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Constitutional Law-Fetal Remains Disposal

7th Circuit Court of Appeals

Case Name: Jane Doe 1 v. Attorney General of Indiana

Case No.: 22-2748

Officials: Easterbrook, Brennan, and Scudder, Circuit Judges.

Focus: Constitutional Law-Fetal Remains Disposal

Indiana requires abortion providers to dispose of fetal remains by either burial or cremation. Women may choose to take custody of the remains and dispose of them as they please. Ind. Code §16-34-3-2. The Supreme Court sustained this regimen against a contention that it violates the Equal Protection Clause of the Fourteenth Amendment. Nonetheless, in this suit the district court held that it violates the First Amendment (applied to the states by the Fourteenth) and enjoined its operation. 2022 WL 5237133 (S.D. Ind. Sept. 26, 2022). The state has appealed and seeks a stay.

This suit was filed by two women who had abortions and object to the cremation or burial of the fetal remains, which they contend implies the personhood of a pre-viability fetus, and two physicians do not want to tell patients about their statutory options. The Seventh Circuit reversed a “needlessly broad injunction” that treats the statute as invalid on its face and “effectively countermands the Supreme Court’s decision for the entire population of Indiana.” The cremate-or-bury directive applies only to hospitals and clinics. Indiana’s statute need not imply anything about the appropriate characterization of a fetus. Nor does Indiana require any woman to speak or engage in expressive conduct.

Reversed and Remanded.

Decided 11/28/22

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