IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT

MARY DOE,
Plaintiff/Appellant,
v.
ERIC GREITENS, GOVERNOR OF THE STATE OF MISSOURI, et al.
Defendants/Respondents.

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

BRIEF OF RESPONDENTS

JOSHUA D. HAWLEY
Attorney General
D. JOHN SAUER
First Assistant and Solicitor
Mo. Bar No. 58721
JASON S. DUNKEL
Assistant Deputy Attorney General
Mo. Bar No. 68556
P.O. Box 861
St. Louis, MO 63188
(314) 340-4753
(314) 340-7981 (Facsimile)
John.Sauer@ago.mo.gov
Jason.Dunkel@ago.mo.gov
ATTORNEYS FOR RESPONDENTS

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WD80387

 TABLE OF AUTHORITIES .............................................................................................. iv
JURISDICTIONAL STATEMENT .................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 4
ARGUMENT..................................................................................................................... 10
I.

The Trial Court Properly Dismissed Doe’s RFRA Claims because
She Failed to State a Claim Upon Which Relief Could Be Granted
(Responds

to

Appellant’s

First

Point Relied

On).................................................................................................... ...........10
A.

Missouri’s RFRA law requires Doe to plead that the State
has “restrict[ed]” her from engaging in an “act or refusal to
act” that is motivated

by religion, and that the S tate’s

restriction does not a dvance a co mpelling governmental
interest or is unduly restrictive of Doe’s exercise of
religion. ............................................................................................ 11
B.

Doe failed to allege an “exercise of religion” that was
“restricted” within RFRA’s meaning, because she a lleged
only an interest in avoiding exposure to information with
which she disagreed, and she f ailed to allege an y religious
belief that would be violated by such exposure to
information. ...................................................................................... 13

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TABLE OF CONTENTS

 Even if Doe had alleged a restriction on the free exercise of
her religion, th e Informed Consent Law is a generall y
applicable law that advances compelling state interests and
does not unduly restrict religious exercise. ...................................... 23

II.

The Trial Court Co rrectly Dismissed Appellant’s Establishment
Clause Claim Because the I nformed Consent Law Does Not
Establish Any Religious Belief, But P ermissibly Expresses the
State’s Political and P hilosophical Interest in Protecting Unb orn
Human Lif (Responds to Appellant’s Second Point Relied
On)................................................................................................................31
A.

The Informed Consent Law is not a religious tenet but a
political and philosophical position adopted by the political
branches of Missouri’s government. ................................................ 32

B.

Doe errs in rel ying on the Eighth Circuit’s opinion in
Reproductive

because the Sup

Health,

reme

Court

overruled that opin ion and explicitl y stated t hat Missouri
may express a judgment on when life begins................................... 35
C.

The Plattsmouth case favors the Respondents here, as the
Eighth Circuit vacat ed the opinion cited b

y Doe and

allowed a city to display the Ten Commandments. ......................... 37

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C.

 The Larson test does not apply here because the Informed
Consent Law d oes not discriminate against religion or
among religions. ............................................................................... 38

E.

Even if the Court f inds that the Inf ormed Consent Law
raises Establishment Clause concerns,

the Law is

constitutional under the Lemon test.................................................. 39
III.

The Appellant waived any arguments regarding her Free Exercise
Clause claim by failing to raise a P oint Relied On related to t hat
claim.............................................................................................................42

CONCLUSION ................................................................................................................. 42
CERTIFICATE OF SERVICE AND COMPLIANCE ..................................................... 44

iii

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D.

 Cases
A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th. Cir. 2010).................................... 21
Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) ................................................ 23
ACLU Neb. Found. v. City of Plattsmouth, Neb., 358 F.3d 1020 (8th Cir.
2004), vacated en banc, 419 F.3d 772 (8th Cir. 2005) ...................................... 2, 37
ACLU Nebraska Found. v. City of Plattsmouth, 419 F.3d 772 (8th Cir. 2005) ......... passim
Akins v. Dir. of Revenue, 303 S.W.3d 563 (Mo. 2010) ..................................................... 16
Aquila Foreign Qualifications Corp. v. Dir. of Revenue, 362 S.W.3d 1 (Mo.
2012) ........................................................................................................... 15, 16, 26
Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992) .................................................................. 30
Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009) ......................................................... 21
Bowen v. Roy, 476 U.S. 693 (1986) .................................................................................. 22
Edwards v. Aguillard, 482 U.S. 578 (1987) ...................................................................... 41
Greenville Women’s Clinic v. Commissioner, 317 F.3d 357 (4th Cir. 2002) ................... 42
Harris v. McRae, 448 U.S. 297 (1980).................................................................. 33, 39, 41
Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758 (Mo. 2007) ................. 10, 31
In the Matter of the Care and Treatment of Carl Kirk v. State, -- S.W.3d ----,
SC 95752, 2017 WL 2774419 (June 27, 2017) .................................................... 1, 3
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008)............................................. 20, 21
Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999) ................................................................... 30
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) ................ 39
iv

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TABLE OF AUTHORITIES

 McGowan v. Maryland, 366 U.S. 420 (1961) ............................................................ passim
Merced v. Kasson, 577 F.3d 578 (5th. Cir. 2009) ............................................................. 21
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992) ......................................................................................................... 27, 30, 34
Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452 (8th Cir. 1995) ............ 30
Reproductive Health Services v. Webster, 851 F.2d 1071 (8th Cir. 19 88), rev’d
sub. nom, Webster v. Reproductive Health Services, 492 U.S. 490
(1989) ................................................................................................................. 2, 35
Reynolds v. United States, 98 U.S. 145 (1878) ................................................................. 34
Roe v. Wade, 410 U.S. 113 (1973) .................................................................................... 27
State v. Bazell, 497 S.W.3d 263 (Mo. 2016) ............................................................... 14, 15
The Satanic Temple, et al. v. Greitens, et al., 16-3387 (8th Cir. August 11,
2016) ......................................................................................................................... 8
The Satanic Temple, et al. v. Nixon, et al., 4:15-cv-00986-HEA (E.D. Mo. June
23, 2015) ................................................................................................................... 8
Van Orden v. Perry, 545 U.S. 677 (2005) ............................................................... 3, 37, 40
Warner v. City of Boca Raton, 887 So.2d 1023 (Fla. 2004) ............................................. 21
Webster v. Reproductive Health Services, 492 U.S. 490 (1989) ................................ passim
Constitutional Provisions
MO. CONST. art V, § 3 ......................................................................................................... 1
U.S. CONST. AMEND. I................................................................................................. 31, 34
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Larson v. Valenta, 456 U.S. 228 (1982) ............................................................................ 39

 RSMo § 1.205 ............................................................................................................. passim
RSMo. § 1.302 ............................................................................................................ passim
RSMo. § 188.015 ................................................................................................................. 5
RSMo. § 188.027 ........................................................................................................ passim
State Rules
Mo. R. Civ. P. 84.13 .......................................................................................................... 42
Other Authorities
Black’s Law Dictionary (8th ed. 2004) ............................................................................. 15
Webster’s Third New International Dictionary (2002) ............................................... 15, 20

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State Statutes

 Respondents agree tha t this Court has jurisd iction over this appeal because the
Appellant’s challenge to the validity of provisions of RSMo § 188.027 under the federal
Establishment Clause is not “real and su bstantial,” but is inst ead “merely colorable.” In
the Matter of the Care and Treatment of Carl Kirk v. State, -- S.W.3d ----, SC 95 752,
2017 WL 2774419, *1 n.2 (June 27, 2017).
In her Second Amended Petition, Plaintiff Mary Doe (“Doe”) brought two
constitutional challenges to t he validity of portions of Missouri’s informed consent law
relating to abortion, RSMo. § 188.027 (“Informed Consent Law”). LF 40-45, Appx.
A29-34. Specifically, Count I V alleged that the Inf ormed Consent Law v iolates the
Establishment Clause. LF 40-43, Appx. A29-32. Count V alleged that the Informed
Consent Law violates the Free Exercise Clause. LF 43-45, Appx. A32-34. W hile Doe
has abandoned her Free Exercise claim on appeal, see infra Section III & App. Br., 11,
she appeals from the dismissal of her Establishment Clause claim. See Doe’s Second
Point Relief On, App. Br., at 18, 41-50.
The Missouri Supreme Court has exclusive jurisdiction over real and substantial
challenges to the validity of state statutes, but the Missouri Courts of Appeal hav e
jurisdiction over merely colorable constitutional claims. MO. CONST. art V, § 3; Kirk,
2017 WL 2774419, *1 n.2.

