IN THE MISSOURI CIRCUIT COURT
COLE COUNTY
MARY DOE,
Plaintiff,
v.
JEREMIAH JAY NIXON, et al.,
Defendants.

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Case No. 15AC-CC00205
Hon. Jon E. Beetem

JUDGMENT
Plaintiff Mary Doe (“Plaintiff”) challenges several provisions of
Missouri law governing abortion as contrary to the state’s Religious Freedom
Restoration Act (“RFRA”), § 1.302 RSMo, and the Religion Clauses of the
First Amendment. Plaintiff seeks a permanent injunction against eight
Missouri officials—Defendants Nixon, Koster, Carter, Tannehill, Direnna,
James, Poggemeier, and Martin (collectively, “the State”)—as well as two
unnamed Planned Parenthood employees (John Does I and II), whom
Plaintiff has not attempted to identify or serve with process. The State
moves to dismiss with prejudice for failure to state a claim on which relief can
be granted.
This action has once been dismissed for failure to state a claim. Leave
was granted and Plaintff filed a second amended petition.
Upon due consideration of the parties’ papers and oral arguments, the

 Court dismisses all claims against John Does I and II for lack of personal
jurisdiction. As set forth below, the Court grants the State’s motion.
FACTUAL AND PROCEDUREAL BACKGROUND
When she learned that she was pregnant in March 2015, Plaintiff Mary
Doe (“Plaintiff”) began making plans to have an abortion at Planned
Parenthood in St. Louis, the only abortion facility in Missouri. Under
Missouri law, an abortion provider must, at least 72 hours before the
procedure (“Waiting Period”), present her with “the opportunity to view an
active ultrasound image of the unborn child and hear the heartbeat of the
unborn child if it is audible,” § 188.027.3 RSMo (“Ultrasound Opportunity”); as
well as printed materials that “describe the probable anatomical and
physiological characteristics of the unborn child at two-week gestational
increments,” § 188.027.1(2) RSMo (“Booklet”). The Booklet includes the
following statements: “The life of each human being begins at conception.
Abortion will terminate the life of a separate, unique, living human being.”
Plaintiff does not believe that life begins at conception or that abortion
with terminate the life of a separate, unique, living human being.
a.

Her body is inviolable and subject to her will alone;

b.

She must make decisions regarding her health based on the best
scientific understanding of the world, even if the science does not
comport with the religious or political beliefs of others;

c.

When pregnant, a non-viable fetus is part of her body and not a

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 separate, unique, living human being;
d.

She alone decides whether, when and how to remove a non-viable
fetus from her body;

e.

She may, in good conscience, have an abortion without regard to
the current or future condition of her non-viable fetus;

f.

She must not support religious, philosophical, or political beliefs
that imbue her fetus with an existence separate, apart, or unique
from her body;

g.

She must not support any religious, philosophical, or political
beliefs that cede to a third party control of the removal of her
fetus; and

h.

She must not support any religious, philosophical, or political
belief that promotes the idea her non-viable fetus is a human
being or imbued with an identity separate, apart, and unique
from her body.

Plaintiff contends that the purpose and effect of the mandatory Booklet,
Ultrasound Opportunity, and Waiting Period are to cause doubt, guilt, and
shame in pregnant women and discourage them from getting abortions.
Plaintiff traveled to St. Louis by bus on May 7, 2015, and requested an
abortion at Planned Parenthood on May 8. Plaintiff informed Planned
Parenthood in writing of her deeply held convictions regarding abortion and
purported to “absolve [Planned Parenthood] of any responsibility [it] may
have” to provide her the Booklet and the Ultrasound Opportunity, or to wait
72 hours before performing her abortion. Nonetheless, Planned Parenthood
refused to perform Plaintiff’s abortion until (a) she acknowledged receipt of
the Booklet and the Ultrasound Opportunity in writing, and (b) waited 72

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 hours. Id. ¶64.
Because she could not obtain an abortion in Missouri without doing so,
Plaintiff acknowledged receipt of the Booklet and Ultrasound Opportunity on
May 8, and checked into a motel for the duration of Waiting Period. Plaintiff
felt guilt and shame during the Waiting Period. She returned to Planned
Parenthood and had an abortion on May 12, 2015. The cost of obtaining the
abortion, round-trip travel from Greene County, and lodging in St. Louis
during the waiting period was equal to 45 hours’ worth of Plaintiff’s wages.
Motion to Dismiss Standard
“A motion to dismiss for failure to state a cause of action is solely a test
of the adequacy of the plaintiff's petition. It assumes that all of plaintiff’s
averments are true, and liberally grants to plaintiff all reasonable inferences
therefrom.” State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329-30 (Mo. 2009). In
other words, “the petition is reviewed in an almost academic manner, 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.” Id.
DISCUSSION
I.

