Wednesday, January 04, 2017

What's Wrong With Requiring Fetal Burial?

by Sherry F. Colb

In my column for this week, I discuss the Texas regulations, recently enjoined by federal judge Sam Sparks through a temporary restraining order, requiring that clinics and hospitals dispose of fetal tissue from abortions and miscarriages through burial or cremation.  In my column, I take on the persona of a pro-life defender of the regulations, and I attempt to make the best case for them that I can, from that perspective.  In this post, I want to raise some questions about the regulation and its constitutional validity.

Consider what the regulation does.  It takes a practice--the disposal of fetal tissue--and insists that it be performed in a manner that essentially defines the fetus or embryo as a full person.  It does so by requiring that clinics and hospitals, rather than disposing of fetal tissue as medical waste, cremate or bury such tissue as if it is the remains of a born person.  By paying for an abortion, moreover, the woman most likely pays for the burial or cremation as well, since providers are likely to pass along such costs to their customers.  Thus both consumers and providers of abortions (and services related to miscarriages) are being made to act as though they believe that a fetus is a fully entitled person, at least after death, even if they do not believe this to be the case.

In Planned Parenthood v. Casey, the U.S. Supreme Court held that although a woman has the right to terminate her pregnancy up until the point of fetal viability (and her right includes the impermissibility of undue burdens upon her ability to exercise it), the government may regulate abortion in a way that expresses its preference for childbirth over abortion.  For this reason, the Court upheld the informed consent requirement under Pennsylvania law that required, among other things, that a woman be told the probable gestational age of her fetus, along with the 24-hour waiting period that gives women the opportunity to mull over the information received in the informed consent session.  But there is a difference between regulations that aim to persuade a woman of the pro-life view--that is, government expression of that view--and regulations that require a woman or her provider to behave as though they already share the government's view of fetuses and abortion.  The difference might be characterized as the distinction between government speech and compelled private speech.

Under the Supreme Court's First Amendment precedents, including West Virginia State Board of Education v. Barnette and Wooley v. Maynard, the government may not compel a private person to express ideas against her will, whether the expression involves saluting the flag or driving around with a license plate that says "Live Free Or Die."  The government may, though, itself express ideas. And even a strong element of individual participation does not vitiate the government's interest in controlling its own speech.  That is the implication of Walker v. Texas Division, Sons of Confederate Veterans, in which the Court held that the government could refuse to issue an offensive specialty license plate, on the ground that it would constitute government speech, a holding that appears to limit the scope of Wooley.  Nonetheless, even Sons of Confederate Veterans does not permit the government to compel private speech.

In chapter 12 of Constitutional Law Stories, Vince Blasi and Seana Shiffrin discuss the doctrine of compelled speech and ask why such compulsion is objectionable.  After all, they say, no one will really infer that someone forced to salute the flag or to carry a license plate with a message on it truly believes the content of what he or she is saying under compulsion.  The audience to compelled speech, in other words, knows that the speech is compelled and is therefore unlikely to be misled by the expression.  Blasi and Shiffrin point to a different harm associated with compelled speech, however.  They explain that when one is forced to say something, it has an impact on the speaker, not just on the listener.  A speaker who says something may come to either believe it or to feel differently about what she is forced to say than she did before, and it is this coercion that is captured and rejected by the compelled speech doctrine.

Similarly, compelled expressive action, like burying or cremating fetal remains as if those remains come from a born human being over which there is no controversy about his or her moral value, can have a profound effect on the clinic or hospital personnel who perform this action or on the woman who is compelled to fund it when she pays for her abortion (or procedure connected to a miscarriage). The people who must bury or cremate the fetal remains or the patient herself may either come to believe in the message that they have been forcibly expressing or may feel a deep conflict about saying something that they do not believe by acting as if they holds the belief.  Either way, compelled expressive behavior is objectionable in the same ways as compelled speech is objectionable more generally.

To be sure, since neither the doctor nor the woman herself must perform the burial or cremation, the interest here may be attenuated.  Nonetheless, I would argue that the interest is still there and that as a matter of the First Amendment right against compelled expression, the burial or cremation requirement for fetal remains in Texas therefore ought to be permanently enjoined when the issue comes before the district court for full consideration.  Pro-choice individuals who believe that a fetus is not a person have the right to continue to believe that and to act accordingly, and compelled conduct reflecting a contrary view undermines that interest as well as the right to the conduct (abortion) reflective of such beliefs.


Joe said...

