Autopsies and the public records that they generate have raised First Amendment issues in two areas – freedom of religion and freedom of the press.
By law, states commonly require autopsies when a person’s cause of death is unknown, death occurs under suspicious circumstances or while the person is in government custody such as prison, or when it is feared that a communicable disease threatening to the public may have been responsible.
Some religious groups oppose autopsies based on their convictions and strictures on how the deceased’s body should be handled. This has caused courts to determine when the interests of government, particularly when it involves investigations of possible crimes, outweighs religious rules and beliefs.
Meanwhile, some state legislatures have passed exemptions to their public record laws that restrict or deny access to government-created autopsy reports or parts of the reports, such as photos and videos. The reasons can be that these records are presumed to be confidential investigatory records, or that the deceased family’s privacy interests outweigh any need for access by others, particularly involving release of often-graphic autopsy photos. Journalists assert that there can be a substantial public interest in autopsy findings and records, plus there’s a need to hold public officials transparent and accountable for their actions investigating unusual deaths. Exceptions, they say, should be rare.
The most famous controversy over autopsy photos, procedures and records in the United States involves the 1963 assassination of President John F. Kennedy in Dallas. As recently as October 2022, groups were still suing the federal government to get documents related to the assassination that remained unreleased after nearly 60 years, and some experts believe the autopsy itself was botched. These federal-level battles focus on various provisions and exceptions contained in the U.S. Freedom of Information Act.
AUTOPSIES AND FREEDOM OF RELIGION
Autopsies can conflict with freedom of religion
Sometimes laws on when an autopsy can be ordered by a coroner or medical examiner conflict with religious objections, although many faiths leave the matter of autopsies and similar procedures such as organ donation to the individual decision maker following a family member’s death.
Judaism has traditionally opposed autopsies, but some rabbis have permitted them for medical or other humanitarian reasons. Native Americans have been especially concerned about the return of bones to ancestral burial grounds.
States have created autopsy exceptions for religious freedom
States typically make provisions for cases in which autopsies conflict with religious beliefs.
The New York Supreme Court ruled in Weberman v. Zugibe (1977) and in Atkins v. Medical Examiner (1979) that the rights of religious liberty should prevail when the state is simply attempting to determine the organ whose injury caused death in a car accident or merely to identify the cause of death when no suspicion of foul play exists.
As of 2015, seven states had strong laws allowing for religious objection to an autopsy: California, Maryland, New Jersey, New York, Ohio, Rhode Island, and Minnesota. The legislation was prompted in Minnesota after a medical examiner insisted on an autopsy of a Native American tribal elder and the family went to court to block the procedure.
“Members of the medical community, lawmakers and religious rights advocates say the conflict between religious beliefs and a state’s interest in determining a cause of death will likely arise in an increasing number of states because of the diversifying religious makeup of America and a growing sensitivity to religious liberties,” noted the 2015 article by the Pew Charitable Trust’s Stateline news service.
States no longer must show ‘compelling’ interest to do autopsies
Prior to Employment Division, Department of Human Resources of Oregon v. Smith (1990), the U.S. Supreme Court typically had required states to show a compelling interest when interfering with religious practices, including opposition to autopsies.
That decision, however, stated that no such showing is required in cases where laws of general applicability simply happen to apply with particular force to religious practices. As a result, a U.S. district court in Rhode Island reversed its decision in You Vang Yang v. Sturner (1990), in which it had originally decided that a Hmong family was entitled to damages after a son’s body was autopsied, following its seizure, despite the family’s objections.
Finally, “virtual autopsies” through the use of body scans, artificial intelligence and other technology might eliminate the need for most physical autopsies in a way that also could mitigate religious objections to them.
AUTOPSIES AND FREEDOM OF THE PRESS
NASCAR driver’s autopsy leads to fight over public records
The situation that put the issue of public access to autopsy reports and photos into the national spotlight was the 2001 death of auto racer Dale Earnhardt Sr., arguably the most popular driver in NASCAR history, near the end of the Daytona 500 race in Florida. Earnhardt lost control of his car, and it rammed into a concrete wall.
The Orlando (Florida) Sentinel sought to view the autopsy photos — not to publish them but to show them to an expert to help determine if better practices could have prevented Earnhardt’s death. Only days before the fatal crash, the Sentinel had published a series of articles on racing safety and NASCAR’s practices, documenting racing deaths that could have been avoided, particularly through the use of neck protection and “softer” track barriers. After NASCAR sent an investigator to view the autopsy photos, the driver’s widow, Teresa Earnhardt, went to court to block release of photos to anyone else by the county medical examiner.
The Sentinel opposed Earnhardt’s widow in court but eventually compromised. Although Florida law seemed clear that the photos were open public records, there were precedents in Florida courts to block release of autopsy photos, including photos from the 1997 autopsy in the killing of fashion designer Gianni Versace. The newspaper agreed to a plan that allowed its reporters to question the findings of a court-appointed expert without viewing the photos.
