The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Also on Religious Freedom and Abortion
From Judge Frank Easterbrook's opinion Monday in Doe v. Rokita, joined by Judge Michael Brennan and Michael Scudder:
Indiana requires abortion providers to dispose of fetal remains by either burial or cremation. This mandate applies only to providers; women may choose to take custody of the remains and dispose of them as they please. The Supreme Court sustained this regimen against a contention that it violates the Equal Protection Clause of the Fourteenth Amendment. Box v. Planned Parenthood of Indiana and Kentucky, Inc. (2019). 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….
Statutes that require people to disobey sincerely held religious beliefs can pose difficult analytical challenges. See, e.g., Fulton v. Philadelphia (2021). 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.
What's more, neither 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.
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. See also Bowen v. Roy (1986) (private party's religious objection to Social Security numbers does not require the government to change its record-keeping system). Whether or not the Supreme Court continues to adhere to Employment Division v. Smith (1990), which holds that laws neutral with respect to religion may be enforced despite their effects on religious exercise, there is no problem with application of a law that leaves people free to put their own religious beliefs into practice. Nor does Indiana require any woman to speak or engage in expressive conduct.
The issues here are of course not the same as in Friday's Indiana state court decision that Indiana RFRA provides religious exemptions from the state's abortion ban, but I thought I'd pass along this decision alongside the other one.
