ACLU threatening to sue over release of fetuses by coroner

[Rob Weinberg]

At 07:54 AM 10/15/98 -0400, Vance wrote:

>Jim raises a series of pertinent questions all reinforcing my conclusion
>that this was yet another over-the-top overreaction by the ACLU, who seem
>hell-bent on demonstrating that 1) they are utterly lacking in judgment
>and 2) the sandlot bully can get his way by persistently annoying everyone
>else.
>
>Obviously, it will now cost the county more to oppose the ACLU lawsuit
>than it would save in burial costs. Even if the county wins, I don't
>suppose it will be possible to get an award of costs and attorneys' fees
>against the ACLU, which I think is about the only thing that could ever
>stop the nonsense. I wish there were a Morris Dees "for the rest of us."

I have no idea who "the rest of [you]" may be, but it may help this
discussion a bit to have few more facts. From
<http://www.aclu.org/news/n100998b.html>:
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ACLU Threatens Action Against CA Coroner
Over Release of Fetuses for Religious Burials
FOR IMMEDIATE RELEASE
Friday, October 9, 1998

LOS ANGELES -- The American Civil Liberties Union of Southern California
today sent a letter to the San Bernardino County Coroner's Office
protesting the release of more than 50 fetuses to church groups in Chino,
Chino Hills and Montclair for the purpose of holding religious memorial and
burial services this weekend.

The ACLU has threatened to sue the County for violating the First
Amendment's requirement of the separation of church and state if the
fetuses are released to the church groups for the express purpose of
holding religious services.

The fetuses were discovered in containers in the Chino Hills area in March
1997. After an 18-month investigation by law enforcement, the San
Bernardino County Coroner agreed to turn over the remains to church groups
who plan the vigils. The following letter was sent to San Bernardino County
Coroner Brian McCormick:


"It has come to the attention of the ACLU Foundation of Southern California
("ACLU") that your office has agreed to turn over more than fifty fetuses
to religious groups for the purpose of holding memorial services in the
communities of Chino, Chino Hills, Riverside and Montclair October 9
through 11, 1998. We are writing to express our grave concerns about your
facilitation, as a public officer, of religious burial services. As
described more fully below, such action is in clear violation of the United
States and California constitutions, as well as California health law. As
such, we urge you to refrain from donating the fetuses in your custody to
religious groups to avoid such violations. "In Feminist Women's Health
Center v. Philibosian (1984) 117 Cal. App. 3d 1076, the California Court of
Appeal held that the Los Angeles County District Attorney's proposed burial
of 16,500 fetuses in a private cemetery, after he was aware that the
cemetery had contracted with a religious organization to hold a burial
service, violated the separation of church and state guaranteed by the
establishment clause of the First Amendment to the United States
Constitution and article XVI, Section 5 of the California Constitution.
"In so doing, the court emphasized that, because burying fetuses in
adherence to the beliefs of a Catholic group "represents a particular
religious view . . . the district attorney's purported action would, in
effect, sponsor and approve that view." Id. at 1086. Moreover, any state
action showing a preference of a particular religious belief will be
strictly scrutinized and must be invalidated unless it is justified by a
compelling governmental interest. Id. at 1088. Because the district
attorney's only interest with regard to the fetuses was to "dispose of them
lawfully" pursuant to California health law (see, e.g, Calif. Health &
Safety Code § 7054.3), the court determined that there was no compelling
state interest to dispose of the fetuses in a private ceremony that would
"justify the appearance of state sanction of a particular religious
belief." Id.

"Moreover, the court stated that because "the abortion issue is one of the
most emotionally explosive issues in today's political firmament," the
proposed burial clearly presented "political entanglement" with religion.
Id. at 1090.

"The appearance of support by the state, of one side of this controversy
over the other, is improper political entanglement. The act of indirectly
turning the fetuses over . . . for religious burial as murdered humans
would vitiate the studied neutrality which is the state's constitutional
course. The proposed action would aggravate an already volatile religious
issue.

"Like the district attorney's proposed religious burial held
unconstitutional in Feminist Women's Health Center, the San Bernardino
County Coroner's proposed release of fetuses for religious memorial
services clearly violates the constitutional separation of church and
state. Moreover, discarding of fetuses in this manner raises concerns about
the County Coroner's failure to adhere to California health laws. Given the
urgency of the situation, the ACLU expects that the County Coroner's office
will take immediate steps to prevent any unlawful delivery of fetuses to
religious groups for sectarian purposes. If such delivery is not prevented,
we will have no choice but to take legal action. Given the clear status of
the law, the Coroner's office would likely be subject to the embarrassment
of having an injunction issued against it and damages being assessed."

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Rob Weinberg, Montgomery, AL
http://www.mindspring.com/~robertmw/