NEW YORK (Aug. 22)
A New York State Supreme Court Justice accepted a contention last week that a new state law curbing the power of medical examiners to perform autopsies over religious objections, which is not yet in effect, nevertheless represents public policy by virtue of passage. On that basis, he barred an autopsy on an Orthodox Jewish woman, a Jewish legal aid society official reported today.
Judge Irving Green, sitting in State Supreme Court in Goshen, N. Y. last Wednesday issued the order barring an autopsy on a 66-year old patient in the State Psychiatric Hospital in Middletown, N.Y.
Dennis Rapps, executive director of the National Jewish Commission on Law and Public Affairs (COLPA), said the woman, a long-time resident of the facility, was found dead Tuesday in her room at the hospital with no outward indication as to the cause of death.
Rapps said that Roy Lippincott, the coroner in Orange County, in which Goshen and Middletown are located, informed the family of the dead woman that, because there was no readily apparent cause of death, he was required to perform an autopsy.
Rapps said that present state law generally provides for the performance of autopsies when that is “necessary” to determine the cause of an “unexplained death.”
But the new law, signed by Governor Mario Cuomo on August 10, provides that if there is conscientious public objection by next of kin or “friend” of the dead person, the coroner may not perform an autopsy unless there is “a compelling public necessity.”
ELEMENTS OF THE NEW LAW
The new law defines that as a situation in which an autopsy is essential “to the conduct of criminal investigation of a homocide” of which the dead person may be a victim” or that discovery of the cause of death “is necessary to meet an immediate and substantial threat to the public health; and that a dissection or autopsy is essential to ascertain the cause of death.”
However, the new law, which puts the burden of proof of the need for an autopsy on the coroner, does not become effective until September 7. Rapps said that, barring prompt action on the dead woman’s behalf, the situation as of the day of her death was that the coroner would proceed with the autopsy. The names of the woman and family were withheld for reasons of privacy.
The family sought to obtain possession of the body for the required burial within 24 hours after death but the coroner refused to release the body.
On the day of the woman’s death, the family called David Jacobson of the United Jewish Community-Adath Israel, a major Jewish burial society on the Lower East Side of Manhattan, which had been scheduled to perform the funeral, and told him of the dilemma. Davidson immediately contacted COLPA at around 4 p.m. that Tuesday.
Rapps said he tried, by a telephone call to the coroner, to persuade him the autopsy was unnecessary and would be a needless desecration of Jewish religious law. Rapps said that, when that effort failed, he and Assemblyman Sheldon Silver (D. Man.), one of the sponsors of the new autopsy law, began preparation of papers to start a lawsuit in the State Supreme Court to enjoin the projected autopsy.
LAWSUIT IS FILED
On Wednesday morning, Silver and Rapps, accompanied by Rabbi Edgar Gluck of Brooklyn, an Orthodox expert witness who has testified in hundreds of autopsy hearings, hastened to the State Supreme Court in Goshen. They filed a lawsuit at 9 a.m. Wednesday. In response, Judge Green signed an order placing the matter on that day’s court calendar and, after being advised of the Halachic urgency of prompt burial, ordered a hearing at 10:45 a.m. that morning, Rapps said.
At the hearing, the district attorney, Jim Brown, said there was no suspicion of foul play or any other illegality connected with the woman’s death and that he, therefore, would not insist on an autopsy. Lippincott insisted, however, he was bound by law to perform the autopsy because that was “necessary” to determine the cause of an “unexplained death.”
Rapps argued that in cases of death caused by automobile accidents, courts have prohibited autopsies as not being “necessary” under the meaning of present state law since it could be justifiably assumed that the accident caused the death.
Silver, pointed out that the new law amends the “necessary” and “unexplained” provisions of the existing law and requires a showing by the coroner of a “compelling public necessity” for an autopsy to be performed over religious objections.
Silver also argued that the new law should be applied in the case before Judge Green, though it was not yet in force, as a “declaration of the public policy” of the state because it had been approved by the Legislature and signed by the Governor.
Rapps said Green accepted that proposal and ruled no autopsy should be performed and that the coroner release to the family the body of the woman. The body was taken to Manhattan and the funeral rites and burial took place immediately, Rapps said.