State brief cites religion in defending fetal-remains statute

The state is continuing to defend Indiana’s fetal-remains statute that a federal judge blocked after a U.S. Supreme Court decision this year reinforced prohibitions against laws restricting a woman’s right to abortion. The state is relying in part on “astonishing” religious practices to make its case.

Indiana Attorney General Greg Zoeller is defending House Enrolled Act 1337 that Gov. Mike Pence signed into law this year. The statute requiring burial or cremation of fetal tissue was barred from taking effect when District Judge Tanya Walton Pratt granted an injunction blocking its enforcement.

Pratt ruled that Planned Parenthood of Indiana and Kentucky had shown that law’s requirements weren’t legitimate state interests, the law was likely unconstitutional, and Planned Parenthood was likely to win its challenge to the law.

Pratt’s ruling in June came days after the United States Supreme Court struck down a Texas law in a 5-3 decision that said strict new regulations on abortion clinics were unnecessary and constituted an undue burden on a woman’s right to abortion. Planned Parenthood this week moved for summary judgment in its favor.

The state also has moved for summary judgment in its favor. A 44-page brief in support of the motion filed Wednesday lays out the state’s legal arguments about why the fetal-remains provisions are compelling state interests. But the state also relies on religious arguments, citing such authorities as the web page “10 Astonishing Death Customs of Hindus.”

“In Hindu culture, the body of a miscarried fetus is always buried (rather than cremated, as is usually done for adults) to liberate the soul inside of the child,” according to the state’s brief. 

“Multiple Christian denominations also treat fetal remains the same as human remains. … The Roman Catholic Church is among this group. Catholic churches across the country bury miscarried or stillborn fetuses, holding ceremonies that resemble traditional funerals.

“In short, there exists within American (and Hoosier) society substantial and diverse religious, cultural, and historical tradition for proper humane disposal of fetal remains, regardless whether the fetus was viable,” the state says. It also cites traditions of the Antiochean Orthodox Church and the General Association of General Baptists.

The state’s brief also argues that the requirement would increase the cost of an abortion by only $6 to $12. “Such a marginal increase in cost cannot plausibly call into question the validity of the disposal requirement,” the brief says.

The statute, which proponents dubbed the “Dignity for the Unborn” law, also would have prevented abortions on the basis of genetic abnormality, race, sex or ancestry. The state argues these restrictions are compelling interests in preventing discrimination while respecting a woman’s privacy interests.  

“The mother’s right to abortion is not so absolute that she may freely make an abortion decision based not only on whether she wants to have a baby at all, but also based on whether a particular baby is to her liking in terms of race, sex and disability,” the state asserts.

“States are well within their constitutional authority to create informed consent provisions for abortion procedures,” the brief argues in support of another provision of HEA 1337 that requires information be provided about its anti-discrimination provisions. “Within this latitude, states may encourage women to carry the child rather than undergo an abortion.”

In her June order granting an injunction, Pratt also said Planned Parenthood "clearly demonstrated that the anti-discrimination provisions and the information dissemination provision should be enjoined pending resolution of this litigation. It is likely to succeed on the merits of its challenges to these provisions as the anti-discrimination provisions directly contravene well-established law that precludes a state from prohibiting a woman from electing to have an abortion prior to fetal viability. Similarly, the information dissemination provision is likely unconstitutional as it requires abortion providers to convey false information regarding the anti-discrimination provisions to their patients.”