Critics of media access noted that no criminal or police investigation was connected to Earnhardt’s death; indeed, Earnhardt recognized the risks of high-speed auto racing and died doing something he loved. The crash occurred on a private racetrack, not on a public highway. Thus, critics said, any news interest in specific details, especially photos, was outweighed by privacy desires.
Press argued autopsy records critical to checking NASCAR safety
Access advocates argued that the death of a figure as newsworthy as Earnhardt created a compelling public interest and that there was a larger issue regarding whether enough steps had been taken to ensure NASCAR driver safety. In addition, the Sentinel wanted to check assertions that Earnhardt’s fatal head injury was caused by a broken seat belt that caused his head to hit the steering wheel, not whether he whipped forward due to a lack of neck protection.
The dispute sparked a nationwide backlash against the Sentinel led by Earnhardt’s family and fans who viewed the effort as a major invasion of privacy. In the ensuing months, state legislatures restricted or blocked access to autopsy records, particularly photos, with some states making exceptions for direct family members.
Meanwhile, other media outlets sought the Earnhardt photos. The Florida Supreme Court, in a 4-3 vote, declined to take a case in 2003 to overrule a lower court’s finding that Florida’s new “Earnhardt Family Protection Act” was constitutional, thus blocking the University of Florida’s independent student newspaper from access to the photos. The U.S. Supreme Court also declined to take the case on appeal.
Much of the Sentinel’s reporting was vindicated. Today, drivers routinely use horseshoe-shaped protective devices called HANS (Head and Neck Support restraint system). Racetracks around the world also have erected track barriers that are “softer” than the concrete barrier that Earnhardt’s car hit. This can better transfer the force of a high-speed crash away from the car and the driver.
Efforts to close government autopsy records opposed
In the years since Earnhardt’s death, additional efforts have arisen to restrict public access to autopsy records, often meeting resistance from those who say the records provide important public oversight of government.
The following are a few examples.
COLORADO
In 2018, Colorado Gov. John Hickenlooper vetoed a bill that would have made autopsy reports of children off-limits except in limited circumstances. County coroners argued it violated family rights to privacy while news organizations argued that it would reduce transparency and make it more difficult to investigate deaths such as those revealed in a series of articles by Denver media outlets about abused children who died while under state supervision.
NEVADA
A similar series of news articles investigating child deaths came into play in 2020. In that case, the Nevada Supreme Court denied efforts by the Clark County (Las Vegas) coroner’s office to withhold unredacted records of child autopsies from the Las Vegas Review-Journal.
The newspaper had published stories about how the county’s child-protective services agency handled cases in which children died and fought to get the autopsy reports for four years. The county had argued, unsuccessfully, that releasing the records invaded family privacy even though no evidence was offered that any families objected.
The court issued a definitive ruling that such reports are public records and determined that there was no confidential medical information that needed redaction. However, county officials still resisted. It took a second Nevada Supreme Court ruling in December 2020 before the county finally released the records, the newspaper reported.
SOUTH CAROLINA
In 2014, the South Carolina Supreme Court ruled that autopsy reports are not public records but instead are exempt medical records. South Carolina, like many states, passed restrictive legislation in the wake of Earnhardt’s death and banned the release of autopsy photographs.
Even in cases in which only family members have access, controversies can erupt, fueled in part by the ubiquity of social media. In 2020, South Carolina considered a bill to give coroners more leeway in picking and choosing what photos to release to family members, citing situations in which a family member might be angry or have other ulterior motives in requesting images. A related issue cited by those who favor broad access is when a family member has or shares responsibility for a death and would have an interest in blocking access.
FLORIDA
In 2022, the death of actor-comedian Bob Saget in Florida sparked a fresh dispute over access to autopsy records. Saget, 65, died after hitting his head in a likely fall in his hotel room. The family cited Florida’s “Dale Earnhardt law” to block media efforts to get records beyond the medical examiner’s official report, stating it was an invasion of privacy.
Press groups provide state-by-state information on autopsy laws
The Open Government Guide compiled by the Reporters Committee for Freedom of the Press provides state-by-state details and comparisons on access laws regarding autopsy records and other public records as well.
Many states still consider autopsy records to be generally open with only limited exceptions or specific delays, such as in Ohio when the record is part of an active criminal investigation. In Arizona, a judge conducts an in-camera review of autopsy records and photographs to determine if they can be released, underscoring the significant distinction that just because something is a public record, it isn’t automatically an open record.
John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. His portion of this article, on freedom of religion, was originally published in 2009 and updated in 2023 by Dennis Hetzel, who also wrote the section on freedom of the press. Hetzel is a freelance journalist and author who formerly was a reporter, editor, publisher, editor in residence at Penn State University, executive director of the Ohio News Media Association and president of the Ohio Coalition for Open Government.