Mandatory Funerals for Fetal Remains: "Politics and dealing with reality are two different things"

I've written about this topic before, particularly with respect to the Indiana law enacted in 2015 and amended in 2016.  That law gives women who have abortions "the right to determine the final disposition of the aborted fetus."  Ind. Code Section 16-34-3-2(a).  It also requires a woman to fill out a form prescribed by the state indicating her decision regarding "the final disposition of the aborted fetus before the aborted fetus may be discharged from the abortion clinic or the health care facility." Ind. Code Section 16-34-3-2(a).  The law also defines the disposition methods permitted by law for aborted or miscarried fetuses of less than 20 weeks gestation.

Ind. Code Ann. § 16-34-3-4 Cremation or interment of aborted fetus; permit; certificate of stillbirth

(a) An abortion clinic or health care facility having possession of an aborted fetus shall provide for the final disposition of the aborted fetus. The burial transit permit requirements of IC 16-37-3 apply to the final disposition of an aborted fetus, which must be interred or cremated. However:

(1) a person is not required to designate a name for the aborted fetus on the burial transit permit and the space for a name may remain blank; and

(2) any information submitted under this section that may be used to identify the pregnant woman is confidential and must be redacted from any public records maintained under IC 16-37-3.

Aborted fetuses may be cremated by simultaneous cremation.

(b) The local health officer shall issue a permit for the disposition of the aborted fetus to the person in charge of interment for the interment of the aborted fetus. A certificate of stillbirth is not required to be issued for an aborted fetus with a gestational age of less than twenty (20) weeks of age.

(c) IC 23-14-31-26, IC 23-14-55-2, IC 25-15-9-18, and IC 29-2-19-17 concerning the authorization of disposition of human remains apply to this section.

Several reporters have examined Indiana's law in the past few months, putting it into the context of a national movement to change state laws regarding the disposition of human remains and to expand them to include all products of concepts, regardless of gestational age.  Traditionally, states have treated fetuses of greater than 20 weeks gestation as if they had been born alive for purposes of disposition—they receive a special kind of death certificate and are then treated the same as any other human remains.  States have traditionally been silent about the disposition of fetuses of less than 20 weeks gestation.  Two groups have objected to that bifurcation—women who suffered an early miscarriage and wanted to control the disposition of the fetal remains, and pro life groups who believe that life begins at conception and the 20 week gestation line deprived fetal remains of a dignified disposition.

Women who had suffered from miscarriages initially led the charge to modify these state laws, leading to laws like that enacted in Florida:

Fla. Stat. Ann. § 383.33625. Stephanie Saboor Grieving Parents Act; disposition of fetus; notification; forms developed

(1) This section shall be known by the popular name the “Stephanie Saboor Grieving Parents Act.”

(2) A health care practitioner licensed pursuant to chapter 458, chapter 459, chapter 464, or chapter 467 having custody of fetal remains following a spontaneous fetal demise occurring after a gestation period of less than 20 completed weeks must notify the mother of her option to arrange for the burial or cremation of the fetal remains, as well as the procedures provided by general law. Notification may also include other options such as, but not limited to, a ceremony, a certificate, or common burial of the fetal remains.

But as Rebecca Grant explains in her recent article in The Nation, efforts to change the laws quickly became part of the agenda of pro-life groups.

In 2016 alone, 28 states have introduced legislation relating to the disposition of fetal remains. Nine of these bills have passed; of these nine, five are in effect and four are being legally challenged.... These mandates fall into two main categories. The first restricts the donation of fetal tissue for research and experimentation, a practice that has contributed to lifesaving advances in scientific and medical research since the 1930s, and bans its sale—an unnecessary provision, since the sale of fetal tissue is already a federal crime. ... The second type of regulation governs how abortion providers dispose of aborted tissue that is unsuited to medical research. Clinics generally treat aborted tissue like other human tissue by contracting with medical-waste companies that dispose of it in a safe and sanitary way. Now states including Indiana, Texas, Louisiana, and Ohio have gained ground with requirements that all aborted tissue be buried or cremated, so that “unborn infants” are afforded the same respect and dignity as human beings. These politicians want funerals for fetuses. ...

[Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project] and the ACLU of Indiana, along with Planned Parenthood of Indiana and Kentucky, filed a lawsuit against the state to prevent HEA 1337 from going into effect on July 1. On June 30, a federal judge blocked the law by granting a preliminary injunction while the lawsuit moves forward.

Grant explains that Ohio is considering similar legislation:

[T]he Ohio legislature proposed companion bills—SB 254 and HB 417—that redefine the “humane” disposition of fetal remains to mean burial or cremation. Women would be required to determine the mode of disposition in writing or sign that “right” away to the clinic, and abortion facilities would be required to pay the costs. Violators of these provisions would be guilty of a first-degree misdemeanor.

Meanwhile, in Texas:

Most of the states circulating fetal-remains mandates have gone the legislative route, but Texas pursued a stealthier approach. Four days after the Supreme Court ruled on Whole Woman’s Health v. Hellerstedt, Texas’s Department of State Health Services (DSHS) quietly proposed new rules that would prohibit abortion providers from disposing of fetal remains in sanitary landfills and require burial and cremation. The DSHS did not adhere to the regular process for writing new regulations or make a formal announcement about its actions. Instead, it published the rules directly in the Texas Register, initiating the 30-day period for public comment, on the Friday before the long Fourth of July weekend.

Grant interviewed me about these laws. 

Logistics are another issue. Dr. Tanya Marsh, a professor at Wake Forest Law School, said that the funeral industry is not set up to deal with remains this small. For one thing, neither caskets nor cemetery plots are designed to handle something the size of a prune.

“What’s the funeral director going to do?” she said. “They don’t make caskets that small, and in most states you can only cremate one body at a time. Cremation machines are built to cremate full-grown adults or a large child, but not something with a 10-week gestation. Logistically, it does not work.”...

Marsh said that laws regarding human remains are typically scattered throughout state codes in five different places. When lawmakers create laws dealing with remains that originate from committees focusing on health and abortion, it’s no surprise that the result is often an ill-conceived mess. “I don’t think [the legislators] thought through all this and recognized what they were doing,” Marsh said. “Politics and dealing with reality are two different things. The original political idea may have been to make life more difficult for the abortion clinics, but the way the laws are written has broader implications.”

These laws are a frankly clumsy attempt to deal with a profoundly philosophical and moral question that deserves serious consideration.  When does life begin?  What methods of disposition are "respectful"?  What role should government play in dictating individual choices regarding methods of disposition of human remains and fetal remains, particularly given the strong role that religious beliefs play in these choices?  Indiana, Ohio, and Texas have told us that they want to ensure that all products of conception receive the respectful treatment that all human remains deserve.  We can argue about whether that is a legitimate public policy purpose, or if that is even what they are really trying to do.  But those debates mask the deeper problem—in purporting to grant greater rights to women and to grant greater respect to fetal remains, they have actually greatly restricted women's choices and created expensive logistical problems not just for abortion clinics and health care facilities, but also for funeral directors, cemeteries, and families. 

For more on these laws, Emma Green has written two excellent articles for The Atlantic here and here.  Jonathan Goddard wrote a great piece for Vice last year. 

Tanya Marsh