Full 7th Circuit urged to strike down Indiana fetal burial law

A closed abortion clinic in San Antonio, Texas
A recovery room sits empty at an abortion clinic that closed its doors following the overturn of Roe v. Wade. REUTERS/Callaghan O'Hare
  • Plaintiffs say summary order reviving law was "affront ... to the rule of law"
  • Separate challenge to Indiana's new abortion ban remains pending

(Reuters) - Abortion patients and doctors are urging a federal appeals court to overrule a three-judge panel's order last month upholding a 2016 Indiana law that requires healthcare providers to bury or cremate fetal remains, rather than incinerate them with medical waste.

In a petition filed Monday in the 7th U.S. Circuit Court of Appeals, the plaintiffs said that the panel's "cursory" dismissal of their case, before considering full briefing or oral argument, was an "affront to the diligence of the parties and the district court as well as to the rule of law."

They said the case should be reheard by the full circuit court.

A spokesperson for Indiana Attorney General Todd Rokita, whose office is defending the law, did not immediately respond to a request for comment.

In their 2020 lawsuit, two women who had had abortions said the law violated their 1st Amendment rights by effectively requiring them to adopt the state's religious view of fetal personhood, while the two doctors said it compelled them to engage in speech they disagreed with when they gave patients the option of burial, cremation or taking the remains themselves and disposing of them.

U.S. District Judge Richard Young in Indianapolis agreed, ruling the law unconstitutional and barring the state from enforcing it against anyone.

A unanimous panel last month revived the law, finding that it did not violate the women's rights, since they were not themselves required to bury or cremate the remains, nor the doctors' rights, since they were merely required to tell patients what the law is in Indiana.

The panel made its ruling by summary order, before receiving full briefing on the merits. The plaintiffs said in their en banc brief that the summary ruling "invites questions about whether the Court is making decisions based on its members' personal views and preconceived notions, rather than on the evidence and arguments presented by the parties."

They said that the full court should "rehear the case en banc to ensure a fair process, provide a thorough consideration of the important and complex issues presented, and promote public confidence in the integrity of the Court's decisions."

In June, the U.S. Supreme Court overturned its landmark 1973 ruling in Roe v. Wade that had recognized a right to abortion nationwide. Many Republican-led states have since passed or begun enforcing abortion bans, including Indiana, though its ban is currently blocked and set to be considered by the state's top court next year.

The case is Doe v. Attorney General of Indiana, 7th U.S. Circuit Court of Appeals, No. 22-2748.

For plaintiffs: Rupali Sharma of The Lawyering Project

For Indiana: Solicitor General Thomas Fisher

Read more:

Appeals court revives Indiana law requiring burial or cremation of fetal remains

Supreme Court avoids abortion question, upholds fetal burial measure

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.