Lawsuit challenges Indiana laws on disposal of fetal remains

An Indianapolis abortion clinic is suing the state of Indiana, challenging provisions of a state law upheld last year by the U.S. Supreme Court requiring fetal remains to be buried or cremated after an abortion.

The federal lawsuit, filed Monday in the Indiana Southern District Court, contends that requirement and other Indiana statues requiring the same disposition method for fetal remains following a miscarriage violate the Constitution because they force the state’s definition of a person onto women who might not share the same beliefs.

The suit was filed in the Indianapolis division of the federal court on behalf of the Women’s Med Group abortion clinic in Indianapolis, its owner, two nurse practitioners who work at the clinic and three women listed only as Jane Does, The Indianapolis Star reported.

The complaint states that Indiana’s “Tissue Disposition Laws coerce pregnant people who obtain abortion and miscarriage management care to engage in rituals that are associated with the death of a person.”

“These laws also send the unmistakable message that someone who has had an abortion or miscarriage is responsible for the death of a person,” the suit adds. “As a result, they have caused many abortion and miscarriage patients, including Jane Doe Nos. 1, 2, and 3, to experience shame, stigma, anguish, and anger.”

Planned Parenthood of Indiana and Kentucky previously sued the state in 2016 after then-Gov. Mike Pence signed a law with the fetal disposition provision into effect.

Indiana appealed the lawsuit all the way to the U.S. Supreme Court, which upheld the law in May 2019, allowing the state to enforce the requirement that abortion clinics either bury or cremate fetal remains following an abortion. The high court’s decision reversed a ruling by the 7th Circuit Court of Appeals court that had blocked it.

The justices said in an unsigned opinion in Box v. Planned Parenthood of Indiana and Kentucky, Inc., 587 U.S. ___ (2019), that the case does not involve limits on abortion rights.

But Stephanie Toti, one of the lawyers representing the plaintiffs in the new lawsuit, told The Indianapolis Star that she felt court’s response to the previous lawsuit left open the possibility to challenge the state’s laws as unconstitutional because they “trample on everyone’s beliefs.”

“They said they’re rational, they’re not arbitrary or capricious, but that doesn’t mean they’re not constitutional,” Toti said Tuesday. “So the Supreme Court’s decision almost invited a second challenge.”

Republican Indiana Attorney General Curtis Hill said in a statement that he believes the lawsuit will fail.

“We took our fight for Indiana’s law on the disposition of fetal remains all the way to the U.S. Supreme Court, and we won,” Hill said. “We are now reviewing this latest lawsuit, but I can tell you now that we will once again defend humanity, and I am quite confident that Indiana’s law will continue to stand strong.”

The law, enacted in 2016 as part of House Enrolled Act 1337, was first struck down in June 2016 when Indiana Southern District Judge Tanya Walton Pratt imposed a preliminary injunction.

A 7th Circuit panel split in upholding Pratt’s ruling, with Judge Daniel Manion writing separately that “regrettable” precedent required the court to uphold the injunction in the “unfortunate” case.

The new lawsuit filed this week is Jane Doe. #1, et al. v. Attorney General of Indiana, et al., 1:20-cv-03247. It has been assigned to Judge Richard L. Young and referred to Magistrate Judge Mark J. Dinsmore.

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