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Courts uphold Indiana laws requiring proper burial/cremation of aborted babies

The Seventh Circuit highlighted the fact that before states enacted such statutes, it was common practice for medical providers to place fetal remains in the garbage as “medical waste” with no regard for their humanity or dignity.

(Image: Tingey Injury Law Firm/

Just how hardened are the hearts of supporters of the pro-abortion movement with regard to the destruction and disposal of unborn human life? Consider the Seventh Circuit’s rejection of a challenge—and the Supreme Court’s refusal to hear an appeal, in Jane Doe No. 1 v. Rokita—to three separate statutory provisions in Indiana mandating that abortion providers, whether hospitals or clinics, properly dispose of fetal remains either by burial or by cremation. Under the disputed statute’s provisions women who have abortions may choose to take custody of the remains of their unborn and dispose of them as they wish.

Jane Doe No. 1 v. Rokita was filed by two women who, after having had abortions, objected to the cremation or burial of the fetal remains, of their unborn children on the basis that doing so would have implied the personhood of a pre-viability fetuses, a perspective they reject. The suit was joined by two physicians who do not wish to comply with state law to inform women who had abortions about their statutory options to bury or cremate the remains of their unborn children.

A unanimous three-judge panel of the Seventh Circuit summarily reversed the earlier judgment of a federal trial court in Indiana outright with orders to dismiss that enjoining enforcement of the statute. The court dismissed the claim with prejudice, meaning it could not be refiled in its present form, because the challenged statutes did not require any women who had abortions to violate any of their beliefs whether religious or secular. The trial court had granted the plaintiffs’ claim on the ground that “the fetal disposition law burdens their sincere religious and moral beliefs of treating aborted fetuses as medical waste”

At the same time, the panel criticized the trial court because, even though the judge could have provided full relief to the four plaintiffs by enjoining the application of the statutes solely as they applied to the plaintiffs, the judge overreached by barring multiple state officials from enforcing the laws with regard to anyone in the state.

As part of its analysis, the Seventh Circuit highlighted the fact that before states such as Indiana enacted such statutes, it was common practice for medical providers to place fetal remains in the garbage as “medical waste” with no regard for their humanity or dignity. The panel pointed out that in Box v. Planned Parenthood of Indiana and Kentucky, the Supreme Court observed that states are free to end this inhumane and disrespectful practice of treating the remains of the unborn as common trash. The panel explained that the trial court’s overreach by enjoining the statutes in their entirety offends the legal principle that judicial relief should be no greater than necessary to protect the rights of the litigants who prevail.

In its brief opinion the Seventh Circuit reiterated that rather than remand the case to the trial court, it chose to reverse it outright because the statutes at issue did not violate any of the plaintiffs’ rights. Instead, the court reasoned that the Indiana laws do not obligate women who had abortions to transgress any belief, religious or secular, because the cremate-or-bury directive only applied to providers, not individuals. Moreover, the Seventh Circuit acknowledged that neither of the women even raised such claims as they rooted their complaints in their denial of the personhood of their fetuses.

The Seventh Circuit handily pivoted to rebut the claim of the two women who had abortions that cremation or burial implies personhood, a view they do not accept because they argued that only human remains receive this treatment. The court politely described this argument as “questionable,” pointing out that dogs, cats, and other pets may be cremated or buried, sometimes due to legal requirements that they not be disposed of in common garbage. The court thus ruled that the disputed statute need not imply anything about the appropriate characterization of an unborn child. The court added that any moral objection one might have to the potential disposition of fetal remains is far from a claim that the state of Indiana compelled any woman to violate her deeply held religious tenets

If anything, the panel emphasized that if the challenged statutes reflected anyone’s view about the personhood of the unborn, it was that of the State of Indiana which, through its elected officials, is free to have, express, and act on, its views on contestable subjects such as abortion. The court buttressed its analysis by remarking that that nothing in the disputed laws obligated women to speak or engage in any form of expressive conduct.

Turning to the claims of the physicians, the court rejected their specious argument that the statutory requirement that they notify women of the options about the disposal of their unborn was false or misleading because many states direct medical personnel to provide truthful notice about medical procedures. The panel rejected the doctors’ claim that the Supreme Court’s having overturned Planned Parenthood of Southeast Pennsylvania v. Casey wherein it found that state officials may be obligated to provide women seeking abortions with truthful notice in Dobbs v. Jackson Women’s Health Organization wherein the Justices returned the question of abortion to the states.

The Seventh Circuit commented that Dobbs did not discuss this aspect of Casey because what the latter declared was that states cannot substantially burden the ability of women to abort their fetuses before viability. The panel then specified that the obligation that state law may obligate doctors to provide accurate information not only predated Casey but also that they must inform their patients about the side effects of drugs along with information enabling them to make informed consent to risky surgical procedures including abortion

With all due respect to the plaintiffs who initiated the litigation challenging the statutes, one must wonder whether American culture has sunk to such a new low that women who undergo abortions and attending physicians who perform these procedures oppose providing as much as a dignified burial for the remains of the unborn have become so callous. If the mothers, in particular, reject the personhood of their unborn children, regardless of the stages they may have been in during their pregnancies what, then, might they have expected the growing fetuses inside of them to become? How could the fetuses have been anything other than human?