Claims are “merely colorable” when they “have been

addressed by either the United States Supreme Court or the Missouri Supreme Court and,
therefore, do not invol ve fair doubt or reaso nable room for disagreement.” Kirk, 2017
WL 2774419, *1 n.2.
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JURISDICTIONAL STATEMENT

 Clause argument heavily upon the re versed Eighth Circ uit opinion in Reproductive
Health Services v. Webster, 851 F .2d 1071 (8th Cir. 1988), rev’d sub. nom, Webster v.
Reproductive Health Services, 492 U.S. 490 (1989), and the vacated Eighth Circuit panel
opinion in ACLU Neb. Found. v. City of Plattsmouth, Neb., 358 F.3d 1020 (8th Cir.
2004), vacated en banc, 419 F.3d 772 (8th Cir. 2005).
The proposition for which Doe cites the Eighth Circuit Reproductive Health case,
that the st ate may not enact a value jud gment on when lif e begins, was dire ctly
contradicted by the U.S. Supreme Court’s decision in the same case.

Webster v.

Reproductive Health Services, 492 U.S. 490, 506 (1989) (“The Court has emphasized that
Roe v. Wade ‘implies no limitation on the authority of a State to make a value judg ment
favoring childbirth over abortion.’ [ RSMo. § 1.205] can be read simply to ex press that
sort of value ju dgment.”) (citation omitted). Thou gh Doe does twice cite the U.S.
Supreme Court Webster opinion, one citation is of the Court’s unofficial syllabus and the
second is of the dissenting opinion of Justice Stevens. See, App. Br., 44-45 (Citing “492
U.S. at 491,” the syllabus, and “492 U.S. at 566-67,” Justice Stevens’ dissent arguing that
an Establishment Clause violation had occurred, contrary to the decision of a majority of
the Court).
The Eighth Circuit’s p anel opinion in Plattsmouth, holding that a cit y could not
display a Ten Commandments monument in a cit y park, was vacated by the Eighth
Circuit en banc, which followed a U.S. Supreme Court decision upholding the municipal
display of Ten Co mmandment monuments.
2

ACLU Nebraska Found. v. City of

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As discussed in more detail below, see infra Part II, Doe rests her Establishment

 2005) (“Although the text of

the Ten

Commandments has undeniable religious significance, ‘[s]imply having religious content
or promoting a message consistent with a r eligious doctrine does not r un afoul of the
Establishment Clause.’”); Van Orden v. Perry, 545 U.S. 677 (2005) (upholding the
municipal display of the Ten Commandments).
Because Doe’s Establishment Clause argument relies almost entirely on dissenting
opinions and case law that has been vacated or reversed on the very points for which she
cites them, it is clear t hat these claims “have been addressed by either the United S tates
Supreme Court or the Missouri Supreme Court and, therefore, do not involve fair doubt
or reasonable room for disagreement.” Kirk, 2017 WL 2774419, *1 n.2. Therefore, her
Establishment Clause claim is not “real and substantial,” but “merely colorable,” id., and
this Court properly has jurisdiction over this appeal.

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Plattsmouth, 419 F.3d 772, 778 (8th Cir.

 Appellant Mary Doe (“Doe”) alleges that she is a member of the Satanic Temple.
LF 75, Exhibit 2 to Second Amended Petition, Appx. A63. She alleges that she believes
that abortion is morally permissible under the tenets of

the S atanic Temple.

Id.

Specifically, her alleged “Satanic” beliefs 1 include:
1. “Her body is inviolable and subject to her will alone.” L F 22, Second
Amended Petition, ¶ 27(a), Appx. A11.
2. “She must make decisions regarding he r health based on the best

scientific

understanding of the world, even if the sci ence does n ot comport with the
religious or political beliefs of others.” LF 22, Secon d Amended Petition,
¶ 27(b), Appx. A11.
3. “Her Fetal Tissue is part of her body and not a separate, unique, living human
being.” LF 22, Second Amended Petition, ¶ 27(c), Appx. A11.
4. “She alone d ecides whether, when and how to proceed with the Removal
Procedure.” LF 22, Second Amended Petition, ¶ 27(d), Appx. A11.
1

Because this case was decided on a m

otion to dismiss, Respo ndents assume

solely for purposes of argument that the “religious” beliefs alleged in Doe’s Second
Amended Petition constitute sincerely held religious belief s. Responden ts do not
concede that th ese beliefs are in

fact religious beliefs, rather than political and

philosophical views on abortion dressed up as religious beliefs in order to manufacture a
legal controversy.

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STATEMENT OF FACTS

 or future condition of her Fetal Tissue.” LF 22, Petition, ¶ 27(e), Appx. A11.
6. “She must not s upport religious, phil osophical or political belief s that imbue
her Fetal Tissue with an existence sep arate, apart or unique f rom her body.”
LF 22, Second Amended Petition, ¶ 27(f), Appx. A11.
7. “She must not support any religious, philosophical or political beliefs [sic] that
cede to [sic] control to a thi rd party over the Removal Procedure.” LF 23,
Second Amended Petition, ¶ 27(g), Appx. A12.
8. “She must not support any religious, philosophical or political belief that
promotes the i dea Fetal Tissue is a human being or imbued with an identity
separate, apart and u nique from her bod y.” LF 23, Second Amended Petition,
¶ 27(h), Appx. A12.
Missouri has an Inf ormed Consent Law, R SMo. § 188.027, that sets out preconditions for an abortion. The requirements relevant to this case are:
• Under RSMo § 188.027.1(2), the abortion provider must offer Doe a copy
of a Missouri Depa

rtment of Health an d Senior Services booklet

(“Booklet”) that describes the anato mical and physiological growth of her
unborn child 2 and that states: “The life of each human being begins at

2

RSMo. § 188.015(9) defines “unborn child” as “the off spring of human beings

from the moment of conception until birth.”

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5. “She may, in good conscience, have an abortion without regard to the current

 human being.”
• Under RSMo § 188.027.1(4), 3 the abortion provider must offer Doe an
opportunity to view an ultrasound image and hear the heartbeat of her
unborn child (the “Ultrasound Opportunity”).
• Under RSMo §§ 188.027.1(2), (4) an d 188.027.12, the abortion provider
must wait a period o f time after offering the Booklet and Ultr asound
Opportunity before performing the abo rtion. The waiting period is
currently set at 72 hours, with a statutory fallback period of a 24 hour if the
72-hour waiting period is ever held unconstitutional. RSMo § 188.027.12.
(72-hour and 24-hour waiting periods, collectively, “Waiting Period.”)
LF 23-24, Second Amended Petition, ¶¶ 30-37, Appx. A12-13.
In mid-February 2015, Doe alleged that she became pregnant. LF 21, S econd
Amended Petition, ¶ 22, Appx. A10. In March 2015, she learned of her pregnanc y and
began planning for her abortion . L F 22, Second Amended Petition, ¶ 25, Appx. A11.
She earned money to pay for travel to St. Louis, her abortion, and a stay in a hotel in St.
Louis. LF 2 6, Second Amended Pe tition, ¶¶ 47-52, Appx. A15. Doe alleged th at she

3

Doe’s Second Amended Petition and briefing erroneously cite this as RSMo

§ 188.027.3, but the language that Doe cites is from RSMo § 188.027.1(4). See, e.g., LF
23, Second Amended Petition, ¶ 30, Appx. A12.

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conception. Abortion will terminate the lif e of a separate, unique, living

 Law. LF 26-27, Second Amended Petition, ¶¶ 53-55, Appx. A15-16.
On May 7, 2015, D oe traveled from Greene County, Missouri, to St. Louis,
Missouri. L F 28, S econd Amended Petition, ¶ 59, Appx. A 17. On May 8, 2015, s he
made her f irst visit to the abortion clinic, and delivered a letter purporting to waive the
Informed Consent Law requirements according to her Satani c beliefs and requesting an
immediate abortion. LF 28-29, Second Amended Petition, ¶¶ 61-63, Appx. A17-18; LF
75, Exhibit 2 to Second Amended Petition, Appx. A63. The abortion provider refused to
provide an abortion on May 8, 2015, but it offered Doe the Booklet and gave Doe an
ultrasound. L F 29, S econd Amended Petition, ¶ 64, Appx. A18. Doe had alread y
voluntarily read the Booklet. LF 29, Second Amended Petition, ¶¶ 65, Appx. A18; LF
75, Exhibit 2 to Second Amended Petition, Appx. A63. Doe alleges that she felt guilt and
shame during the Waiting Period. LF 31, Second Amended Petition, ¶ 72(e), Appx. A20.
On May 11, 2015, Doe filed this lawsuit. LF 1. On May 12, 2015, Doe returned
to Planned Parenthood and received an abortion. LF 29, Second Amended Petition, ¶ 70,
Appx. A18. Fili ng her RFRA action wa s not required in order to obtain her abortion.
Doe did not plead th at she was per mitted to have an abortion be cause she initiated th is
litigation. S he does n ot dispute that h er abortion was legal and pr oceeded without an y
legal intervention for or against it by the State.
Originally, this lawsuit challenged the Booklet, the U ltrasound Opportunity, and
the Waiting Period requirements of Missouri’s Informed Consent Law and s ought an

