Posted on 02/13/2010 7:10:43 AM PST by GonzoII
By CHARLES E. RICE
(Editor’s Note: On January 14, 2010 The Wanderer published an article titled “Rhetoric vs. Actions: Is Abortion Allowed in Monaghan’s Ave Maria?” In that article, the author, Marielena Montesino de Stuart, exposed Ave Maria Town court documents that include vague clauses regarding abortion, embryonic stem- cell research, adult bookstores, as well as references to other activities that areagainst Church teachings and are offensive to Catholics.
( Based on the court documents, Mrs. Montesino de Stuart argued that abortion is, in fact, allowed in Ave Maria — which is in stark contrast with Thomas S. Monaghan’s well- documented promotion of Ave Maria as a “ Catholic town” and a “ Catholic hub” where abortion and the above- referenced activities would be prohibited.
( Charles E. Rice is professor emeritus at the University of Notre Dame Law School. His areas of expertise are constitutional law and jurisprudence. He has served as a consultant to the U.S. Commission on Civil Rights and to various congressional committees on constitutional issues, and is an editor of the
American Journal of Jurisprudence.
(Professor Rice weighs in with the following analysis.)+ + + Abortion is an evil, as are embryonic stem-cell research, in vitro fertilization, cloning, “ adult” bookstores, and “adult” entertainment, all of which the town of Ave Maria claims to prohibit within its jurisdiction. Our focus here is a single question: Can Ave Maria Town legally prohibit all abortion within its jurisdiction? The answer appears to be: No. The “Covenants, Conditions and Restrictions” filed by the Town in 2007 provide that “The following operations and uses shall not be permitted on any Lot under any circumstances:
. . .(V) Operation of any facilities in which abortions, as defined in Chapter 390, Florida Statutes (2006), are performed, or any use by which abortion is promoted or is the subject of counseling or referrals when such promotion and/or counseling and/or referrals are a substantial part of the use of the facility, i.e., comprising 25% or more of the activities of the facility.”Section 6.5(V).
Supreme Court precedents indicate that such a prohibition by an entity such as Ave Maria Town is unconstitutional. That conclusion applies similarly, for various reasons, to the covenants’ prohibitions of embryonic stem-cell research, in vitro fertilization, cloning, “ adult bookstores,” and “adult entertainment establishments.” Sections 6.5(U), (V). To avoid excess length, these comments will address only the abortion issue.
Roe v. Wade and other Supreme Court rulings protect the right to abortion against infringement by federal, state, and local governments. Before viability, governments may not prohibit abortion; after viability, governments may prohibit abortion except where it is necessary to protect the woman’s life or health. In the joint opinion isPlanned Parenthood v. Casey
(1992) and in the opinion for the court inStenberg v. Carhart (2000), the court adopted the “undue burden” test under which a law will be invalidated “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Casey, 505 U.S. at 878.
InCasey, the Court upheld a 24hour waiting period, a requirement that the woman be told of the availability of information about her unborn child, and reporting and recording requirements. An absolute prohibition of abortion in a jurisdiction will not be sustained. Apparently, of course, a reasonable and nondiscriminatory zoning ordinance may restrict medical, business and other uses to certain areas. Section 6.5(V) of the Ave Maria Town covenants is discriminatory because it singles out abortionfor prohibition.
Roe v. Wade is an interpretation of the Fourteenth Amendment which provides that: “No State shall . . . deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That Amendmenttherefore does not ordinarily apply to private persons and entities.
The Supreme Court has held, however, that a private property owner exercising a “public function” can be bound by the Fourteenth Amendment. The leading case isMarsh v. Alabama (1946), holding that Chickasaw, a company town owned by the Gulf Shipbuilding Corporation, may not prohibit the distribution of religious literature on its sidewalks: “The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant, and a ‘business block’ on which business places are situated. . . . In our view, the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place were held by others than the public is not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute.” 326 US at 502, 509.
Remember that, under Supreme Court rulings, the right to abortion is a fundamental liberty.
The Marsh “ public function” principle was later held not to apply to a prohibition of picketing in a privately owned and operated indoor shopping mall in a single large building. Hudgens v. NLRB
(1976). The Court in Hudgens reaffirmed
Marsh on its facts: “The question is, under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all
the attributes of a town, i.e., ‘residential buildings, streets, a system of sewers, a sewage disposal plant and a business block on which business places are situated’.” 424 U.S. at 516 (emphasis in original).
