Several weeks ago the Indiana legislature\u00a0passed\u00a0HB 1337, a law requiring abortion\u00a0clinics to ensure that miscarried or aborted fetuses be cremated or buried. Here\u2019s a summary from Vox<\/a>:<\/p>\n 1) It makes an unprecedented requirement to bury or cremate all fetal remains, even from an early miscarriage<\/strong><\/p>\n It\u2019s hard to predict the precise effect this provision will have, but it could be really bad for abortion providers and women who have abortions or miscarriages.<\/p>\n The law says that \u201ca miscarried or aborted fetus must be interred or cremated by a facility having possession of the remains,\u201d and requires \u201ca person or facility having possession of a miscarried or aborted fetus to ensure that the miscarried fetus or aborted fetus is preserved until final disposition occurs.\u201d<\/p>\n It doesn\u2019t matter how far along the pregnancy is. Normally when a pregnancy ends earlier than 20 weeks, the \u201cproducts of conception\u201d (fetal tissue and the placenta) are treated like any other medical waste. After 20 weeks, the fetus is considered a \u201cstillbirth\u201d and the parents typically have the option to cremate or bury it if they choose.<\/p>\n So even if a woman has a miscarriage at eight weeks of pregnancy at home, under this law she could be required to keep the blood and tissue, take it to a hospital, and have it buried or cremated by a funeral home.<\/p><\/blockquote>\n Sometimes news reports get bills\u2019 specific content incorrect, and I actually assumed this was happening here when I first read about this Vox article. Surely, I thought, surely it just applies to medical\u00a0facilities in possession of a fetus, and not miscarriages or medical abortions\u00a0that occur at home\u2014and that appears to be what most other news outlets are assuming too. Don\u2019t get me wrong, this more limited application wouldn\u2019t make the bill suddenly make sense, but I seriously didn\u2019t think\u2014oh wait, look here,<\/a>\u00a0it looks like I was wrong and Vox was right.<\/p>\n Let me pause to note\u00a0that Indiana\u00a0already had a law requiring women to be given the option of burying or cremating a miscarried or aborted fetus if they so chose, and a law requiring health care facilities to bury or cremate miscarried or aborted fetuses of at least 20 weeks gestation. What\u2019s different about this law is that it extends it before 20 weeks and applies to individuals as well as health care facilities.<\/p>\n Here\u2019s what\u2019s completely new:<\/p>\n SECTION 26. IC 16-41-16-7.6 IS ADDED TO THE INDIANA CODE AS A NEW<\/strong> SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2016]: Sec. 7.6.<\/p>\n (a) This section applies to a person or facility possessing either an aborted fetus or a miscarried fetus.<\/p>\n (b) Within ten (10) business days after a miscarriage occurs or an abortion is performed, a person or facility described in subsection (a) shall:<\/p>\n (1) conduct the final disposition of a miscarried fetus or an aborted fetus in the manner required by IC 16-21-11-6 or IC 16-34-3-4; or<\/p>\n (2) ensure that the miscarried fetus or aborted fetus is preserved until final disposition under IC 16-21-11-6 or IC 16-34-3-4 occurs.<\/p>\n<\/blockquote>\n<\/div>\n<\/div>\n<\/div>\n At this point you may be wondering what the two referenced sections say.\u00a0Here they are, below. Both are existing statutes that regulated only what was to be done with fetuses of at least 20 weeks gestational age, and both were significant amended by HB 1337 to apply to every gestational age.<\/p>\n Here\u2019s the first referenced statute:<\/p>\n SECTION 11. IC 16-21-11-6, AS ADDED BY P.L.127-2014, SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2016]: Sec. 6.<\/p>\n (a) If the parent or parents choose a location of final disposition other than the\u00a0location of final disposition that is usual and customary for the health care facility, the parent or parents are responsible for the costs related to the final disposition of the fetus at the chosen location.<\/p>\n (b) A health care facility having possession of a miscarried fetus shall provide for the final disposition of the miscarried fetus. The burial transit permit requirements under IC 16-37-3 apply to the final disposition of the miscarried fetus, which must be cremated or interred. However:<\/p>\n (1) a person is not required to designate a name for the miscarried fetus on the burial transit permit and the space for a name may remain blank; and<\/p>\n (2) any information submitted under this section that may be used to identify the parent or parents is confidential and must be redacted from any public records maintained under IC 16-37-3.<\/p>\n Miscarried fetuses may be cremated by simultaneous cremation.<\/p>\n (c) The local health officer shall provide the person in charge of interment with a permit for the disposition of the body. A certificate of stillbirth is not required to be issued for a final disposition of a miscarried fetus having a gestational age of less than twenty (20) weeks.<\/p><\/blockquote>\n<\/div>\n<\/div>\n<\/div>\n And here\u2019s the second referenced statute:<\/p>\n SECTION 21. IC 16-34-3-4, AS ADDED BY P.L.113-2015, SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2016]: Sec. 4.