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worked for 45 hours to earn the money required to co mply with the Informed Consent

 December 24, 2015, the state court dismissed Doe’s state court claims without prejudice.
LF 17. She filed an Amended Petition in state court on January 21, 2016. LF 3.
On September 23, 2016, Doe filed her Second Amended Petition in the trial court,
adding additional defendants and her constitutional claims to the state court lawsuit. LF
18-46, Second Amended Petition, Appx. A7-35. Doe challenges the Booklet, Ultrasound
Opportunity, and Waiting Period requirements of Missouri’s Inf ormed Consent Law
under the state’s Religious Freedom Restoration Act (“RFRA”), RSMo. § 1.302 (Counts
I-III) and t he Establishment Clause and Free Exercise Clause of the U.S. Constitution
(Counts IV-V). LF 18-46, Second Amended Petition, Appx. A7-35. Doe sought a
permanent injunction against eight Missouri officials—the Governor, the Attorney
General, and six members of the Missouri Board of Registration for the Healing Arts
4

On June 23, 2015, a nother litigant calling herself “Mary Doe,” al ong with the

Satanic Temple, filed a parallel lawsuit in f ederal court challenging the Booklet, the
Ultrasound Opportunity, and Waiting Period requirements of Missouri’s Informed
Consent Law un der the Establishment Clause and Free Exercis e Clause of the U.S .
Constitution. The Satanic Temple, et al. v. Nixon, et al., 4:15-cv-00986-HEA (E.D. Mo.
June 23, 2015) (“Satanic Temple Lawsuit”).

On July 15, 2016, the federal court

dismissed the Satanic Temple Lawsuit for lack of standing. The Satanic Temple, et al. v.
Nixon, et al., 4:15-cv-00986-HEA (E.D. Mo. Jul 15, 2016). That case is now on appeal,
The Satanic Temple, et al. v. Greitens, et al., 16-3387 (8th Cir. August 11, 2016).

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injunction against the Governor and Attorney General. LF 7-16, Verified Petition. 4 On

 court dismissed Doe’s Second Amended Petition with prejudice for failure to state a
claim on which relief could be gran ted, LF 77-91, Judgment, Appx. A65-79, and Doe
timely appealed.

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(collectively, “the State”). LF 18 -19, Second Amended Petition, Appx. A7-8. The trial

 I.

The Trial Court Properly Dismissed Doe’s RFRA Claims because
She Failed to State a Claim Upon Which Relief Could Be Granted
(Responds to Appellant’s First Point Relied On).
Standard of Review. The trial court’s dec ision to dis miss Counts I-III of Doe’s

Second Amended Petition, raising RF RA claims, is reviewed de novo. Hess v. Chase
Manhattan Bank, USA, N.A., 220 S.W.3d 758, 768 (Mo. 2007).
Doe claims that she is entitled to an exemption under Missouri’s Religious
Freedom Restoration Act (“RFRA”) to Mis souri’s Informed Consent Law. This clai m
fails as a matter of law. First, Doe f ailed to allege that the Inf ormed Consent Law forced
her to enga ge in an y “act or f ailure to act” under RF RA, so she failed to allege an
“exercise of religion” restricted by the Inf ormed Consent La w. S econd, Doe f ailed to
allege any conflict between her putative Satanic beliefs and the operation of the Informed
Consent Law, so she failed to allege a “restriction” on free exercise under RFRA. Third,
even if Doe had alleged a restriction on free exercise, the Informed Consent Law clearly
serves compelling state interests and is not unduly restrictive on Doe’s asserted exercise
of religion. For all these reasons, Doe’s RFRA claim necessarily fails.

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ARGUMENT

 Missouri’s RFRA law requires Doe to plead that the State has
“restrict[ed]” her from engaging in an “act or refusal to act”
that is motivated by religion, and that the State’s restriction does
not advance a compelling governmental interest or is unduly
restrictive of Doe’s exercise of religion.

Missouri’s RFRA law provides that “[a] governmental authority may not restrict a
person’s free exercise of religion, unless” the following criteria are satisfied:
(1) The restriction is in the form of a rule of general applicability, and does
not discriminate against religion, or among religions; and
(2) The govern mental authority demonstrates that application

of the

restriction to the pers on is essential to further a co mpelling governmental
interest,

and

is

not

unduly restrictive

considering

the

relevant

circumstances.
RSMo. § 1.302.1(1)-(2). The statute defines “exercise of religion” as “an act or refusal to
act that is substantially motivated by religious belief, whether or not the religious exercise
is compulsory or central to a larger system of religious belief.” RSMo § 1.302.2.
Accordingly, under the plain te xt of Missouri’s RFRA, a plaintiff claiming a
RFRA violation must allege that: (1) he or she wishes to engage in an “act or refusal to
act” that is substantially motivated by a sincere religious belief, and (2) a govern mental
authority has restricted or will “restrict” tha t act. RS Mo § 1.302.1, 2. I f the plainti ff
alleges such a restriction on the free exercise of religion, the plaintiff must also allege that
either (3) the restriction was not “in a form of a rule of general applicability,” but instead
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A.

 restriction to the person was not “essential to further a compelling government interest”;
or (5) the restriction was “unduly restrictive considering the rele vant circumstances.”
RSMo § 1.302.1(1)-(2).
Doe’s petition failed to satisfy these pleading standards. First, Doe failed to allege
an “exercise of religion” within the meaning of RFRA, because she failed to allege an act
or failure to act on her own part that was s ubstantially motivated for religious belief .
Rather, she al leged that she did not wish to be exposed to information with w hich she
disagreed or suffer inconvenience pr ior to her abortion, but s he did not include an y
allegation that her rel igious beliefs prevented her f rom being ex posed to alternati ve
viewpoints or incur in convenience to obtain an abortion. Second, Doe failed to allege
any substantial burden on her Satanic religious beliefs from the operation of Missouri’s
Informed Consent Law, and thus she failed to plead a “restriction” within the meaning of
the RFRA. Third , even if she had i dentified any restriction on her Satanic beliefs, the
Informed Consent Law is a rule of general applicability that does not discriminate against
religion; the Law furthers the State’s compelling governmental interests in promoting
human life, in encou raging careful consideration before the gr ave and irreve rsible
decision to terminate a human life, and in ensuring that the abortion decision is free from
pressure or coercion; and the Law does so in a way that was not “unduly restrictive” to
Doe “considering the relevant circumstances.” RSMo § 1.302.1(1)-(2). Accordingly, the
trial court correctly dismissed Doe’s RFRA challenges to the Informed Consent Law for
failure to state a claim.
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“discriminate[d] against religion, or a mong religions”; or (4) th e application of the

 Doe failed to allege an “exercise of religion” that was
“restricted” within RFRA’s meaning, because she alleged only
an interest in avoiding exposure to information with which she
disagreed, and she failed to allege any religious belief that would
be violated by such exposure to information.

Doe failed to allege an “exercise of religion” as defined by RFRA for two reasons.
First, she failed to id entify any affirmative “act or ref usal to act” mandated by the
Informed Consent Law. The Inf ormed Consent Law requires others to act b y offering
Doe certain information before her abortion, and Doe’s alleged

interest in avoiding

exposure to information with which s he disagrees does not in volve any “act or refusal to
act” by Doe. Second, even if she had alleged an act or refusal to act, Doe failed to allege
any religious belief that conflicted with any requirement of the I nformed Consent Law.
Accordingly, she failed to allege that the Informed Consent Law “restricted” any action
motivated by her sincere beliefs.
1. Doe failed to allege an “exercise of religion” restricted by the
Informed Consent Law because her interest in avoiding exposure to
information does not involve any “act or refusal to act” by Doe.
In her S econd Amended Petition, Doe claimed that the I nformed Consent Law
violated her Sata nic beliefs in three wa ys: (1) b y requiring her p hysician or a qualif ied
professional to provide Doe with an “opportunity to view at least seventy-two hours prior
to the ab ortion an active ultrasound of the u nborn child and hear the heartbeat of the
unborn child if the he artbeat is audible,” R SMo § 188.027 .1(4); (2) b y requiring her
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B.

