Photo by National Cancer Institute on Unsplash
Sarah K. Simon, Associate Member, University of Cincinnati Law Review
In Ohio, refrigerated trailers are being used to store the bodies of COVID-19 victims, but Governor DeWine is focused on burying something else: fetal remains. DeWine recently signed Senate Bill 27 (“Bill”), which requires all abortion facilities to bury or cremate fetal remains. Allie Frazier from Ohio Right to Life praised the Bill, saying, “In Ohio, we bury our dead.” The American Civil Liberties Union criticized the Bill as a partisan ploy to restrict abortions, close clinics, and lock up providers.
Previously, abortion clinics and fertility clinics were held to the same standard of “humane” disposal. The Bill neglects to impose any regulations on fertility clinics. Now, abortion providers who do not assure that fetal remains are buried or cremated face a minimum of six months in jail, a $1000 fine, or both.
Although imposing restrictions on abortion clinics is familiar territory for state governments, these laws often ignite legal battles in court. This article will first look at how federal courts have treated a similar fetal remains bill from Indiana. Part IV argues that the Bill is unconstitutional. Part V concludes with predictions for the Bill.
II. Federal Courts’ Treatment of a Similar Law
In March 2016, Indiana passed a law that required abortion facilities to bury, cremate, or entomb fetal remains from an abortion. Before, abortion providers cremated fetal remains with other surgical byproducts. Planned Parenthood sued the Indiana Health Department, arguing that the law violated the Fourteenth Amendment guarantee of substantive due process. The District Court of Southern Indiana sided with Planned Parenthood, reasoning that there was no legal basis for Indiana to mandate that abortion facilities handle fetal remains and human remains equally because the “law does not recognize a fetus as a person.” The Appellate Court agreed.
In May 2019, the Supreme Court upheld Indiana’s fetal remains law in Box v. Planned Parenthood of Indiana and Kentucky. The Court reasoned that Indiana did have a legal basis for enacting the law because the Court had previously recognized states can have a “legitimate interest in [the] proper disposal of fetal remains.” Since Indiana’s fetal remains law was “rationally related” to that interest, the Court concluded that the law did not violate substantive due process and upheld the law.
The Court also noted that Planned Parenthood did not argue the law caused an “undue burden” on the right to an abortion so the Court would not address this issue. Later, in December 2020, another abortion provider sued Indiana, alleging that the fetal remains law was unconstitutional for imposing the state’s interpretation of a person on women who may not have equivalent convictions, so the law will likely end up in court again.
Ohio’s Bill is unconstitutional and could be struck down in two ways under the Due Process Clause of the Fourteenth Amendment. This Clause requires state laws to be rationally related to a “legitimate state interest.” Ohio’s aim is to assure that a pre-viable fetus is afforded respect. Requiring clinics to bury or cremate this material is how the state chooses to achieve its goal. However, the Bill is not rationally related to the state’s interest because it fails to regulate fertility clinics.
Fertility clinics often overproduce embryos to make sure that the couple has the best chance of carrying a pregnancy to term. Clinics must dispose of these excess embryos, but Ohio does not require these embryos to be buried or cremated. Even though fertility clinics and abortion clinics engage in the “destruction of fertilized eggs that could potentially develop into people,” the Ohio Bill only targets abortion clinics. If Ohio legislators truly cared about these embryos, the Bill would regulate abortion clinics and fertility clinics. Instead, the Bill only serves as an unconstitutional partisan attack on abortion.
Second, the Bill is not rationally related to Ohio’s interests as it arbitrarily regulates the fetal remains from surgical abortions while ignoring those from medical abortions. In 2018, the CDC reported two key findings. First, 92.9% of abortions occurred during the first trimester. Second, medical (nonsurgical) abortions accounted for 38.6% of all abortions. For medical abortions, a woman takes two different types of pills: one at the clinic and the other at home. The second pill causes cramping and heavy bleeding, but no follow up appointment is required. So, does the Bill require women to bring the “fetal remains” back to the clinic? No, the Bill only covers surgical abortions. But, for the first ten weeks of pregnancy, women may choose between a medical or surgical abortion.
