Justice Brennan Lives

The late Justice William J. Brennan, Jr. was apotheosized at his death by the New York Times for the rich legacy the Times deemed he had conferred on American jurisprudence. His greatest gift, so it was said, was his espousal of the idea of a “living Constitution,” whereby (in his words) Justices would adapt the Constitution “to cope with current problems and current needs.” They should thus reject “any static meaning it may have had in ages dead and gone.” Brennan’s pursuit of amending the Constitution through interpretation by unelected officials would cause him, among other things, to vote repeatedly to strike away the legal protections that a world dead and gone had traditionally afforded unborn human beings.

Less noticed at Brennan’s death was a view he had expressed in 1977 in the Harvard Law Review , urging state supreme courts to interpret state constitutions in a similarly broad manner. Were Brennan still alive, he would rejoice that the Alaska Supreme Court in Valley Hospital Association, Inc. v. Mat-Su Coalition for Choice has recently not only followed his bidding but has perhaps exceeded his fondest hopes.

In 1970 Alaska enacted a statute that made abortions legal if performed in a hospital or other governmentally approved facility. A clause was added providing that no hospital or person was required to participate in an abortion or would be legally liable for refusing to do so. In 1992 the members of Valley Hospital Association (VHA), a private secular organization made up of residents of Mat-su Borough, adopted a policy prohibiting abortions in its hospital except in cases of pregnancy resulting from rape or incest, or where the life of the mother is threatened, or because “the fetus has a condition that is incompatible with life.” Thereafter a pro-abortion coalition filed suit in state court against the hospital to bar its observance of this policy. The Alaska Supreme Court has now upheld the injunction that the lower state court granted in favor of the coalition.

Before examining the reasoning of the Alaska high court, it is important to note that the significance of its decision goes far beyond the valley of Mat-Su Borough, Alaska. The case was staged as a national test case by the Center for Reproductive Law & Policy. Kathryn Dolbert, the attorney who successfully argued the pro-choice position before the U.S. Supreme Court in Planned Parenthood v. Casey (1992), now appeared in the Alaska courts to argue the coalition’s case. Like-minded forces (e.g., the ACLU) joined with her in attacking VHA’s policy. This was a national test case, because even though the ruling is effective only in Alaska and a precedent only there, it can serve as a model for pro-abortion forces in forty-nine other states.

The opinion of the Alaska Supreme Court is startling. It begins by observing that “the [U.S.] Supreme Court’s articulation of the United States Constitution’s protection of reproductive rights establishes the minimum protection provided to women in Alaska.” Having acknowledged the “minimum protection” afforded by Casey (and, of course, by Roe v. Wade , 1973), the court goes on to indulge to the full the interpretive license Brennan had urged the state supreme courts to employ. The VHA opinion observes grandly that “this Court is at liberty to make constitutional progress in Alaska by our own interpretations.” Indeed, it says, “We are under a duty to develop additional constitutional rights and privileges under our Alaska Constitution.”

The Alaska high court found its basis for developing “additional constitutional rights” in Article I, Section 22 of the Alaska Constitution, which provides that “the right of the people’s privacy is recognized and shall not be infringed.” Wholly agreeing with the U.S. Supreme Court that the right of privacy is the proper basis by which to justify baby-killing, the Alaska court, in a remarkable exhibition of home-made law, translated the simple sentence in the Alaska Constitution into a text of the justices’ own drafting. The legislative history of the provision clearly showed that it was designed merely to secure informational privacy, protection of reputation-in general, what Justice Louis Brandeis had famously called “the right to be let alone.” The provision, adopted prior to Roe v. Wade , says nothing about “reproductive rights.” But reading privacy rights to include abortion rights, and constitutions to be amendable by justices, the court held privacy to be a matter of far broader scope than that recognized in Casey . Since it treated Casey as providing but a minimal definition of privacy, it repudiated even the marginal protection of the unborn (e.g., informed consent, parental consent, waiting periods) upheld in Casey .