 the department, which describe the probable anatomical and physiological characteristics
of the unborn child at two -week gestational increments,” RSMo § 188.027.1(2); and (3)
by requiring her ph ysician or other qualif ied professional to provide such materials at
least 72 hours before the abortion, RSMo § 188.027.1. See LF 31-40, Appx. A20-29.
By its plain terms, the Informed Consent Law requires D oe’s physician or other
qualified professional to perform these acts. RSMo § 188.027.1. It does not require Doe
herself to perform these acts. As the trial court correctly found, nothing in the Informed
Consent Law purports to require Doe to review the ultrasound, listen to the heartbeat, or
read the printed materials about fetal development. Doe was free to decline to review any
of the information that the statute required Doe’s abortion provider to make available to
her. Accordingly, the only interests that Doe asserted was a n interest in being free from
exposure to inf ormation with which she disagrees, and an interest in avoiding
inconvenience or expense prior to obtaining an abortion.
Under the plain language of the statute, the interest in avoiding exposure to
information with which one disagrees is not an “exercise of religion” because it does not
involve any “act or refusal to act” that is s ubstantially motivated by sincere religious
belief. See RSMo § 188.027.2; see also State v. Bazell, 497 S.W.3d 263, 266 (Mo. 2016)
(per curiam) (holding that “the primary rule of statutory interpretation” is “to give effect
to the plain and ordinary meaning of the statutory language”). When one is merely
exposed to information, one is not “act ing” or “refusing to act.” Rat her, someone else is
acting—namely the purveyor of the inf ormation, in this case Do e’s physician. See
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physician or a qualified professional to provide Doe with “printed materials provided by

 “act” as “to carry into effect a determination of the will : take actio n : move”); Black’s
Law Dictionary 26 (8th ed. 2004) (defining “act” as “something done or preformed, esp.
voluntarily; a deed”). Thus, Doe’s claim that her religion entitles her to avoid exposure
to the information prescribed by the Informed Consent Law does not identify any “act” of
Doe. Similarly, the o nly “refusal to act” that Doe alleged wa s her ref usal to accept the
proffered information, which of course is fully consistent with Doe’s asserted religious
beliefs. Because Doe did not and cannot allege that the Informed Consent Law requires
her to take any affirmative action or refusal to take action, she failed to plead that she was
engaged in an y “exercise of religion” that was restricted b

y the State.

RSMo

§ 188.027.2. As the trial court stated, “Plaintiff has not identif ied any ‘act or refusal to
act’ that is ‘substantially motivated by religious belief.’” LF 82, Appx. A70.
Because the plain meaning of the statute is clear, that ends the inquiry. Bazell, 497
S.W.3d at 266. But even if the statute were ambiguous on this point, Doe’s interpretation
must be rejecte d because it leads to u nreasonable and ab surd results that the G eneral
Assembly could not have intended. See Aquila Foreign Qualifications Corp. v. Dir. of
Revenue, 362 S .W.3d 1, 4 (Mo. 2012)
unreasonable or absurd results.”).

(“[C]onstruction of a s tatute should avoid

If Doe could assert a sincere religious belief in

avoiding exposure to information with which one disagrees, Doe could employ
Missouri’s RFRA as a formidable club to silence different viewpoints in the marketplace
of ideas. Th is is an “unreasonable or absurd result” that the l egislature could not have

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Webster’s Third New Internationa l Dictionary 20 (2002) (defining the intransitive verb

 (Mo. 2010).
2. Doe failed to plead that the statute “restrict[s]” her free exercise of
religion because she failed to allege any religious belief that
conflicted with the operation of the Informed Consent Law.
Not only did D oe fail to identif y any “act or ref usal to act ” that the Inf ormed
Consent Law purportedly restricts, she also f ailed to allege a ny sincere religious belief
that conflicts with the operation of the Informed Consent Law.
As discussed above, Doe alleged eight “deeply held religious beliefs” in her
Second Amended Petition. LF 22-23, Second Amended Petition, ¶ 27(a)-(h), Appx. A1112. These beliefs included:
1. “Her body is in violable and subject to her will alone.” LF 22, ¶ 27(a),
Appx. A11.
2. “She must make decisions regarding her health based on the best scientific
understanding of the world, even if the science does not co mport with the
religious or political beliefs of others.” LF 22, ¶ 27(b), Appx. A11.
3. “Her Fetal Tissue is part of

her body and n ot a separate, unique, living

human being.” LF 22, ¶ 27(c), Appx. A11.
4. “She alone decides whether, when and how to proceed with the Removal
Procedure.” LF 22, ¶ 27(d), Appx. A11.
5. “She may, in goo d conscience, have an ab ortion without regard to the
current or future condition of her Fetal Tissue.” LF 22, ¶ 27(e), Appx. A11.
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intended and did not intend. Id.; see also Akins v. Dir. of Revenue, 303 S.W.3d 563, 565

 imbue her Fetal Tissue with an existence separate, apart or unique from her
body.” LF 22, ¶ 27(f), Appx. A11.
7. “She must not support any religious, philosophical or political beliefs that
cede to [sic] control to a third part y over the Removal Procedure.” LF 23,
¶ 27(g), Appx. A12.
8. “She must not support any religious, philosophical or political belief that
promotes the idea Fetal Tissue is a human being or imbued with an identity
separate, apart and unique from her body.” LF 23, ¶ 27(h), Appx. A12.
Notably, Doe did not allege that her sincere religious belief s prevent her f rom
being exposed to, or f rom refusing to review, information about abortion with which she
personally disagrees. In fact, far from claiming that her r eligion requires her to avoid
exposure to the State’s information, Doe actually alleged that she voluntarily reviewed
the information required by RSMo § 188.027.1(2) before seeking an abortion or f iling
this lawsuit. See LF 75, Appx. A63 (Doe asserting in a letter to her abortion provider that
“I have a lready reviewed the Booklet”).

Accordingly, as the t rial court correctly

observed, “Plaintiff does not claim a deeply held religious belief against complying with
‘irrelevant and unnecessary’ regulations.”

LF 82-83, Appx. A 70-71 (emphasis in

original).
Similarly, Doe did not allege that her compliance with the 7 2-hour waiting period
conflicted with any sincerely held religious belief. None of her asserted religious beliefs
stated that her re ligion dictated that sh e must obtain an abor tion more quickly than 72
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6. “She must not su pport religious, phi losophical or political beli efs that

 stated that “[s]he alone decides whether, when and how to proceed with the [abortion].”
LF 22, ¶ 27(d), Appx. A11.

But the Informed Consent Law fully permits Doe to

“decide[] whether, when, and how” to proceed with her abortion. If for some reason she
wanted to have her abortion on a particular day, she needed only to plan ahead by making
contact with th e abortion provider 7 2 hours in advance. As the

trial court correc tly

stated, “Plaintiff doesn’t allege that she wa s substantially motivated by her reli gious
beliefs to seek an abor tion. Nor doe s she allege that she wa s substantially motivated by
her religious beliefs to do so within 72 hours of deciding to e nd her pregnancy.” LF 84,
Appx. A72. Rat her, “Plaintiff merely alleges that she disagrees with the content of
certain State speech about abortion and finds the waiting period irrelevant, unnecessary,
and inconvenient. But even assu ming Plaintiff’s disagreement with State speech

is

substantially motivated by her religious beliefs, her disagreement is neither an act nor a
failure to act.” Id. (emphases in original).
Similarly, Doe argues repeatedly that she wa s forced to incur inconvenience and
expense to obtain her

abortion as a result of the In formed Consent Law—both by

incurring travel and lodging costs, and by (allegedly) paying for the cost of an ultrasound
performed by the abortion provider. 5 See, e.g., App. Br., 12, 33, 35, 38, 39. But Doe did
5

Doe repeatedly objects that she was allegedly required by the abortion provider

to pay for the ultrasound, see App. Br., 12, 33, 35, 38, 39, but this is not required by the
text of the statute, and thus it does not constitute a “restriction” imposed by the statute.

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hours after first making contact with a n abortion provider. Doe’s f ourth asserted belief

 any money or incurring any inconvenience incidental to her compliance with the State’s
Informed Consent Law. S he alleges that she must not “support any religious,
philosophical or politi cal belief that prom otes the idea F etal Tissue is a hum an being,”
but her payment of bus fare and hotel bills does not “support any religious, philosophical
or political belief ” whatsoever. LF 23, ¶ 27(h), Appx. A12. In s hort, though Do e is
plainly unhappy that the Informed Consent Law allegedly forced her to incur incidental
costs, she f ailed to allege that pa yment of such costs is inconsi stent with her sincerel y
held religious beliefs. Under these circumstances, the trial court correctly concluded that
Doe’s petition failed to allege an y inconsistency between her puta tive religious beli efs
and the operati on of the Inf ormed Consent Law. The trial cou rt correctly viewed her
lawsuit as an a ttempt to manufacture a religi ous controversy out of Doe’s politi cal and
philosophical disagreement with the Informed Consent Law. See LF 84, Appx. A72
(“Plaintiff is merely cloaking her political beliefs in the mantle of religious faith in order
to avoid laws of general applicability that she finds prudent or offensive.”).

See RSMo § 188.027.1(4) (requiring that the abortion provider “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”).

