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.