Feminist Women's Health Center, Inc. v. Philibosian

• Citation: 203 Cal.Rptr. 918,157 Cal.App.3d 1076
• Parties: FEMINIST WOMEN'S HEALTH CENTER, INC., et al., Plaintiffs and Appellants, v. Robert H. PHILIBOSIAN, etc., et al., Defendants and Respondents, The Catholic League, Southern California Chapter, et al., Intervenors and Respondents. Civ. 69838.
• Decision Date: 29 June 1984
• Court: California Court of Appeals Court of Appeals

Page 918

203 Cal.Rptr. 918

157 Cal.App.3d 1076

FEMINIST WOMEN'S HEALTH CENTER, INC., et al., Plaintiffs and Appellants, v. Robert H. PHILIBOSIAN, etc., et al., Defendants and Respondents, The Catholic League, Southern California Chapter, et al., Intervenors and Respondents.

Civ. 69838.

Court of Appeal, Second District, Division 4, California.

June 29, 1984.

Hearing Denied Sept. 20, 1984.

Fred Okrand, Carol Sobel, Eve Triffo and Gilbert Gaynor, Los Angeles, ACLU Foundation of Southern California, for plaintiffs and appellants.

De Witt W. Clinton, County Counsel, Robert C. Lynch, Asst. Chief Deputy County Counsel, and John McCauley, Deputy County Counsel, Los Angeles, for defendants and respondents.

Paul L. Freese, Los Angeles, for intervenors and respondents.

WOODS, Presiding Judge.

Feminist Women's Health Center appeals from summary adjudication of issues granted in favor of respondents, Los Angeles County District Attorney and Board of Supervisors, and intervenors/respondents, The Catholic League of Southern California. Appellants sought to enjoin the district attorney from disposing of 16,500 fetuses in a private cemetery where the Catholic League planned a religious ceremony.

This appeal requires us to determine whether the district attorney may constitutionally proceed to bury 16,500 fetuses in a private cemetery that has donated the space, after he is aware that the cemetery has independently contracted with a religious organization to hold a religious burial service and mark the burial site with a memorial plaque. We conclude that he may not and, therefore, reverse the judgment.

Respondent district attorney was contacted by a container company in February of 1982 when approximately 16,500 fetuses and laboratory records were found in a repossessed container at the Woodland Hills home of Malvin Weisberg, the owner of a defunct pathology laboratory in Santa Monica. Weisberg had contracts with various physicians, clinics and hospitals which provided that after preparing pathology reports on the embryonic and fetal tissues sent to him, he would dispose of the tissue in accordance with state law. State law requires such tissue to be interred or incinerated. (Health & Saf.Code, §§ 7054.3, 25957.) Weisberg stored the tissue properly but, apparently due to his financial difficulties, he did not dispose of it.

The district attorney placed an evidentiary hold on the fetuses and laboratory records and coordinated several county agencies to examine the fetuses to determine whether they constituted evidence of criminal conduct. One hundred and fifty fetuses were found to be of greater than 20-weeks' gestation. At that time, Health and Safety Code section 25953 prohibited abortions of fetuses after 20-weeks' gestation.

The district attorney requested an opinion from the Attorney General as to the constitutionality of the 20-week ban. In April of 1982, the Attorney General responded with an opinion that it was constitutionally enforceable except as to abortions of nonviable fetuses and when necessary to preserve the mother's health or life. (65 Ops.Cal.Atty.Gen. 261, 267.) The district attorney concluded that while only the greater than 20-week fetuses had primary evidentiary value, a defendant in one of the proposed prosecutions might claim that the remaining younger-than-20-week fetuses were of evidentiary value to him. Consequently, the district attorney preferred burial in cement vaults so that the evidence could be preserved and disinterred if necessary.

Meanwhile, various public officials, politicians and organizations became involved in the disposition of the fetal tissue.

In March 1982, the Board of Supervisors, after a motion by Michael Antonovich, instructed a Dr. Joseph Wood to perform "autopsies" on 13 of the fetuses. Dr. Wood is a member of the California Pro-Life Medical Association. Dr. Wood provided that organization with unauthorized photographs of 42 "mangled" fetuses. The organization displayed some of these photographs at a news conference at the end of May, which was sponsored by two county supervisors and two state senators. The pictures were displayed on a large board entitled "American Holocaust."

State Senator Alex Garcia tried to claim the "bodies for the purpose of giving a proper decent burial and possibly some kind of memorial."