<\/p>\n (a) An abortion clinic or health care facility having possession of an aborted fetus shall provide for the final disposition of the aborted fetus. The burial transit permit requirements of IC 16-37-3 apply to the final disposition of an aborted fetus, which must be interred or cremated. However:<\/p>\n (1) a person is not required to designate a name for the aborted fetus on the burial transit permit and the space for a name may remain blank; and<\/p>\n (2) any information submitted under this section that may be used to identify the pregnant woman is confidential and must be redacted from any public records maintained under IC 16-37-3.<\/p>\n Aborted fetuses may be cremated by simultaneous cremation.<\/p>\n (b) The local health officer shall issue a permit for the disposition of the aborted fetus to the person in charge of interment for the interment of the aborted fetus. A certificate of stillbirth is not required to be issued for an aborted fetus with a gestational age of less than twenty (20) weeks of age.<\/p><\/blockquote>\n<\/div>\n<\/div>\n<\/div>\n Clearly, there\u2019s a lot here to make things more difficult for abortion clinics to operate, and both sections appear to be geared at regulating how health care clinics dispose of miscarried or aborted fetuses. This bit appears to be most relevant to an at-home miscarriage or a medical abortion\u00a0(though it still seems to assume that there is a health care facility automatically involved):<\/p>\n If the parent or parents choose a\u00a0location of\u00a0final disposition other than the\u00a0location\u00a0of final disposition that is usual and customary for the health care facility, the parent or parents are responsible for the costs related to the final disposition of the fetus\u00a0at the chosen location.<\/p><\/blockquote>\n A lot rides on how \u201cfinal disposition\u201d is defined in Indiana law. I did find a legal site stating that<\/a>: \u201cBy law, a licensed funeral director must oversee the final disposition of a body in Indiana.\u201d If this is correct, under HB 1337 a woman in Indiana must either contract with a funeral home for fetal remains after a miscarriage or medical abortion, or surrender the remains to a health care facility, but would not legally be able to dispose of them herself. However, I am not a lawyer, and would be interested in hearing if anyone else is able to determine more specifically how Indiana law defines and regulates \u201cfinal disposition.\u201d<\/p>\n You may be wondering if the term \u201cfetus\u201d gives an out to those who miscarry before the term applies. After all, the\u00a0term \u201cfetus\u201d is not used until two months after conception, or roughly the 10th week of pregnancy as it is generally counted. This would suggest that miscarriages or medical abortions before this point would be exempt from this law\u2014oh wait, they though of that.<\/p>\n SECTION 4. IC 16-18-2-128.7, AS ADDED BY P.L.113-2015, SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2016]: Sec. 128.7. \u201cFetus\u201d, for purposes of IC 16-34 and IC 16-41-16, means an unborn child, irrespective of gestational age or the duration of the pregnancy.<\/p><\/blockquote>\n<\/div>\n<\/div>\n<\/div>\n Yes, really. I have about had it up to here<\/em> with the legislature arbitrarily changing the meaning of a medical term, and this isn\u2019t the first time by a long shot\u2014the Florida legislature recently changed the medical definition of the first trimester.<\/p>\n This bill does indeed apply to every miscarriage and medical abortion, and not just those that involve a medically defined fetus. This\u00a0does lead to a question\u2014how is one to identify the fetus in an early first trimester miscarriage?\u00a0That\u2019s asking the impossible. Is the woman to preserve all of her lost blood (which presumably means miscarrying over a bucket rather than the toilet) and then take that to a funeral home or health care facility?\u00a0In fact, many women miscarry so early that they\u2019re not aware that they\u2019re miscarrying. Should we start collecting and preserving each period to ensure that we aren\u2019t accidentally breaking the law?<\/p>\n I would really like to see an actual legal scholar tackle the implications of this. So far almost everything I\u2019ve seen written on HB 1337 focuses on its ban on abortions for fetal abnormality and its requirement that abortion clinics must cremate or bury fetal remains. It is possible that legal scholars will find a way to argue that the law applies only to health care clinics, and not to miscarriages or medical abortions that take place in the home. I\u2019m not a legal scholar myself; all I have is the bill text and the ability to use google.\u00a0I\u2019ve looked and have not found any legal analysis of this specific aspect of the provision. At the very least, the implications seem to be ambiguous.<\/p>\n The group Periods for Pence<\/a> appears to be aware of the bill\u2019s potential implications:<\/p>\n \u201cFertilized eggs can be expelled during a woman\u2019s period without a woman even knowing that she might have had the potential blastocyst in her. Therefore, any period could potentially be a miscarriage without knowledge. I would certainly hate for any of my fellow Hoosier women to be at risk of penalty if they do not \u2018properly dispose\u2019 of this or report it. Just to cover our bases, perhaps we should make sure to contact Governor Pence\u2019s office to report our periods. We wouldn\u2019t want him thinking that THOUSANDS OF HOOSIER WOMEN A DAY are trying to hide anything, would we?\u201d<\/p><\/blockquote>\n<\/div>\n Unfortunately, much news coverage<\/a> of Periods for Pence is missing the seriousness of what is at stake here, or why what these women are doing is so apropos.<\/p>\n