in perpetuity es sanctum.

here is a very interesting article about a catholic church's attempt to guarantee that no abortions will ever be performed on land it currently owns, but intends to sell.


st mary's catholic church owns a tract of land in potsdam, new york, which it intends to sell. a local potsdam hospital wants to buy the land to build a new full-service medical facility. but the hospital walked away from negotiations when the church demanded that a clause be written into the deed providing that no abortions be performed on the land.

can the church do this? what about shelley v kraemer? i've mentioned the classic supreme court case multiple times. at one point i even promised a full post on it, which i have yet to follow through on. i'll say a bit more here.

in shelley, a black family bought a house in an all white neighborhood. racist neighbors sought to have the sale revoked based on a restrictive covenant written into the property's deed. the covenant required that the land not be sold to colored folks. state courts enforced the covenant to rescind the sale, but the us supreme court reversed. the court held that state enforcement of the covenant constituted state action, subject to the constitutional requirement of equal protection. the court rejected the previously adhered-to notion that mere enforcement of the common law of property, which required the sale's rescission, did not constitute state action. this was absolutely huge because it brought private contracts, i.e. racially-discriminatory covenants in property deeds, within the realm of constitutional scrutiny. no more all white neighborhoods.

similarly, state enforcement of the church's no-abortion covenant would also constitute state action, subject to the constitutional right to choose under roe and casey. the state cannot ban abortion on a tract of land, just as it cannot prohibit black people from buying the tract, even when the state's only action is to enforce private contracts. any thoughts?

i love shelley. it makes so many crappy ideas unconstitutional.