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not allege that she holds a sincerely held religious belief that preve nts her f rom paying

 religion because she alleged only de minimis burdens on her free
exercise of religion.
Missouri’s RFRA provides that “a go vernmental authority may not restrict a
person’s free exercise of religion.” RS Mo § 188.027.1 (emphasis added). The pl ain
meaning of the word “ restrict” requires that t he plaintiff allege more than a de minimis
burden on the free exercise of religion. See Webster’s Third, at 1937 (defining “restrict”
as “to set bounds or li mits to : hold within bounds . . . to chec k free activit y, motion,
progress, or departure of : restrain”). A merely de minimis or inconsequential burden on
freedom action does not constitute a “rest riction.” See Kaemmerling v. Lappin, 553 F.3d
669, 678 (D.C. Cir. 2008) (“A substantial burden exists when government action puts
‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’ . . .
An inconsequential or de minimis burden on religious practice does not rise to this level,
nor does a burden on activity unimportant to the adherent’s religious scheme.”).
The Informed Consent Law imposes no “restriction” on Doe, becau se it does not
require any action from her, and it imposes no penalty on her for any action. Rather, by
its plain terms, the Informed Consent Law imposes duties, obligations, and penalties on
other people—namely, abortion p roviders—not on Doe herself . Doe alleges that the
imposition of these obligations on third par ties indirectly restricts her freedom of action
by dictating the terms under which she ma y obtain abortion services from those people.
But she cites no authority holding that regulation of the seller of services may constitute a
“restriction” on the free exercise of a buyer by indirectly making it more complicated for
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3. Doe failed to plead that the statute “restrict[s]” her free exercise of

 a direct restriction on the part y asserting religious free exercise. See A.A. v. Needville
Indep. Sch. Dist., 611 F.3d 248, 253 (5th. Ci r. 2010) (school restricted way in whic h a
Native American student could wear his hair); Merced v. Kasson, 577 F.3d 578, 582 (5th.
Cir. 2009) (city ordinance against ani mal slaughter restricted animal sacrifices); Barr v.
City of Sinton, 295 S. W.3d 287, 289 (Tex. 2009) (city enacted zo ning restrictions on
Christian half-way house); Warner v. City of Boca Raton, 887 So.2d 1023, 1025 (Fla.
2004) (city ordinance prohibited grave owners from erecting vertical decorations).
By contrast, multiple cases have held that there is no restriction on free exercise of
religion when a law requires other parties to act in a w ay that the plaintiff perceives as
offensive to his or he r religious bel iefs. F or example, in Kaemmerling, the plaintiff
contended that the f ederal Bureau of Prisons would substantia lly burden his religiou s
exercise by collecting his DNA and entering it into a national database. 553 F.3d at 679.
The D.C. Circuit held that the actions of third-party governmental actors c ould not
constitute a re striction on t he plaintiff’s religious b eliefs, even if the plaint iff sincerely
believed that the government’s collection of his DNA would violate his religious tenets:
“Religious exercise necessarily involves an action or practice . . . . Kaemmerling, in
contrast, alleges that the DNA Act’s r equirement that the f ederal government collect and
store his DNA information requires the government to act i n ways that violate his
religious beliefs, but he suggests no way in which these governmental acts pressure him
to modify his own behavior in any way that would violate his beliefs.” Id.

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the buyer to purchase those services. Rather, every case on which Doe relies constitutes

 free-exercise challenge brought by Native American parents against the government’s use
of their daughter ’s Social Securit y number, based on their sincere belief that the
government’s use of the number would “rob the s pirit” of their c hild. Id. at 696. T he
Supreme Court rejected this claim, stating: “Never to our knowledge has the Court
interpreted the First Amendment to require the Government itself to behave in ways the
individual believes will further his or her s piritual development or that of his or her
family. Th e Free Exercise Clause si mply cannot be under stood to require the
Government to conduct its own internal affairs in ways that comport with the religious
beliefs of particular citizens.” Id. at 699.
As in these cases , the Informed Consent Law requires no act ion and imposes no
penalty on Doe. Rather, it requires certain actions of third parties, which Doe claims are
offensive to her relig ious beliefs and impose an indir ect burden on her. A

s in

Kaemmerling and Bowen, this claim should be rejected. The trial court correctly stated
that “Plaintiff in this case does not id entify any act required under Missouri la w but
prohibited by her religious beliefs, nor any act prohibited under Missouri law but required
by her religious beliefs. At most, she has identified acts required of third parties that may
be irrelevant or unnecessary to Plaintiff’s religious beliefs.” LF 85, Appx. A73.
Moreover, even if the Informed Consent Law imposed any direct restriction on
Doe, it was de minimis at most. She was not required to read the State’s inf ormation.
She was not required to view the ultrasound. S

he was not required to list en to the

heartbeat. Th e state-mandated offer of information merely exposed her to a dif ferent
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Similarly, in Bowen v. Roy, 476 U.S. 6 93 (1986), the Supr eme Court rejected a

 Calbone, 600 F.3d 1301, 1321 (10th Cir. 2010) (holding that to offer a Muslim inmate a
food tray with pork imposed a de minimis burden on his religion, even if he was
occasionally forced to accept the food).
C.

Even if Doe had alleged a restriction on the free exercise of her
religion, the Informed Consent Law is a generally applicable law
that advances compelling state interests and does not unduly
restrict religious exercise.

Moreover, even if Doe had alleged a restric tion on the free exercise of religion
within the meaning of RFRA, her RFRA claims would still fail as a matter of law. The
Informed Consent Law is a generally applicable statute that does not discriminate against
or among religions. The Law adva nces the State’s compelling interests in promoting
human life, in ensuring that the decision to ab ort is free from undue pressure or coercion,
and in ensuring that the often wrenching, morally profound, and irreversible decision to
terminate an unborn human life follows a period of significant deliberation and reflection.
Further, the Law “is not unduly restrictive considering the relevant circumstances,”
which include the critical period in which someone is deli berating about whether to
terminate the life of an unborn human being. RSMo § 1.302.1(2).
1. The Informed Consent Law is a generally applicable statute that
does not discriminate against religion or among religions.
First, the Informed Consent Law is “in the form of a rule of general applicability,
and does not discriminate against religion, or among religions.” RSMo § 1.302.1(1).
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viewpoint. T his was not a substantial burden under any theory. See Abdulhaseeb v.

 all cases where s omeone is seeking an a bortion, irrespective of religion. See RSMo §
188.027.1. Doe presents no serious argument that the statute facially discriminates on the
basis of religion. Accordingly, this requirement is met.
2. The Informed Consent Law advances the State’s compelling
interests in promoting human life, in ensuring that the abortion
decision is free from coercion, and in ensuring that the profound
and irreversible decision to terminate an unborn human life follows
a significant period of deliberation and reflection.
Second, the Informed Consent Law “is essential to f urther a co mpelling
governmental interest.” RSMo § 1.302 .1(2). In particular, the Law advances the State’s
compelling interests in protecting hu man life, in ensuring th at the decision to ha ve an
abortion is voluntary and free from coercion, and in ensuring that the prof ound, often
wrenching, and irreversible decision to ter minate an unbor n human life follows a
significant period of reflection.
First, the question whether the pr otection of unborn hu man life constitutes a
“compelling governmental interest” within the meaning of RSMo § 1.302.1(2) is a
question of state statutory interpretation, not a federal constitutional question. Doe has
not brought any claim alleging that the Inf ormed Consent Law i mposes an undue burden
on her f ederal constitutional right to a bortion. Rather, her RFRA claims rely solely on
one state statute—Missouri’s RFRA—to seek an exemption from another state statute—
Missouri’s Informed Consent Law. Thus , the question whethe r the S tate’s asserted
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The statute applies to all abortion providers, irrespective of their religion, and it applies in

 understood them to be “compelling governmental interest[s]” under § 1.302.1(2). This is
a question of statutory interpretation arising solely under state law.
Here, the answer t o the question is ver y clear, because the Ge neral Assembly
directed in a nearb y state statute that all Mi ssouri statutes must be interpreted on the
understanding that an unborn human life is just as valuable as a born human life.
Specifically, RSMo § 1.205 provides that “the life of each hu man being begins at
conception,” and that “unborn children have protectable interests in life, health, and wellbeing.” RSMo § 1.205.1(1)-(2). Further, that statute provides that “the laws of this state
shall be interpreted and construed to acknowledge on behalf of the unborn child at every
stage of development, all the rights, privileges, and immunities available to other persons,
citizens, and residents of this state, subject only to the Constitution of the United States.”
RSMo § 1.205.2 (emphasis added). “[T]he laws of this state,” id., of course, include both
Missouri’s RFRA and the I nformed Consent Law, from which Doe seeks a state-law
exemption under the RFRA. In other wor ds, in construin g the phrase “compelling
governmental interest” in Missouri’ s RFRA, the courts must presume that the live s of
unborn children are to be viewed as having equal value as those of all other pers ons in
Missouri.

Id.; RSMo. § 1.302.

