The Law and Ethics of Fetal Burial Requirements for Reproductive Health Care

Abstract

In Box v. Planned Parenthood (May 28, 2019), the U.S. Supreme Court upheld an Indiana provision which mandates any clinician or facility providing abortion to bury or cremate fetal remains, no different than the requirements for cadavers. Indiana is one of eight states that requires fetal remains be interred or cremated, rather than disposed of as medical material under the rules set forth by the state’s environment and health departments. Individual practitioners or medical facilities must absorb the substantial financial costs required to dispose of fetal remains like deceased persons, or pass them along to their patients, who are in turn forced into making unwanted funerary arrangements for their aborted fetuses – without any countervailing medical benefit. The Supreme Court upheld the Indiana law for serving the state's legitimate interest in expressing respect for unborn life. What the Court missed is how it restricts the right to abortion in ways that demand more rigorous constitutional scrutiny in order to avoid violating a fundamental right. Beyond the burdens that fetal disposition laws place on women, they bear broader cultural consequences by implying that aborted fetuses should be treated no different than born persons who are buried or created after they die.