Elon Law scholar: Regulating fetal remains disposal passes muster

Before the U.S. Supreme Court upheld part of an Indiana law regarding abortion, Professor Tom Molony published in the Florida Law Review that previous court rulings "leave states with a great deal of latitude to regulate abortion in a manner aimed at protecting potential life."

When the U.S. Supreme Court created its “undue burden” standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 decision affirmed the Court’s conclusion in Roe v. Wade that a woman has the right to terminate a pregnancy prior to fetal viability.

At the same time, the Court emphasized that states have a “profound” and “substantial” interest in protecting potential life, an interest that exists throughout pregnancy, and that states may adopt regulations seeking to advance that interest even when the regulations apply pre-viability.

By extension, an Elon Law scholar argues in a recent article for the Florida Law Review, state governments do not run afoul of constitutional standards when they require abortion providers to bury or cremate fetal remains – within certain limits.

In “Can the State Proclaim Life After Death? Hellerstedt and Regulating the Disposition of Fetal Remains”, Elon Law Professor Tom Molony explains that state regulations governing the disposal of fetal remains, particularly where the woman is not required to make a choice of cremation or burial, are likely to survive constitutional challenge because they might change the mind of a woman seeking an abortion.

Molony's argument proved prescient when the U.S. Supreme Court ruled on May 28, 2019, that Indiana's regulations of fetal remains disposal are constitutional.

“By requiring health care facilities to treat the remains of aborted and miscarried fetuses in a manner similar to how the remains of born human beings are treated, the state expresses its view of when life begins and thus advances its interest in protecting potential life by contributing to a ‘dialogue that [will] better inform the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect . . . abortion,’” Molony writes in his conclusion. “By their very nature, fetal remains disposition requirements apply only to fetuses who have died. But this is of no moment for constitutional purposes.”

“To serve its interest in protecting potential life, a state may proclaim life after death.”

Read the full article online.

Molony joined the Elon Law faculty in 2008 after practicing law with the Charlotte firm of Robinson, Bradshaw & Hinson, where his practice focused on corporate and commercial law, public finance and bankruptcy.

He has previously published in the Catholic University Law Review, the Washington & Lee Law Review, the Connecticut Law Review, and the Seton Hall Law Review.