Does the Satanic Temples new abortion 'ritual' allow abortions under religious freedom?

Question

The Satanic Temple has recently announced an abortion ritual. It's clearly a parody ritual added only after abortion was made illegal, but then again the USA tends to be very generous with their definition of religion, to the point that it's hard to claim that it's not part of their religion.

It's been claimed that this would thus allow abortions under the Religious Freedom Restoration Act. I'd ask if it's true but even their announcement of the ritual itself pretty strongly warns it's not a get out of litigation free charge. Still, I'm wondering what would happen if a pregnant person or medical practitioner who already had claimed to be part of the Satanic Temple actually tried to use this as a defense brought to trial for an abortion.

Or more generally, what is the limits to what could, or couldn't, be claimed as protected by the RFRA if a parody religion claims it's part of their religion?

Answer 1

Like the other rights in the First Amendment, religious freedom is not absolute. For example, you can't use religious freedom to get away with assault or murder (e.g. fulfilling the fatwa to kill Salman Rushdie).

The basis of many anti-abortion laws is that the fetus is a person, and thus abortion is murder. So by the same logic that you can't kill a person out of the womb for religious reasons, you wouldn't be allowed to kill an unborn person.

So whether the Satanic Temple is a real religion or a parody is moot, because religion cannot be used to justify murder.

The RFRA doesn't get around this. It has the following exception:

the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

What falls under "compelling government interest" is up to the courts to decide. But in the past they've determined that paying taxes is a compelling government interest (Adams v. Commissioner), and even that getting a social security number is not a significant burden (Miller v. Commissioner). So it seems likely to me that actions that directly harm another person would not be allowed. The basis of most anti-abortion laws is that the fetus is a person, deserving of human rights, and abortion deprives them of the right to life. It's hard for me to imagine that preventing this would not be considered a compelling government interest in states that prohibit abortion.

We can't be certain about this, since Roe v. Wade was only overturned very recently, and there's little precedent in how the anti-abortion laws that are now allowed will be interpreted in corner cases like this. But in the current political climate, I think it's almost certain that a question like this would be decided in the pro-life direction. While pro-life conservatives also tend to be pro-religion, they generally restrict this to Christian religious traditions (these same groups were in favor of Trump's Muslim travel bans). A fringe religion like TST would likely not receive favorable treatment.

Because of this, perhaps the right place for a question like this would be Politics

Answer 2

My experience is that the Pastafarian religion is indeed a parody religion. In contrast, TST has all of the indicia of a sincere religion – you can look here for a summary of their beliefs. Their third tenet is "One's body is inviolable, subject to one’s own will alone", from which a woman's right to chose to have an abortion would flow.

So what remains to be decided is whether this is "a religion", or is it a philosophical system. The Supreme Court has not and in principle could not "define religion", since the point of the First Amendment is that the government may not consign Hinduism or Taoism to some lesser status because these religions do not have a single deity. In Torcaso v. Watkins, 367 U.S. 488 the court footnoted the observation that "Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others". Some decisions (US v. Seeger, Welsh v. US), both regarding religious exemptions to the draft found (from Welsh) that the excemptin clause

contravenes the Establishment Clause of the First Amendment by exempting those whose conscientious objection claims are founded on a theistic belief, while not exempting those whose claims are based on a secular belief. To comport with that clause, an exemption must be "neutral" and include those whose belief emanates from a purely moral, ethical, or philosophical source

and furthermore, the exemption was not found unconstitutional, it was broadened in scope to go beyond theistic belief systems. Thus

the test of religious belief under § 6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption.

There has been some back-pedaling in Wisconsin v. Yoder, which posited that

Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal, rather than religious, and such belief does not rise to the demands of the Religion Clauses

and in Thomas v. Review Bd. it is asserted that "Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion". But note that this distinguishes personal philosophical beliefs from religious beliefs, and does not say what the necessary or sufficient conditions are for being deemed a religion.

TST does indeed purport to be a religion and not simply a philosophical system. As far as I know, SCOTUS has not, at least in the past 100 years, ruled that any purported religion is not in fact a religion.

Answer 3

what is the limits to what could, or couldn't, be claimed as protected by the RFRA if a parody religion claims it's part of their religion?

Without taking any position on your assertion that The Satanic Temple is a parody religion, I answer to say there would be no protection under RFRA or RLUIPA for the asserted beliefs and practices of a person who concedes that the "religion" they follow is a parody.¹

RFRA (and RLUIPA) provides protections for "sincerely held religious beliefs." See e.g. Burwell v. Hobby Lobby Stores, Inc., 573 U.S 682 (2014); Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. ___ (2020); Congressional Research Service, "The Religious Freedom Restoration Act: A Primer" (April 3, 2020).

Lower courts have held that parody religions are not "'religion[s]' within the meaning of the relevant federal statutes and constitutional jurisprudence." Cavanaugh v. Bartelt, 178 F. Supp. 3d 819 (D. Neb. 2016) Regarding the purported religion at issue in that case:

It is, rather, a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education. Those are important issues, and FSMism contains a serious argument—but that does not mean that the trappings of the satire used to make that argument are entitled to protection as a “religion.”

---

^{1. user6726 provides the analysis of whether The Satanic Temple could indeed be found to be a non-parody religion in which people could base their sincerely held religious beliefs. I have found other scholarship generally agreeing with user6726: Joseph P. Laycock, "Religion or Trolls? How The Satanic Temple Is Changing the Way We Talk About Religion" in Speak of the Devil: How the Satanic Temple is Changing the Way We Talk about Religion (2020).}