Because it is unquesti onable that the State has a

compelling interest in protecting the lives of born humans in Missouri, the State’s interest
in promoting and protecting unborn human life is an equall y “compelling governmental
interest” within the meaning of Missouri’s RFRA.

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interests in this context are “compelling” turns entirely on whether the General Assembly

 Law, in ensurin g that the prof ound, often wrenching, and ir reversible decision to
terminate an u nborn human life through abortion follows a si gnificant period of
deliberation and reflection. Because the u nborn human life terminated through abortion
is just as valuable a s a born child or adul

t human under M issouri law, see RSMo

§ 1.205.2, it is unq uestionable that the State has a “compelling governmental interest” in
ensuring that any decision to ter minate a human life proceeds from significant
deliberation and reflection. RSMo § 1.302.1(2).
Further, by calling for a period of deliberation and reflection prior to abortion, the
Informed Consent Law also advances the State’s compelling interest in ensuring that the
decision to have an ab ortion is voluntary and free from coercion. RS Mo § 188.02 7.11.
There can be n o doubt that this sta te interest is a “co mpelling governmental interest”
within the meaning of § 1.302 .1(2), because the General Asse mbly, in enacting the
Informed Consent Law, explicitly determined that it was a “compelling interest.” See
RSMo § 188.027.11 (“In order to pres erve the compelling interest of the state to ensure
that the choice to consent to an abortion is voluntary and informed, and given freely and
without coercion . . . .” ). Because the General Assembly stated in the Informed Consent
Law that it adv ances a “compelling interest,” it is c lear that the Informed Consent Law
advances a “compelling governmental interest” within the meaning of the RFRA, which
is another statute enacted by the General Assembly. See Aquila, 362 S.W.3d at 4 (“[N]o
portion of a statute is read in isolation, but rather is read in context to the entire statute,
harmonizing all provisions.”).
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The same is true of the State’s parallel interest, expressed in the Informed Consent

 repeatedly recognized the State’s strong interest in promoting and protecting human life,
including the lives of unborn humans. Roe v. Wade initially held that the State’s interest
in protecting human life became “compelling” at viability. Roe v. Wade, 410 U.S. 113,
162 (1973). I n subsequent decisions, however, the U.S. Supreme Court has str ongly
indicated that this interest becomes compelling prior to viabilit y. “[W]e do not see wh y
the State’s interest in protecting potential human life should come into existence only at
the point of viability . . . .” Webster v. Reproductive Health Services, 492 U.S. 490, 519
(1989) (Rehnquist, C.J., plurality opinion). “Even in the earliest stag es of pregnancy, the
State may enact rules and regulations designed to encourag e her to know that ther e are
philosophic and social arguments of great weight that can be broug ht to bear in f avor of
continuing the pregnancy to full term . . . .” Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833, 872 (1992) (O’Connor, J., plurality opinion).
“[T]here is a su bstantial state interest in potential life throughout pregnancy.” Id. at 876
(citing Webster, 492 U.S. at 519).
For these reasons, the State’s interests in promoting and protecting unborn human
life, and in ensuring that an y decision to te rminate a hu man life follows a period o f
significant

reflection

and deliberat ion,

unquestionably

constitute

“compelling

governmental interest[s]” within the meaning of Missouri’s RFRA, RSMo § 1.302.1(2).

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Moreover, even in the context of interpreting the federal Constitution, courts have

 alleged free-exercise interests “considering all the circumstances,”
because the Informed Consent Law advances the most compelling
state interests imaginable and imposes minimal burdens on Doe.
For similar reasons, the Informed Consent Law is no t “unduly restrictive
considering the relevant circumstances,” RSMo § 1.302.1(2), because the State’s interests
in protecting human life is the most compelling interest imaginable, and the alleged
burdens on Doe’s free exercise of religion are minimal or non-existent.
As with the phrase “compelling governmental interest,” the meaning of the phrase
“unduly restrictive considering the relevant circumstances” in § 1.302.1(2) presents a
question of statutory interpretation under state law, not a federal constitutional question.
Again, the meaning of this statutory phrase must be informed by the General Assembly’s
directive in the neighboring statute that “the laws of this state shall be inte rpreted and
construed to ac knowledge on behalf of the unborn child at e very stage of development,
all the rights, privileges, and immunities available to other persons, citizens, and residents
of this state.” RSMo § 1.20 5.2. I n other words, the “relevant circumstances” under
§ 1.302.1(2) include General Assembly’s directive that the sta te RFRA must be
interpreted on the un derstanding that unborn human lives are just as valuable as born
human lives. RSMo § 1.205.2.
For this rea son, the Informed Consent Law cannot be d eemed to be “undul y
restrictive under the relevant circumstances” within the meaning of RFRA. On the one
hand, the S tate’s interests in pro moting human life, preventing coercion in abortion
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3. The Informed Consent Law is not “unduly restrictive” of Doe’s

 life are the m ost compelling interests imaginable. Assu ming, as the Court must when
interpreting the state statute, that the l ives of unborn children are just as important as the
lives of born children and adults, t here could be no more “compelling governmental
interest” than the State’s interest in protecting those lives. RSMo § 1.302.1(2).
By contrast, any alleged burdens o n Doe’s putative religious beliefs in this case
are de minimis or non-existent. For the reasons discussed above, Doe failed to allege any
real conflict between her putative religious beliefs and the operation of the Inf ormed
Consent Law. On ap peal, Doe con tends that the inconv enience and expense t hat she
allegedly incurred as a result of the Informed Consent Law constituted undue restrictions
on her, but she did not allege that her religion prohibits her from incurring inconvenience
or expense in order to obtain an abortion. As the trial court held, “Plaintiff doesn’t allege
that she was substantially motivated by her religious beliefs to seek an a bortion. N or
does she allege that s he was substantial ly motivated by her relig ious beliefs to do so
within 72 hours of deciding to end her pregnancy.” LF 84, Appx. A72.
For these reasons, Doe failed to allege an y facts that could su pport the conclusion
that the Informed Consent Law is “unduly restrictive considering the relevant
circumstances,” and her RFRA claims failed as a matter of law.
Moreover, even thou gh the federal abortion cases are not determ inative here
because Doe has not asserted a federal due process challenge to t he Informed Consent
Law, it is nota ble that federal courts have consistently concluded that informed consent
laws, like Missouri’s, do not impose an “undue burden” on the federal right to abortion.
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decisions, and encouraging careful deliberation and reflection before terminating human

 period was not an “undue burden” because it did not i mpose a “substantial obstacle” on
the right to abortion ). “[T]he waiting period is a reasonable m easure to im plement the
State's interest in protecting the life of the unborn, a measure that does not amount to an
undue burden.” Id. at 885. See also, e.g., Barnes v. Moore, 970 F.2d 12, 15 (5th Cir.
1992) (upholding informed consent law that i ncluded a waiting period); Karlin v. Foust,
188 F.3d 446, 483-88 (7th Cir. 1999) (upholding informed consent law that required
physician provide information about fetal development and instituted a w aiting period);
Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1467 (8th Cir. 1995 )
(upholding informed consent law that included a waiting period). Because the Informed
Consent Law does not impose an “undue burden” on Doe’s right to abortion under
federal constitutional law, the Court may readily conclude that it is likewise “not unduly
restrictive considering the relevant circumstances” under Missouri’s RFRA.
For all the se reasons, the district court’s ruling dismissing Doe’s RFRA claims
should be affirmed.

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See Casey, 505 U.S. at 886 (affirming holding of the trial co urt that a 24 -hour waiting

 The Trial Court Correctly Dismissed Appellant’s Establishment
Clause Claim Because the Informed Consent Law Does Not
Establish Any Religious Belief, But Permissibly Expresses the
State’s Political and Philosophical Interest in Protecting Unborn
Human Life (Responds to Appellant’s Second Point Relied On).
Standard of Review. The trial co urt’s decision to dis miss Count IV of Doe’s

Second Amended Petition, raising the Establishment Clause claim, is reviewed de novo.
Hess, 220 S.W.3d at 768.
Missouri’s Informed Consent Law does n ot violate the Establishment Clause
because the law is not one “ respecting the establishment of a reli gion.” U.S. CONST.
AMEND. I. It is a secular law by which the political branches of state government
addressed a political issue prop erly subject to their a uthority.

Doe bases her

Establishment Clause argument almost entirely on dissenting opinions and cases that
have been reversed or vacated on appe al. Th e law when applied co rrectly to this issue
clearly favors the State.
Doe incorrectly argues this Court should apply the Larson test, which only applies
when a statute f acially discriminates against religion or among religions. Instead, this
Court should reject Doe’s Establishment Clause because it rai ses a political, not a
religious, issue. Alternatively, if the Court finds the Informed Consent Law implicates
the Establishment Clause, it should evaluate Doe’s challenge under the Lemon test, as the
trial court did, and find that the Informed Consent Law is constitutional.

