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

Journal of the American Medical Association, Forthcoming

Posted: 5 Sep 2019

See all articles by Dov Fox

Dov Fox

University of San Diego: School of Law

Eli Y Adashi

Brown University Medical School

I. Glenn Cohen

Harvard Law School

Date Written: 2019

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.

Keywords: Abortion, Personhood, Targeted Restrictions on Abortion Providers, Trap, Fetal Remains, Burial Requirements, Box v. Planned Parenthood

JEL Classification: K00, K10

Suggested Citation

Fox, Dov and Adashi, Eli Y and Cohen, I. Glenn, The Law and Ethics of Fetal Burial Requirements for Reproductive Health Care (2019). Journal of the American Medical Association, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3447453

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

5998 Alcalá Park
San Diego, CA 92110
United States
(619) 260-4600 (Phone)

HOME PAGE: http://https://www.sandiego.edu/law/about/directory/biography.php?profile_id=3332

Eli Y Adashi

Brown University Medical School ( email )

Providence, RI 02912
United States

I. Glenn Cohen

Harvard Law School ( email )

1525 Massachusetts Avenue
Griswold Hall 503
Cambridge, 02138
United States

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