ACLU threatening to sue over release of fetuses by coroner

[Eric Treene]

Marc Stern's post a few days ago about a Florida law permitting coroners to
remove corneas from the deceased without the consent of relatives, coming
just before this thread about fetuses, provides an interesting
juxtaposition.

We take note of laws like the one in Florida because they run against the
background assumption that families have control over the burial or
cremation of loved ones.  It is probably beyond question that there is no
Establishment Clause problem with the government, after having possession
of a body for an investigation, turning the body to the family of a
deceased for burial, even though this involves an acknowledgement that
there is a religious significance to the body after death (whether this is
significance for the deceased himself or just for his family and
community).  While burial also involves psychological closure, cultural
traditions and other secular values, it would be difficult to argue that
there is nothing religious about it.   I also think there would be no
Establishment Clause problem with turning the deceased over to a distant
relative, or a friend if there was no family.

The fetus question in California is different, but perhaps only in degree.
There, you have individuals who are not related to the fetuses, but yet
perceive a human bond between themselves and the fetuses.  If we put aside
for a moment the background assumption in our culture that "of course the
family should be able to decide" , the fetus question does not look all
that different from the more typical government action of turning remains
over for burial that we take for granted.

Eric Treene
The Becket Fund for Religious Liberty