## United States Court of Appeals **For the Eighth Circuit**

___________________________
No. 19

- 1578

___________________________ 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. Di R enna, 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

____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis

____________
Submitted: January 16, 2020 Filed: June 9, 2020

____________ Before BENTON, GRASZ, and STRAS, Circuit Judges.

____________
STRAS, Circuit Judge.-2- 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 court 1 dismiss ed both of her First
Amendment cla ims , 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). I ts 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. I d. § 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

- evading

review exception to mootness that does not need to be “established” on appeal (citation omitted) )

. As a member of “The Satanic Temple,” she believes th at 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, re gardless 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 E dward Autrey, United States District Judge for the Eastern District of Missouri

.-3- II.

Before we address the se two counts , Doe seeks to introduce a third: whether
Missouri’s informed

- consent law impose s an undue burden on her right to an abortion. See Planned Parenthood of Se. Pa

. v. Casey , 505 U.S. 833 (1992). He r 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

, Swie rkiewicz 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 obtai ning 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 un pleaded claims).

The specific factual allegations just connect the dots for those two claims. T he complaint refers to Missouri’s views on life as “Missouri [t]enets,” the informed

consent law as the “Missouri [l]ectionary,” and says that neither serve s 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-4- 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 requir ement that every woman seeking an abortion in Missouri must first receive a state

- authored informed

consent booklet. T he booklet expresses Missouri’s view that “[t]he life of each-5- human being begins at conception [and that] [a] bortion will terminate the l ife of a separate, unique, living human being.” Mo. Rev. Stat. § 188.027.1(2). It then goes
on to describe “the probabl e 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 b egins

. 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 th is 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 public ly fund ed 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, 37 8–7 9 (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 (p lurality opinion) (explaining that Roe and its progeny had “undervalue[d] the State’s interest in potential life”)

.-6- 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. A ny 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 a rea 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 un w ieldy 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 Car hart 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. R ev. Stat. § 188.027.1(4)

, 188.027

. 3, 188.027 .12 , and received-7- 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 do es 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.

(Emphas i s 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 -b asis 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) ; s ee Telescope Media Grp. , 936 F.3d at 759

. To the extent Doe argues that the certification requirement lack s 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.” (cita tion omitted)). Nevertheless, w e 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-8- 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 t o provide information to those seeking an abortion and imposing a waiting period were “reasonable means” of pursuing legitimate government inter ests).

IV.

We accordingly affirm the judgment of the district court.

______________________________

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 hybrid

rights 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).