This means that if a woman has a medical abortion at 8 weeks, she will not have to choose between burying or cremating the fetal remains. But, if she has a surgical abortion at 8 weeks, she (or her provider if she does not have a preference) will have to choose between burying or cremating the fetal remains. The Bill irrationally focuses on surgical abortions, even though over nine in ten women who will have an abortion will have it during the first trimester and roughly four of those women will choose a medical abortion. If Ohio lawmakers were genuinely concerned about embryos, they would have regulated them equally.
The Court could also interpret two previous precedents more broadly and use these as a basis to overturn the Bill. First, the Court could analyze the Bill using the undue burden standard from Planned Parenthood v. Casey. In Casey, the Court held that if a regulation’s “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion,” the regulation is void as an undue burden. Relying on Casey, the Court could find that the punishment that the Bill prescribes rises to an undue burden. The criminal liability of “six months in jail, a $1000 fine, or both” that the Bill imposes on abortion providers puts significant roadblocks in the path of a woman who wishes to obtain an abortion. Ohio is threatening abortion providers with these consequences knowing that providers will be less likely to perform abortions out of fear of punishment if the fetal remains are not buried or cremated. Scare tactic laws such as these threaten the number of abortion providers that will be available to women who need them. As of 2020, Ohio only had nine abortion clinics— half as many as it had in 2010. Subjecting providers to criminal liability to decrease the already diminishing number of abortion providers in Ohio likely rises to an undue burden on the right of women to have an abortion.
Second, the Bill could fail if the Court expanded the right to privacy from Roe v. Wade. In Roe, the Court upheld a woman’s right to obtain an abortion before the fetus is viable under the right to privacy, but also acknowledged that the state had a legitimate interest in a “pregnant woman’s health and the potentiality of human life.” The Court could extend this privacy right to cover a women’s choice of how fetal remains should be disposed to prevent the state from regulating the disposal. After a woman has an abortion, the woman’s health is not affected, and the potentiality of human life is no longer relevant, so the state’s interests in the mother’s and child’s life do not apply.
Alternatively, under Roe, the Court could find that the right to privacy to obtain an abortion also covers the right to privacy in the doctor-patient relationship after a woman has an abortion. A confidential doctor-patient relationship exists between the doctor and the woman when the doctor performs an abortion. If the Court expanded the right to privacy in the doctor-patient relationship, then states would only be able to regulate the relationship in ways that protect the patient’s health since states have a legitimate interest in the health of its citizens.
The Ohio Bill does not protect the patient’s health after she has an abortion. Regulating how a patient wishes to dispose of fetal remains is an unparalleled intrusion into the doctor-patient relationship. This decision should be made by the patient or the doctor, but the state should not interfere if the regulation is completely unrelated to the patient’s health, like the Ohio Bill does.
The Ohio Bill will likely face litigation as it is unconstitutional. If abortion providers sue and argue that the Bill violates substantive due process because it is not rationally related to Ohio’s interests, federal judges could strike down the Bill. However, if the Ohio law made it to the Supreme Court, the law would likely be upheld as the Court currently has a conservative majority. But the Democratic majority in Congress could pass a law effectively preventing state interference in the disposal of fetal remains, which would void the Bill.
 Randy Ludlow, As COVID-19 Deaths Spiked in December, Ohio Planned for ‘Worst Case Scenario’, The Columbus Dispatch (Jan. 29, 2021), https://www.dispatch.com/story/news/2021/01/29/ohio-covid-19-deaths-body-storage-trailers-december-fatality-plan/4291639001/.
 Ohio Rev. Code Ann. § 3726.09 (West 2021).
 Deon J. Hampton, Ohio Law Requiring Fetal Remains to be Buried or Cremated Draws Praise, Rebuke, NBC News (Jan. 12, 2021), https://www.nbcnews.com/news/us-news/ohio-law-requiring-fetal-remains-be-buried-or-cremated-draws-n1253947.