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II.

 in her briefing she only raises arguments against the requirement that abortion patients be
informed that life begins at conception. She raises no arguments that either the 72-hour
Waiting Period or the Ultrasound Opportunity is the establishment of a religious belief.
Therefore, these provisions of the Informed Consent Law should stand regardless of the
success of Doe’s Establishment Clause claims.
A. The Informed Consent Law is not a religious tenet but a political
and philosophical position adopted by the political branches of
Missouri’s government.
Doe did not sufficiently allege that Missouri adopted a religious tenet or otherwise
established a state religion. Doe makes the conclusory allegation that the Informed
Consent Law is a religious tenet because Missouri’s definition of when life begins is
similar to the definition used by some religions. LF 24, ¶ 38, Appx. A13. Doe has not
alleged a single fact that establishes that Missouri has adopted a “religious belief” other
than alleging the conclusion. Id. Government speech is not r eligious speech solely
because government speech “happens to coincide” with a reli gious tenet. McGowan v.
Maryland, 366 U.S. 420, 442 (1961) (“[T]he ‘Establishment’ Clause does not ban federal
or state regulation of conduct whose reas on or eff ect merely happens to coincide or
harmonize with the tenets of some or all religions.”).
The U.S. Supre me Court has applied this v ery principle to aborti on cases. In
Harris v. McRae, the Court rejected a challenge to the Hyde Amendment’s ban on public
funding of abortion under the Establish ment Clause. Harris v. McRae, 448 U. S. 297,
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Notably, though Doe purports to chal lenge the Informed Consent Law generally,

 After citing McGowan, the Supreme Court stated, “[t]he Hyde

Amendment, as the District Court noted, is as much a reflection of ‘traditionalist’ values
towards abortion, as it is an embodiment of the views of any particular religion. In sum,
we are convinced that the fact that the funding restrictions in the Hyde Amendment may
coincide with the religi ous tenets of the Roman Catholic Church doe s not, without more,
contravene the Establishment Clause.” Id.(citations omitted).
This principle, that a law is not an establishment of religion because it “coincides”
with religious tenets, is seen even more strongly in McGowan. In that case, seven
individuals were charged with violating Maryland’s statutes restricting the sale of certain
goods on Sundays.

McGowan, 366 U.S. at 422-23. The statutes used religious

terminology, such as “Sabbath Breaking,” and referred to Sunday as “the Lord’s day” and
“Sabbath day.” Id. at 445. The Court held that, despite the religious underpinnings of
Sunday laws, Maryland did not viola te the Establishment Clause by enacting a criminal
law that paralleled Christian teachings regarding the Sabbath. Id. at 449 (“[ W]e accept
the State Supreme Court’s determination that the statutes ’ present purpose and ef fect is
not to aid religion but to set aside a day of rest and recrea tion.”). The McGowan Court
compared Doe’s argument to arguing that t he state c annot criminalize murder because
murder is proh ibited by the Ten Commandments. Id. at 442. S o too, the Harris Court
noted that Doe’s a rgument would stri ke down laws prohibi ting larceny because of
Christianity’s views on theft. Harris, 448 U.S. at 319. And the Supreme Court has
addressed, and rejected, these same arguments regarding bigamy. Reynolds v. United

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319-320 (1980).

 law dates from the same time as Virginia’s establishment of religious freedom).
The reason that the State may legislate on these issues—issues that are within the
religious realm—is that murder, larceny, marriage, and abortion are also within the social
realm and subject to the powers of the political branches of the government. Doe herself
acknowledges this truth in the ver y first sentence of

her brief

addressing her

Establishment Clause claim, which states that abortion is “[o]ne of the most contentious
philosophical, religious and political debates of our time.” App. Br., 41. See also id., at
9 (stating pro-life views are “religious, philosophical or political beliefs”); id. at 10
(same); id. at 20 (same). On this point, Doe is correct—abortion is a philosophical issue,
it is a religious iss ue, and it is a social and political issue. A nd because it is a political
issue, Missouri’s political branches of government can address the issue without “making
a law respecting the establishment of a religion.” U.S. CONST., AMEND. I. “Even in the
earliest stages of pregnancy, the State may enact rules and regulations designed to
encourage her to kno w that there are philosophic and social arguments of great weight
that can be brought to bear in favor of continuing the pregnancy to full term . . . .” Casey,
505 U.S. at 872 (O’Connor, J., plurality opinion) (emphasis added).

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States, 98 U.S. 145, 165 (1878) (upholding bigamy laws, and noting Virginia’s bigamy

 Doe errs in relying on the Eighth Circuit’s opinion in
Reproductive Health, because the Supreme Court overruled that
opinion and explicitly stated that Missouri may express a
judgment on when life begins.

Doe relies heavily on the Eighth Circuit’s opinion in Reproductive Health Services
v. Webster (“Reproductive Health”), even th ough the U. S. Supreme Court rever sed the
Eighth Circuit in that case, and a majority of the Supreme Court expressly disagreed with
the very Eighth Circuit proposition that Doe cites.
The Reproductive Health case pertained to the constitutionality of RSMo § 1.205,
which, like the Informed Consent Law, states that life begins at conception. RSMo
§ 1.205.1(1).

The Eighth Circuit held § 1.205 unconstitutional, calling it “an

impermissible state adoption of a theor y when life begins.” Reproductive Health, 851
F.2d at 1076. The Eighth Circuit i nterpreted the RSMo § 1.205 to be inconsistent with
Roe v. Wade and therefore unconstitutional. Id.
The U.S. Supreme Court disagreed and reve rsed the Eig hth Circuit. The Court
stated that the E ighth Circuit had misapplied Supreme Court precedent regarding the
ability of a state to express the State’s view on when life begins. “The Court has
emphasized that Roe v. Wade ‘implies no limitation on the authority of a State to make
a value judgment favoring childbirth over abortion.’ [RSMo. § 1.205] can be read
simply to expre ss that sort of value judgm ent.” Webster, 492 U. S. at 506 (emphases

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B.

 id., in a way that did not infringe upon Reproductive Health Services’ ability to provide
abortions, the Supreme Court held that the Eighth Circuit should not have reac hed the
issue of the constitutionality of the State’s definition of when life begins. Id. at 507 (“We
therefore need not pass on the constitutionality of the Act’s preamble [RSMo. § 1.205].”).
Doe’s substantive argument regarding the unconstitutionality of the Informed
Consent Law is based almost entirely on the single sentence she quotes from the Eighth
Circuit’s Reproductive Health opinion and on Justice Stevens’ dissent in Webster. App.
Br., 42-45. She ignores that the U.S. S upreme Court explicitly stated that the State of
Missouri is permitted to express its opinion t hat life begins at conception. Webster, 492
U.S. at 506. Doe does not allege that Missouri prevented her from receiving an abortion,
or that the Informed Consent Law imposed an undue burden on her right t o abortion
under the f ederal Constitution. Do e merely argues, in rel ying on Reproductive Health,
that being offered the opportunity to hear the State’s opinion on when life begins violates
the federal Constitution. The U.S . Supreme Court has alread y held that Missouri may
6

In the Webster case, there were f ive separate filed opinions, in cluding the

opinion of Chief Justice Rehn quist who wrote the Opinion of the Co urt.

Here,

Respondents cite Section II-A of Chief Justice Rehnquist’s opinion, which is one of the
sections of his opinio n for which he speaks f or a majorit y of the C ourt. Webster, 492
U.S. at 498 (“Chief Justice Rehnquist announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II-A, II-B, and II-C . . . .”).

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added) (citation omitted). 6 Because Missouri “express[ed] that sort of value judgment,”

 majority of the Supreme Court in 1989, and Doe offers no reason why this Court should
follow that dissenting opinion now. This Court should follow the Opinion of the Court in
Webster and hold that the State may validly express its preference for the protection of
unborn human life without violating the Establishment Clause.
C.

The Plattsmouth case favors the Respondents here, as the Eighth
Circuit vacated the opinion cited by Doe and allowed a city to
display the Ten Commandments.

In addition to rel ying on the reversed Reproductive Health case, Doe relies on
ACLU Neb. Found. v. City of Plattsmouth to argue that the S tate cannot “purposef ully
steer[]” its citizens on their own individual “search for truth.” App. Br., 42. Once again ,
the case on which Doe relies is not good law, and

the actual case law supports the

Respondents here.
In Plattsmouth, the plaintiff sued to force the cit

y to remove a Ten

Commandments monument. Doe cites the p anel decision of the Eighth Circuit, whi ch
held that the monument was unconstitutional because it attempted to “steer its citizens in
the direction of the mainstrea m Judeo-Christian religion.” ACLU Nebraska Found. v.
City of Plattsmouth, 358 F.3d 1020, 1042 (8th Cir. 2004), reh’g granted and opinion
vacated (Apr. 6, 2004), on reh’g en banc, 419 F.3d 772 (8th Cir. 2005). But that panel
opinion was vacated and the case w as re-heard en banc. On rehearing in front of the
Eighth Circuit en banc, and following a U.S. Supreme Court decision upholding the
public display of Ten Co mmandment monuments, Van Orden v. Perry, 545 U. S. 677
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permissibly hold and express this opinion. Id. Justice Stevens’ view did not carry a

 Ten Commandments to be constitutional. ACLU Nebraska Found. v. City of Plattsmouth,
419 F.3d 772, 778 (8th Cir. 2005). In holding the display of the Ten Commandments to
be constitutional, the Eighth Circu it stated: “Although the text of

the Ten

Commandments has undeniable religious significance, ‘[s]imply having religious content
or promoting a message consistent with a r eligious doctrine does not r un afoul of the
Establishment Clause.’”

