Indiana’s new fetal remains law, which provides for burial or cremation following an abortion, will likely not face a legal challenged in contrast to a similar provision in a 2016 state law that was ultimately upheld by the U.S. Supreme Court.
Senate Enrolled Act 299, signed into law March 18 by Gov. Eric Holcomb, allows women who have either a surgical or medication abortion to have the health care facility or abortion clinic bury or cremate the fetal remains. Women also have the option of burying or cremating the remains themselves, although they must inform the facility or clinic of her decision regarding the disposition of the fetus.
Drawing bipartisan support, SEA 299 progressed through the Statehouse with little resistance. The American Civil Liberties Union of Indiana opposed the measure, saying like bills introduced in previous sessions, HEA 299 “uses inflammatory rhetoric to stigmatize abortion and shame.”
However, after the bill was signed into law, the ACLU said it had no plans to file a lawsuit at this point.
The bill’s author, Republican Sen. Liz Brown of Fort Wayne, wrote in an opinion piece published in the Indianapolis Star that her legislation was seeking to build upon House Enrolled Act 1337, which required fetal remains to be disposed of through cremation or interment.
Passed in 2016 and signed by then-Gov. Mike Pence, HEA 1337 imposed several new regulations on abortions Indiana. Namely, the law prohibited the termination of a pregnancy because of such characteristics as the race, gender, disability or genetic anomaly of the fetus. In addition, it required abortion providers like Planned Parenthood to bury or cremate the aborted remains.
Brown, an attorney with Brown Mediation LLC, described her bill as disposing of the remains with dignity. “This means fetal remains cannot be thrown out with the garbage or stored on someone’s property,” she wrote.
The ACLU of Indiana and Planned Parenthood of Indiana and Kentucky moved to block HEA 1337 in court. After the U.S. District Court for the Southern District of Indiana struck down the law, a split 7th Circuit Court of Appeals affirmed. Indiana petitioned the U.S. Supreme Court when the 7th Circuit denied a rehearing.
Nearly five months later, the US Supreme Court produced a per curiam decision that, in part, reversed the 7th Circuit. The justices found the appellate court had “clearly erred” in overturning HEA 1337’s provision mandating the disposition of fetal remains.
Senate Enrolled Act 299 adds mandates to the disposition process. The health care facility or abortion clinic that conducts the cremation of fetal remains on site must make the cremation equipment available for state inspection. If the facility or clinic contracts with a licensed funeral home for the disposal of the remains, the document must be available for review by the state.
Also, a burial transit permit that includes multiple fetal remains must be accompanied by a log with information about each fetus including the date of the abortion, whether the abortion was surgical or induced by medication, and the name of the funeral director retrieving the remains. In the case of a medication abortion, the information must indicate whether the women will provide for the disposition of the fetal remains herself or return them to the facility or clinic.
Sen. Jean Breaux, D-Indianapolis, introduced three amendments to SEA 299 on the Senate floor. All failed on a voice vote.
The first proposed amendment sought to eliminate provisions in the section regarding medication abortions. Namely, the amendment would have struck the requirement that the health care provider or abortion clinic buries or cremates the remains after an abortion by an abortion-inducing drug.
The second and third amendments attempted to change some of the language in the bill. In particular, the term “embryonic remains” would have replaced “aborted fetus” in the section covering medication abortions.
In an opinion piece written during the legislative session, Breaux asserted the bill was demeaning women.
“By requiring abortion providers to tell a woman about burial options, the State of Indiana is telling women that unidentifiable embryonic tissue is morally equivalent to an actual person and that a woman who elects to have an abortion is committing murder,” Breaux wrote. “This is bullying, and solely intended to shame.”