Indiana law requires abortion clinics to either bury or cremate fetal remains. The U.S. Supreme Court declined on Monday to re-consider the multiple lawsuits challenging this law. The court gave no explanation for its decision in an order it issued turning down hearings in several dozen cases.
Indiana’s Republican attorney general has defended the law as recognizing fetal remains as more than medical waste and deserving of cremation or burial.
The law was first adopted by Indiana’s Republican-dominated Legislature in 2016 and signed by then-Gov. Mike Pence.
The Chicago-based 7th Circuit Court of Appeals in November 2022, overturned an Indiana judge’s decision that the law infringed upon the religious and free speech rights of people who do not believe aborted fetuses deserve the same treatment as deceased people. The appeals court said the law didn’t require any woman to violate her beliefs as it only applied to hospitals or clinics. The question was on the legitimate interest on how the fetal remains are to be disposed!
The law, HEA 1337-2016, requires medical facilities to bury or cremate fetal remains, rather than dispose of them as medical waste. A 2016 lawsuit argued that it created an unconstitutional burden on abortion, but the U.S. Supreme Court upheld the provision in 2019.
Abortion rights advocates say Indiana's fetal remains requirements will drive up costs for abortion clinics and in turn for patients seeking abortion care.
Laws like Indiana's are part of an nationwide strategy to stigmatize abortion and push it out of reach.
The opinion, decided Nov. 28, reverses a federal judge’s decision in September that blocked the enforcement of the law, ruling it infringed on the religious and free speech rights for people who do not believe aborted fetuses deserve the same treatment as deceased people.
The appeals court refuted the judge’s claim in their opinion.
“Indiana does not require any woman who has obtained an abortion to violate any belief, religious or secular,” court documents state. “The cremate-or-bury directive applies only to hospitals and clinics.”
The lawsuit was filed in the U.S. District Court for the Southern District of Indiana in 2020 by three anonymous women who had an abortion in Indiana, three abortion care providers and an abortion clinic. Attorneys at the time wrote the law’s requirements caused abortion and miscarriage patients “shame, stigma, anguish, and anger” because they "send the unmistakable message that someone who has had an abortion or miscarriage is responsible for the death of a person."
