LAUREN RICHWINE and DEATH DONE DIFFERENTLY LLC v. Kathleen Diane Matuszak

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1081
LAUREN R ICHWINE and
DEATH DONE DIFFERENTLY LLC,
Plaintiffs-Appellees,
v.
K ATHLEEN DIANE M ATUSZAK, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:23-cv-00370-HAB-SLC — Holly A. Brady, Chief Judge.
____________________
A RGUED J ANUARY 15, 2025 — DECIDED A UGUST 28, 2025
____________________
Before R OVNER , JACKSON -A KIWUMI , and M ALDONADO,
Circuit Judges.
R OVNER , Circuit Judge. The fortunate among us will have
little experience burying loved ones. But even for those who
confront the task more than their fair share, the many choices
and details associated with a loved one’s death can be over-
whelming, particularly when in the throes of grief. Anticipat-
ing and arranging for one’s own death is no less daunting.

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2 No. 24-1081
“Death doulas,” like Lauren Richwine, seek to make those ar-
rangements easier. Through her company, Death Done Dif-
ferently, Richwine helps her clients—the dying and their
loved ones—with the many details surrounding dying and
death.
Richwine does not have a license to practice funeral ser-
vices, and the State of Indiana believes that Richwine is en-
gaging in the unauthorized practice of that profession.
Richwine believes that her services are protected under the
First Amendment and that enforcement of the statute against
her would constitute an unauthorized infringement upon her
constitutional rights. The district court issued a preliminary
injunction enjoining enforcement of the statute against
Richwine and her business, Death Done Differently, and the
state now appeals.
I.
Through her business, Death Done Differently, Lauren
Richwine offers services as a death doula. In her death doula
capacity, Richwine discusses with her clients how they want
to be remembered after death, helps clients write letters to
loved ones, and provides emotional support to the dying.
Richwine teaches families how to support the dying and, after
an individual dies, she helps the survivors determine a fu-
neral program, select services at the funeral home of their
choice, and, under the supervision of a licensed funeral direc-
tor, she verbally advises the survivors about the moving,
bathing, and dressing of the deceased. She also attends the fu-
neral. In addition to these services, Richwine educates her
community and mentors other death doulas. Richwine is not
a licensed funeral director, a fact her website mentions, but

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No. 24-1081 3
she performs her duties “in conjunction with and under the
supervision of a licensed funeral director.” R. 26-1 at 3.
In 2021, an investigator for the Indiana Public Licensing
Agency received a complaint about Richwine from a member
of the funeral services industry, alleging that Richwine was
engaged in the unlicensed practice of funeral services. After
reviewing Death Done Differently’s website, the investigator
filed a report with the Indiana Attorney General’s Consumer
Protection Division requesting an investigation and a cease-
and-desist letter. The Indiana Attorney General then opened
an investigation.
The Attorney General’s investigator informed Richwine of
the complaint and gave her an opportunity to respond.
Richwine replied that her services were not “funeral services”
and that her role was primarily as an “educator and an advo-
cate” who was “only able to raise awareness regarding a fam-
ily’s rights if they wish to care for their own loved ones after
death.” R. 1-5 at 2. Her response also highlighted the disclaim-
ers on her website that her services “must be performed un-
der the supervision of a licensed funeral director.” Id.
After receiving Richwine’s response, a Deputy Attorney
General from the Office of the Attorney General moved for a
cease-and-desist order against Richwine from the State Board
of Funeral and Cemetery Service. The motion identified the
following actions as the “practice of funeral service”: “discus-
sion of funeral options, body disposition (cremation, tradi-
tional burial, or green burial), service choices, etc.,” “assis-
tance with paperwork such as living will, DNR form, and
healthcare power of attorney,” “verbal guidance with loved
ones under the direct supervision of a licensed funeral direc-
tor for moving, bathing, dressing, and arrangement of the

