Judy Doe v. Michael L. Parson ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1578
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Judy Doe
Plaintiff - Appellant
v.
Michael L. Parson, Governor of the State of Missouri; Eric S. Schmitt, Attorney
General of the State of Missouri; David A. Poggemeier, M.D., Chairman of the
Missouri Board of Registration for the Healing Arts; James A. DiRenna, D.O.,
Member of the Missouri Board of Registration for the Healing Arts; Sara Martin,
PhD, Member of the Missouri Board of Registration for the Healing Arts;
Katherine J. Matthews; Jade D. James, M.D., Secretary of the Missouri Board of
Registration for the Healing Arts; David E. Tannenhill, D.O., Member of the
Missouri Board of Registration for the Healing Arts; John Doe I; John Doe II
Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 16, 2020
Filed: June 9, 2020
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
A Missouri law requires Judy Doe to certify that she has had a chance to
review certain information before having an abortion. This requirement, she alleges,
violates her Satanist beliefs. The district court 1 dismissed both of her First
Amendment claims, and we affirm.
I.
Missouri and Doe have different views on when life begins. Missouri’s
official position is that “[t]he life of each human being begins at conception.” Mo.
Rev. Stat. § 188.027.1(2), (5). Its informed-consent law requires women seeking an
abortion to certify that they have received “[m]edically accurate information” that
bears on “the decision of whether” to have one. Id. § 188.027.1(1)(b), 188.027.3.
Doe, who was pregnant at the time she filed this lawsuit, sees the matter
differently. See Doe v. Poelker, 497 F.2d 1063, 1067 (8th Cir. 1974) (explaining
that pregnancy is a “classic justification” for the capable-of-repetition-yet-evading-
review exception to mootness that does not need to be “established” on appeal
(citation omitted)). As a member of “The Satanic Temple,” she believes that the
“Human Tissue” that she was carrying was “part of her body.” As she stated in her
complaint, her “body is inviolable” and “[s]he alone” gets to decide what to do with
it, regardless of “the current or future condition of the Human Tissue” within.
In her two-count complaint, Doe alleges that Missouri’s informed-consent law
violates the Establishment and Free Exercise Clauses of the First Amendment. The
district court, concluding that neither count stated a claim, dismissed the case.
1
The Honorable Henry Edward Autrey, United States District Judge for the
Eastern District of Missouri.
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II.
Before we address these two counts, Doe seeks to introduce a third: whether
Missouri’s informed-consent law imposes an undue burden on her right to an
abortion. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). Her
theory proceeds in two steps. First, the law infringes on her religious beliefs.
Second, by infringing on her religious beliefs, the law creates an undue burden on
her right to an abortion.
Missouri could not have had “fair notice” of this claim based on the complaint
itself, Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512, 514 (2002) (describing the
basic purpose of pleading), which described the case as follows:
This is an action for declaratory relief pursuant to 42 U.S.C. §1983 as
all Defendants are acting under color of state law to deprive Plaintiff of
her constitutional rights under the Establishment and Free Exercise
Clauses (the “Religion Clauses”) in obtaining an abortion in a manner
required by her religious beliefs as an adherent to the tenets of The
Satanic Temple.
(Emphasis added). It also lists only two counts: “First Count – Violation of the
Establishment Clause” and “SECOND COUNT – FREE EXERCISE
VIOLATION.” See Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)
(considering claims that were expressly pleaded in the complaint when deciding
whether the defendant had notice of unpleaded claims).
The specific factual allegations just connect the dots for those two claims. The
complaint refers to Missouri’s views on life as “Missouri [t]enets,” the informed-
consent law as the “Missouri [l]ectionary,” and says that neither serves any purpose
other than making her feel guilty for not believing in them. All of this, according to
the complaint, communicates a “religious belief.” Nowhere, by contrast, do the
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words “undue burden” or Casey appear, which creates the impression that this case
is all about religion.
