In an order two days ago (in Doe No. 1 v. Attorney General of Indiana), federal district judge Richard L. Young ruled that plaintiffs challenging an Indiana law on disposition of aborted fetuses established that the law violates their Free Exercise and Free Speech rights under the First Amendment. Young’s reasoning strikes me as farfetched.
Indiana law requires that an abortion clinic bury or cremate an aborted fetus or, upon the mother’s request, allow her to take the fetal remains with her to dispose of however she sees fit.
The plaintiffs in the case are three abortion providers (an abortion clinic, its director, and its nurse) and two women, Doe 1 and Doe 3, who had abortions at the clinic. The abortion clinic “is storing the tissue from the [two women’s] abortions until the final disposition of this case because both [women] believe that treating fetal tissue as anything other than medical waste violates their moral and religious beliefs.” (Young repeatedly uses “fetal tissue” as though it were a synonym for “aborted fetus.”) Doe 1 “holds a moral, rather than religious, belief that fetal tissue is not the remains of a person” and that the fetal remains therefore should not be buried or cremated. Doe 3 holds a religious belief that “life begins at the first breath,” and that belief, she maintains, requires that the aborted fetus be “disposed of by standard medical means.”
On the Free Exercise claim, Young concludes that the Indiana law isn’t “generally applicable” or “neutral” within the meaning of Employment Division v. Smith (1990) and thus is subject to strict scrutiny. I’m not persuaded by either conclusion, but I’ll limit myself here to neutrality. Young is simply wrong that the law “only impose[s] burdens on women who have religious or firmly held moral beliefs that aborted fetuses should be treated as medical waste rather than as a person.” The law applies equally to a woman who for any other reason would oppose cremation or burial.
On the Free Speech claim, Young makes the remarkable assertion that “treating fetal tissue as medical waste is expressive conduct that receives First Amendment protection.” In his view, Doe 1 and Doe 3 have demonstrated both that they “intend[] to convey a message by treating their fetal tissue as medical waste” and that their message would be understood as such by onlookers. I don’t see how the latter proposition is remotely true. If Doe 1 and Doe 3 took the fetal remains with them and flushed them down the toilet or tossed them in the trash, what reason is there to think that onlookers (if there were any) would have any idea that they were intending any message? (You can of course imagine hypotheticals in which Doe 1 and Doe 3 would use accompanying speech to convey their message. By Young’s logic, would I have First Amendment protection for violating traffic laws if I had a loudspeaker blaring from my car the statement that I was violating traffic laws in order to protest police misconduct?)
Young also concludes that the Indiana law violates the Free Speech rights of the abortion providers by requiring them to inform patients of their right to have their aborted fetuses cremated or buried. But that requirement to inform patients of their rights is part of the abortion providers’ duty to provide informed consent, so, contrary to what Young claims, it is indeed a regulation of professional conduct, not of speech (and it is a regulation that is plainly permissible under Dobbs).
(This case is a follow-on of sorts to an earlier challenge to Indiana law on disposition of fetal remains, a challenge that the Supreme Court rejected in its ruling in 2019 in Box v. Planned Parenthood.)