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4 No. 24-1081
deceased,” “consultation with family in regard to personal in-
formation about the family, music and reading selections, re-
ligious acknowledgements (if any) and programming,” visits,
including “readings, music, conversation, healing touch, or
general companionship with the dying individual,” and “ac-
companiment to funeral home, review of general price list,
support with selection of goods and services, presence at fu-
neral service.” R. 1-7 at 4.
Richwine’s counsel contacted the Deputy Attorney Gen-
eral to pursue settlement negotiations. The parties exchanged
drafts of a cease-and-desist agreement. During the drafting
process, Richwine’s counsel added the italicized language to
the following sentence: “[r]espondents shall refrain from
counseling consumers, whether individually or in educational
events open to the public, in any manner and through any me-
dium, concerning the methods and alternatives for the final
disposition of human remains.” R. 26-11 at 7.
The finalized agreement contains multiple references to
Indiana law, including that Richwine and her company waive
their rights under Indiana law. The waiver provision makes
no mention of federal law. The agreement also lays out the
relevant background information and points of Indiana law,
and it ends with the statement that, “[i]n light of the forego-
ing, the Parties hereby agree that the Board may, without fur-
ther notice or formal proceeding, issue the following Order.”
R. 11 at 9. The cease-and-desist order demands that Richwine
and Death Done Differently cease advertising and providing
the following three categories of services:
1) Full End of Life Planning […] which includes
discussion of funeral options, body disposition
(cremation, traditional burial, or green burial),

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No. 24-1081 5
service choices. […] and assistance with paper-
work such as living will, DNR form, and
healthcare power of attorney.
2) Facilitation of Community Death Care […]
which includes verbal guidance with loved ones
for the moving, bathing, dressing, and arrange-
ment of the deceased, as well as consultation
with the family in regard to personal infor-
mation about the family, music and reading se-
lections, religious acknowledgements (if any)
and programming.
3) Support with Funeral Home […] which in-
cludes accompaniment to the funeral home, re-
view of general price list, support with selection
of goods and services, presence at funeral ser-
vice.
R. 11 at 6–7, 9 (citation modified).
Shortly after the Board approved the cease-and-desist or-
der, Richwine and Death Done Differently filed suit alleging
that enforcement of the Indiana statute would constitute an
unconstitutional infringement upon their First Amendment
rights. In the complaint, plaintiffs sought declaratory and in-
junctive relief. After briefing from the parties, the district
court granted the plaintiffs’ request for a preliminary injunc-
tion. The defendants now appeal.
II.
The defendants make two threshold arguments—namely
that plaintiffs waived their right to bring suit and that the suit
is barred by federal abstention. We address each of these

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6 No. 24-1081
arguments first and, because we find neither meritorious, we
then turn to the merits.
A.
First, defendants argue the plaintiffs waived their rights
by signing the cease-and-desist agreement. We disagree.
Waiver is the “intentional relinquishment or abandon-
ment of a known right or privilege.” Johnson v. Zerbst, 304 U.S.
458, 464 (1938). Individuals are permitted to waive their con-
stitutional rights. See Janus v. Am. Fed'n of State, Cnty., & Mun.
Emps., Council 31, 585 U.S. 878, 930 (2018). However, “waiver
of a constitutional right must be clear and unmistakable.”
Krieg v. Seybold, 481 F.3d 512, 517 (7th Cir. 2007). “[C]ourts in-
dulge every reasonable presumption against waiver of funda-
mental constitutional rights and […] we do not presume ac-
quiescence in the loss of fundamental rights.” Johnson, 304
U.S. at 464 (citation modified); Fuentes v. Shevin, 407 U.S. 67,
95–96 (1972). A waiver of First Amendment rights “must be
freely given and shown by ‘clear and compelling’ evidence.”
Janus, 585 U.S. at 930 (quoting Curtis Publishing Co. v. Butts,
388 U.S. 130, 145 (1967)).
The defendants argue that the plaintiffs waived their First
Amendment rights by signing the cease and desist agreement,
but surveying a few cases that are examples of effective con-
stitutional rights waivers illuminates the requirement of clear
and unmistakable waiver.
In Snepp, for example, “Snepp had executed an agreement
promising that he would ‘not … publish … any information
or material relating to the [CIA], its activities or intelligence
activities generally, either during or after the term of [his] em-
ployment … without specific prior approval by the Agency.’”

