Right to Life, Church-State Cases before Court

The U.S. Supreme Court reconvenes this week for what many observers say could be a tumultuous session. Included on the justices’ docket so far are several cases that could determine new Court directions in both church-state and right-to-life issues.

Following the Court’s landmark Webster decision giving states more room to regulate abortion, much attention will be given to the three abortion cases the justices have scheduled in the coming weeks (CT, Aug. 18, 1989, p. 36). Legal experts say it is unlikely that any of the current cases will offer the Court an opportunity to overturn its 1973 Roe v. Wade decision legalizing abortion, but states may be given more freedom in regulating abortions. “The trimming back of Roe v. Wade has begun,” said Paige Cunningham, senior attorney of Americans United for Life.

Two of the cases look at a minor’s right to have an abortion. In Hodgson v. Minnesota, the justices will decide whether a state may constitutionally require a teenage girl to notify both parents—even when they are divorced—before getting an abortion. Minnesota’s law, in effect for about five years, allowed girls to bypass parental notification by going before a state judge. Ohio v. Akron Center for Reproductive Health will examine a similar notification law in Ohio, although girls there are required to notify only one parent before an abortion.

The third case, Turnock v. Ragsdale, centers on Illinois’s licensing standards for abortion clinics. The clinics say the standards are unnecessarily stringent and place an undue burden on their facilities. Abortion-rights advocates claim the regulations unconstitutionally limit a woman’s access to abortion. Illinois claims it is trying to protect maternal health.

Right To Die

The Court has also agreed for the first time to hear arguments surrounding the “right to die” concept. In Cruzan v. Director of Missouri Department of Health, the justices will decide whether the parents of a 32-year-old brain-damaged woman may authorize the removal of a stomach tube providing her with food and water. Nancy Cruzan has been in a “persistent vegetative state” since an automobile accident in 1983.

Cruzan’s parents argue that their daughter is being artificially kept alive by the feeding tube, and that her rights to privacy and liberty are being violated by the state. Missouri officials, supported by disabled rights and prolife groups, say removing Cruzan’s feeding tube would improperly place the quality of her life above the state’s interest in protecting life. The Missouri Supreme Court agreed last year, ruling that the state has an “unqualified interest in life.”

Rita Marker, director of the International Anti-Euthanasia Task Force, is very concerned about the potential impact of this case. “It could be the Roe v. Wade of euthanasia,” she said. “If the Supreme Court approves the starvation and dehydration death of Nancy Beth Cruzan, it will open the floodgates to the killing of millions of sick, old, or disabled people,” she said.

Testing The Establishment Clause

In the church-state arena, the Court will consider whether public high-school students have the right to use school facilities for organized Bible studies during noninstructional hours. The case, Board of Education of Westside Community Schools v. Mergens, will test the constitutionality of the Equal Access Act, passed by Congress in 1984.

According to the law, schools receiving federal money must allow student groups to meet for religious, political, or philosophical reasons on the same basis that other noncurriculum-related groups meet. In 1986, the Supreme Court heard a similar case from Pennsylvania, but ruled on procedural matters rather than on the issue of equal access (CT, May 16, 1986, p. 45).

Another key case is Jimmy Swaggart Ministries v. Board of Equalization of California, which examines California’s refusal to refund taxes Swaggart paid on religious literature and other materials sold at rallies and through the mail in the state from 1974 through 1984. The central issue is whether Swaggart, who is based in Louisiana, may be taxed by California for crusades and mail-order activities conducted there. The Court will also consider whether the sale of Swaggart’s materials should be treated as commerce or religious activity.

Advocates of a strict separation between church and state believe state tax breaks to religious organizations constitute indirect government subsidies, but those favoring a more accommodative view fear a ruling against Swaggart could hinder the work of many religious groups.

“A ministry might decide not to go into a state with their religious message simply because there is too much hassling with the tax authorities,” said Sam Ericsson, executive director of the Christian Legal Society.

Church-state authorities will be watching to see how the justices decide these cases. Many observers believe a fundamental change could be imminent in how the high court interprets the First Amendment.

“I think there is strong indication that we’re going to see some radical reconstructive surgery on the establishment clause in the next few years,” said Oliver Thomas, general counsel of the Baptist Joint Committee.

John Whitehead, president of the Rutherford Institute, a religious-liberty legal group, believes the Court is moving away from its long-standing three-part test for establishment: Does the activity have a secular purpose? Is its primary effect to advance religion? Does it create excessive church-state entanglement? The Court, Whitehead said, is headed toward a simpler, yet more subjective test: Would an objective observer think the activity in question constitutes government endorsement of religion?

Currently, four justices appear to favor a strict separation of church and state, and four seem willing to accept more state accommodation of religion. Justice Sandra Day O’Connor, according to observers, remains the “swing vote.”

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