The Court of Appeals revives Indiana law mandating the burial or cremation of fetal remains

  • Law survived the 2019 US Supreme Court challenge
  • New abortion ban in Indiana remains blocked
  • The ban will be weighed by the state’s top court next year

(Reuters) – A federal appeals court has revived a 2016 Indiana law that requires health care providers to bury or cremate fetal remains, including those from abortions, rather than incinerate them with medical waste.

A unanimous panel of the US 7th Circuit Court of Appeals ruled Monday that the law does not violate the First Amendment of the US Constitution by requiring anyone to violate their religious beliefs, overturning a lower court’s ruling September on.

“The bodies of unborn babies are more than just medical waste to be disposed of with the trash,” said Todd Rokita, Indiana Attorney General. “They are people who deserve the dignity of cremation or burial. The Court of Appeals’ decision is a win for basic decency.”

Rupali Sharma of the Lawyering Project, attorney for the plaintiffs, said: “We are currently evaluating all options with the plaintiffs to ensure abortion patients receive the care they need with the dignity they deserve.”

In their 2020 lawsuit, the two women said the law violated their First Amendment rights by effectively requiring them to adopt the state’s view of the fetal personality, while the two doctors said it forced them to speak out that they disagreed with when they gave patients the option of burial, cremation, or self-removal and disposal of remains.

US District Judge Richard Young in Indianapolis agreed, held the law unconstitutional and prohibited the state from enforcing it against anyone.

Seventh Circuit Judge Frank Easterbrook wrote Monday that while the law is based on Indiana’s view of fetal personality, states have “the right to hold, express, and act on their own views on contentious issues.”

He said it does not violate the women’s rights, as they themselves are under no obligation to bury or cremate the remains.

He went on to say that doctors’ rights were not violated just because they were required to provide true, non-misleading information about what Indiana law requires.

Easterbrook was joined by Circuit Judges Michael Brennan and Michael Scudder.

The U.S. Supreme Court upheld the law in 2019 in a separate lawsuit, claiming it violated the U.S. Constitution’s guarantee of equal protection and due process by imposing an irrational requirement on abortion patients.

In June, the Supreme Court overturned its landmark 1973 ruling in Roe v. Wade, which had nationally recognized abortion rights. Many Republican-led states have since enacted or begun enforcing abortion bans, including Indiana, though his ban is currently blocked and is scheduled for review by the state’s top court next year.

The case is Doe et al. v. Attorneys General of Indiana et al., 7th US Circuit Court of Appeals, No. 22-2748.

For plaintiffs: Rupali Sharma of The Lawyering Project

For the state: Attorney General Thomas Fisher

Continue reading:

Supreme Court avoids abortion question and upholds fetal burial measure

The US Supreme Court overturns Roe v. Wade and ends constitutional abortion rights

Judge blocks Indiana abortion ban during Planned Parenthood Challenge

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Brendan Pierson

Thomson Reuters

Brendan Pierson covers product liability litigation and all aspects of healthcare law. He can be reached at [email protected]