United States Court of Appeals

For the Eighth Circuit 

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No. 19-1578

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Judy Doe

 Plaintiff - Appellant

v.

Michael L. Parson, Governor of the State of Missouri; Eric S. Schmitt, Attorney 

General of the State of Missouri; David A. Poggemeier, M.D., Chairman of the 

Missouri Board of Registration for the Healing Arts; James A. DiRenna, D.O., 

Member of the Missouri Board of Registration for the Healing Arts; Sara Martin, 

PhD, Member of the Missouri Board of Registration for the Healing Arts; 

Katherine J. Matthews; Jade D. James, M.D., Secretary of the Missouri Board of 

Registration for the Healing Arts; David E. Tannenhill, D.O., Member of the 

Missouri Board of Registration for the Healing Arts; John Doe I; John Doe II

 Defendants - Appellees

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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Submitted: January 16, 2020

Filed: June 9, 2020 

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Before BENTON, GRASZ, and STRAS, Circuit Judges. 

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STRAS, Circuit Judge.
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A Missouri law requires Judy Doe to certify that she has had a chance to 

review certain information before having an abortion. This requirement, she alleges, 

violates her Satanist beliefs. The district court1 dismissed both of her First 

Amendment claims, and we affirm. 

I. 

Missouri and Doe have different views on when life begins. Missouri’s 

official position is that “[t]he life of each human being begins at conception.” Mo. 

Rev. Stat. § 188.027.1(2), (5). Its informed-consent law requires women seeking an 

abortion to certify that they have received “[m]edically accurate information” that 

bears on “the decision of whether” to have one. Id. § 188.027.1(1)(b), 188.027.3. 

Doe, who was pregnant at the time she filed this lawsuit, sees the matter 

differently. See Doe v. Poelker, 497 F.2d 1063, 1067 (8th Cir. 1974) (explaining 

that pregnancy is a “classic justification” for the capable-of-repetition-yet-evadingreview exception to mootness that does not need to be “established” on appeal

(citation omitted)). As a member of “The Satanic Temple,” she believes that the 

“Human Tissue” that she was carrying was “part of her body.” As she stated in her 

complaint, her “body is inviolable” and “[s]he alone” gets to decide what to do with 

it, regardless of “the current or future condition of the Human Tissue” within. 

In her two-count complaint, Doe alleges that Missouri’s informed-consent law 

violates the Establishment and Free Exercise Clauses of the First Amendment. The 

district court, concluding that neither count stated a claim, dismissed the case.

1

The Honorable Henry Edward Autrey, United States District Judge for the 

Eastern District of Missouri. 
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II. 

Before we address these two counts, Doe seeks to introduce a third: whether 

Missouri’s informed-consent law imposes an undue burden on her right to an 

abortion. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). Her 

theory proceeds in two steps. First, the law infringes on her religious beliefs. 

Second, by infringing on her religious beliefs, the law creates an undue burden on 

her right to an abortion.

Missouri could not have had “fair notice” of this claim based on the complaint 

itself, Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512, 514 (2002) (describing the 

basic purpose of pleading), which described the case as follows: 

This is an action for declaratory relief pursuant to 42 U.S.C. §1983 as 

all Defendants are acting under color of state law to deprive Plaintiff of 

her constitutional rights under the Establishment and Free Exercise 

Clauses (the “Religion Clauses”) in obtaining an abortion in a manner 

required by her religious beliefs as an adherent to the tenets of The 

Satanic Temple.

(Emphasis added). It also lists only two counts: “First Count – Violation of the 

Establishment Clause” and “SECOND COUNT – FREE EXERCISE 

VIOLATION.” See Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999) 

(considering claims that were expressly pleaded in the complaint when deciding 

whether the defendant had notice of unpleaded claims).

The specific factual allegations just connect the dots for those two claims. The 

complaint refers to Missouri’s views on life as “Missouri [t]enets,” the informedconsent law as the “Missouri [l]ectionary,” and says that neither serves any purpose 

other than making her feel guilty for not believing in them. All of this, according to 

the complaint, communicates a “religious belief.” Nowhere, by contrast, do the 
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words “undue burden” or Casey appear, which creates the impression that this case 

is all about religion.