Plaintiff’s RFRA Claims

In her first three counts, Plaintiff alleges that Missouri’s mandatory
Ultrasound Opportunity, Booklet, and Waiting Period violate the State’s
Religious Freedom Restoration Act (RFRA), which states in pertinent part:
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 A governmental authority may not restrict a person's free
exercise of religion, unless: (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
governmental authority demonstrates that application of
the restriction to the person is essential to further a
compelling governmental interest, and is not unduly
restrictive considering the relevant circumstances.
§ 1.302.1 RSMo. The statute further 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.” § 1.302.2 RSMo (emphasis added).
Plaintiff alleges that the Ultrasound Opportunity, Booklet, and Waiting
Period “restricted [her] free exercise of religion in violation of § 1.302.1”
because they subjected her body to the will of the State; they were irrelevant
to her health; they were irrelevant to her decision to have an abortion; they
cost her time and money; they forced her to consider whether to believe
abortion terminates the life of a separate, unique living human being; and
they shamed and punished her for not so believing.
RFRA allows a plaintiff to seek a court order exempting her from
performing any act required by law (or permitting her to perform any act
prohibited by law) where her performance of the required act (or her failure
to perform the prohibited act) would violate a deeply held religious belief. In
Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held HHS

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 regulations requiring employers to pay for contraceptive coverage for their
employees imposed a substantial burden on the religious exercise of a closely
held corporation’s sole shareholders, whose religious beliefs prohibit the use
of contraceptives. 134 S. Ct. 2751, 2779 (2014). Unlike Hobby Lobby, however,
Plaintiff has not identified any “act or refusal to act” that is “substantially
motivated by religious belief.” Neither the Ultrasound Opportunity nor
acknowledging receipt of the Booklet forced Plaintiff to perform any act
prohibited by a deeply held religious belief. Cf. Wisconsin v. Yoder, 406 U.S.
205 (1972)(Wisconsin’s compulsory school attendance law unduly burdened
Amish family’s belief that attending public school endangered their standing
in religious community as well as their salvation and that of their children).
Nor did the Ultrasound Opportunity or acknowledging receipt of the Booklet
prohibit Plaintiff from performing any act substantially motivated by a
deeply held religious belief. Cf. Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418 (2006) (Controlled Substances Act’s
prohibition against Schedule I hallucinogenics unduly burdened religious
sect’s ritual use of sacramental tea containing the prohibited chemicals).
Plaintiff suggests that being given an opportunity to view (and hear) an
ultrasound and having to acknowledge receipt of the Booklet forced her to
spend time and money on a service that was “irrelevant and unnecessary” to
her decision to terminate her pregnancy. SAP ¶¶80, 88. But Plaintiff does
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 not claim a deeply held religious belief against complying with “irrelevant
and unnecessary” regulations. Rather, she claims the regulations are
irrelevant and unnecessary because they were motivated by a religious belief
she does not share. Even assuming Plaintiff could prove the challenged
provisions in § 188.027 were actually motivated by a religious belief, the only
thing that matters for RFRA purposes is the plaintiff’s act the law allegedly
requires or prohibits. The only “act” Plaintiff was required to do under the
statutory provisions challenged in Counts I and II was to be present when a
third party made certain information available to her. She did not have to
avail herself of that information or even read it. She merely had to
acknowledge that the third party had complied with its statutory obligations.
Plaintiff was not required to accept or even read about any particular
religious belief (or religious belief in general) to obtain her abortion. Nor was
her abortion conditioned on her rejection of any particular religious belief (or
religious belief in general). At worst, Missouri created an opportunity—but
not an obligation—for Plaintiff to hear State speech regarding abortion. Such
requirements do not offend RFRA. O Centro Espirita held that Congress
could not prohibit the use of hallucinogenic drugs as part of a religious
sacrament, but the Court has never held Congress cannot mandate that the
sale of those drugs be accompanied with State speech on the dangers of their
use. Under Plaintiff’s interpretation of RFRA, state-mandated warning
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 labels on cigarettes and alcohol would violate the religious freedom of anyone
with a deeply held belief that smoking or drinking is not bad for one’s health.
Essentially, Plaintiff argues that RFRA permits her to ignore any law
she suspects is motivated by a religious belief she does not share. But whose
belief would that be? The Senator who introduced the bill? The majority
belief in the General Assembly? RFRA claims turn on the religious beliefs of
the plaintiff, not on what the plaintiff alleges are the religious beliefs of the
legislators who enacted the challenged statute. Plaintiff is merely cloaking
her political beliefs in the mantle of religious faith in order to avoid laws of
general applicability she finds imprudent or offensive. Instead of being a
safety hatch to protect minority religious beliefs from the tyranny of the
majority, Plaintiff’s interpretation of RFRA would establish a faith-based
“Get Out of Jail Free” card.
Plaintiff doesn’t allege that she was substantially motivated by her
religious beliefs to seek an abortion. Nor does she allege that she was
substantially motivated by her religious beliefs to do so within 72 hours of
deciding to end her pregnancy. 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 assuming
Plaintiff’s disagreement with State speech is substantially motivated by her
religious beliefs, her disagreement is neither an act nor a failure to act.
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 Unlike Hobby Lobby, which alleged that federal regulations required its
shareholders to purchase products prohibited by their religious beliefs
(namely, buying contraceptive coverage for their employees), the Plaintiff in
this case does not identify any act required under Missouri law 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.
Counts I through III of her Second Amended Petition fail to state a
claim on which relief can be granted and must suffer dismissal.
II.

