Texas Jewish Post (Fort Worth, Tex.), Vol. 61, No. 46, Ed. 1 Thursday, November 15, 2007 Page: 4 of 28
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4 I November 15,2007 I Texas
TEXAS JEWISH POST $ SINCE 1947
Houston attorney scores first of its kind
victory for the Texas Jewish community
On Oct. 16, a landmark decision
was handed down in Houston as a
state district court judge ruled in fa-
vor of upholding the religious right of
a Jewish family to prevent an autopsy
from being performed on its deceased
relative. The middle-aged man had
died suddenly in his sleep and the
body was taken to the Harris County
Medical Examiner's office. An au-
topsy to determine the cause of death
was scheduled for early the following
day. Rabbi Yossi Grossman, dean of
TORCH and Rabbi Asher Block, ex-
ecutive director of the newly founded
Texas regional office of Agudath Is-
rael of America, immediately were
contacted about the case and quickly
sought legal intercession.
A local attorney, Gregg M. Rosen-
berg, of Rosenberg and Sprovach,
offered his services on behalf of the
family on a pro bono basis. Rosenberg
immediately filed an Application for a
Temporary Restraining Order. It con-
tained an affidavit authored by Rabbi
Block establishing the prohibition un-
der biblical law, and its relevant rab-
binic sources, to perform an autopsy
on a Jewish body postmortem.
The relief requested was to pre-
vent the autopsy from taking place. At
the time of the hearing on the order,
the body of the deceased was being
prepared for the autopsy. The presid-
ing judge granted the temporary re-
straining order, effectively canceling
the autopsy; however, he allowed the
medical examiner to return to court
later that day to challenge the ruling.
The Harris County medical ex-
aminer, Dr. Luis Arturo Sanchez,
represented by the Harris County At-
torney's office, vigorously challenged
the issuance of the restraining order,
contending that an autopsy was re-
quired to be performed in order to
adequately determine the cause of
death.
At the hearing, Rabbi Block was
called upon to testify as to the Jewish
perspectives and positions pertaining
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to the sanctity of a Jewish body after
death. "It is the sincere and unshake-
able belief of the Jewish faith that there
will be an eventual reuniting of the
soul with its body," Rabbi Block testi-
fied. "Therefore," he continued, "the
body is an essential component of the
individual even when he/she departs
from this world, as it is the receptacle
of their eternal soul. Any mutilation
or tampering of the corpse symboliz-
es a complete disregard of the physical
casing of the soul. An autopsy would
cause an untold amount of spiritual
and emotional grief and anguish for
the deceased, the family and the Jew-
ish community."
Rabbi Block then was questioned
by the medical examiner's attorney:
"Doesn't it state in the Bible, An eye
for an eye'? Seemingly, then, the re-
moval of limbs or organs is an occur-
rence in Jewish civil law," the attorney
argued.
Rabbi Block responded imme-
diately, "On the contrary, our sages
teach us that the verse should not be
taken literally. The Talmud interprets
the verse to mean that the victim's eye
must be appraised through various
methods and monetary compensa-
tion is awarded to the victim by the
attacker."
The basis for Rosenberg's claim
that the autopsy shouldn't be per-
formed relates to Section 110.003 of
the Texas Civil Practice and Remedies
Code, which states that a government
cannot substantially burden a per-
son's free exercise of religion absent a
compelling state interest.
On cross-examination, Dr. San-
chez agreed that the role of a medi-
cal examiner, to determine a cause
of death, was similar to that of any
other physician assigning a diagno-
sis. He further agreed that a diagno-
sis was to be based on a standard of
reasonableness and that, in assigning
a diagnosis, it was customary to rely
on medical records of other doctors,
such as the patient's treating physi-
cian. In this case, the medical records
of the decedent established the cause
of death based on reasonable medical
probability, according to Dr. Sanchez.
He added, however, that the only way
to know for certain would be to per-
form a complete autopsy,
Rosenberg's position was that the
medical examiner's role to determine
the cause of death already was satis-
fied because he knew — within the
parameters of reasonable medical
probabi lity—what the cause of death
was and that, in this case, the medi-
cal examiner's office did not have a
compelling governmental interest to
perform the autopsy.
The presiding judge ruled in favor
of the family and ordered the imme-
diate release of the body for burial.
His ruling was based partially on the
fact that a medical examiner or coro-
ner may not legally perform upon
the body of a decedent a postmortem
procedure that would violate the reli-
gious beliefs of the decedent and his
family, unless there is a compelling
public need for the procedure.
This position is based upon the
free exercise clause of the United
States Constitution. The Texas stat-
ute permits an exception to this rule
only if government "demonstrates
that application of the burden is both
see DECISION, p28
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TEXAS JEWISH POST^SINCE 1947
JIMMY WISCH
Publisher & Editor
1947-2002
Editor & Publisher
Rene Wisch
Executive Editor
Sharon Wisch-Ray
VP Sales & Marketing
Amy Doty
Contributing Writers
Harriet P. Gross, Steve Israel,
Laurie James, Deb Silverthorn,
Steve Wisch
Assistant Editor
Phyllis LaVietes
Ad Representatives
Sheri Finkelstein,
Nancy Sadicarios,
Elaine Steinfeld, Judy Wisch,
Linda Wisch Davidsohn
Art Director
Delia Jalomo
Copy Editor/Designer
Michelle Weinberg
Distribution
Pam Huie, Mandy Huie,
Jerry Poglitsch
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TJP V61-46, 11-15-07.indd Sec17:4
11/13/07 5:37:52 PM
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Wisch, Rene. Texas Jewish Post (Fort Worth, Tex.), Vol. 61, No. 46, Ed. 1 Thursday, November 15, 2007, newspaper, November 15, 2007; Fort Worth, Texas. (https://texashistory.unt.edu/ark:/67531/metapth188164/m1/4/?q=architectural+drawings: accessed June 20, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .