THE CHRONICLES OF AVE MARIA©: AVE MARIA and ABORTION– The Controversy Behind Monaghan’s Ave Maria Town “Scheme” (a Constitutional Law Scholar’s Analysis)

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The Roman Catholic World

February 13, 2010

How quickly they forget…

[Ave Maria] Project manager Blake Gable says all businesses in Ave Maria fall under the same ordinances as every other vendor in Collier County and to think that businesses would be treated differently just because a catholic church stands in the middle of the town is outrageous.

July 20, 2007 WINK News (a Southwest, Florida CBS affiliate).

Here is what a prominent conservative Catholic constitutional scholar had to say: 

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 of Marsh v. Alabama.”

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 of Marsh v. Alabama.”

Charles E. Rice,

Constitutional Law Scholar and Professor Emeritus at Notre Dame Law School

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THE WANDERER - February 18, 2010 Issue - Front Page Feature Story by Charles E. Rice: AVE MARIA and ABORTION: The Controversy Behind Monaghan's Ave Maria Town "Scheme"

The Wanderer–EDITOR’S NOTE:  On January 14, 2010 The Wanderer published an article titled Rhetoric vs. Actions: Is Abortion Allowed in Mon­aghan’s Ave Maria?  (Read article  HERE).

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 are against 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).

Ave Maria, Florida

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 is Planned Parenthood v. Casey (1992) and in the opinion for the court in Stenberg 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.  In Casey, 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 abortion for 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 Amendment therefore 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 is Marsh 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 of Marsh 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 eight) (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 “each owner 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 the Marsh 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 of Marsh 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.

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TOPICS FOR DISCUSSION:  Monaghan’s Ave Maria Town “Scheme” + Is Abortion Allowed in Monaghan’s Ave Maria? + Tom Golisano gives Millions of Dollars to the William J. Clinton Foundation + Ave Maria University Honors Tom Golisano who is an Active Financial Supporter of Pro-Choice Politicians and Pro-Choice Institutions + Catholic Media Coalition +  Les Femmes-The Truth+  Blood Money+ Ave Maria Florida + Ave Maria University is Not a Catholic University +  Ave Maria University Bullying +  Is Ave Maria University ready to face ”Blood Money”?+  Ave Maria Stewardship Community District (AMSCD) Town Government +  Does AMU have a Right to Criticize Notre Dame? + What is the ”Ave Maria University Council” and what is its purpose? +  What is the Status of Ave Maria University’s Accreditation Process?  + Ave Maria University Board of Trustees +  Bishop Frank J. Dewane + The Two Firings of Father Joseph Fessio SJ + Firing a Priest + Lack of Fiduciary Responsibility + Institutional Instability + Tom Monaghan + Nicholas J. Healy Jr., President of Ave Maria University + Barron Collier the Ave Maria Town Developer + Ave Maria Development + Nua Baile + Ave Maria University 2nd Mortgages + Ave Maria Real Estate + Naples Daily News + The Wanderer Catholic Newspaper + Open Letter to the Ave Maria University Board of Trustees + Ex Corde Ecclesiae + Summorum Pontificum + Latin Mass + “Where did the Communion Rail Go?” (the Communion Rail controversy) + etc.

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