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No. 24-1081 7
Snepp v. United States, 444 U.S. 507, 507–08 (1980). Before the
Supreme Court, Snepp claimed that this agreement was “un-
enforceable as a prior restraint on protected speech.” Id. at 509
n.3. The Supreme Court, noting the unique security concerns
facing the CIA, declined to find the agreement unenforceable
and imposed a constructive trust on the profits stemming
from Snepp’s breach. Id. at 509 n.3, 516.
Similarly, in Domka v. Portage County, Wisconsin, Domka
signed an agreement containing the following clause: “[a]ny
alcohol reading on the [alcohol breath-test machine] will re-
sult in immediate removal from [the Home Detention Pro-
gram] and you will lose your [Home Detention Program] and
Huber Privileges.” 523 F.3d 776, 779 (7th Cir. 2008). When
Domka registered a positive reading on the alcohol breath test
machine and subsequently lost his privileges, he challenged
the loss as a violation of his due process rights. Id. This court
disagreed, finding “that Domka waived any due process pro-
tections that may have been required.” Id. at 781 (emphasis in
original). In so finding, this court pointed to the unambiguous
language of the contract and Domka’s confessed understand-
ing “that if he violated any condition of the [Home Detention
Program], including the [alcohol breath test] portion of the
program, he would be removed from the program without
notice.” Id. at 782.
In Romeril, the Second Circuit faced a similar claim. There,
Romeril entered a consent agreement with the Securities and
Exchange Commission that contained the following lan-
guage:
Defendant understands and agrees to comply
with the [SEC]’s policy not to permit a defend-
ant ... to consent to a judgment or order that

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8 No. 24-1081
imposes a sanction while denying the allegation
in the complaint[.] In compliance with this pol-
icy, Defendant agrees not to take any action or
to make or permit to be made any public state-
ment denying, directly or indirectly, any allega-
tion in the complaint or creating the impression
that the complaint is without factual basis.
Sec. & Exch. Comm'n v. Romeril, 15 F.4th 166, 170 (2d Cir. 2021)
(citation modified). Later, Romeril claimed this restriction
was an unconstitutional prior restraint on his First Amend-
ment rights. Id. The Second Circuit disagreed, finding that
“[t]o the extent Romeril had the right to publicly deny the
SEC’s allegations against him, he waived that right by agree-
ing to the no-deny provision as part of a consent decree.” Id.
at 173.
The throughline from these examples, of course, is the
clear and unambiguous nature of the agreement. In each case,
it was clear from the face of the document which rights the
signatory chose to waive. This clarity reflects the admonitions
that waiver is the “intentional relinquishment or abandon-
ment of a known right” Johnson, 304 U.S. at 464 (emphasis
added), and “waiver of a constitutional right must be clear and
unmistakable.” Krieg, 481 F.3d at 517 (emphasis added). And,
indeed, when the agreement is ambiguous, the Supreme
Court has declined to find waiver. For example, in Fuentes, the
signatory (Fuentes) purchased certain home items from the
Firestone Tire and Rubber Company “under a conditional
sales contract calling for monthly payments over a period of
time.” Fuentes, 407 U.S. at 70. “Under the contracts, Firestone
retained title to the merchandise, but Mrs. Fuentes was enti-
tled to possession unless and until she should default on her

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No. 24-1081 9
installment payments.” Id. Following a dispute about servic-
ing one of the home items, Firestone sought to repossess the
home items claiming that Fuentes refused to make further
payments on the items. Id. Fuentes claimed that she had Four-
teenth Amendment rights that prevented Firestone from re-
possessing the items without a prior hearing. Id. at 71. Fire-
stone claimed that she waived her procedural due process
rights by signing the sales contract. Id. at 94. Fuentes’s con-
tract stated, “in the event of default of any payment or pay-
ments, Seller at its option may take back the merchandise”
and other plaintiffs—whose suit the Court reviewed at the
same time as Fuentes’s—had contracts stating, “the seller may
retake or repossess the merchandise in the event of a default
in any payment.” Id. (citation modified). But despite these
statements, the Supreme Court was unconvinced that the
plaintiffs had waived their due process rights, particularly be-
cause “[t]he contracts included nothing about the waiver of a
prior hearing.” Id. at 95–96. Even though the contracts out-
lined the “seller’s right to repossession upon occurrence of
certain events,” that did not constitute waiver of the buyer’s
constitutional rights. Id. at 96.1
With this context, we turn to the agreement here to see
whether it demonstrates a knowing, voluntary, and intelli-
gent waiver of the sort recognized in Snepp, Domka, and
1 The defendants also rely upon In re George F. Nord Building Corpora-
tion, but that case teaches the same lesson as Fuentes. See In re George F.
Nord Bldg. Corp., 129 F.2d 173, 176 (7th Cir. 1942) (stating that “a party to
a proceeding wherein a consent decree has been entered and who has been
a party to that consent, is in no position to claim that such decree restricts
his freedom of speech. He has waived his right and given his consent to
its limitations within the scope of that decree.”) (emphasis added). The writ-
ten agreement remains the touchstone for the scope of the waiver.