Plaintiff’s Establishment Clause Claim
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court

announced a three-part test for analyzing whether government activity
results in a prohibited establishment of religion. ACLU Nebraska Found. v.
City of Plattsmouth, Neb., 419 F.3d 772, 775 (8th Cir. 2005). Despite Lemon’s
“checkered career,” see Van Orden v. Perry, 545 U.S. 677, 700 (2005) (Breyer,
J., concurring), the Eighth Circuit still applies the Lemon test to claims that
a statute violates the Establishment Clause. Roark v. S. Iron R-1 Sch. Dist.,
573 F.3d 556, 563 n.4 (8th Cir. 2009); see also Doe ex rel. Doe v. Elmbrook
Sch. Dist., 687 F.3d 840, 849 (7th Cir. 2012) (“Lemon v. Kurtzman remains
the prevailing analytical tool for the analysis of Establishment Clause
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 claims”). Under Lemon, a statute will not be held to violate the
Establishment Clause as long as (1) it has a secular purpose; (2) its principal
or primary effect neither advances nor inhibits religion; and (3) it does not
foster an excessive entanglement with religion.” ACLU Nebraska Found. v.
City of Plattsmouth, Neb., 419 F.3d 772, 775 (8th Cir. 2005). Plaintiff fails to
allege any facts showing that §188.027 fails the Lemon test.
In conclusory fashion, Plaintiff alleges that the Ultrasound
Opportunity, the Booklet, and the Waiting Period have the purpose and effect
of “promot[ing] the religious belief that [fetal tissue] is, from conception, a
separate and unique human being whose destruction is morally wrong.” She
places particular emphasis on §188.027.1(2)’s requirement that the DHSS
Booklet include the following statements: “The life of each human being
begins at conception. Abortion will terminate the life of a separate, unique,
living human being.” Plaintiff alleges the Ultrasound Opportunity, the
Booklet, and the Waiting Period violate the Establishment Clause because
“the State of Missouri is using its power to regulate abortion to promote
some, but not all, religious beliefs.”
The Supreme Court has repeatedly rejected Establishment Clause
challenges that merely alleges some statutory language “happens to coincide
or harmonize with the tenets of some or all religions.” McGowan v. Maryland,
366 U.S. 420, 442 (1961)(holding Maryland’s “Sunday Closing Laws” did not
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 violate Establishment Clause simply because they coincided with observation
of the Christian Sabbath). “That the Judaeo-Christian religions oppose
stealing does not mean that a State or the Federal Government may not,
consistent with the Establishment Clause, enact laws prohibiting larceny.”
Harris v. McRae, 448 U.S. 297, 319 (1980)(holding federal law restricting use
of Medicaid funds for elective abortion “is as much a reflection of
‘traditionalist’ values towards abortion, as it is an embodiment of the views of
any particular religion”). Plaintiffs’ Establishment Clause claims have even
less merit than the challenges rejected in McGowan and Harris, which
involved outright bans on Sunday sales and paying for elective abortions with
public funds, respectively. By contrast, §188.027 RSMo doesn’t ban anything.
It merely requires that abortion providers make certain written materials
and ultrasound procedures available to their patients at least 72 hours before
performing an abortion. It does not require that the patient ever read the
printed materials or have the ultrasound.
The Supreme Court rejected an Establishment Clause challenge to a
different Missouri statute with nearly identical language. In Webster v.
Reprod. Health Servs., the Eight Circuit initially invalidated “legislative
findings” by the Missouri General Assembly that “[t]he life of each human
being begins at conception” as “an impermissible state adoption of a theory of
when life begins.” 851 F.2d 1071, 1076 (8th Cir. 1988). The Supreme Court
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 reversed the court of appeals decision, however, because “the preamble does
not by its terms regulate abortion or any other aspect of appellees’ medical
practice.” 492 U.S. at 506. Reiterating that Roe v. Wade, 410 U.S. 113 (1973),
“implies no limitation on the authority of a State to make a value judgment
favoring childbirth over abortion,” the Supreme Court concluded that
Missouri’s preamble “can be read simply to express that sort of value
judgment.” Webster v. Reprod. Health Servs., 492 U.S. at 506 (quoting Maher
v. Roe, 432 U.S. 464, 473-74 (1977)).
Section 188.027 RSMo passes all three elements of the Lemon test. The
statute has a secular purpose of conveying the General Assembly’s policy
preference for carrying unwanted pregnancies to term rather than aborting
them. See Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833,
870 (1992) (“the State has a legitimate interest in promoting the life or
potential life of the unborn”). In the pursuit of that secular purpose, §188.027
RSMo neither advances, hinders, nor fosters excessive entanglement with
any particular religion or religion in general. Medical professionals and their
patients are treated equally regardless of their faith or lack thereof.
Catholics, Satanists, evangelicals, and atheists must all be offered the DHSS
Booklet, but none of them must agree with or even read its contents to obtain
an abortion. All must be offered the opportunity to view an ultrasound, but
none of them must have an ultrasound.
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 Plaintiff’s Establishment Clause challenge fails to state a claim on
which relief can be granted.
III.

