Hypo 4 Arguments

Mr Chief Justice, Associate Justices, may it please the court.
The question before us today is whether the Columbiana Fetal Rights Act (the Act) violates Antonia Pagani's rights under the Columbiana Religious Freedom Restoration Act or under the First Amendmentt.

The Act violates Ms Pagani's rights expressed both CRFRA and in the First Amendment.

The Act targets a single medical procedure; a medical procedure that is legal in the State of Columbiana at any point during a pregnancy.
Each year approximately 2.5% of the general population is in a condition to be subject to this proscriptive law. Because the Act is not generally applicable Employment Division v. Smith is not controlling in this instance.

Ms Pagani's sincere beliefs are not in question. She has testified and the court has accepted her testimony.

The working definition of gov't "substantially burden[ing] a person's exercise of religion" was set in Burwell v. Hobby Lobby Stores, Inc..
In that case, the burden of paying premiums to a insurance company...
which would pay a medical provider's fees...
for services required by an employee...
should that employee seek the medical services...
that the company deemed objectionable.
A single act of indirect, generalized medical insurance payment was found to be a substantial burden despite the three intermediaries between the plaintiff and the action to which the plaintiff objected.

In the case before us, the burden is imposed directly upon the plainiff, Ms Pagani.
There are no intermediaries.
There are five distinct acts imposed.

Ms Pagani is compelled to read unwanted material, forced to view a video without scientific basis, coerced to discuss these with a third party designated for this purpose, and finally made to wait for an arbitrary period of time before she can access the medical care she seeks.
And then, she is required to provide an affidavit, stating that she desires an abortion.
The purpose of the acts required of Ms Pagani are to alter her decision to terminate her pregnancy.
She has reached the decision to terminate her pregnancy after careful consideration in accordance with her religion.
Each of these acts required of Ms Pagani imposes a substantial burden upon her Free Excercise of her sincerely held religious belief.

Per CRFRA, the gov't must have a compelling interest to so burden her exercise of religion.
Moreover, the stipulated actions are not the "least instrusive".
No claim has been made in briefs submitted to date that the 72 hour waiting period is more effective than the 24 hour waiting period imposed in Pennsylvania.
No claim has been made that each of the five required actions (read, view, discuss, wait, swear) compose a "least restrictive" set of requirements.
There is no indication that removing one or more of these five coerced acts would be any less effective.
The gov't has not provided any data indicating that any of the acts required are effective, alone or in concert, in achieving the stated purpose of the Act.

No Compelling State Interest

  1. A compelling interest is an interest “of the highest order.” McDaniel v. Paty, 435 U. S., at 628, quoting Wisconsin v. Yoder, 406 U. S. 205, 215 (1972)
  2. Compelling interests do not admit of exceptions, for such items would be of an order higher than the "highest order"
  3. If there is a compelling interest, that interest is in the continued development of the embryo/fetus.
  4. Yet, many states disregarding this interest “of the highest order” in the event that the interest arose as a result of rape or incest.
  5. (skip?) Protecting the compelling interest of the state regarding violent crime (rape) or public morals (incest w/o rape), requires punishing the perpetrators.
  6. (skip?) But the exceptions target the embryo/fetus. The only one of the three parties without hint of cupability.
  7. (skip?) These exceptions for rape and incest are incompatible with a compelling state interest in the embryo/fetus.
  8. Moreover, the wide variation in time limits for the procedure among the states, demonstrates that there is no consensus as to when a compelling interest arises.
  9. An interest, if there is one, that carries the specified exceptions and doubtful starting time, cannot be characterized as compelling.
  10. Therefore, the Act fails on the first of two points that the gov't must carry to prove it's case.

Not "least restrictive means"

  1. The Act imposes a 72 hour waiting period.
  2. A 72 hours waiting period is not based upon medical knowledge.
  3. The time period is an arbritary, capricious choice untethered from fetal development.
  4. Therefore, the Act fails on the second of two that the gov't must carry to prove it's case.
The Act is unconstitutional due to the burden imposed, the lack of compelling interest, and the arbitrary nature of the means chosen.

and we out of time....if not way past.

Religion Based Complaint

  1. Second precept of the Satanic Temple: The human body is the property of its inhabitant to do with as he or she pleases.
  2. Personal autonomy--underlying principle to 4th (warrants, search), 5th (self-incrimination), (life, liberty, property), voting (republican gov't Art I, II, Art IV/4)
  3. Hamilton quoting Blackstone "some who are suspected to have no will of their own, are excluded from voting"
  4. State can infringe based upon compelling interest.
  5. Compelling interest in pregnancy based upon declaring embryo/fetus a separate individual.
  6. Separate individual, early in pregnancy, is a belief, not substantiated by viability.
  7. Imposing that belief, definition of separate life, is an imposition of one religious view upon other members of our Nation.
  8. Imposing religious belief upon society is the essence of establishment of religion.

Background Material

Columbiana Demographics

Only one Person Involved--Not a Life

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)