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10 No. 24-1081
Romeril. Immediately, we can rule out the waiver provision of
the contract as providing the source of the waiver, as the
waiver provision explicitly limits itself to Indiana law. R. 11
at 6 (“Respondents voluntarily, knowingly, and intelligently
waive each of these rights under Indiana law[.]”). The defend-
ants point us, instead, to the latter portion of the agreement,
which contains the cease and desist agreement. But there, we
find wording similar to the wording of Fuentes. Specifically,
that under the government’s interpretation of Indiana law,
“the Board may, without further notice or formal proceeding,
issue the following Order.” R. 11 at 9. Indeed, we see no indi-
cation from the face of the document that the plaintiffs agreed
not to bring suit in federal court under federal law. Cf. Am.
Homeland Title Agency, Inc. v. Robertson, 930 F.3d 806, 809 (7th
Cir. 2019) (finding waiver of judicial review when consent de-
cree stated the signatory “voluntarily and freely waive[d] the
right to judicial review of th[e] matter”). And even though the
cease-and-desist portion of the agreement does contain pro-
hibitions on some of the plaintiffs’ activities, the agreement
importantly does not state that the plaintiffs agree to refrain
from those activities. It is, instead, a series of commands from
the Board that Richwine and Death Done Differently stop do-
ing certain actions. And, indeed, the fact that Indiana law pro-
hibits the plaintiffs’ activities is exactly what this matter chal-
lenges.
This is why Snepp, Romeril, and Domka cannot direct the
outcome here. In each of those cases, the signatory challenged
the agreement that was made. See also Am. Homeland Title
Agency, Inc., 930 F.3d at 811 (“[E]ach of the requested reme-
dies is directly keyed to undoing some sanction imposed by
the agreement[.]”). Indeed, the plaintiffs in these cases at-
tempted to get out of the very contract they signed by

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No. 24-1081 11
claiming that the contract itself violated the Constitution. The
plaintiffs do not challenge the agreement Richwine signed,
they challenge the Indiana law that prevents her from operat-
ing her business. Unlike Snepp, Romeril, and Domka, her suit is
forward-looking. Richwine is concerned about the enforce-
ment of the law against her in the future. In short, we find no
indication from the cease-and-desist agreement that the plain-
tiffs agreed not to bring suit under the First Amendment—or
any other federal law—in federal court.
B.
Next, the defendants argue that federal abstention doc-
trine precludes us from considering the plaintiffs’ suit. Specif-
ically, the defendants rely upon Younger v. Harris, 401 U.S. 37
(1971). Under Younger, abstention is required if the ongoing
state matter (1) is judicial in nature, (2) implicates important
state interests, (3) offers an adequate opportunity for review
of constitutional claims, and (4) involves no extraordinary cir-
cumstances, such as harassment or bias. See FreeEats.com, Inc.
v. Indiana, 502 F.3d 590, 596 (7th Cir. 2007) (citing Majors v.
Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998)).
Younger abstention exists to ensure that certain state pro-
ceedings occur without federal court interference, despite a
request to the contrary. See Sprint Commc'ns, Inc. v. Jacobs, 571
U.S. 69, 77–78 (2013); Mulholland v. Marion Cnty. Election Bd.,
746 F.3d 811, 815 (7th Cir. 2014) (describing the three types of
proceedings that warrant Younger abstention). But “[a]bsten-
tion from the exercise of federal jurisdiction is the exception,
not the rule.” Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 813 (1976). “Federal courts […] have no
more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given.” Sprint