Doe nevertheless believes that we can consider her unpleaded claim for two
reasons. The first is that she made an undue-burden argument in response to
Missouri’s motion to dismiss. Still, she had an obligation to amend her complaint
once she identified the potential claim. See Fed. R. Civ. P. 15 (explaining how to
amend a complaint); Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 995
(8th Cir. 1989) (pointing out that a responsive brief is neither the time nor the place
to raise a new claim). The second is that an undue-burden claim was part and parcel
of her religious-liberty claims from the start, because the First Amendment is at the
“root” of Casey. Oral Arg. at 1:30–2:20; cf. Casey, 505 U.S. at 851 (“At the heart
of liberty is the right to define one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life.”). Even if this were true—and we have
every reason to believe that it is not—Missouri could not, without more, have
anticipated Doe’s creative reading of Casey. See Casey, 505 U.S. at 846–51
(locating the right to an abortion in the Fourteenth Amendment). In short, we will
not permit Doe to plead a new claim now.
III.
We now turn to the two claims that do appear in the complaint. “At this stage,
our task is to review the complaint de novo to determine whether it alleges one or
more actionable claims.” Telescope Media Grp. v. Lucero, 936 F.3d 740, 750 (8th
Cir. 2019).
A.
Doe’s Establishment Clause challenge focuses on the requirement that every
woman seeking an abortion in Missouri must first receive a state-authored informed-
consent booklet. The booklet expresses Missouri’s view that “[t]he life of each
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human being begins at conception [and that] [a]bortion will terminate the life of a
separate, unique, living human being.” Mo. Rev. Stat. § 188.027.1(2). It then goes
on to describe “the probable anatomical and physiological characteristics of the
unborn child at two-week gestational increments . . . .” Id.; see also id.
§ 188.027.1(5). Doe believes that the booklet violates the Establishment Clause in
two ways.
First by promoting “Catholic dogma” about when life begins. See Larson v.
Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the Establishment
Clause is that one religious denomination cannot be officially preferred over
another.”). The problem with this theory is that a state does not establish religion by
passing a law that just “happens to coincide or harmonize with the tenets of some or
all religions.” Harris v. McRae, 448 U.S. 297, 319 (1980) (quoting McGowan v.
Maryland, 366 U.S. 420, 442 (1961)) (upholding the Hyde Amendment’s ban on
publicly funded abortions). Mere alignment with certain religious beliefs, in other
words, is not enough.
But Doe argues that there is something “more” than just alignment here, id. at
320, because Missouri has elected to publish its views on this topic, even though it
is “highly divisive.” Even so, taking sides on a divisive issue, even when it breaks
down “along religious lines,” does not establish religion either. Clayton ex rel.
Clayton v. Place, 884 F.2d 376, 378–79 (8th Cir. 1989) (determining that a school
district’s no-dancing rule did not establish religion even though some local churches
“staunchly opposed . . . social dancing” and viewed it as “sinful”). This is especially
true here because, as the Supreme Court has recognized, a state is free to use “its
voice . . . to show its profound respect for” life. Gonzales v. Carhart, 550 U.S. 124,
157 (2007) (emphasis added); see also Casey, 505 U.S. at 873 (plurality opinion)
(explaining that Roe and its progeny had “undervalue[d] the State’s interest in
potential life”).
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Indeed, the circumstances of this case show why alignment alone cannot be
enough. Some religions, including Catholicism, embrace the view that life begins
at conception. Others, like Doe’s Satanism, do not. Any theory of when life begins
necessarily aligns with some religious beliefs and not others. So under Doe’s theory,
Missouri’s only option would be to avoid legislating in this area altogether.
Not a problem, Doe says, because her second argument is that states may
never adopt a “theory of when life begins.” Reprod. Health Servs. v. Webster, 851
F.2d 1071, 1075–76 (8th Cir. 1988) (Webster I) (quoting City of Akron v. Akron Ctr.
for Reprod. Health, Inc., 462 U.S. 416, 444 (1983), overruled by Casey, 505 U.S.
