy of religious freedom, which often seems to apply to Judeo-Christian denominations above all else.

So what do abortions have to do with Satanism? First, it is important to note that the so-called Satanic Temple is not, in fact, full of devil-worshippers. The tenets of the Satanic Temple involve:

  • One should strive to act with compassion and empathy towards all creatures in accordance with reason.
  • Beliefs should conform to our best scientific understanding of the world. We should take care never to distort scientific facts to fit our beliefs.
  • One’s body is inviolable, subject to one’s own will alone.

It is under this last listed tenet that the Satanic Temple is suing (although the phrase “inviolable body” appears elsewhere in their self-description). A woman identified as Mary Doe is the subject of the law suit; like many women in the many states with highly restrictive abortion laws, Mary could not afford the extra costs imposed by the mandated waiting period. Arguably, this is one of the purposes of the waiting period in the first place. The Washington Post writes:

In Missouri, women seeking an abortion at the one open abortion-providing clinic in the state have to make two trips to the clinic, 72 hours apart: The first is to receive counseling that “includes information designed to discourage her from having an abortion,” the Guttmacher Institute says, and the second after the required waiting period is for the procedure.

Whatever one’s religious beliefs, waiting periods are an added difficulty; in states like Missouri, with only one abortion clinic, or Texas, with few abortion clinics spread through much of the state, women either have to find a place to stay – which often means coughing up non-existent hotel funds – or make a long drive twice. Either scenario requires taking time off work, finding childcare (61% of women seeking abortions are already mothers), or both. These factors can amount to a prohibitive financial strain on women – and if you cannot afford childcare for 72 hours, an additional child would be, at the least, extremely difficult financially. In Mary Doe’s case, according to Slate,

Mary has the money for the abortion, but she doesn’t have the estimated extra $800 that she needs to travel to the only abortion clinic in the state, in St. Louis, a trip that will require gas, hotel, and child care.

 

The Satanic Temple succeeded in raising the funds for Mary in a day, but they also went further, helping her draft a letter outlining the reasons that the 72-hr waiting period is a burden on her (and their) beliefs. The core of the letter reads:

  • My body is inviolable and subject to my will alone.
  • I make any decision regarding my 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.
  • My inviolable body includes any fetal or embryonic tissue I carry so long as that tissue is unable to survive outside my body as an independent human being.
  • I, and I alone, decide whether my inviolable body remains pregnant and I may, in good conscience, disregard the current or future condition of any fetal or embryonic tissue I carry in making that decision.

This letter initially targeted the clinic itself, which, as Slate points out, is not a great legal strategy; “The clinic, too, is being victimized by the regulation, and they’re not the authorities standing between Mary and her abortion.” The letter’s demands were rejected, but since then, the Satanic Temple has wised up – or, perhaps, has just finally succeeded in getting the funding necessary to go for the big guns.

On May 8th, the Satanic Temple filed a petition for injunction against Missouri governor Jay Nixon. There are a few questions here. Will the case succeed? And, more importantly, what kind of influence will the case have, whether or not it does? That is, what kind of precedent will it set?

The Washington Post interviewed University of St. Thomas law professor Thomas Berg, who believes that “the Satanic Temple’s proposal essentially relies on the same question one would ask to determine whether the 72-hour waiting period violates the earlier decisions at the Supreme Court: Does the law impose a substantial burden on the individual seeking an abortion?” Berg told the Post that “if 72 hours is a substantial burden on religious conscience, it’s also a substantial burden under the privacy decisions.”

Interestingly, when the federal Religious Freedom and Restoration Act (RFRA) was initially passed in 1993, a number of Catholic and pro-life groups worried that RFRA would be used for exactly this purpose – claiming a religious right to abortion – although they probably did not predict the involvement of the Satanic Temple.

The RFRA was drafted in response to a 1990 Supreme Court case in which some Native American men were fired from their jobs for using illegal peyote for ceremonial purposes. Democrats and Republicans alike were angered by the ruling, and, a truly bi-partisan bill came into being (once upon a time, “bipartisan” could be more than just a buzzword). But, as the conservative National Review reflects, both the U.S. Conference of Catholic Bishops and the National Right to Life Committee were opposed to the RFRA. Both groups worried that “that under the RFRA women could claim the right to an abortion as a matter of religious belief,” and both groups advocated for an amendment to the bill that would specifically prohibit abortion-related claims. Due to this conflict (not so bipartisan after all?), it took three years – from 1990 to 1993 – for the bill to pass, and it was the newly-elected President Clinton who signed it into law.

Since then, RFRA has been used toward more conservative and traditionally Christian ends, the Hobby Lobby ruling being perhaps the most notorious example. The RFRA is a federal law that cannot be applied to states, so many other similar cases instead fall under the First Amendment. As the RFRA was designed to give more protection for religious exemptions than the Court has said is available under the First Amendment, First Amendment cases will look different than Hobby Lobby. However, there has certainly been a trend at both the state and federal level towards an understanding of “religious freedom” as the right not only to freely practice religion, but to use one’s religious values in a discriminatory manner (see, for example, what’s been going on in Indiana).

So will the Satanic Temple’s suit hold water in court? If the Satanic Temple is regarded as an established religion by the court (which, based on its previous success in Florida, seems likely), it seems this would be a yes; given that one’s “inviolable body” appears in three of the seven central tenets of the Temple, it does seem that a 72 hour waiting period – especially a financially prohibitive one – would prove a “substantial burden.”* But the more important question here is, what kind of precedent will this set? What will it mean for reproductive rights?

If, for example, it is found that the 72-hour waiting period placed a substantial burden on Mary’s religious freedom, this would be great – for established members of the Satanic Temple. Don’t get me wrong; my first thought on hearing about this suit was “Awesome. This underlines the hypocrisy of Hobby Lobby, where the “religious freedom” of the corporation is permitted to intrude on the religious freedom of the employee. Yes!”

But if it takes proof of a substantial religious burden to gain the right to an affordable, accessible abortion, what happens to everyone else? What about atheists, or Reform Jews, whose religion has no bearing on abortions? Even more concerning, what about devout Catholics, whose religious views might prohibit abortions? Even the most ardent pro-lifers can find themselves in situations in which abortions are medically necessary, life-saving procedures, or financially responsible choices made on behalf on their already existent children (61% of women who have abortions are already mothers).

Another concern: if this suit should succeed, how will it play out in the public eye? While the ­fight-the-patriarchy radical inside me cries, “who cares?,” the rest of me acknowledges that the way the public perceives abortion is very important to its legal future. While, as noted above, The Satanic Temple is, in fact, devoted to personal freedom, personal responsibility, and scientific accuracy rather than actual Devil-worship, the name itself will evoke darker images in the public imagination, and the last thing the pro-choice movement needs is an association between a woman’s right to decide what happens to her body and devil-worship. This is not sacrificing infants to Beelzebub, and we do not need anyone to make that association.

This is a fairly unique case, but it is neither the first nor the last in a series of reproductive-rights cases to raise religious freedom issues – sometimes involving the religious liberty of the person most directly involved, and sometimes the religious liberty of some other participant , like the employer in the Hobby Lobby case. From here on out, I will document some of the more interesting, concerning, or impactful cases and pieces of legislation involving the relationship between reproductive rights and religious rights.

*Updated 05/27/15 to reflect Mary Doe’s membership in the Satanic Temple