Doe nevertheless believes that we can consider her unpleaded claim for two 

reasons. The first is that she made an undue-burden argument in response to 

Missouri’s motion to dismiss. Still, she had an obligation to amend her complaint 

once she identified the potential claim. See Fed. R. Civ. P. 15 (explaining how to

amend a complaint); Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 995 

(8th Cir. 1989) (pointing out that a responsive brief is neither the time nor the place 

to raise a new claim). The second is that an undue-burden claim was part and parcel

of her religious-liberty claims from the start, because the First Amendment is at the 

“root” of Casey. Oral Arg. at 1:30–2:20; cf. Casey, 505 U.S. at 851 (“At the heart 

of liberty is the right to define one’s own concept of existence, of meaning, of the 

universe, and of the mystery of human life.”). Even if this were true—and we have 

every reason to believe that it is not—Missouri could not, without more, have 

anticipated Doe’s creative reading of Casey. See Casey, 505 U.S. at 846–51 

(locating the right to an abortion in the Fourteenth Amendment). In short, we will 

not permit Doe to plead a new claim now.

III. 

We now turn to the two claims that do appear in the complaint. “At this stage, 

our task is to review the complaint de novo to determine whether it alleges one or 

more actionable claims.” Telescope Media Grp. v. Lucero, 936 F.3d 740, 750 (8th 

Cir. 2019).

A.

 

Doe’s Establishment Clause challenge focuses on the requirement that every 

woman seeking an abortion in Missouri must first receive a state-authored informedconsent booklet. The booklet expresses Missouri’s view that “[t]he life of each 
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human being begins at conception [and that] [a]bortion will terminate the life of a 

separate, unique, living human being.” Mo. Rev. Stat. § 188.027.1(2). It then goes 

on to describe “the probable anatomical and physiological characteristics of the 

unborn child at two-week gestational increments . . . .” Id.; see also id.

§ 188.027.1(5). Doe believes that the booklet violates the Establishment Clause in 

two ways.

First by promoting “Catholic dogma” about when life begins. See Larson v. 

Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the Establishment 

Clause is that one religious denomination cannot be officially preferred over 

another.”). The problem with this theory is that a state does not establish religion by

passing a law that just “happens to coincide or harmonize with the tenets of some or 

all religions.” Harris v. McRae, 448 U.S. 297, 319 (1980) (quoting McGowan v. 

Maryland, 366 U.S. 420, 442 (1961)) (upholding the Hyde Amendment’s ban on 

publicly funded abortions). Mere alignment with certain religious beliefs, in other 

words, is not enough.

But Doe argues that there is something “more” than just alignment here, id. at 

320, because Missouri has elected to publish its views on this topic, even though it 

is “highly divisive.” Even so, taking sides on a divisive issue, even when it breaks 

down “along religious lines,” does not establish religion either. Clayton ex rel. 

Clayton v. Place, 884 F.2d 376, 378–79 (8th Cir. 1989) (determining that a school 

district’s no-dancing rule did not establish religion even though some local churches 

“staunchly opposed . . . social dancing” and viewed it as “sinful”). This is especially 

true here because, as the Supreme Court has recognized, a state is free to use “its

voice . . . to show its profound respect for” life. Gonzales v. Carhart, 550 U.S. 124, 

157 (2007) (emphasis added); see also Casey, 505 U.S. at 873 (plurality opinion) 

(explaining that Roe and its progeny had “undervalue[d] the State’s interest in 

potential life”). 

 
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Indeed, the circumstances of this case show why alignment alone cannot be 

enough. Some religions, including Catholicism, embrace the view that life begins 

at conception. Others, like Doe’s Satanism, do not. Any theory of when life begins

necessarily aligns with some religious beliefs and not others. So under Doe’s theory, 

Missouri’s only option would be to avoid legislating in this area altogether. 

Not a problem, Doe says, because her second argument is that states may 

never adopt a “theory of when life begins.” Reprod. Health Servs. v. Webster, 851 

F.2d 1071, 1075–76 (8th Cir. 1988) (Webster I) (quoting City of Akron v. Akron Ctr. 

for Reprod. Health, Inc., 462 U.S. 416, 444 (1983), overruled by Casey, 505 U.S. 

