Indiana Reinstates Law Requiring Fetal Remains from Abortions to Be Buried or Cremated

Photo: SOPA Images (Getty Images)
Photo: SOPA Images (Getty Images)  

On Monday, a federal appeals court reinstated an Indiana law, originally signed in 2016, that requires abortion clinics to pay to have aborted fetal remains buried or cremated. This ruling from the 7th Circuit Court of Appeals overturns an Indiana judge's decision in September that blocked the law for violating abortion patients' right to religious freedom.

The fetal burial law was first challenged in court in 2020 by the Indianapolis-based abortion clinic Women's Med Group, which said in its lawsuit that such requirements cause "shame, stigma, [and] anguish," particularly for people who experience miscarriage, and "send the unmistakable message that someone who has had an abortion or miscarriage is responsible for the death of a person." Indiana's attorney general Todd Rokita (R)-famous for smearing and intimidating an Indiana doctor who provided an abortion to a 10-year-old rape victim from Ohio-called the Monday ruling a "win for basic decency," claiming embryos and fetuses "are human beings who deserve the dignity of cremation or burial."

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Even as abortion remains legal in Indiana at this time, the cost of burying or cremating aborted fetal remains-which can reach around $2,000-could present a serious barrier to providing and accessing abortion. Of course, creating more barriers and stigma to abortion is entirely the point of laws like this. That, and surveillance: In some states, like Ohio, fetal burial laws require those who have abortions to obtain a death certificate, which is public record, at a time of rapidly increasing criminal charges for pregnancy outcomes and abortion. In Indiana, loss of pregnancy at or after 20 weeks requires a death certificate.

Fetal remains are frequently subjected to policing from anti-abortion activists, state governments, and even law enforcement. As Politico reported last week, anti-abortion activists are currently petitioning the FDA to require abortion providers to dispose of any tissue a person produces after taking abortion pills, baselessly claiming this tissue presents an environmental hazard. (Abortion pills are recommended through 12 weeks of pregnancy, meaning the tissue this produces will be akin to blood typically passed from menstruation or miscarriage.)

There have also been several cases of people facing criminal charges after experiencing stillbirth or miscarriage for "gross abuse of a corpse" and supposedly mishandling their fetal remains. As recently as 2019, Brooke Skylar Richardson of Ohio was charged with aggravated murder, involuntary manslaughter, child endangering, and gross abuse of a corpse after burying a stillborn fetus in her backyard when she was an 18-year-old high school student.

In any case, it probably wouldn't surprise you that the man who signed Indiana's fetal burial requirement into law in 2016 was none other than former Gov. Mike Pence (R). His support for the bill spawned the Periods for Pence campaign that year, in which people across the state bombarded his office with photos or graphic details about their periods to raise awareness that "fertilized eggs can be expelled during a woman's period without a woman even knowing" they're pregnant. But it seems that when one anti-abortion white man leaves his post, another always pops up to carry on his oppressive legacy.

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