A Note from the Editor

I went to sleep before the final election results came in last night, too anxious to keep refreshing pages and too horrified to keep looking at a map awash in red. But I’m jolted awake now, at 4 in the morning, with the very visceral and real fear that comes with waking up in Trump’s America. 

I think many of my friends are realizing the extent to which we lived in a blue bubble, an echo chamber where we could reassure each other that the American electorate as a whole valued the same things we do: the equal rights and protection of women, of people of color, of immigrants, the LGBTQ community, the disabled—of every person who is or has been vulnerable in our society. We willfully forgot how many of our culture war victories were won for us by the Supreme Court, where the margin of support has always hung by a thread. Now I understand the fear of conservatives when faced with a lifelong liberal appointee, because I look at the future and see a united Republican government that has either pledged to undo our work, or is too cowardly to stand up to the demagogues who will. 

No matter who won this election, a huge percentage of the population was poised to be unhappy. Deeply so. I am disappointed with, and deeply disgusted by, the portion of the electorate willing to stand behind a vicious con man with no qualifications to speak of, a proto-fascist who has made clear his disdain of those who make up more than half of the nation he will now govern. Still, it happened. Deep down, I think I always knew it could and would happen, though I was afraid to look this fear in the eye. Knowing what we know about the violent, virulent history of our nation, why are we surprised that this history has risen up again? Why are we surprised that, when Trump offered his supporters the promise of a whitewashed future built on the glorious past, they took it? 

I’m tempted to turn away from Trump supporters completely. I’m tempted to say I’ll never, never understand the choices they made that led us to this. It would be easy to retreat further and say, this is an aberration that makes no sense. But to move forward in this new and terrifying world we have to acknowledge how much we underestimated the strength of racism and of blood-and-soil nationalism, to say the least. Even if Clinton had won, Trump’s supporters were not going to go away. As they have shown us tonight, they are a bedrock of American politics, and must be reckoned with. 

I see a lot about moving forward no matter what, and putting faith in American democracy, and galvanizing ourselves for the next fight. Although I am too heartbroken to really feel that fully, I believe it too. I am blessed to be looking at the beginning of my law career next year, and hopeful that I will be able to wade into the fray for those I love, for those who don’t have a voice, for those who deserve more champions than this sorry election has given them.

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

Anita Hill Hearings Sparked National Conversation on Sexual Harrassment

“I think it was something that was meant to happen, actually,” Hill explained. “I had an experience to share that went to the fitness of an individual who was going to be sitting on a Supreme Court with a lifetime appointment. It was important, not only to the integrity of this individual, but also to the integrity of the court itself.”

In the years after Hill’s testimony, the number of workplace harassment complaints to the EEOC skyrocketed as more and more people became comfortable with the idea of speaking up. Though Hill recognizes the role she played in sparking a national conversation about sexual harassment, she stressed the fact that there’s still much more work to be done.

via 25 years after accusing Clarence Thomas of sexual harassment, Anita Hill says she’d ‘do it all again’ — Fusion

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