The ACLU 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 evening and tomorrow. 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 ﾌ_ 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."