A federal appeals court reinstated an Indiana law Monday that requires medical providers to bury or cremate the remains of aborted babies.
Judge Frank Easterbrook of the 7th U.S. Circuit Court of Appeals reversed a lower court decision that opined that the 2016 law violated the First Amendment for anyone who does not believe that unborn babies have equal rights to born ones.
"Instead of remanding with instructions to tailor the relief to the violation, we reverse outright — because there is no violation. Statutes that require people to disobey sincerely held religious beliefs can pose difficult analytical challenges. But Indiana does not require any woman who has obtained an abortion to violate any belief, religious or secular. The cremate-or-bury directive applies only to hospitals and clinics," Easterbrook wrote in his decision.
"Before enactment of these statutes, it had been common for medical providers to place fetal remains in the garbage ('medical waste'). The Supreme Court concluded in Box that the state is entitled to end that practice. The district court's needlessly broad injunction treats the statute as invalid across the board (that is, on its face rather than as applied), which effectively countermands the Supreme Court's decision for the entire population of Indiana. This offends the principle that relief should be no greater than necessary to protect the
rights of the prevailing litigants," Easterbrook continued.
As per the idea that cremation or burial implies personhood, Easterbrook called it "questionable," writing, "Dogs, cats, and other pets may be cremated or buried, sometimes as a result of legal requirements not to put animals' bodies in the garbage. ... Indiana's statute about fetal remains therefore need not imply anything about the appropriate characterization of a fetus. At all events, a moral objection to one potential implication of the way medical providers handle fetal remains is some distance from a contention that the state compels any woman to violate her own religious tenets.
"If the statute reflects anyone's view about fetal personhood, it is the view of the State of Indiana. Yet units of government are entitled to have, express, and act on, their own views about contestable subjects."
The original lawsuit against the statute was brought in 2020 by the Women's Med Group abortion clinic in Indianapolis, its owner, two of the clinic's nurse practitioners and three other women. The suit allegedly argued that "Indiana's requirements caused both 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.'"
Indiana Attorney General Todd Rokita called the decision a "win for basic decency."
"The bodies of unborn babies are more than mere medical waste to be tossed out with trash. They are human beings who deserve the dignity of cremation or burial. The appellate court's decision is a win for basic decency," Rokita said in a statement.
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