Opposition to these laws repeatedly label this a sort of forced "funeral" law, which doesn't really work for me. Looking at the text, it is true that funeral parlors might be the ones involved in carrying it out. But, a 'funeral' to me is a sort of ceremony and the fact a funeral parlor is involved in burying or cremating it doesn't make something a 'funeral.' Cremating can be done as a simple act.

The article's argument is interesting. The use of the pro-life voice in the essay also is a good touch. I'm not completely convinced but it makes some good points. One thing: I'm not sure "medical waste" and "person" are the only possibility categories here. Something can have some value including to some people (e.g., a historical landmark many might find of no value but protected) without having "personhood" or being "sacred ground" or whatever. This would include embryonic remains or even remains of post-natal humans (or non-human animals for that matter). Some might not think a cow is a "person" ... if we are relying on 1st Amendment arguments here, the "message" concern seems to be there too.

This is one reason (though the law has various details that very well are problematic; I'll avoid going into the weeds but such TRAP laws tend to be a problem per se) such a law is a relatively minor concern for me on some level. Denying Medicaid funding, e.g., is a lot more blatant here and directly felt by the person having the abortion.

t jones said...

These two posts raise some additional questions:
1. I presume there are additional Texas laws or regulations defining "cremation" and "burial" which mean that the terminated fetus cannot be disposed in the hospital incinerator;
2. Who owns the terminated fetus? Apparently this law would prohibit a woman from donating the fetal tissue for research;
3. The inclusion of the home miscarriage/abortion exception appears to give the game away. If Texas is trying to ensure the dignity of unborn tissue, why does location matter? If it's trying to impose a burden on abortion and abortion providers the location distinction makes sense.

Joseph Simmons said...

I have seen this kind of robust First Amendment argument from libertarians and conservatives; nice to see it here. However, I don't know that requiring cremation or burial is necessarily "compelled expression." Laws against desecration of corpses serve as an expression of society's view that human bodies are somehow special. This enforcement of a moral view, with statutes imposing affirmative requirements as well as restrictions on what may be "expressive" acts, does not seem the kind of law violative of the First Amendment, at least under an originalist view. We can identify other, non-expressive purposes, for anti-desecretaion laws but the moral purpose is not merely incidental. I do not see a constitutional significance in your distinction of "remains [that] come from a born human being over which there is no controversy about his or her moral value." Apparent consensus on a moral matter should not be conclusive as to whether a person may express himself contrarily.

Can the government prohibit desecration the remains of a fetus, or does a person have the constitutional right to express the belief that a fetus is not a human life by committing disrespectful acts? If we wish to go down this path, Kermit Gosnell's trophy collection was a brave assertion of the First Amendment. If the Constitution can be used to foil laws asserting moral value of fetal remains, it is no wonder pro-life advocates resort to legislating wider hallways at abortion clinics to accommodate gurneys. That some regulations concerning disposal of fetal remains may be justified on alternative grounds does not address the First Amendment argument (of course).

Picking up on Joe's point, if someone must put the small body in a furnace rather than throwing it in a bag in a dumpster, does that really compel an act of expression? In a sense, as I've suggested above, it does. Yet I don't think it is an unconstitutional compulsion. While it accords with a societal view expressed by the legislature, the person doing the act need attach no particular meaning to the act. (Here I begin to think of Scalia's view of religious establishment...)

I've intentionally avoided analogies to the expressive value of putting a cake in the oven or in employers providing abortion coverage (or directing others to do so) if only because of the equal protection arguments that complicate such a discussion.

I do wonder about your argument as it seems unhelpful to legislating to protect animals if their status is at all controversial, which it is since many people consider them meat, but a vocal minority does not.

Joe said...

"Apparent consensus on a moral matter should not be conclusive as to whether a person may express himself contrarily."

I'm wary of the line between an embryo and a post-natal corpse here on expressive grounds, but consensus does in some fashion matter in actual practice. Now, as applied (see non-funding of abortion, when many people including on religious grounds think abortion is sometimes moral), this very well might be problematic.

But, matters of deep dispute are a somewhat easier question for giving people more of an individual choice on the matter. There are certain things, such as those involving nudity or violence in film (obscenity deemed present in one case, not as much the other), where this leads to laws that are society specific. This includes questions of treatment of a corpse, including given a more clear recognition in the Constitution overall that a post-natal individual is a "person" that warrants more respect in various cases. Other reasons probably can be given there too, including that the latter is more independent of the pregnant individual.

ETA: A reason this all is problematic is that even in the examples granted the "consensus" repeatedly is only so up to a point.