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12 No. 24-1081
Commc'ns, Inc., 571 U.S. at 77 (citation modified). “Where
there is no serious threat of interference, federal courts have a
‘virtually unflagging obligation’ to resolve the questions be-
fore them.” Vega v. Chicago Bd. of Educ., 109 F.4th 948, 957 (7th
Cir. 2024), reh'g denied, No. 23-1183, 2024 WL 4291221 (7th Cir.
Sept. 25, 2024) (quoting Colo. River Water Conservation Dist.,
424 U.S. at 817). That is why our “threshold question—even
before the question of whether a court should abstain—is
whether the federal action threatens to interfere with or in-
trude upon a state court proceeding.” Id.
The defendants argue that the Board maintains jurisdic-
tion and, therefore, a state proceeding is ongoing. The defend-
ants do not describe the status of the ongoing proceeding or
the actions pending in the state proceeding, nor do the de-
fendants explain when the ongoing proceeding will termi-
nate. Instead, their position appears to be that the state pro-
ceeding will go on in perpetuity, even if no further action by
Richwine, Death Done Differently, or the state takes place, be-
cause the Board “maintains jurisdiction” over the matter.
Despite the defendants’ insistence to the contrary, we do
not see an ongoing state proceeding. Certainly, there was an
action by the state against the plaintiffs, but that action ended
before the plaintiffs filed suit. Greening v. Moran, 953 F.2d 301,
305 (7th Cir. 1992) (“Now that the state proceeding has
reached its end, abstention is no longer appropriate.”). The
agreement, signed by the state, emphasizes the termination of
the action. R. 11 at 6 (Respondents waive their rights under
Indiana law “to terminate the proceedings before the Board”).
Not only is it termed a “Final Order,” but it states, “this is a
final disposition and is not subject to further review.” R. 11 at
11. And if the state wishes to enforce the agreement, the

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No. 24-1081 13
Indiana Attorney General—not the Board—must “seek en-
forcement […] in a circuit or superior court.” Id. at 10. In other
words, for any further action to take place, a state actor—a
different state actor from the Board, before whom the claimed
ongoing action is pending—must institute a new and separate
state action, which can be done “without further motion or
action from the Board.” Id.
But even setting aside the logistical indicators of finality,
the defendants do not explain how federal court action could
possibly interfere with the claimed state proceeding. In con-
trast to cases warranting Younger abstention, the plaintiffs
have not challenged the Board or the final agreement in lieu
of responding to or engaging in an ongoing state process. See
e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 6 (1987); Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 429
(1982); Majors, 149 F.3d at 711–13. In fact, the Board’s finished
proceedings are of little relevance to the plaintiffs’ current
claims, as they seek relief from prospective enforcements of the
statute against them. See R. 1 at 33; Wooley v. Maynard, 430 U.S.
705, 711 (1977) (Younger abstention is inappropriate “since the
relief sought is wholly prospective, to preclude further pros-
ecution under a statute alleged to violate appellees’ constitu-
tional rights”). And, moreover, the defendants stated before
the district court that “administrative officers lack the author-
ity to assess the validity of a statu[t]e.” R. 34 at 12. Indeed,
“[t]hat agencies may not nullify statutes has long been the
law.” Consol. Rail Corp. v. Smith, 664 F. Supp. 1228, 1233 (N.D.
Ind. 1987) “Abstention certainly accomplishes nothing if the
federal plaintiff cannot even raise its federal constitutional
challenges in the state proceeding; it merely delays the inevi-
table federal action following the state proceeding and post-
pones the possible vindication of the federal plaintiff’s

