Autopsies and Free Exercise Beliefs

As government has grown in the United States, conflicts between religious observers and the law have increased proportionately. Modern dilemmas are easy to find. Members of the Native American church seek to use peyote despite laws prohibiting its possession. Catholic churches seek to expand their sanctuaries despite historic-preservation ordinances.

One of the best illustrations of the depths to which law and religion can conflict is the class of cases involving Autopsies. Autopsies are conducted by the state for many reasons, but most frequently to discover the cause of a person’s death. States often have statutes requiring Autopsies to be made in certain categories of cases, such as all cases of violent or sudden death.

Many religious groups, such as Orthodox Jews, Navajo Indians, the Amish, the Hmong, and several denominations of Muslims, object to Autopsies. Some of these groups object to Autopsies unequivocally, while others object to them only under certain circumstances. (Orthodox Jews, for example, will not generally object to Autopsies conducted to detect hereditary illnesses.)

Their reasons for objecting vary as well. For Orthodox Jews, Autopsies violate the Talmud’s prohibitions on mutilating the dead. For the Hmong people, Autopsies threaten the post-death existence of the deceased. The Hmong see funerals as times for the soul to make its way to the next life; the physical invasion inherent in an autopsy threatens that passage and can cut off the possibility of an afterlife. Indeed, it is fair to say that, for the Hmong, autopsy is the equivalent of homicide.

These objections may strike Western observers as quite foreign. For such observers, perhaps an analogy may help. Cremation is becoming increasingly popular in this country. In 1963, only 3 percent of those who died were cremated. By 1980, that number was 10 percent and, in 2005, the number is expected to be almost 30 percent. Yet, until very recently, cremation was thought to be fundamentally incompatible with Christianity. Cremation was a Roman tradition, abhorrent to the early Christians, who believed that their bodies would be physically resurrected. Indeed, it was not until 1989 that the Roman Catholic Church officially renounced its traditional opposition to cremation; the Eastern Orthodox Church continues to forbid it. If one can imagine what a governmental policy of forced cremation would mean for these Christians, then one can begin to understand the implications of forced Autopsies for religious groups like Orthodox Jews and the Hmong.

In the face of this obvious conflict, one persistent question has been whether religious objectors will be exempted from mandated Autopsies. The small size of these religious groups and the infrequent nature of these controversies have made these problems largely invisible to legislatures. Therefore, religious groups have turned to the courts for refuge, arguing that the free exercise clause of the Constitution entitles them to protection from forced Autopsies. Until 1990, those claims might have enjoyed some success. But in 1990, the Supreme Court held that the free exercise clause does not protect religious adherents from laws that are generally applicable. The Religious Freedom Restoration Act, a federal statute designed to restore the pre-1990 standard, was passed in 1993. In 1997, however, it was declared beyond Congress’s power to enact.

Since then, some similar statewide statutes have been passed. But the general rule has meant that religious objections to Autopsies have generally not prevailed—even when the reasons for the Autopsies are thin or almost nonexistent— as the cases cited here reflect. One example, which featured prominently in the legislative debate on the Religious Freedom Restoration Act and in the judicial opinions debating its constitutionality, was the case of Yang v. Sturner (728 F. Supp. 845, D.R.I., withdrawn, 750 F. Supp. 558, D.R.I. 1990). Yang involved the autopsy of a young Hmong man, performed over his parents’ objections. The district judge who heard the case was outraged at the autopsy; he saw it as almost without purpose (given that there was no suspicion of foul play) and terribly painful for the family. But bound by the Supreme Court’s 1990 opinion, the judge denied the Hmong family all relief. The judge’s opinion has become a persuasive tool for those arguing for the need to accommodate autopsy objectors and religious objection more generally.

Autopsy cases are dramatic and compelling examples of religious objection in the regulatory state. But even more than that, autopsy cases encapsulate the free exercise clause; all of its complexity; all of its tensions, history, and theories can be seen through the lens of these simple cases.

CHRISTOPHER C. LUND

References and Further Reading

• Berg, Thomas C. The State and Religion in a Nutshell, 2nd ed. St. Paul, MN: West Publishing Group, 2004
• Laycock, Douglas, The Religious Freedom Restoration Act, Brigham Young University Law Review 3 (1993): 221–258
• Lund, Christopher C., A Matter of Constitutional Luck: The General Applicability Requirement in Free Exercise Jurisprudence, Harvard Journal of Law and Public Policy 26 (2003): 6:627–665
• Stern, Marc D. Testimony on Behalf of the American Jewish Congress Before the Subcommittee on the Constitution of the Committee on the Judiciary, Mar. 26, 1998, available at https://judiciary.house.gov/legacy/222390.htm

Cases and Statutes Cited

• City of Boerne v. Flores, 521 U.S. 507 (1997) 
• Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872 (1990) 
• Kickapoo Traditional Tribe of Texas v. Chacon, 46 F. Supp. 2d 644 (W.D. Tex. 1999) 
• Montgomery v. County of Clinton, Michigan, 743 F.Supp. 1253 (W.D. Mich. 1990)
• United States v. Hammer, 121 F. Supp. 2d 794 (M.D. Pa. 2000)
• Yang v. Sturner, 728 F. Supp. 845 (D.R.I.), withdrawn, 750 F. Supp. 558 (D.R.I. 1990)
• 42 U.S.C. § 2000bb (1994) (the Religious Freedom Restoration Act)

See also Accommodation of Religion; Belief–Action Distinction in Free Exercise Clause History; City of Boerne v. Flores, 521 U.S. 507 (1997); Conscientious Objection, the Free Exercise Clause; Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990); Equal Protection Clause and Religious Freedom; Establishment of Religion and Free Exercise Clauses; Free Exercise Clause (I): History, Background, Framing; Free Exercise Clause Doctrine: Supreme Court Jurisprudence; Prisoners and Free Exercise Clause Rights; Refusal of Medical Treatment and Religious Beliefs; Religious Freedom Restoration Act; State Religious Freedom Statutes