Indiana’s fetal disposition law declared unconstitutional
A federal court struck down Indiana’s fetal disposal law, finding that the law that requires medical providers to bury or cremate fetal tissue violates constitutional protections of free speech and free exercise.
Judge Richard Young of the U.S. District Court for the Southern District of Indiana on Monday issued the decision on cross-motions for summary judgment in Jane Doe No. 1 et al. vs. Indiana Attorney General et al., 1:20-cv-03247. The district court found that 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 the plaintiffs because the suppression of those beliefs is the sole effect of the law,” Young wrote. “The only thing changed by the new fetal disposal requirements is that a woman can no longer demand that the medical establishment treat fetal tissue as medical waste. Those who wanted to bury or cremate fetal tissue could already do so. Those who have a miscarriage or abortion at home, or take the tissue home, are unaffected Only those who have an abortion in a clinic and want the tissue treated as medical waste see their choice ignored.
This is the second successful challenge to an abortion law in Indiana since the U.S. Supreme Court ruled. Dobbs v. Jackson Women’s Health Organization, 19-1392, according to which women do not have the constitutional right to abortion. The first successful challenge came on September 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 Yale Law School Reproductive Rights and Justice Project attorney Priscilla Joyce Smith represented the plaintiffs.
“Today’s ruling is a powerful reminder that people do not lose their cherished First Amendment rights the moment they become pregnant and a victory for those seeking and providing lifesaving pregnancy care,” said Rupali Sharma, Senior Counsel and Director of the Lawyering Project. A declaration. “Hoosiers will not sit idly by while politicians work to erase their rights and ignore their ideological agendas.”
Indiana Attorney General Todd Rokita did not release a statement responding to the ruling by the IL deadline.
In 2016, the Indiana General Assembly enacted House Enrolled Act 1337, which required health care facilities to bury or cremate any fetal tissue in their possession. Additionally, patients had the option of taking the tissue home to dispose of as they wished.
Indiana’s Southern District Court struck down the law in Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Indiana State Dep’t of Health, 265 F. Add. 3d 859 (SD Ind. 2017). Specifically on the issue of tissue disposal, the district court could find “no legal basis for the state’s position that it has a legitimate public interest in ‘promoting respect for human life by ensuring disposition of ownership of the fetal remains,” or ensuring “that the fetal remains be treated with human dignity.’”
A split 7e The Circuit Court of Appeals upheld, but the U.S. Supreme Court, in a decision by Curiam, reversed the ruling on the disposition regarding handling of fetal remains.
weeks after the Dobbs decision, the Southern Indiana District Court lifted the injunction that had been in place on the other provisions of HEA 1337.
The Indiana General Assembly returned to the tissue provision in 2020 with the passage of SEA 299. Senator Liz Brown, R-Fort Wayne, the sponsor of the bill, said, “By the By passing SB 299, we make it clear in Indiana that the remains of an aborted are human.
In their amended complaint, the Jane Doe plaintiffs challenging the Fetal Disposition Act claimed that the requirements for handling fetal tissue violated their moral and religious beliefs.
The district court agreed, finding that the plaintiffs had proven that the fetal disposal law “impaired their sincere religious and moral beliefs to treat aborted fetuses as medical waste.”
Citing US Supreme Court precedent and 7e Circuit, the trial court noted that constitutional protection is given to “sincerely held” religious beliefs, even those that are “acceptable, logical, consistent, or understandable to others” and to moral beliefs that consider issues “parallel to those filled by… God”.
Therefore, the district court rejected the state’s arguments that the disposition law accommodates differing beliefs by allowing women to dispose of fetal tissue as they wish in their homes.
“…Plaintiffs have presented undisputed evidence that patients do not take standard medical waste home, which is instead incinerated,” Young wrote. “…as the relevant religious belief treats 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 if the tissue fetal was treated like any other human tissue – disregarding their religious and moral beliefs.