833 (1992)), rev’d, 492 U.S. 490 (1989) (Webster II). At one time, this argument
had legs. But as the unwieldy citation may make obvious, our statement from
Webster I is no longer good law. The Supreme Court clarified in Webster II that
states still have a role to play on this issue. Webster II, 492 U.S. at 506 (“Roe v.
Wade implies no limitation on the authority of a State to make a value judgment
favoring childbirth over abortion.” (internal quotation marks and citation omitted)).
And to the extent any doubt lingered, none remains now that the Supreme Court has
decided Carhart and Casey. Carhart, 550 U.S. at 157; Casey, 505 U.S. at 873
(plurality opinion). So whatever support our statement in Webster I could have once
provided Doe, it cannot help her today.
B.
The focus of Doe’s free-exercise claim is on Missouri’s certification
requirement. Before she can have an abortion, Missouri law requires her to certify
in writing that she has both had a chance to view an ultrasound at least 24 hours
ahead of time, Mo. Rev. Stat. § 188.027.1(4), 188.027.3, 188.027.12, and received
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an informed-consent booklet, id. § 188.027.1(2), (5), 188.027.3. Certifying these
two facts, she alleges, would violate her Satanist beliefs.2
It does so, according to Doe, by forcing her to comply with a law that
conditions her getting an abortion in a manner antithetical to the Satanic
Tenets, including without limitation any law that serves no medical
purpose or purports to protect the interests of her Human Tissue.
(Emphasis added). Her free-exercise claim, in other words, can be summed up in
the following way: her religion allegedly “forbids certain conduct that the
government requires.” Telescope Media Grp., 936 F.3d at 759.
Doe makes no argument, however, that the informed-consent law is anything
other than “neutral” and “generally applicable.” Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 544, 546 (1993). In these circumstances, it
must only survive rational-basis review, which requires it to be “rationally related to
a legitimate government interest.” Gallagher v. City of Clayton, 699 F.3d 1013,
1019 (8th Cir. 2012); see Telescope Media Grp., 936 F.3d at 759. To the extent Doe
argues that the certification requirement lacks a rational basis,3 we disagree. Casey
2
According to Doe, the Satanic Temple has both “politically aware Satanists”
and “secularists and advocates for individual liberty” among its members.
(Emphasis added). Arguably, her own description raises the possibility that her
beliefs about abortion may be political, not religious. See Frazee v. Illinois Dep’t of
Emp’t Sec., 489 U.S. 829, 833 (1989) (“[O]nly beliefs rooted in religion are
protected by the Free Exercise Clause.” (citation omitted)). Nevertheless, we
assume, but do not decide, that she has done enough by alleging that her beliefs are
“religious” and that she is a member of an organization that includes “Satanists.”
3
Doe believes the standard should be higher—something akin to strict
scrutiny—but once again, her complaint does not support her theory. On appeal, she
suggests that her free-exercise claim is really a hybrid of two separate constitutional
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itself recognized that informed-consent laws like this one serve “the legitimate
purpose of reducing the risk that a woman may elect an abortion, only to discover
later, with devastating psychological consequences, that her decision was not fully
informed.” Casey, 505 U.S. at 882 (plurality opinion); see id. at 883–87 (explaining
that provisions requiring doctors to provide information to those seeking an abortion
and imposing a waiting period were “reasonable means” of pursuing legitimate
government interests).
IV.
We accordingly affirm the judgment of the district court.
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rights: one prohibiting Missouri from unduly burdening her right to an abortion and
the other allowing her to freely exercise her religion. See Telescope Media Grp.,
936 F.3d at 758–60 (noting that, under a hybrid-rights theory, strict scrutiny would
apply to a free-exercise claim “intertwined” with a free-speech claim). But in
addition to failing to plead an undue-burden claim, any suggestion of the hybrid-
rights theory is absent from her complaint too. Without either, we cannot consider
this argument. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
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