ACLU threatening to sue over release of fetuses by coroner

[Thomas Berg]

Questions (a couple of them admittedly technical for a situation that provokes
strong moral reactions):

1.  Who has standing, at least in federal court, to contest the coroner's
action, and why?  (I realize that the California state law of standing may be
more permissive.)

2.  The ACLU invokes the "political entanglement" doctrine from Establishment
Clause cases.  But I thought that doctrine was done away with altogether in
Agostini v. Felton, and even earlier (in Lynch v. Donnelly?) for situations,
such as this one, that do not involve the provision of tax-supported funds to
religious institutions.

3.  The ACLU statement also seems to imply that the state must not do anything
that would give the impression that it believes fetuses are full human beings.
(I'm referring to the ACLU's condemnation of "[t]he appearance of support by
the state, of one side of this controversy over the other."  What could "this
controversy" be but fetal personhood versus non-personhood?)  That is a common
misreading of Roe v. Wade and Casey, which said only that the state's judgment
about fetal personhood could not be used to place substantial burdens on the
bodily autonomy of a pregnant woman.  Harris, Maher, and indeed parts of Casey
confirm that the state may act based on its belief in fetal personhood as long
as it does not impose such a burden (as the Court defines it).

4.  Suppose the county said, "We believe, on secular grounds, that these are
full human beings who deserve a respectful, decent burial.  Any group willing
to do so at its own expense, and observe general health laws, will be given
custody of the remains."  The only group that applies is a church group who
announces from the outset that it will conduct a religious memorial service
along with the burial.  Would giving the group the remains be
unconstitutional?  How are those facts different from the actual facts?  (I
assume the county in the actual case never encouraged the church groups to have
a religious service, nor did it make such a service a condition of turning over
custody of the remains.)

Tom Berg
Cumberland Law School, Samford University




Rob Weinberg wrote:

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