A federal appeals court has revived a 2016 Indiana law requiring health providers to bury or cremate fetal remains, including from abortions, rather than incinerate them with medical waste.
A unanimous panel of the 7th U.S. Circuit Court of Appeals ruled Monday that the law did not run afoul of the First Amendment of the U.S. Constitution by requiring anyone to violate their religious beliefs, reversing a September ruling by a lower court judge.
"The bodies of unborn babies are more than mere medical waste to be tossed out with trash," Indiana Attorney General Todd Rokita said. "They are human beings who deserve the dignity of cremation or burial. The appellate court's decision is a win for basic decency."
Rupali Sharma of the Lawyering Project, attorney for the plaintiffs, said: "We are currently exploring all options with plaintiffs to ensure abortion patients can get the care they need with the dignity they deserve."
In their 2020 lawsuit, the two women said the law violated their First Amendment rights by effectively requiring them to adopt the state's view of fetal personhood, while the two doctors said it compelled them to engage in speech they disagreed with when they gave patients the option of burial, cremation or taking the remains themselves and disposing of them.
U.S. District Judge Richard Young in Indianapolis agreed, ruling the law unconstitutional and barring the state from enforcing it against anyone.
Seventh Circuit Judge Frank Easterbrook wrote Monday that, while the law was based on Indiana's view about fetal personhood, states "are entitled to have, express, and act on, their own views about contestable subjects."
He said it did not violate the women's rights, since they were not themselves required to bury or cremate the remains.
He further said that doctors' rights were not violated simply because they had to give true, non-misleading information about what Indiana law requires.
Easterbrook was joined by Circuit Judges Michael Brennan and Michael Scudder.
The U.S. Supreme Court in 2019 upheld the law against a separate challenge claiming that it violated the U.S. Constitution's guarantee of equal protection and due process by imposing an irrational requirement on abortion patients.
In June, the Supreme Court overturned its landmark 1973 ruling in Roe v. Wade that had recognized a right to abortion nationwide. Many Republican-led states have since passed or begun enforcing abortion bans, including Indiana, though its ban is currently blocked and set to be considered by the state's top court next year.
The case is Doe et al v. Attorney General of Indiana et al, 7th U.S. Circuit Court of Appeals, No. 22-2748.
For plaintiffs: Rupali Sharma of The Lawyering Project
For the state: Solicitor General Thomas Fisher