 Connor Perret, Ohio Gov. DeWine Signed a Bill Requiring Aborted Fetal Tissue be Cremated or Buried in Latest Burden on Reproductive Rights, Business Insider (Jan. 2, 2021), https://www.businessinsider.com/ohio-passes-bill-requiring-aborted-fetus-be-buried-or-cremated-2020-12.
 Ohio Rev. Code Ann. § 3726.99 (West 2021).
 Hampton, supra note 3.
 Richard Wolf & Shari Rudavsky, Supreme Court Upholds Part of Indiana Anti-Abortion Law Requiring Disposal of Fetal Remains by Burial or Cremation, Indy Star (May 28, 2019), https://www.indystar.com/story/news/2019/05/28/indiana-abortion-law-supreme-court-rules-fetal-remains-law/1256953001/; Planned Parenthood of Indiana & Kentucky, Inc. v. Comm’r, Indiana State Dep’t of Health, 265 F. Supp. 3d 859, 861 (S.D. Ind. 2017).
 Planned Parenthood of Indiana & Kentucky, Inc. v. Comm’r of Indiana State Dep’t of Health, 888 F.3d 300, 304 (7th Cir. 2018).
 Planned Parenthood of Indiana & Kentucky, Inc. v. Comm’r, Indiana State Dep’t of Health, 265 F. Supp. 3d at 869 (“Substantive due process requires only that the practice be rationally related to a legitimate government interest, or alternatively phrased, that the practice be neither arbitrary nor irrational.”) Id. at 870.
 Id. at 870.
 Planned Parenthood of Indiana & Kentucky, Inc. v. Comm’r of Indiana State Dep’t of Health, 888 F.3d at 302.
 Box v. Planned Parenthood of Indiana & Kentucky, Inc., 139 S. Ct. 1780 (2019).
 Id. at 1782 (2019) (quoting Akron v. Akron Center for Reproductive Health, Inc., 103 S.Ct. 2481, 2504 (1983)).
 Associated Press, Lawsuit Challenges Indiana Laws on Disposal of Fetal Remains, WHAS 11 (Dec. 22, 2020), https://www.whas11.com/article/news/local/indiana/lawsuit-challenges-indiana-laws-on-disposal-of-fetal-remains/417-62062301-2f65-4a94-bf92-3a138c50e74d.
Planned Parenthood of Indiana & Kentucky, Inc. v. Comm’r of Indiana State Dep’t of Health, 888 F.3d at 302.
 Margo Kaplan, Fertility Clinics Destroy Embryos All the Time. Why Aren’t Conservatives After Them?, The Washington Post (Aug. 14, 2015), https://www.washingtonpost.com/opinions/fertility-clinics-destroy-embryos-all-the-time-why-arent-conservatives-after-them/2015/08/13/be06e852-4128-11e5-8e7d-9c033e6745d8_story.html.
 Katherine Kortsmit et al., Abortion Surveillance—United States, 2018, Centers for Disease Control and Prevention (Nov. 27, 2020), https://www.cdc.gov/reproductivehealth/data_stats/abortion.htm.
 Stephanie Watson, What Are the Different Types of Abortion?, Healthline (Dec. 6, 2018), https://www.healthline.com/health/types-of-abortion#methotrexate-and-misoprostol.
 Ohio Rev. Code Ann. § 3726.02 (West 2021).
 Watson, supra note 23.
 Kortsmit, supra note 24.
 Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992).
 Id. at 837.
 Hampton, supra note 3.
 Catherine Candisky, Ohio Abortions Drop to Historic Low, And Both Sides Point to Legislative Restrictions, The Columbus Dispatch (Oct. 1, 2020), https://www.dispatch.com/story/news/politics/2020/10/01/abortions-in-ohio-fell-2-2019-continuing-downward-trend/5887483002/.
Roe v. Wade, 410 U.S. 113, 114 (1973).