Supreme Court Denies Cert. In Challenge to Indiana Fetal Remains Law

The U.S. Supreme Court on Monday denied review in Jane Doe No. 1 v. Rokita, (Docket No. 22-951, certiorari denied 5/1/2023) (Order List). In the case, the U.S. 7th Circuit Court of Appeals rejected 1st Amendment challenges to an Indiana statute that requires abortion providers to dispose of fetal remains either by burial or by cremation. (See prior posting.) The case Docket with links to filings in the Supreme Court is here.  AP reports on the Court's action.

7th Circuit: Law on Disposal of Fetal Remains Does Not Violate 1st Amendment

In Doe v. Rokita, (7th Cir., Nov. 28, 2022), the U.S. 7th Circuit Court of Appeals rejected 1st Amendment challenges to an Indiana statute that requires abortion providers to dispose of fetal remains either by burial or by cremation. The suit was brought both by two women who raise free exercise claims and by two physicians who oppose the requirement that they inform patients of the law's provisions. The court said in part:

[N]either of the two plaintiffs who has had an abortion contends that a third party’s cremation or burial of fetal remains would cause her to violate any religious principle indirectly. What these two plaintiffs contend is that cremation or burial implies a view—the personhood of an unborn fetus—that they do not hold. They maintain that only human beings are cremated or buried. This is questionable. 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....

As for the requirement that physicians and other providers tell patients about the statutory options: no one contends that the required notice is false or misleading....

The norm that units of government may require physicians (and other professionals) to provide accurate information to their clients long predates Casey and has not been disturbed since...

Church Cannot Remove Cremated Remains Over Objections Of Families

In Church of the Holy Spirit of Wayland v. Heinrich, (MA App., May 5, 2022), a Massachusetts state appellate court held that a church which had sold its property was not free to relocate cremated remains buried in its churchyard over the objections of families of those buried there. In the case, an Episcopal parish that had ceased operating sold it church building and attached burial ground to a Coptic church.  The Coptic church wanted to develop the land; it also had religious objections to cremation. The court said in part:

[I]n the absence of a governing statute, common law trust principles apply to the disinterment of human remains from a dedicated burial ground until the families of the deceased have abandoned the remains or the burial ground is no longer recognizable as such....

It is uncontested that the Coptic church has a sincerely held opposition to cremation on religious grounds. The next question, however, is whether judicial relief in favor of the families would substantially burden the Coptic church's exercise of its religious beliefs.... [W]e fail to see how a judicial order preventing the Coptic church from removing those remains would constitute government interference with that church's free exercise of religion rights. And it bears noting that the unilateral disinterment of the remains potentially might implicate the families' own free exercise of religion rights.

The court also concluded that allowing two parties who had purchased burial rights for their own remains to be buried in the churchyard next to remains of their families would not infringe the free exercise rights of the Coptic church:

[I]t simply would prevent the Coptic church from interfering with rights that the individuals themselves hold in the property. Nor has the Coptic church demonstrated that such a judicial order could be seen as compelling it to endorse cremation.

Indiana Fetal Tissue Disposition Law Challenged Again

Suit was filed last week in an Indiana federal district court challenging the constitutionality of Indiana's statutes that require healthcare facilities to dispose of embryonic and fetal tissue from abortions and miscarriages by burial or cremation, regardless of patients’ wishes. The complaint (full text) in Jane Doe No. 1. v. Attorney General of Indiana, (SD IN, filed 12/21/2020), alleges in part:

The Tissue Disposition Laws violate fundamental tenets of the First and Fourteenth Amendments by compelling abortion and miscarriage patients—and their healthcare providers— to act in accordance with the State’s view of personhood—namely, that an embryo is the ontological and spiritual equivalent of a person—regardless of their own opinions about the status of developing human life. Indiana’s effort to create orthodoxy on a deeply polarizing issue that implicates the most profound aspects of religion, culture, and ideology is constitutionally prohibited.

The U.S. Supreme Court in 2019 (without hearing oral argument) upheld the Indiana tissue disposition laws in a case which did not raise the constitutional challenges put forward in this complaint. (See prior posting.) Christian Headlines reports on last week's filing.

Son's Wish To Be Cremated Prevails Over Mother's Religious Objections

In In re Remains of Ghostley, (AZ App., Jan. 22, 2020), a mother appealed the order of a probate court directing that the remains of her adult son be cremated.  The son's father and the son's girl friend both affirmed that the son's wishes were to be cremated and to have his ashes spread over the places he loved.  The mother contended that her Jewish religious beliefs opposed cremation and that the thought of her son's being cremated caused her to suffer emotional hardship. Arizona statutes provide that the decedent's wishes must be followed "if they are reasonable and do not impose an economic or emotional hardship." The Arizona appellate court concluded:

[T]he probate court did not err in making the factual determination that Mother’s distress arising from her son’s wishes to be cremated did not rise to the level of “emotional hardship” as contemplated by § 36-831.01. We defer to a trial court’s factual findings unless they are clearly erroneous....

Mother testified that her distress stemmed primarily from her professed religious beliefs, the sincerity of which we do not purport to question here. However ... nothing compelled the court to elevate Mother’s religious beliefs above the wishes of her son. Notably, the record reflects that decedent was also religious, and his own spiritual beliefs could have played a role in his decision to be cremated.

AP reports on the decision.