Indiana’s fetal disposition law ruled unconstitutional

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Editor’s note: This story has been updated with comments from Indiana Attorney General Todd Rokita.

A federal court has overturned Indiana’s fetal disposition law, finding the statute that requires medical providers to either bury or cremate fetal tissue violates the constitutional protections for free speech and free exercise.

Judge Richard Young of the U.S. District Court for the Southern District of Indiana issued the ruling Monday on the cross motions for summary judgment in Jane Doe No. 1 et al. v. Attorney General of Indiana et al., 1:20-cv-03247. The district court found the state’s “tissue disposition laws” violate the Free Exercise and Free Speech Clause of the First Amendment.

“… The object of the law is the suppression of beliefs like Plaintiffs because the suppression of those beliefs is the only effect of the law,” Young wrote. “The only thing changed by the new fetal disposition requirements is that a woman can no longer require the medical facility to treat the fetal tissue as medical waste. Those who wanted to bury or cremate the fetal tissue could already do so. Those who have a miscarriage or abortion at home, or otherwise take the tissue home, are unaffected. Only those who have an abortion at a clinic and want the tissue treated as medical waste have their choice disregarded.”

This marks the second successful challenge to an Indiana abortion statute since the U.S. Supreme Court issued Dobbs v. Jackson Women’s Health Organization, 19-1392, which held women do not have a constitutional right to abortion. The first successful challenge came Sept. 22 when the Monroe Circuit Court temporarily blocked Indiana’s new near-total abortion ban.

The Lawyering Project along with Indiana attorneys Michelle Engel in South Bend and Kathrine Jack in Greenfield and attorney Priscilla Joyce Smith of the Yale Law School Reproductive Rights and Justice Project represented the plaintiffs.

“Today’s ruling is a potent reminder that people do not lose cherished rights under the First Amendment the moment they become pregnant and a victory for those seeking and providing vital pregnancy care,” Rupali Sharma, senior counsel and director of the Lawyering Project, said in a statement. “Hoosiers will not sit idly by while politicians work to erase their rights and disregard their ideological agendas.”

Indiana Attorney General Todd Rokita vowed to appeal the ruling.

“The U.S. Supreme Court several years ago upheld our law requiring respectful disposition of aborted fetal remains because it safeguards human dignity,” Rokita said in a statement. “We plan to appeal this ruling permitting disrespect for human remains as mere ‘medical waste.’”

In 2016, the Indiana General Assembly enacted House Enrolled Act 1337, which required health care facilities to either bury or cremate any fetal tissue in its possession. Also, patients were given the option of taking the tissue home to dispose of as they wanted.

The Indiana Southern District Court overturned the law in Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Indiana State Dep’t of Health, 265 F. Supp. 3d 859 (S.D. Ind. 2017). Specifically on the issue of tissue disposition, the district court could find “no legal support for the State’s position that it has a legitimate state interest in ‘promoting respect for human life by ensuring property disposal of fetal remains,’ or ensuring ‘that fetal remains be treated with humane dignity.’”

A split 7th Circuit Court of Appeals affirmed, but the U.S. Supreme Court in a per curiam decision reversed  the ruling on the provision regarding the handling of the fetal remains.

Weeks after the Dobbs ruling, the Indiana Southern District Court lifted the injunction that had been in place on the other provisions in HEA 1337.

The Indiana General Assembly returned to the tissue disposition in 2020 with the passage of SEA 299. Sen. Liz Brown, R-Fort Wayne, the bill’s author, stated, “by the passage of SB 299, we are making it clear in Indiana that remains from an aborted are indeed human.”

In their amended complaint, the Jane Doe plaintiffs challenging the fetal disposition law asserted the requirements for handling the fetal tissue violated their moral and religious beliefs.

The district court agreed, holding the plaintiffs proved the fetal disposition law “burden their sincere religious and moral beliefs of treating aborted fetuses as medical waste.”

Citing precedent from the U.S. Supreme Court and 7th Circuit, the lower court noted constitution protection is provided to “sincerely held” religious beliefs even those that are “acceptable, logical, consistent, or comprehensible to others” and to moral beliefs that contemplate issues “parallel to that filled by … God.”

Consequently, the district court dismissed the state’s arguments that the disposition law does accommodate differing beliefs by allowing the women to dispose of the fetal tissue as they wish at their homes.

“… Plaintiffs have put forward uncontested evidence that patients do not take standard medical waste home, which is instead incinerated,” Young wrote. “…As the relevant religious belief is treating the fetal tissue ‘like any other human tissue resulting from a medical procedure,’ allowing the Doe Plaintiffs to take their fetal tissue home—something that would not occur were fetal tissue treated like any other human tissue—does not accommodate their religious and moral beliefs.”

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