SCOTUS once again considering challenge to IN fetal disposition abortion law

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Today’s conference of the U.S. Supreme Court is scheduled to include discussion about whether the justices should once again consider a case challenging a law governing the disposal of aborted fetal remains in Indiana.

The case of Jane Doe No. 1, et al. v. Attorney General of the State of Indiana, in his official capacity, et al., 22-951, was docketed with the high court last month and was distributed for Friday’s conference. At issue is the Indiana law requiring the burial or cremation of aborted fetal remains, and a subsequent law applying the rules for disposition of deceased people’s remains to aborted embryonic and fetal tissue.

The high court previously upheld the 2016 law requiring the burial or cremation of aborted fetal tissue, ruling in 2019 that the law passed rational basis review.

The following year, the Legislature enacted a law applying the rules for disposition of a deceased person to aborted fetal tissue. Lawmakers also adopted disclosure and certification mandates requiring abortion patients to certify in writing their “decision for final disposition of the aborted fetus by cremation or internment.”

Under the 2020 law, abortion patients have two choices: allowing the abortion provider to either cremate or bury the remains, or disposing of the remains themselves in the manner they see fit.

Two women, identified in court documents as Jane Does No. 1 and No. 3, challenged the 2020 fetal disposition requirements as a violation of their First Amendment free speech and religious exercise rights. Jane Doe No. 1 “believes as a matter of moral conviction that an embryo is not a person and should not be treated like one,” according to the cert petition filed last month, while Jane Doe No. 3 “shares this belief as a matter of religious conviction.”

Both women had aspiration abortions in December 2020, at six weeks’ gestation, at the Women’s Med Group Professional Corporation clinic in Indianapolis, according to the petition.

“Without this lawsuit, the Tissue Disposition Requirements would have forced them to authorize the Clinic to treat their embryonic tissue like the remains of a deceased person contrary to their deeply held beliefs unless they were willing to take possession of the biohazardous tissue and dispose of it at their own expense,” the petition says. “Neither Doe Plaintiff was willing or able to dispose of her embryonic tissue on her own because neither knew how to transport and dispose of untreated human tissue safely.”

The Jane Does sued alongside their clinic and providers, and the Indiana Southern District Court found the law unconstitutional in September 2022. The district court subsequently denied the state’s motion to stay pending appeal, and the clinic arranged for the Doe women’s embryonic tissue to be incinerated.

The case then went to the 7th Circuit Court of Appeals, which issued a terse opinion last November overturning the district court’s judgment.

Writing for the appellate court, Judge Frank Easterbrook rejected the argument that the fetal disposition law violates the plaintiffs’ religious beliefs by treating a fetus as a person, noting pets can be buried and cremated but are not considered people.

“Indiana’s statute about fetal remains therefore need not imply anything about the appropriate characterization of a fetus,” Easterbrook wrote. “At all events, a moral objection to one potential implication of the way medical providers handle fetal remains is some distance from a contention that the state compels any woman to violate her own religious tenets.”

“The district court’s needlessly broad injunction treats the statute as invalid across the board (that is, on its face rather than as applied), which effectively countermands the Supreme Court’s (2019) decision for the entire population of Indiana,” Easterbrook wrote elsewhere in the 7th Circuit opinion. “This offends the principle that relief should be no greater than necessary to protect the rights of the prevailing litigants.”

In appealing that ruling to SCOTUS, attorneys with the Lawyering Project, representing the plaintiffs, took aim at the 7th Circuit’s analysis.

“Plenary review by this Court is warranted because the Seventh Circuit’s slipshod, deeply flawed decision signals that the Constitution’s long-cherished protections for free exercise and free expression rise or fall with a government’s approval of the beliefs or message at stake,” the cert petition argues. “This violates eighty years of this Court’s precedent.”

The plaintiffs pointed to multiple “burdens” created by the fetal disposition law: a burden on their right to free exercise of religion by forcing them to treat fetal remains as human remains; a burden on their right to free speech by preventing them from expressing their beliefs on when human life begins; and the burden of additional costs if they choose to dispose of the fetal remains themselves, rather than allowing their providers to bury or cremate the remains.

They are asking the high court to either grant cert and review the issue, or grant cert, vacate the 7th Circuit’s ruling and remand “for reconsideration of the novel and complex First Amendment issues it presents following full briefing on the merits.”

“Indiana burdens the religious and moral convictions and free expression of individuals like the Doe Plaintiffs who sincerely believe that an embryo should not be treated like a person, prohibiting their healthcare providers from disposing of embryonic or fetal tissue from abortion procedures according to standard medical protocols,” the petition argues. “As a result, the Doe Plaintiffs face a Hobson’s choice: provide written consent to burial or cremation of their tissue in violation of their beliefs or take custody of the tissue and attempt to dispose of it safely at their own expense.

“Instead, they joined their healthcare providers in filing this lawsuit to vindicate their rights and the rights of similarly situated patients and providers under the Free Exercise and Free Speech Clauses of the First Amendment.”

Earlier this month, Indiana Solicitor General Thomas M. Fisher filed a waiver of the right to respond to the cert petition.

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