Plaintiff’s Free Exercise Clause Claim.
RFRA was enacted to provide greater protection and requires more

stringent review than the Free Exercise Clause. See Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751, 2760 (2014). As Plaintiff cannot state a claim
under Missouri’s RFRA, a fortiori she cannot state a claim under the Free
Exercised Clause.
“The free exercise of religion means, first and foremost, the right to
believe and profess whatever religious doctrine one desires.” Employment
Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 877 (1990). It
also prohibits the government from enacting legislation that “regulates or
prohibits conduct because it is undertaken for religious reasons.” Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532
(1993)(emphasis added). However, “the right of free exercise does not relieve
an individual of the obligation to comply with a ‘valid and neutral law of
general applicability on the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes).” Smith, 494 U.S. at 87879 (quoting United States v. Lee, 455 U.S. 252, 263 n. 3 (1982) (Stevens, J.,
concurring)).
Plaintiff alleges that the Booklet, Ultrasound Opportunity, and Waiting
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 Period “interfere with the exercise by Plaintiff of her religious beliefs” by
“compel[ing] exposure to religious beliefs she does not have and delaying the
implementation of her decision” to obtain an abortion. SAP ¶115. She further
alleges that the requirements of §188.027 “caused Plaintiff to endure delay,
doubt, guilt and shame when she exercised her religious beliefs to abort [a
fetus] in accordance with” her beliefs. SAP ¶116. Neither allegation states a
cause of action under the Free Exercise Clause.
Section 188.027 RSMo is a neutral law of general applicability. It
requires abortion providers to make certain information available to their
patients 72 hours before performing or inducing an abortion. It does not
compel those patients to accept, read, or agree with the proffered information.
Plaintiff does not and cannot identify any provision of that statute which
prohibits women seeking abortions or the doctors who perform them from
engaging in any conduct because it is undertaken for religious reasons.
Consequently, Plaintiff has not stated a claim under the Free Exercise
Clause.
Having permitted Plaintiff to re-plead after the initial dismissal for
failure to state a claim, the dismissals are with prejudice.
It is therefore ORDERED, ADJUDGED, AND DECREED that
Plaintiff’s Second Amended Petition is DISMISSED WITH PREJUDICE.

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 SO ORDERED this 12th day of December, 2016



on E. Beetem
Circuit Judge

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