On May 5, 1982, President Reagan wrote Dr. Dreisbach, the Secretary of the California Pro-Life Medical Association, congratulating the organization's decision "to hold a memorial service for these children."

A motion proposed by County Supervisor Michael Antonovich was approved May 18, 1982. It provided that the district attorney be requested to release the less than 20-week fetuses and to request the county counsel's opinion as to who would have the right to possess them.

The county counsel replied on May 28, 1983, that the district attorney was entitled to possession of the fetuses as long as necessary to carry out his duties and that upon completion of these duties, the district attorney had discretion to dispose of them by either interment or incineration.

On April 21, 1982, Robert White, Director of County Health Services, wrote a memorandum to "Each Supervisor," describing a meeting of representatives of various county agencies involved with the fetuses. In pertinent part, it stated: "The District Attorney has indicated his intention to release the fetuses, probably within two weeks, to the custody of the Right to Life organization's representative.... [p] .... [p] Pierce Brothers Mortuary has indicated their organization would provide the service of interment of the specimens into a burial plot at no charge to the County. The only compensation mentioned is some equitable recognition for providing this service." Copies of the memorandum were sent to the chief administrative officer, county counsel, the executive officer of the board of supervisors and the district attorney.

At the end of May, the Los Angeles Herald Examiner reported that a spokesperson for the district attorney had confirmed that the county counsel opinion on the release of the fetuses appeared to remove any obstacle to releasing the tissue to a group wishing to hold a religious service.

Meanwhile, in early May, appellant Feminist Women's Health Center requested the district attorney to release the pregnancy tissue in order to dispose of it according to law. A group called Atheists United made the same request. Neither request was granted. "Upon learning of indications that the District Attorney was preparing to release the aborted tissue ... to anti-choice organizations which wished to dramatize their opposition to legalized abortion by holding a religious burial service for the aborted tissue," appellants filed as taxpayers a first amended complaint for injunctive and declaratory relief in Los Angeles Superior Court on June 17, 1982. They argued that the district attorney's action violated the federal and state constitutionally-guaranteed separation of church and state. ¹

On June 29, 1982, the court issued a preliminary injunction preventing the district attorney from releasing any of the fetal tissue pending a trial on the merits.

In June or July of 1982, the Los Angeles Health Department apparently called a number of cemeteries to find one that would inter the tissue free of charge. Valhalla Memorial Park in Burbank agreed to inter the fetuses.

On September 30, 1982, the district attorney asked for a modification of the preliminary injunction to permit him to store and bury the less than 20-week tissue in concrete vaults at Valhalla Memorial Park in Burbank. The district attorney wanted to "lawfully inter" as well as "preserve this evidence for the defense of a possible prosecution."

The district attorney's intention to transfer the tissue to Valhalla was reported in the Los Angeles Times. In late September of 1982, the Catholic League of Southern California and its president Paul Freese, intervenors and respondents herein, executed a contract with Valhalla permitting the league to hold a religious burial service as the tissue was "stored" and to place a memorial plaque at the site. ²

The Catholic League and Paul Freese sought to intervene in the action on October 7, 1982. Leave to intervene was granted on October 14, 1982.

Appellants' motion to temporarily enjoin transfer of the tissue to Valhalla was granted on November 3, 1982. The intervenors noticed an appeal from the temporary restraining order on November 12, 1982. The cause was then transferred to the trial department since the appeal negated the court's jurisdiction. The court ruled that the temporary restraining order would remain in effect pending a ruling on appeal.

In early December, both appellants and respondents moved for summary judgment or in the alternative for summary adjudication of the issues. After a hearing on both motions, the court decreed that: The contract between Valhalla and the Catholic League was made without any state participation or expenditure of public funds, and, therefore, the district attorney's "proposal to inter the fetal remains which are the subject of this case at Valhalla Memorial Park, where intervenors intend to hold a religious ceremony over it, without organizing, holding or otherwise participating in that religious ceremony is not a violation of the First and Fourteenth Amendments to the United States Constitution or article I, section 4 and article IVI [sic], section 5 of the California Constitution. Accordingly, defendants are expressly permitted to dispose of the fetal remains in a manner consistent with this order." ³

The court granted a 20-day stay of its order in accordance with the judgment. Appellants promptly petitioned for a writ of mandamus and temporary stay order. The petition was denied, but the order permitting the respondents to bury the fetal tissue was stayed until March 17. Appellants then petitioned the California Supreme Court for...