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14 No. 24-1081
constitutional rights.” Mannheim Video, Inc. v. Cnty. of Cook,
884 F.2d 1043, 1045 (7th Cir. 1989). Under these circumstances,
it is unclear how the ongoing proceeding “offer[s] an ade-
quate opportunity for review of constitutional claims.”
FreeEats.com, Inc., 502 F.3d at 596 (citation modified). Seeing
no possibility for interference with an ongoing state proceed-
ing, we see no justification for abstaining under Younger. Vega,
109 F.4th at 957.
III.
We now turn to the merits of the plaintiffs’ case. In review-
ing the district court’s grant of a preliminary injunction, we
review the district court’s legal conclusions de novo, its find-
ings of fact for clear error, and its balancing of the harms for
an abuse of discretion. C.Y. Wholesale, Inc. v. Holcomb, 965 F.3d
541, 545 (7th Cir. 2020). “We will not reverse a district court’s
grant or denial of a preliminary injunction absent a clear
abuse of discretion by the district court.” Speech First, Inc. v.
Killeen, 968 F.3d 628, 638 (7th Cir. 2020), as amended on denial of
reh'g and reh'g en banc (Sept. 4, 2020) (citation modified).
“To obtain a preliminary injunction, a plaintiff must show
that: (1) without this relief, it will suffer irreparable harm;
(2) traditional legal remedies would be inadequate; and (3) it
has some likelihood of prevailing on the merits of its claims.”
Mays v. Dart, 974 F.3d 810, 818 (7th Cir. 2020) (citation modi-
fied); Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Additionally, the plaintiffs must show that the balance of the
equities tips in their favor, and an injunction is in the public
interest. Winter, 555 U.S. at 20; Illinois Republican Party v. Pritz-
ker, 973 F.3d 760, 762 (7th Cir. 2020). “[A]n applicant for pre-
liminary relief bears a significant burden, even though the
Court recognizes that, at such a preliminary stage, the

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No. 24-1081 15
applicant need not show that it definitely will win the case.”
Illinois Republican Party, 973 F.3d at 763.
The parties agree that the plaintiffs’ speech is guaranteed
some level of First Amendment protection. They dispute,
however, the appropriate level of scrutiny with which we
should view the statute and, in turn, whether the plaintiffs are
likely to succeed on the merits of their claims.2 The plaintiffs
urge us to apply—and the district court did apply—strict
scrutiny on the basis that the Indiana statute regulates speech
based on its content. The defendants, by contrast, argue that
intermediate scrutiny applies because the statute simply reg-
ulates conduct, with any regulation on speech being an unin-
tended byproduct.
We begin our analysis by outlining the Supreme Court’s
directions on identifying and analyzing content-based stat-
utes, which warrant strict scrutiny.
A.
“Content-based laws—those that target speech based on
its communicative content—are presumptively unconstitu-
tional and may be justified only if the government proves that
they” satisfy strict scrutiny. Reed v. Town of Gilbert, Ariz., 576
U.S. 155, 163 (2015). But “[d]eciding whether a particular reg-
ulation is content based or content neutral is not always a sim-
ple task.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642
(1994).
2 Because the defendants do not claim that the district court erred in
analyzing the remaining preliminary injunction factors, we do not analyze
them in this opinion.

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16 No. 24-1081
In Reed, the Supreme Court provided a “commonsense
meaning of the phrase ‘content based’” that a regulation “is
content based if a law applies to particular speech because of
the topic discussed or the idea or message expressed.” Reed,
576 U.S. at 163. But the mere “examination of speech or ex-
pression” does not automatically trigger First Amendment
concern warranting strict scrutiny. City of Austin v. Reagan
Nat’l Advert. of Austin, LLC, 596 U.S. 61, 73–74 (2022). And “a
facially neutral law does not become content based simply be-
cause it may disproportionately affect speech on certain top-
ics.” McCullen v. Coakley, 573 U.S. 464, 480 (2014); see also
Brown v. Kemp, 86 F.4th 745, 780 (7th Cir. 2023); Id. at 69 (up-
holding statute where the “examination of speech” was “ag-
nostic as to content” and done “only in service of drawing
neutral, location-based lines”).
If, on the other hand, a statute primarily regulates conduct
and only “incidentally burden[s] speech,” then it need not
survive strict scrutiny. Nat'l Inst. of Fam. & Life Advocs. v.
Becerra, 585 U.S. 755, 769 (2018) (“NIFLA”); Expressions Hair
Design v. Schneiderman, 581 U.S. 37, 47 (2017).3 But just because
the statute could be described as a regulation of conduct does
not mean that it functions as a regulation of conduct that only
incidentally burdens speech. Holder v. Humanitarian Law Pro-
ject, 561 U.S. 1, 27–28 (2010). Even if a law could generally “be
3 NIFLA also subjects “factual and uncontroversial” required disclo-
sures to a lower level of scrutiny, see NIFLA, 585 U.S. at 768–69 (citation
modified), and the defendants argue that the plaintiffs’ speech also falls
into that exception. Op. Br. at 36–38. The defendants, however, do not
specify what required disclosure the plaintiffs failed or refused to make,
nor do the plaintiffs argue that any disclosure that they are required to
give is an infringement upon their First Amendment rights. This excep-
tion, therefore, does not apply here.

