Jane Doe No. 1 v. Todd Rokita, Attorney General of Indiana

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2748
JANE DOE NO. 1, et al.,
Plaintiffs-Appellees,
v.
TODD ROKITA, ATTORNEY GENERAL OF INDIANA, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:20-cv-03247-RLY-MJD — Richard L. Young, Judge.
____________________
SUBMITTED NOVEMBER 21, 2022 — DECIDED NOVEMBER 28, 2022
____________________
Before EASTERBROOK, BRENNAN, and SCUDDER, Circuit
Judges.
EASTERBROOK, Circuit Judge. Indiana requires abortion pro-
viders to dispose of fetal remains by either burial or crema-
tion. Ind. Code §§ 16-34-3-4(a), 16-41-16-4(d), 16-41-16-5. This
mandate applies only to providers; women may choose to
take custody of the remains and dispose of them as they
please. Ind. Code §16-34-3-2. The Supreme Court sustained
this regimen against a contention that it violates the Equal

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2 No. 22-2748
Protection Clause of the Fourteenth Amendment. Box v.
Planned Parenthood of Indiana and Kentucky, Inc., 139 S. Ct. 1780
(2019). Nonetheless, in this suit the district court held that it
violates the First Amendment (applied to the states by the
Fourteenth) and enjoined its operation. 2022 WL 5237133
(S.D. Ind. Sept. 26, 2022). The state has appealed and seeks a
stay. We find the outcome controlled by precedent. Because
the papers the parties have filed cover the merits, we dispense
with further briefing and reverse summarily.
Before addressing the merits, we remark on a problem
with the remedy. There are four plaintiffs. Two women who
had abortions object to the cremation or burial of the fetal re-
mains, which they contend implies the personhood of a pre-
viability fetus. Two physicians do not want to tell patients
about their statutory options. The case has not been certified
as a class action. The district court could have provided full
relief to these four plaintiffs by enjoining the application of
the statute to them. But instead it barred multiple state offi-
cials from applying these laws to anyone. 2022 U.S. Dist. LEXIS
185015 (S.D. Ind. Sept. 26, 2022).
Before enactment of these statutes, it had been common
for medical providers to place fetal remains in the garbage
(“medical waste”). The Supreme Court concluded in Box that
the state is entitled to end that practice. The district court’s
needlessly broad injunction treats the statute as invalid across
the board (that is, on its face rather than as applied), which
effectively countermands the Supreme Court’s decision for
the entire population of Indiana. This offends the principle
that relief should be no greater than necessary to protect the
rights of the prevailing litigants. See, e.g., AyoAe v. Planned

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No. 22-2748 3
Parenthood of Northern New England, 546 U.S. 320, 328–30
(2006); Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
Instead of remanding with instructions to tailor the relief
to the violation, we reverse outright—because there is no vio-
lation. Statutes that require people to disobey sincerely held
religious beliefs can pose difficult analytical challenges. See,
e.g., Fulton v. Philadelphia, 141 S. Ct. 1868 (2021); LiAle Sisters of
the Poor v. Pennsylvania, 140 S. Ct. 2367 (2020). But Indiana
does not require any woman who has obtained an abortion to
violate any belief, religious or secular. The cremate-or-bury
directive applies only to hospitals and clinics.
What’s more, neither of the two plaintiffs who has had an
abortion contends that a third party’s cremation or burial of
fetal remains would cause her to violate any religious princi-
ple indirectly. What these two plaintiffs contend is that cre-
mation or burial implies a view—the personhood of an un-
born fetus—that they do not hold. They maintain that only
human beings are cremated or buried. This is questionable.
Dogs, cats, and other pets may be cremated or buried, some-
times as a result of legal requirements not to put animals’ bod-
ies in the garbage. See, e.g., Ala. Code §3-1-28; Ga. Code §4-5-
5; Iowa Code §167.18(1); Kan. Stat. §47-1219; Mich. Comp.
Laws §287.671(2); Mo. Stat. §269.020; 3 Pa. Stat. §2352(a)(4);
Utah Code §4-31-102(1); Wis. Stat. §95.50; Wyo. Stat. §35-10-
104. Indiana’s statute about fetal remains therefore need not
imply anything about the appropriate characterization of a fe-
tus. At all events, a moral objection to one potential implica-
tion of the way medical providers handle fetal remains is
some distance from a contention that the state compels any
woman to violate her own religious tenets.

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4 No. 22-2748
If the statute reflects anyone’s view about fetal person-
hood, it is the view of the State of Indiana. Yet units of gov-
ernment are entitled to have, express, and act on, their own
views about contestable subjects. See, e.g., Pleasant Grove v.
Summum, 555 U.S. 460 (2009); Walker v. Texas Division, Sons of
Confederate Veterans, Inc., 576 U.S. 200 (2015). See also Bowen v.
Roy, 476 U.S. 693 (1986) (private party’s religious objection to
Social Security numbers does not require the government to
change its record-keeping system). Whether or not the Su-
preme Court continues to adhere to Employment Division v.
Smith, 494 U.S. 872 (1990), which holds that laws neutral with
respect to religion may be enforced despite their effects on re-
ligious exercise, there is no problem with application of a law
that leaves people free to put their own religious beliefs into
practice. Nor does Indiana require any woman to speak or en-
gage in expressive conduct.
As for the requirement that physicians and other provid-
ers tell patients about the statutory options: no one contends
that the required notice is false or misleading. Planned
Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833, 882
(1992), is among many decisions holding that states may re-
quire medical providers to give truthful notices. Plaintiffs
contend that, because Dobbs v. Jackson Women’s Health Organ-
ization, 142 S. Ct. 2228 (2022), overruled Casey, the state’s au-
thority to require medical providers to provide information
has evaporated, so that all such requirements violate the First
Amendment unless the state shows a compelling need.
We do not see any such implication in Dobbs, which did
not discuss that aspect of Casey. What has been overruled is
Casey’s holding that states may not substantially burden a
woman’s ability to obtain an abortion before a fetus’s

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No. 22-2748 5
viability. The norm that units of government may require
physicians (and other professionals) to provide accurate in-
formation to their clients long predates Casey and has not been
disturbed since. Physicians must tell patients about drugs’
side effects and provide information that enables informed
consent to risky procedures such as surgery. Nothing in
Dobbs, or any other post-Casey decision, implies that similar
notice requirements violate the Constitution.
National Institute of Family and Life Associates v. Becerra, 138
S. Ct. 2361 (2018), which the district court cited, holds that
physicians’ speech is not exempt from analysis under the First
Amendment and that a state may not enforce requirements
disconnected from medical care. But it does not question the
propriety of requirements that medical professionals alert pa-
tients to laws that affect medical choices. To the contrary, Na-
tional Institute cited with approval the portion of Casey hold-
ing that a state may require medical professionals to provide
information that facilitates patients’ choices directly linked to
procedures that have been or may be performed. Id. at 2373.
The preliminary injunction is reversed, and the case is re-
manded with instructions to dismiss the suit with prejudice.
The injunction is stayed until the issuance of our mandate.

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