ACLU threatening to sue over release of fetuses by coroner

[Mark S. Scarberry]

Isn't the California Court of Appeal clearly wrong when it says the Constitution
requires the state to be "studiously neutral" as to whether aborted fetuses are no
more than tissue to be discarded?  At least the US Constitution doesn't require
that.  Under the plurality opinion in Planned Parenthood v. Casey, "there is a
substantial state interest in potential life throughout pregnancy" and the state
need not be neutral.  The state is permitted to "express profound respect for the
life of the unborn."  Id.  Regulations allowing aborted fetuses to be treated with
dignity (the same as the dead bodies of unknown transients) express that respect.
I assume unknown transients who die are buried respectfully and that religious
groups are permitted to hold whatever services they privately wish to have at the
burial site.  If that is done on a nondiscriminatory basis, it should not be
objectionable.

Mark S. Scarberry



Michael MASINTER wrote:

> Rob Weinberg has already posted the press release.  I would only add that
> Antigone does not address the burial of fetuses, whether aborted or
> miscarried.  As for western tradition, there is no general tradition of
> ceremonial burial for miscarried remains.  The California courts were
> right the first time;  this is not Agostini and it is not religious
> neutrality . Unless, of course, the state also distributes some of the
> fetal remains to the many (this is California) non-mainstream religions
> which may use them in ways many might find offensive.  I think the ACLU is
> right, and should be commended for its exercise of both legal and moral
> judgment.
>
> Michael R. Masinter                     3305 College Avenue
> Nova Southeastern University            Fort Lauderdale, Fl. 33314
> Shepard Broad Law Center                (954) 262-6151
> masinter at law.acast.nova.edu
>
> On Thu, 15 Oct 1998, Jim Henderson wrote:
>
> >
> > True that it was litigated previously, as, we might add, was the use of
> > federally funded remedial instructors on the campuses of parochial schools in
> > New York City.  Tommorrow is, they say, another day.
> >
> > More to the point, what does it say of the California judiciary in the prior
> > instance, that they were so ready to ignore settled law and the traditions of
> > Western Civilization to deny decent burial to aborted human remains.
> >
> > For reading on this topic, I recommend, if you can find it, Pat Monaghan's
> > article, "Humane Provisions for Aborted Human Remains."  It appears in Volume
> > 29, Number 4 of the Catholic Lawyer, at page 365 et seq.
> >
> > For thinking on this topic, I suggest Sophocles' Antigone:
> >
> > ANTIGONE:  "What, hath not Creon destined our brothers, the one to honoured
> > burial, the other to unburied shame? Eteocles, they say, with due observance
> > of right and custom, he hath laid in the earth, for his honour among the dead
> > below. But the hapless corpse of Polyneices-as rumour saith, it hath been
> > published to the town that none shall entomb him or mourn, but leave unwept,
> > unsepulchred, a welcome store for the birds, as they espy him, to feast on at
> > will."
> >
> > How many sadnesses in history result from the simple failure to allow those
> > who are touched by the deaths of others to show the respect they feel proper.
> > The ACLU, of course, may obtain Creon's order, but it will not be a high
> > moment for people, for society, for the Constitution, for culture.
> >
> > Jim Henderson
> > Senior Counsel
> > ACLJ
> >

--
Mark S. Scarberry
Pepperdine University School of Law
(310) 456-4667
mscarber at pepperdine.edu