If the fetus is not a person entitled to human dignity, then how is it possible that a team of doctors from Boston Children’s Hospital and Brigham and Women’s Hospital recently performed first-of-its kind brain surgery on a unborn child still in the womb. Further, one has but to view in utero ultrasound images of the unborn to realize that they are persons. It is a sad commentary on our times that these striking images of the unborn do not move the supporters of abortion to protect what is unmistakably human life when it is most vulnerable.

The behavior of the doctors in this litigation stands the Hippocratic Oath on its ear because even after terminating the life of unborn children they, too, refuse to afford the fetuses the respect they deserve due to their unwillingness to inform the women who had abortions about the available options for dealing with the remains. It is a paradox and a far cry from what is expected of doctors who are supposed to care for the living as those in this suit, as well as others, no doubt, can be so inhumane when it comes to ending the lives of the unborn.

In the face of a proposal from the Department of Health and Human Services to deny personhood to the unborn that is all but certain to be promulgated as a federal regulation, those who support the pro-life movement, particularly in the Catholic Church, need to speak up—not just in defense of the unborn but also to advocate that the children whose lives were destroyed via abortion at least be treated with the dignity they deserve rather than as the unwanted products of pregnancy simply to be disposed of as “medical waste.” Catholics must continue to stress the importance of protecting “the least among us,” the unborn, as we work together to soften the hearts of those hardened by the evil of abortion.

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About Charles J. Russo 9 Articles
Charles J. Russo, M.Div., J.D., Ed.D., Joseph Panzer Chair of Education in the School of Education and Health Sciences (SEHS), Director of SEHS’s Ph.D. Program in Educational Leadership, and Research Professor of Law in the School of Law at the University of Dayton, OH, specializes in issues involving education and the law with a special focus on religious freedom. He is also an Adjunct Professor at Notre Dame University of Australia School of Law, Sydney Campus. He can be reached at


  1. It is not hard to spy out the weaknesses in the integralist (by-integral-steps) approach to reducing or stopping abortion. For example, it can only deal with some of the issues at a time; it can get channeled with particular actors and have to rally with the same actors’ sense of “new possibility”; it can temporarily stall some who deserve inclusion; it can’t meaningfully pull the whole picture together, say for eg., on a new appointment, at any given time in a moment that could be turned differently; it is always at the mercy of oblique-ist politics such as practiced by Lindsey Graham.

    In the particular case of Trump, Trump has made political alliances with homosexuals as a community; that has an interest in promoting anti-life including in vitro. Trump necessarily will go in this direction. While it is true that Trump has had the most significant impact on progressing pro-life, in the US, it also has to be weighed if he nonetheless has the will or even vision, to do more, in pro-life. Said “greatest impact” exchanged the right to privacy for the right of the State and a confusion of law-making. And Trump has to measure his steps his way and those ways.

    Also mere political effectiveness: he is so embattled he might never get down to rigours of administrative overhaul across all departments, let alone come up with the right personnel.

    Actually, overall, integralism in principle fosters a fractured system of laws AND UNDERSTANDING -all on its own, all by itself. It becomes its own status quo and sanctions and stratifies modus vivendi. At the same time it flourishes, it continues to distort the meaning of the issue and to deny the gist of law that actually applies irrespective of general opinion, vote-count, plan of action or legalist philosophy.

  2. If you make a pact with Trump and he gets elected, the pro-life agenda becomes TRUMP’s (quasi-) “pro-life” (not pro-life) vision and he will be making appointments that way, generating publicity that IT is “pro-life”. You’ve got to love the guy?

    It is quite common for people to say about high-living high-flying personalities, how fair-minded they are and you’ve just got to love them. But that is not how you progress the pro-life positions. And I am not incriminating Trump!

  3. Hey everybody, over here, I’m lost with having all these comboxes to myself!

    US pro-life can not yoke itself to Trump. I know what I am saying resonates with you and you know I am not “attacking Trump” – or Pope Francis or Christ’s seamless garment or James Martin.

    What we can recognize in all this is the meaninglessness in the recent claims that pro-life is “narrow” and “not seamless”. You see what I see, it was a prelude or ushering into a politics of compromising. And should you take up with it, a) you will no longer be authentically pro-life and b) your message about life will ring as hollow as they next activist group’s messages about empathy and compassion.

    You can not stand for killing babies before 6 weeks “because” you’re not killing babies after 6 weeks or “because” Roe got overturned or “because at least that is not infanticide and not killing babies at 30 weeks”.

    ‘ ….. sentimentality is an excess, a distortion of sentiment usually in the direction of the overemphasis on innocence, and that innocence, whenever it is overemphasized in the ordinary human condition, tends by some natural law to become its opposite. ‘

    – Flannery O’Connor, Mystery and Manners, Pt. V, The Church & the Fiction Writer (ed. S. & R. Fitzgerald, NY, NY 1970, Farrar, Strauss, Giroux)

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