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Doe v. Parson

Supreme Court of Missouri, En Banc

February 13, 2019

MARY DOE, Appellant,
v.
MICHAEL L. PARSON, et al., Respondents.

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

          Laura Denvir Stith, Judge

         Mary 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.

         This 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 1.205.

         Moreover, 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 claim.

         I. FACTUAL AND PROCEDURAL BACKGROUND [1]

         Ms. Doe 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.

         Under 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.[2]

         Upon 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.

         Planned 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.

         Ms. Doe 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.

         During 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 without prejudice.

         Ms. Doe 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 abortion.

         In 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."

         The 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.

         II. STANDARD OF REVIEW

         "A 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).

         III. MS. DOE FAILED ADEQUATELY TO ALLEGE AN ESTABLISHMENT CLAUSE VIOLATION

         Ms. 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 ...


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