Indiana’s Fetal Remains Law Violates the First Amendment
Forcing people to bury fetuses is compelled symbolic speech
In 2016, then-Governor Mike Pence signed into law House Enrolled Act 1337, a bill consisting of several provisions restricting abortion rights and specifying the manner in which fetal remains must be disposed of.
Under Indiana law, women who terminate their pregnancies have the right to determine how to dispose of the remains of their terminated fetuses. If they make no such election, abortion providers were previously free to dispose of aborted fetuses as they would any other surgical waste, in accordance with state health and safety regulations. In most cases, this would involve the abortion provider either incinerating the fetal tissue itself, along with whatever other surgical materials also had to be destroyed, or contracting with a third party to do the same. Under the new law, however, fetal remains are be treated like those of other persons, meaning that abortion providers would no longer be allowed to contract with third parties to dispose of fetal tissue, nor mix non-human surgical waste with fetal remains when they are incinerated (though they are allowed to cremate multiple fetuses simultaneously).
In 2017, a Federal District Court judge in Indiana struck down the law. With respect to the provision governing fetal remains, the judge found that it was not rationally related to a legitimate governmental interest. On appeal, the 7th Circuit Court of Appeals affirmed, holding that Indiana’s claimed interest here “goes well beyond the sanitary or unitary disposal of aborted fetuses, interests which are already being carried out under current Indiana law and health regulations… Instead, the humane and dignified disposal of aborted fetuses requires recognizing that the fetus is legally equivalent to a human. Since the law does not recognize the fetus as a person, that is simply not a legitimate interest.”
This week, the Supreme Court reversed, holding that the humane and dignified disposal of fetal remains constituted a legitimate state interest, and the manner prescribed by the Indiana law was rationally related to that purpose.
For non-lawyers reading this piece, now might be a good time to explain the concept of a standard of review. The standard of review essentially refers to the stringency with which a statute is scrutinized. Most statutes, like the one in this case, are subjected to “rational basis” review, meaning that they will be upheld so long as they are rationally related to a legitimate governmental interest. This is a very low bar. However, where a statute burdens a fundamental right like freedom of speech or the right to vote, or where it discriminates on the basis of a suspect classification like race or religion, it is held to “strict scrutiny,” meaning that it will only be upheld if is is narrowly tailored to serve a compelling government interest. Statutes rarely survive this level of scrutiny.
My argument, essentially, is that Indiana’s fetal remains law constitutes compelled symbolic expression. It therefore infringes on the free speech rights of abortion providers and can only survive review if it is narrowly tailored to serve a compelling governmental interest. Since it cannot meet this test, the law is invalid. (Note: the plaintiff in this case argued that the statute violated substantive due process, not the First Amendment, so the issue of compelled speech, and whether the law should be held to strict scrutiny, never came up).
In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Supreme Court held that the government may not compel public school students to salute the flag or recite the Pledge of Allegiance. In one of the most eloquent passages in all of Supreme Court jurisprudence, Justice Robert Jackson wrote:
“The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
Since Barnette, the Court has had to weigh in on many cases involving alleged compelled speech, and has generally sided with plaintiffs. Twenty years ago, Professor Leslie Jacobs surveyed Supreme Court case law on compelled speech, and concluded that “[compelled] expression analysis should look to whether the government’s purpose is to manipulate the marketplace of ideas or whether its purpose is not related to expression. Where the government acts to manipulate the marketplace of ideas, strict scrutiny applies….” Pledges, Parades and Mandatory Payments: Creating Coherency in Compelled Expression, 52 Rutgers L. Rev. 123, 183–4 (1999).
Since that time, the Court has, if anything, expanded First Amendment protections against compelled speech. Just last year the Court held that public sector employees could not be required to pay dues to public sector unions, even when those employees benefited from union-negotiated contracts, since such forced payments violate “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. ___ (2018).
The manipulation of the marketplace of ideas was fairly obvious in Barnette. It was much less so in Janus, where the connection between any given individual’s dues on the one hand, and the union’s political activities on the other, was quite tenuous, and where the need to address the free rider problem created a seemingly compelling justification for the law. Nevertheless, the Court sided with Janus.
But is the disposal of fetal remains in the manner prescribed by Indiana’s new law “speech” at all? I claim it is, based on the Supreme Court’s ample jurisprudence on the subject of symbolic speech.
The Court has long held that, though the Constitution refers to “speech”, this also includes expressive conduct such as displaying a red flag (Stromberg v. California) wearing a black arm band (Tinker v. Des Moines Independent Community School District) or even setting an American flag on fire (Texas v. Johnson).
However, in United States v. O’Brien, 391 U.S. 367 (1968), the Court held that burning one’s draft card was not protected expressive conduct. “[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Since destroying draft cards made it impossible for the government to conduct an orderly draft, the law’s prohibition of the destruction of draft cards, while incidentally infringing on expressive conduct, was nevertheless constitutional.
Compare O’Brien with Johnson, 491 U.S. 397 (1989) in which the Court held that Texas’ stated justification for banning flag desecration was insufficient: “The State [asserts] an interest in preserving the flag as a symbol of nationhood and national unity. [We are] persuaded that this interest is related to expression…. The State, apparently, is concerned that [burning the flag] will lead some people to believe either that the flag does not stand for nationhood and national unity, but instead reflects other, less positive concepts, or that the concepts reflected in the flag do not exist….” Since the whole point of the Texas statute was to enforce belief in an idea, rather than carry out an important governmental function, the infringement of Johnson’s first amendment rights could not be justified.
Returning to the Indiana law, it is clear to me that the purpose of this law, and of similar laws around the country, is to impress upon people the idea of the fetus as a person with the same dignity and humanity as any other person.
For thousands of years, the disposal of human remains by cremation or burial has always had more than a merely sanitary purpose. The rituals and ceremonies associated with death serve to focus the minds of their participants on the life that has been lost and on its meaning, and thereby also on the meaning of our own existence. They demand an attitude of solemnity, even reverence. And they offer opportunities to express grief and to console the grieving.
If Indiana merely wanted to ensure the sanitary disposal of biological material, its previous law accomplished that purpose. Rather, it was the intention of the law’s backers to force abortion providers to adopt their own philosophical view on the nature of the fetus. This is not my conjecture. In oral arguments before the Supreme Court, Indiana’s lawyer said that the premise behind the fetal remains provisions was that “an aborted or miscarried fetus is nothing less than the remains of a partially gestated human and should be treated with the same dignity.”
Of course the state has a substantial interest in the sanitary disposal of fetal remains, as it does the sanitary disposal of surgical or other biological waste. But requiring abortion providers to dispose of fetal remains in a manner so closely analogous to the ritual cremation of persons is not an interest “unrelated to the suppression of free expression”, since it prohibits the disposal of those remains in ways Indiana’s legislators deemed too flippant or too profane, however satisfactorily such means accomplished the public health goals of the statute.
Perhaps you agree with the premise of Indiana’s fetal remains law as articulated by its attorney. Perhaps you fear a broader erosion of moral norms if people are allowed to treat fetal remains with anything less than the same dignity accorded to persons. That is your right, and it is not my goal here to dissuade you from that position. But it is my goal to show that the State may not, consistent with the First Amendment, force private citizens to engage in acts of symbolic expression that have the purpose of affirming that premise.
Let me conclude by paraphrasing Justice Jackson: We must apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that morality and respect for life will not flourish if certain ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our ethical ideals to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional blasphemous or sacrilegious attitudes. Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.