But the court was not content to leave matters at that. Attempting to probe into the core of the privacy right, the court oddly concluded that essentially privacy has to do with bodies. “Few things,” essayed the court, “[are] more personal than one’s body.” “[A] woman’s control of her body” is what is at stake in the abortion decision. The only authority the court could come up with as ground for its emphasis on bodies was its own 1972 decision holding a school’s policy on hair length to be unconstitutional.

Turning from body language, the court next considered VHA’s reliance on the exempting clause in the 1970 statute. Although it admitted VHA had proved it had a “sincere moral belief that elective abortion is wrong,” the court held the exempting statute to apply “only to sectarian facilities.” The court thus ruled that no nonreligious entity-even, as in the case of VHA, a membership organization whose members had raised a conscience objection to performing abortions-possessed the statutory right described in the exempting statute. That right was outweighed by the fundamental constitutional right to abortion.

It is important to note that the court’s reference to “sectarian facilities” cannot be read as its holding a religious hospital protected by the exempting clause. Because of the extreme emphasis given by the court to the fundamental nature of the abortion right, no one can be assured that a religious facility’s objection to abortion on Free Exercise grounds would be sustained in Alaska. Admitting that VHA had expressed “a sincere moral belief,” the court nevertheless insisted that “constitutional rights [to abortion] cannot be allowed to yield simply because of disagreement with them.” We can therefore say that the right of religious hospitals to object to performing abortions, which is rooted in their right to free exercise of their religion, is at best on hold in Alaska. But that right is threatened in view of what else the Alaska Supreme Court had to say about VHA.

VHA’s hospital, the court found, was actually not a private hospital, though it had always deemed itself to be. If private hospitals are conceivably exempt from a requirement to perform abortions, government hospitals are not. VHA assumed that to be the state of the law-lamentable but nevertheless true. But to its astonishment, the VHA hospital was held by the court to be a governmental body-a quasi-public institution or “state actor” in constitutional lingo. As a state actor, it would be bound by Alaska’s constitutional provision barring the state from denying anyone the right to an abortion. VHA’s hospital was held to be a state actor because of various ties it has to the state. The court noted that “VHA has a special relationship with the State through the State’s Certificate of Need program.” In addition, “VHA has received construction funds, land, and operating funds from the State, local, and federal governments.” As we think further of religious hospitals we should view these ties with close care. Religious hospitals are typically licensed under state certificate of need provisions. They also are generally recipients of substantial public funds-directly or indirectly. While many states’ laws contain exempting clauses like Alaska’s, these will not avail them if they are found to be state actors by virtue of their government ties.

VHA did not appeal its case to the Supreme Court of the United States. Alaska’s Supreme Court had exercised its acknowledged power to rule with finality on issues raised under the state constitution. And, since VHA is not a religious institution, it could not have raised a Free Exercise claim under the federal Constitution. Yet could not VHA have suggested to the U.S. Supreme Court that, since the Court has held that there is a constitutional right to kill unborn human beings, there is surely also the constitutional right, even of a secular hospital, to refuse to? This argument would have been grounded simply on the Fourteenth Amendment’s Due Process Clause, which forbids states from arbitrarily denying liberty to persons within their jurisdiction. Perhaps that thought may seem merely Monday-morning quarterbacking. Indeed, it is unlikely that the Supreme Court, as presently constituted, would have granted review to such a claim. Yet with an issue of such immense moral consequence, it might have been worth a try.

In any event, VHA’s case is now history and Justice Brennan’s dream is realized in one state. But the radical insularity once embraced by the concept of “states’ rights” is now seen in another form: the right of a state to abolish even those minimum standards in favor of human life that federal constitutional law still recognizes as necessary to the common good.

William Bentley Ball of the Harrisburg, Pa., law firm of Ball, Skelley, Murren & Connell has argued numerous religious freedom cases before the U.S. Supreme Court.