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Doe v. Greitens

Court of Appeals of Missouri, Western District, Third Division

October 3, 2017

MARY DOE, Appellant,
v.
ERIC GREITENS, ET AL, Respondents.

         Appeal from the Circuit Court of Cole County, Missouri Honorable Jon Edward Beetem, Judge

          Before Alok Ahuja, P.J., Thomas H. Newton, and Cynthia L. Martin, JJ.

          THOMAS H. NEWTON, JUDGE.

         Ms. Mary Doe appeals the Cole County Circuit Court judgment dismissing with prejudice her second amended petition against the governor, attorney general, members of the Missouri Board of Registration for the Healing Arts (Government Respondents), and two John Does, seeking to enjoin the enforcement of parts of Missouri's Informed Consent Law, § 188.027, as a violation of her rights under the state's Religious Freedom Restoration Act (RFRA), § 1.302, [1] as well as the Establishment and Free Exercise Clauses. She also sought to invalidate certain parts of section 188.027 under the Establishment and Free Exercise Clauses. Ms. Doe challenges on appeal the circuit court's ruling as to her RFRA claims and her Establishment Clause claim.

         Because we believe that this case raises real and substantial constitutional claims, it is within the Missouri Supreme Court's exclusive jurisdiction under Article V, section 3 of the Missouri Constitution, and we hereby order its transfer. See Boeving v. Kander, 496 S.W.3d 498, 503 (Mo. banc 2016) ("where any party properly raises and preserves in the trial court a real and substantial (as opposed to merely colorable) claim that a statute is unconstitutional, this Court has exclusive appellate jurisdiction over any appeal in which that claim may need to be resolved.").[2]

         Factual and Procedural Background

         Ms. Doe's petition was dismissed for failure to state a claim, thus on appeal "[t]he facts alleged in the petition are assumed to be true, and all reasonable inferences are liberally construed in favor of the plaintiff." Smith v. Humane Soc'y of the U.S., 519 S.W.3d 789, 798 (Mo. banc 2017); see also Avery Contracting, LLC v. Niehaus, 492 S.W.3d 159, 162 (Mo. banc 2016). If the case were to proceed beyond the pleading stage, Ms. Doe would have the burden of proving her allegations with competent evidence.

         Ms. Doe has raised Religion Clause-based claims to Missouri's Informed Consent Law, specifically challenging the validity of certain parts of the statute with which she was required to comply when she underwent an abortion in Missouri in May 2015.[3] The law required that she certify receipt in person of printed materials (Booklet) containing specified information including a prominently displayed statement that "[t]he life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being." § 188.027.1(2). The law also required that she be given the opportunity to view an active ultrasound (Ultrasound) and to hear the fetal heartbeat (Audible Heartbeat Offer), then wait seventy-two hours (Waiting Period) before the procedure could be performed. § 188.027.1 and .3. Ms. Doe alleges that these abortion preconditions promote the religion-based "Missouri Tenet, " i.e., that "[t]he life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being." She further claims that these preconditions "cause doubt, guilt and shame in a pregnant woman who does not believe the Missouri Tenet" to achieve their purpose, which "is to discourage a pregnant woman from getting an abortion."

         To prepare for her medical procedure, Ms. Doe worked approximately forty-five hours to earn the money to pay for the Ultrasound, which her abortion provider required under the law, the Audible Heartbeat Offer, and lodging for the Waiting Period. She alleged that the Informed Consent Law caused her to devote some forty-five hours of her life "to finance the promotion of the Missouri Tenet to herself, a religious doctrine she does not believe, " and required her to engage in conduct that burdened her free exercise of "Plaintiff's Tenets."[4] Ms. Doe traveled by bus to St. Louis in May 2015 and presented a letter to her abortion provider requesting an immediate abortion and indicating that she had already reviewed the Booklet; she did not believe as a matter of religious faith that human life begins at conception; at her stage of pregnancy, the fetus was not capable of survival outside her body; she did not believe that an abortion terminates "the life of a separate, unique, living human being"; and she absolved the provider of any responsibility for providing her with the Booklet and forcing her to wait seventy-two hours before performing the abortion. The abortion provider refused her request and complied with the Informed Consent Law's preconditions. Ms. Doe read the Booklet and acknowledged its receipt, she had the Ultrasound and declined the Audible Heartbeat Offer and "felt guilt and shame for doing so." Ms. Doe stayed in a St. Louis motel, returned to the abortion provider seventy-two hours later, and had the medical procedure. She alleges that these actions burdened or restricted her free exercise of Plaintiff's Tenets in various ways, among them having to pay for "the delivery [to] herself of the religious belief of the State of Missouri that the Missouri Tenet is true."

         In essence, Ms. Doe has alleged that the Informed Consent Law restricted her free exercise of religion and constitutes the state's establishment of religion. The law, allegedly based on a religious tenet, required that she act and spend time and money, before undergoing a medical procedure in this state, contrary to actions-substantially motivated by her sincerely held religious beliefs-that she would have taken or refused to undertake. She also alleged that the state has no compelling interest in applying these restrictions to her because she had already made an informed and voluntary decision to undergo an abortion before entering the abortion provider's facility. By its terms, the Informed Consent Law's purpose is to ensure that a woman's decision to have an abortion is voluntary and fully informed. § 188.027.1.

         Counts I-III of Ms. Doe's petition allege that the Informed Consent Law's preconditions violate RFRA. With respect to herself and women who share her religious tenets, Ms. Doe requests declarations under RFRA that sections 188.027.1(2), .3, and .12 violate sections 1.302 or 188.027(11)[5] and are null and void, an injunction to stop the Government Respondents from enforcing these sections, and a declaration that abortion providers need not comply with these sections.

         Counts IV and V allege that the Booklet, Ultrasound Offer, and Waiting Period violate the Establishment and Free Exercise Clauses and that the Government Respondents have infringed these rights under color of state law in violation of 42 U.S.C. § 1983. Ms. Doe claims that "the State of Missouri is using its power to regulate abortion to promote some, but not all, religious beliefs that Fetal Tissue is, from conception, a separate and unique human being whose destruction is morally wrong." Thus, the Informed Consent Law, in her view, fosters "an excessive entanglement between the State of Missouri and adherents to the religious belief that Fetal Tissue is a separate and unique human being from conception whose destruction is morally wrong." She requests an order declaring null and void the Missouri Tenet and sections 188.027.1(2), (4), and (5); 188.027.3; and 188.027.12. She also seeks a declaration that any woman may obtain an abortion and any medical provider may provide an abortion in Missouri without complying with sections 188.027.1(2), (4), and (5); 188.027.3; and 188.027.12. She further requests injunctive relief to preclude the state from enforcing these sections.

         Ms. Doe also alleges that the Government Respondents "have infringed on Plaintiff's rights under the Free Exercise Clause." Ms. Doe requests the same relief for this alleged violation as for the purported Establishment Clause violation. The circuit court dismissed her second amended petition with prejudice, granting the Government Respondents' motion to dismiss for failure to state a claim.[6] Ms. Doe filed this appeal.

         Legal ...


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