Under the criteria ofMarsh v. Alabama,
Ave Maria is as fully exercising a public function as was Chickasaw. Moreover, Florida state and local governments are directly involved in a symbiotic relationship with Ave Maria to an extent that was not present in the Chickasaw situation.
The Florida statute that created the Ave Maria Stewardship Community District stated that “[t]he critical single purpose of the Ave Maria Stewardship Community District [is] to provide basic infrastructure systems, facilities, services, works and improvements to the private Ave Maria university new town community.” Laws of Florida, Chapter 2004- 461, Section 2(2)(n)(page 8) (citations hereafter will be to pages of that complicated statute). “[ T] o implement the special requirements of this university new town” (page 35), the District is granted “ special powers” over, among other subjects, “water management and control . . . water supply, sewer, . . . wastewater management . . . [p]arks . . . [f]ire prevention and control . . . security [and] waste collection, and disposal.” (pages 35-40).
The governing body of the District is a five-member Board of Supervisors who are “public officers.” (page 28). They are initially elected by the landowners, with “eachowner of [an] acre or fraction thereof . . . entitled to one vote.” (page 25). The Act allows a transition to election by “ qualified electors” when the District “has at least 500 qualified electors.” (page 26).
In these and other respects, Ave Maria Town looks more like a municipality than a private enclave. There was no comparable explicit governmental involvement with Chickasaw in theMarsh case.
Whether Ave Maria Town exercises a “ public function” and is therefore subject to the Fourteenth Amendment will ultimately be determined by the courts, perhaps in litigation arising from efforts of an abortuary to locate in that community.
If, as it appears, Ave Maria is bound by the Fourteenth Amendment under the Marsh criteria, its attempted absolute prohibition of abortion in Section 6.5(V) is unconstitutional and therefore void. Its further prohibition of “any use by which abortion is promoted or is the subject of counseling or referrals…comprising 25% or more of the activities of the facility” would appear to be unconstitutional as inflicting an “undue burden” on the right to abortion.
A curious question arises from the conclusion that the absolute prohibition of abortion in the first sentence of Section 6.5(V) is unconstitutional and void. If that prohibition is void, all that could possibly be left of Section 6.5(V) is the restriction on promotion, counseling and referrals. But if “promotion” of abortion is not counseling or referral, what is it? Does it include the performance of abortions? Can you promote abortion by performing abortions? The drafters of Section 6.5(V) drew a distinction between performance and promotion of abortion. But how can you perform abortions without promoting abortion? Promotion, unlike counseling and referrals, is a vague term and should not have been used in that context. If the absolute prohibition of abortion is void and if promotion of abortion can include performance of abortions, Mrs. Marielena Montesino de Stuart’s criticism has merit.
In any event, Mrs. Montesino de Stuart understated her case. Will Ave Maria Town be required to permit the performance of some abortions? Yes, if, as seems clear, Ave Maria is subject to the Fourteenth Amendment under the criteria ofMarsh v. Alabama.
The underlying problem here is that the architects of the Ave Maria scheme undertook to create a town and exempt it from the constitutional restrictions that apply to state and local governments and to private persons assuming public functions by the operation of such a town. The incoherence of that course legally means that it will apparently be up to the abortionists to decide whether some abortions will be performed in Ave Maria Town. Any claim to the contrary is, in my opinion, a misrepresentation.
+ + + (Dr. Charles E. Rice is a professor emeritus at the Notre Dame Law School.)
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Always like to hear from Charles Rice. Thanks for the update!
Just guessing that the population won't be having abortions....older and the only doctor I saw was an URGENT CARE.
Sometimes you can judge people by their friends, sometimes by their enemies.
Tom Monaghan and Ave Maria U seem to have all the right enemies. They must be doing the Lord’s work!
You don’t have to be Catholic to admire Tom Monaghan as one of America’s finest men (I am Jewish). He has used his faith to do wonderful works, in furtherance of countless pro-life and pro-family causes.
**“The following operations and uses shall not be permitted on any Lot under any circumstances:**
If Ave Maria takes no federal money, I would say the federal government has no jurisdiction. But I am not an attorney, so I may be wrong.
Basically the libs hate Ave Maria because they are reproducing and hold staunchly to Catholic beliefs.
And we all know the libs and the media relish bashing anything Catholic!
That is from a legal scholar, not an abortion advocate.
It basically means that self-government in America is unconstitutional in principle, even if it is structured as a private enterprise.
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