A federal appeals court on Monday ordered a lower court to reconsider whether The Satanic Temple (TST) has standing to challenge Idaho’s abortion ban. TST argued the ban violated the rights of “Involuntarily Pregnant TST members” under the Fifth, Thirteenth, and Fourteenth Amendments of the U.S. Constitution.
TST identifies as “a religious association . . . that supports abortion as an exercise of personal sovereignty and bodily autonomy.” The group established a telehealth abortion clinic in New Mexico after Idaho banned abortion with exceptions for medical emergencies, rape, and incest.
TST launched several constitutional challenges to the ban:
TST alleges the Idaho abortion laws are unconstitutional as applied to Involuntarily Pregnant TST members, claiming that Idaho’s actions have: (1) created a taking of the economic value of a woman’s uterus by forcing women to carry unwanted pregnancies without state compensation in violation of the Fifth Amendment; (2) subjected women forced to carry unwanted pregnancies to slavery in violation of the Thirteenth Amendment; and (3) given unconstitutional preferences to survivors of rape or incest, who are excepted from Idaho’s abortion prohibitions, in violation of the Equal Protection Clause of the Fourteenth Amendment.4
Footnote four states that “TST initially brought a claim under Idaho’s Exercise of Religious Freedom Act but later consented to its dismissal; that claim is not before the panel.”
A lower court dismissed TST’s suit for failure to establish standing to sue. The U.S. Court of Appeals for the Ninth Circuit agreed with the lower court:
Article III standing requires demonstrating an injury in fact, causation, and redressability. TST, whose sole clinic is in New Mexico, has no patients in Idaho, no clinic in Idaho, no doctors who are licensed to treat Idaho patients, and has identified no Idaho citizen who seeks an abortion from the organization. (citation omitted)
The Ninth Circuit agreed that TST failed to establish either associational or organizational standing to sue. Associational standing exists when, among other requirements, an organization’s member have standing in their own right to sue, but the organization sues on their behalf. Organizational standing exists when an organization has standing to sue on its own behalf.
TST, the Ninth Circuit agreed, failed to establish associational standing because it failed to demonstrate that the ban had harmed any of its members.
TST argued it had organizational “standing as a prescriber of abortifacients” or because the ban impeded TST’s organizational mission.
The Ninth Circuit also agreed that TST failed to establish organizational standing under either theory. The court rejected the prescriber theory because TST’s prescribers could not prescribe abortifacients even in the limited cases allowed by Idaho law:
TST can hardly claim injury as a prescriber because, even absent the challenged laws, it cannot legally prescribe abortifacients in Idaho: Idaho law allows only licensed physicians to prescribe abortifacients, whereas the Clinic employs only nurse practitioners, not licensed Idaho doctors. TST does not challenge this law and has not demonstrated concrete plans to hire doctors in Idaho, alleging only that it could pay $300 to license its nurse practitioners in Idaho. (cleaned up)
The Ninth Circuit likewise rejected the organizational mission theory because the ban did not affect TST’s core mission, at least as it existed before the ban. Before opening its clinic, the Ninth Circuit noted, TST’s abortion advocacy did not include a medical practice. Instead, TST “focused on education and advocacy” related to abortion.
The Ninth Circuit, finding TST had not alleged any impediment to its abortion “education and advocacy,” rejected the organizational mission theory:
The challenged statutes only criminalize abortion itself, and TST is still not set up to provide abortion services in Idaho. Thus, TST cannot establish standing based on a diversion of resources and frustration of mission theory.
The Ninth Circuit, however, disagreed with the lower court’s decision to dismiss the case with prejudice, meaning TST could not file a complaint amended to show it had standing. The Ninth Circuit remanded the case with instructions to consider whether an amendment to TST’s complaint could establish standing.
Because the Ninth Circuit found no standing, the court did not assess the merits of TST’s constitutional claims.
The Ninth Circuit’s opinion:
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