Id. (citing numerous U.S. Supreme Court cases, including

McGowan v. Maryland, discussed above) (brackets in original). Doe has alleged nothing
more than that the Informed Consent Law coincides with religious principles, and
therefore her claim too fails.
D.

The Larson test does not apply here because the Informed
Consent Law does not discriminate against religion or among
religions.

Following her reliance on dissents and reversed and vacated case law, Do e
proposes that the Court use the Larson test to assess the Informed Consent Law under the
Establishment Clause. App. Br., 47 -49. D oe argues that the Larson test applies her e
because the Informed Consent Law is di scriminatory. Id. at 49 (citing the vacated
Plattsmouth case). But the Larson test does not apply here because the Informed Consent
Law does not discriminate based on reli gion or a mong religions. I f any Establishment
Clause test is required, it would be the Lemon test.
The U.S. Supreme Court established the Larson test for laws that treat some
religious groups differently than othe r religious groups—laws that discriminate among
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(2005), the Eighth Circuit vacated the decision cited by Doe and held the display of the

 law to regulate religious organizations receiving charitable donations. Id.at 230.

It

divided religious organizations into two gr oups depending on the amount of donations
each organization received from its own members, and granted a blanket exemption from
regulation to one grou p. Id. at 231-232. Therefore, Minnesota act ed to regulate so me
religious organizations while giving others an exemption. Id. This discrimination among
religions is wholly inapposite to Doe’s ch allenge. Missouri’ s Informed Consent La w
applies to all ind ividuals who seek an ab ortion, regardless of whether the wo man is a
Satanist like Doe, a Catholic, a P rotestant, or a Buddhist. Doe simply mischaracterizes
the law w hen she state s that the Inf ormed Consent Law is “discri minatory on its f ace.”
App. Br., 49. The Larson test does not control.
E.

Even if the Court finds that the Informed Consent Law raises
Establishment Clause concerns, the Law is constitutional under
the Lemon test.

The trial court relied on and used t he Lemon test to evaluate Doe’s Establishment
Clause claims. LF 85-89, Appx. A73-77. Even though the Inf ormed Consent La w is
constitutional under the Lemon test, the Court need not resort to it. See Lamb’s Chapel v.
Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring).
In Harris, the Supre me Court rejected a n Establishment Clause challenge to the
restriction on public funding of abortion without even addressing the Lemon test. Harris,
448 U.S. 297. Likewise here, where there is simply no showing of any impermissibly

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religions. Larson v. Valenta, 456 U.S. 228, 252 (1982). In Larson, Minnesota enacted a

 Lemon test.
But if the Court determines that the Informed Consent Law raises concerns under
the Establishment Clause, the Informed Consent Law is constitutional even unde r the
Lemon test. Under Lemon, a statute is constitutional if “(1) it has a secular purpose; (2)
its principal or pri mary effect neither advanc es nor inhibits religion; and (3) it does not
foster an excessive entangle ment with religion.” Plattsmouth, 419 F.3d at 775. These
three requirements are not mandatory elements of the test, but are f actors that “serve as
no more than helpful signposts.”

Van Orden v. Perry, 545 U.S. 677, 686 (2005)

(Rehnquist, C.J., plurality opinion).
As discussed above, Doe alleges that the Informed Consent Law is not a secular
law, but does so only by a conclusory allegation. LF 24, ¶ 38, Appx. A13. Doe has not
alleged a single f act supporting her conclusory claim that Missouri has adopted a
“religious belief,” and her Second Amended Petition rests on the legal conclusion alone.
Id. She does not eve n allege which religion’s tenets the S tate of Missouri may have
established. Id. The Informed Consent Law might coincide with the religious beliefs of
some religions, but this is in and of itself insufficient to render a law religious in nature.
McGowan, 366 U.S. at 442; Plattsmouth, 419 F.3d at 778. As even Doe repeatedly
recognizes, abortion is not merely a religious issue, b ut it i s also a philosophical and
political issue. A pp. Br., 41. The State’s political branches can therefore legislate on
abortion and the definition of human life while maintaining a secular purpose. App. Br.,
41. See Section II.A, supra.
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religious purpose or eff ect, this Court may reject Doe’s clai m without relying on the

 inhibits religion. The Informed Consent Law merely provides an abortion pati ent the
opportunity to learn th e State’s views on wh en life begins, and guarantees a period of
deliberation before the decision to ter minate human life is carri ed out.

The mere

coincidence of a secular law with religious beliefs does not advance those religious
beliefs. Edwards v. Aguillard, 482 U.S. 578, 615 (1987) (“[W]e will not presume that a
law’s purpose is to advance religion merely because it ‘happens to coincide or harmonize
with the tenets of some or all religions.’”) (quoting Harris, 448 U.S. at 319, and
McGowan, 366 U.S. at 442). Nothing in the Informed Consent Law mandates that Doe
or others r ead the Booklet or its claims regarding the beginning of life. Each abortio n
patient is free to decline the offer, or to receive the material but leave it unread. Even if
the law m andated that patients read the State’s opinion

s, these are political

and

philosophical opinions, not religious ones. App. Br., 41. See Section II.A, supra. Doe
has not alleged any one religion that is advan ced, or any one religion that is inhibited, by
the Informed Consent Law.
As for the third Lemon factor, Doe has not suff iciently alleged how the Inf ormed
Consent Law causes entanglement with religion. She makes a conclusory allegation that
there is entangle ment, LF 41, ¶ 106, Appx. A30, but alleges no thing further. For
instance, Doe does not allege that the Inf ormed Consent Law causes the State to inquire
into the abortion beliefs of various religions. Neither does it re quire that the State or the
clinic teach religious principles to the pat ients. It merely makes information available to
the patient to review if she desires. See Greenville Women’s Clinic v. Commissioner, 317
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As for the second Lemon factor, the Informed Consent Law neither advances nor

 requiring abortion clinics to make arrangements to be able to refer patients to clerical
counseling).
III.

The Appellant waived any arguments regarding her Free Exercise
Clause claim by failing to raise a Point Relied On related to that
claim.

Doe’s two Points Relied On only raise errors related to her RFRA claims (Counts
I-III) and her Establishment Clause claim (Count IV). She raises no points of error with
respect to her Free Exercise Clause claim (Count V). Doe acknowledges that, if she loses
on her RFRA claims, she necessarily loses on her Free Exercise Clause claim. App. Br.,
11. Because she has alleged no points of error with respect to the dis missal of her Free
Exercise Clause claim, she has waived her argu ments on that claim even in the event that
this Court reverses th e trial court ’s dismissal of her RFRA claims. Mo. R. Civ. P.
84.13(a) (“[A]llegations of error not brie fed or not properl y briefed shall not be
considered in any civil appeal . . . .”).
CONCLUSION
The Court should affirm the trial court’s order dismissing the Second Amended
Petition with prejudice.

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F.3d 357, 363-64 (4th Cir. 2002) (rejecting an Establishment Clause challenge to a law

 JOSHUA D. HAWLEY
Attorney General
/s/ D. John Sauer
D. John Sauer
State Solicitor
Mo. Bar No. 58721
Jason S. Dunkel
Assistant Deputy Attorney General
Mo. Bar. No. 65886
P.O. Box 861
St. Louis, MO 63188
Phone No. (314) 340-4753
Fax No. (314) 340-7029
john.sauer@ago.mo.gov
jason.dunkel@ago.mo.gov
ATTORNEYS FOR RESPONDENTS

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Respectfully submitted,

 I hereby certify that a true and correct copy of the foregoing was filed and served
electronically via Missouri CaseNet on June 30, 2017, to all counsel of record in this
case.
The undersigned further certifies that the foregoing brief complies Mo. R. Civ. P.
55.03 and with the word limitations contained in Mo. R. Civ. P. 84.06(b), as reduced by
Local Rule XLI, in that the brief contains 10,680 words, excluding those portions
excluded by Mo. R. Civ. P. 84.06(b) and Local Rule XLI(d).
/s/ D. John Sauer
State Solicitor

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CERTIFICATE OF SERVICE AND COMPLIANCE