833 (1992)), rev’d, 492 U.S. 490 (1989) (Webster II). At one time, this argument 

had legs. But as the unwieldy citation may make obvious, our statement from 

Webster I is no longer good law. The Supreme Court clarified in Webster II that 

states still have a role to play on this issue. Webster II, 492 U.S. at 506 (“Roe v. 

Wade implies no limitation on the authority of a State to make a value judgment 

favoring childbirth over abortion.” (internal quotation marks and citation omitted)). 

And to the extent any doubt lingered, none remains now that the Supreme Court has 

decided Carhart and Casey. Carhart, 550 U.S. at 157; Casey, 505 U.S. at 873

(plurality opinion). So whatever support our statement in Webster I could have once 

provided Doe, it cannot help her today.

B. 

The focus of Doe’s free-exercise claim is on Missouri’s certification 

requirement. Before she can have an abortion, Missouri law requires her to certify 

in writing that she has both had a chance to view an ultrasound at least 24 hours 

ahead of time, Mo. Rev. Stat. § 188.027.1(4), 188.027.3, 188.027.12, and received 
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an informed-consent booklet, id. § 188.027.1(2), (5), 188.027.3. Certifying these 

two facts, she alleges, would violate her Satanist beliefs.2

It does so, according to Doe, by forcing her to comply with a law that

 

conditions her getting an abortion in a manner antithetical to the Satanic 

Tenets, including without limitation any law that serves no medical 

purpose or purports to protect the interests of her Human Tissue.

(Emphasis added). Her free-exercise claim, in other words, can be summed up in 

the following way: her religion allegedly “forbids certain conduct that the 

government requires.” Telescope Media Grp., 936 F.3d at 759.

Doe makes no argument, however, that the informed-consent law is anything 

other than “neutral” and “generally applicable.” Church of the Lukumi Babalu Aye, 

Inc. v. City of Hialeah, 508 U.S. 520, 544, 546 (1993). In these circumstances, it

must only survive rational-basis review, which requires it to be “rationally related to 

a legitimate government interest.” Gallagher v. City of Clayton, 699 F.3d 1013, 

1019 (8th Cir. 2012); see Telescope Media Grp., 936 F.3d at 759. To the extent Doe 

argues that the certification requirement lacks a rational basis,3 we disagree. Casey

2

According to Doe, the Satanic Temple has both “politically aware Satanists” 

and “secularists and advocates for individual liberty” among its members. 

(Emphasis added). Arguably, her own description raises the possibility that her 

beliefs about abortion may be political, not religious. See Frazee v. Illinois Dep’t of 

Emp’t Sec., 489 U.S. 829, 833 (1989) (“[O]nly beliefs rooted in religion are 

protected by the Free Exercise Clause.” (citation omitted)). Nevertheless, we 

assume, but do not decide, that she has done enough by alleging that her beliefs are 

“religious” and that she is a member of an organization that includes “Satanists.” 

3

Doe believes the standard should be higher—something akin to strict 

scrutiny—but once again, her complaint does not support her theory. On appeal, she 

suggests that her free-exercise claim is really a hybrid of two separate constitutional 
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itself recognized that informed-consent laws like this one serve “the legitimate 

purpose of reducing the risk that a woman may elect an abortion, only to discover 

later, with devastating psychological consequences, that her decision was not fully 

informed.” Casey, 505 U.S. at 882 (plurality opinion); see id. at 883–87 (explaining 

that provisions requiring doctors to provide information to those seeking an abortion 

and imposing a waiting period were “reasonable means” of pursuing legitimate 

government interests).

IV. 

We accordingly affirm the judgment of the district court.

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rights: one prohibiting Missouri from unduly burdening her right to an abortion and 

the other allowing her to freely exercise her religion. See Telescope Media Grp., 

936 F.3d at 758–60 (noting that, under a hybrid-rights theory, strict scrutiny would 

apply to a free-exercise claim “intertwined” with a free-speech claim). But in 

addition to failing to plead an undue-burden claim, any suggestion of the hybridrights theory is absent from her complaint too. Without either, we cannot consider 

this argument. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).