from the Circuit Court of Cole County, Missouri Honorable Jon
Edward Beetem, Judge
Denvir Stith, Judge
Doe appeals the circuit court's judgment dismissing with
prejudice her second amended petition seeking to enjoin the
enforcement of the portion of the Missouri Informed Consent
Law, section 188.027, RSMo Supp. 2014, which she alleges
required her to read certain "tenets" adopted in
section 1.205, RSMo 2000, regarding when life begins; to have
and pay for an ultrasound; and to wait 72 hours before she
could have an abortion. She does not allege such requirements
would impose an undue burden on her right to an abortion.
Rather, she alleges requiring her to read the booklet
violates her rights under the Establishment Clause of the
First Amendment to the United States Constitution, and both
reading the booklet and allegedly requiring her to have an
ultrasound violate her rights under the Missouri Religious
Freedom Restoration Act (RFRA), section 1.302.1, RSMo Supp.
2013, because these alleged requirements conflict with her
religious belief a fetus is not a person.
Court affirms denial of Ms. Doe's request for injunctive
relief. The informed consent law does not adopt any religious
tenet, as Ms. Doe claimed. Rather, it requires those seeking
an abortion be offered a booklet which, in part, repeats two
principles (referred to by Ms. Doe as "tenets") set
out in section 1.205. But Ms. Doe does not challenge section
the informed consent law neither requires a pregnant woman to
read the booklet in question nor requires her to have or pay
for an ultrasound. It simply provides her with that
opportunity. And, while Ms. Doe mentions the 72-hour waiting
period, she does not allege how that waiting period conflicts
with her religion nor that it was an undue burden, nor did
she seek to enjoin its enforcement prior to the expiration of
that waiting period. The circuit court did not err in
dismissing Ms. Doe's petition for failure to state a
FACTUAL AND PROCEDURAL BACKGROUND
found out she was pregnant in February 2015 and determined
not to carry her child to term. In early May 2015, Ms. Doe
took a bus from Greene County to St. Louis, Missouri, which
at the time was the only city in Missouri with a Planned
Parenthood clinic that provide a woman a legal abortion. On
May 8, she made her first visit to Planned Parenthood to
obtain an abortion.
Missouri's informed consent law, "The physician who
is to perform or induce the abortion or a qualified
professional shall provide the woman with the
opportunity to view at least seventy-two hours prior
to the abortion an active ultrasound of the unborn
child and hear the heartbeat of the unborn child if the
heartbeat is audible." § 188.027.1(4)
(emphasis added). The informed consent law also requires
"[t]he physician who is to perform or induce the
abortion or a qualified professional" must also
"present the woman, in person," with a booklet
that "prominently display[s]" two statements, which
Ms. Doe refer to as the "Missouri tenet." The first
is: "The life of each human being begins at
conception." The second is: "Abortion will
terminate the life of a separate, unique, living human
being." § 188.027.1(2). The woman seeking
the abortion is required to certify she received the required
information and opportunities.
her arrival at Planned Parenthood, Ms. Doe presented the
staff with a letter indicating she already voluntarily
reviewed the booklet and, from that reading, knew she did not
agree with the statements in the booklet that the "life
of each human being begins at conception" or that
"[a]bortion will terminate the life of a separate,
unique, living human being." Ms. Doe's letter also
purported to "absolve" Planned Parenthood from
compliance with the informed consent law requirements, and
Ms. Doe requested an immediate abortion.
Parenthood refused her request and complied with the informed
consent law by providing Ms. Doe with the opportunity to read
the booklet, the opportunity to have an ultrasound, and the
opportunity to listen to the fetal heartbeat. It also told
her she would have to wait 72 hours to have an abortion.
Although she had already voluntarily read the booklet, and
although the informed consent law does not provide a woman
seeking an abortion must read the booklet, Ms. Doe chose to
accept and reread the booklet and acknowledged its receipt.
also made the choice to have and pay for an ultrasound even
though the informed consent law merely requires a woman be
informed about and given "the opportunity to view"
an active ultrasound. After being informed she had
the opportunity to listen to the heartbeat, Ms. Doe declined
to do so.
the required 72-hour waiting period, Ms. Doe filed her
petition in this lawsuit. The petition did not allege the
offer of the booklet, an ultrasound opportunity, or the
72-hour waiting period imposed an undue burden on her right
to obtain an abortion. Neither did she seek a temporary
restraining order or preliminary injunction against the
enforcement of the informed consent law. Instead, she allowed
service to proceed in regular fashion as she waited 72 hours
and then returned to the clinic and received an abortion. The
circuit court dismissed Ms. Doe's initial petition
in January 2016 filed her second amended petition, which
again alleged Missouri's informed consent law is null and
void because it violates her rights under the Establishment
Clause of the United States Constitution and under RFRA. In
particular, she objected to the informed consent law's
requirement that the abortion provider give her a booklet
containing the "Missouri tenet." She also objected
that the informed consent law required a provider offer her
the opportunity to view an ultrasound and hear her
fetus's heartbeat and wait 72 hours before performing the
support of her claims, Ms. Doe further alleged she is a
member of the Satanic Temple and, under its tenets, her
"body is inviolable and subject to her will alone;"
she must make health-related decisions "based on the
best scientific understanding of the world, even if the
science does not comport with the religious or political
beliefs of others;" fetal tissue "is part of her
body and not a separate, unique, living human being;"
she has the sole authority to decide "whether, when and
how to proceed with" the termination of her pregnancy;
"[s]he may, in good conscience, have an abortion without
regard to the current or future condition of her Fetal
Tissue;" and she must not support "religious,
philosophical or political beliefs" that (1) "imbue
her Fetal Tissue with an existence separate, apart or unique
from her body," (2) "cede control to a third party
over the Removal Procedure," and (3) promote "the
idea Fetal Tissue is a human being or imbued with an identity
separate, apart and unique from her body."
second amended petition asked the circuit court to enjoin the
State from enforcing the informed consent law, to declare
that those who hold Ms. Doe's religious beliefs may
obtain an abortion without complying with the informed
consent law, and to permit physicians to provide abortions
without complying with the informed consent law. She also
sought costs and attorney fees. The circuit court dismissed
the amended petition, this time with prejudice. This appeal
followed. This Court has exclusive appellate jurisdiction.
Mo. Const. art. V, sec. 3.
STANDARD OF REVIEW
judgment sustaining a motion to dismiss for failure to state
a claim upon which relief can be granted is reviewed de
novo." Smith, 519 S.W.3d at 797.
A motion to dismiss for failure to state a claim on which
relief can be granted is solely a test of the adequacy of the
petition. When considering whether a petition fails to state
a claim upon which relief can be granted, this Court must
accept all properly pleaded facts as true, giving the
pleadings their broadest intendment, and construe all
allegations favorably to the pleader. The Court does not
weigh the factual allegations to determine whether they are
credible or persuasive. Instead, this Court reviews the
petition to determine if the facts alleged meet the elements
of a recognized cause of action, or of a cause that might be
adopted in that case.
Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc
2012) (internal citations and quotation marks omitted).
MS. DOE FAILED ADEQUATELY TO ALLEGE AN ESTABLISHMENT CLAUSE
Doe's second amended petition alleged a violation of the
Establishment Clause of the First Amendment of the United
States Constitution. "The First Amendment, which has
been made applicable to the states by incorporation into the
Fourteenth Amendment, provides that Congress shall make no
law respecting an establishment of religion …."
Oliver v. State Tax ...