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No. 24-1081 17
described as directed at conduct,” if “the conduct triggering
coverage under the statute consists of communicating a mes-
sage,” then it is impermissibly content-based as applied. Id.
The division between speech and conduct has not been
evenly applied throughout the country, particularly when it
comes to licensing schemes that determine which individuals
can speak about certain topics. Compare Hines v. Pardue, 117
F.4th 769, 777 (5th Cir. 2024) (statute that requires physical ex-
amination of animal before providing veterinary advice “pri-
marily regulates speech—and not merely incidentally to […]
conduct”), and Billups v. City of Charleston 961 F.3d 673, 682–
83 (4th Cir. 2020) (ordinance requiring that tour guides obtain
a license before giving paid tours “undoubtedly burden[ed]
protected speech”), and Pacific Coast Horseshoeing School, Inc.
v. Kirchmeyer, 961 F.3d 1062, 1070–71, 1073 (9th Cir. 2020) (stat-
ute restricting enrollment by certain students in private post-
secondary schools implicated speech more than incidentally
and was content-discriminatory, warranting heightened scru-
tiny) with 360 Virtual Drone Services, LLC v. Ritter, 102 F.4th
263, 278 (4th Cir. 2024) (statute preventing the creation and
sale of maps or models of land was conduct-based), and Del
Castillo v. Sec’y, Fla. Dep’t of Health, 26 F.4th 1214, 1216–17,
1225–26 (11th Cir. 2022) (statute that prevented non-licensed
individuals from providing advice about “dietary choices, ex-
ercise habits, and general lifestyle strategies” burdened
speech only incidentally to regulating conduct).
Here, the statute restricts the “practice of funeral service,”
which includes “the counseling of individuals concerning
methods and alternatives for the final disposition of human
remains.” Ind. Code § 25-15-2-22. As applied to the plaintiffs,
Indiana claims that a variety of speech-based activities

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18 No. 24-1081
constitute the unauthorized practice of funeral services. These
activities include, but are not limited to, discussing options
for the final disposition of human remains, including tradi-
tional burial, green burial, or cremation; helping survivors de-
cide what should be included in the funeral program; sup-
porting survivors while they pick products and services at the
funeral home; and reviewing the funeral home’s price list.
R. 11 at 6–7. At first blush, it certainly seems that the “conduct
triggering coverage under the statute consists of communi-
cating a message.” Holder, 561 U.S. at 28. But the state argues
that it is not the content of the speech, it is the plaintiffs’ lack
of a license that triggers the statute.
The statute clearly burdens speech that is protected by the
First Amendment. Sorrell v. IMS Health Inc., 564 U.S. 552, 570
(2011) (“[T]he creation and dissemination of information are
speech within the meaning of the First Amendment.”); Bart-
nicki v. Vopper, 532 U.S. 514, 527 (2001) (“As the majority below
put it, [i]f the acts of disclosing and publishing information
do not constitute speech, it is hard to imagine what does fall
within that category, as distinct from the category of expres-
sive conduct.”) (citation modified). That the plaintiffs’
speech4 is subject to some level of protection is not in dispute.
4 In passing, Indiana references an isolated incident in which
Richwine and a hospice nurse shrouded a body, applied scented oils to
the deceased individual’s skin, dressed the deceased individual, and
placed ice packs to prevent decomposition “until the funeral home came”
to remove the body at the request of a client. See Op. Br. at 43 n.4; R. 1-6 at
3. In an affidavit, a cemetery superintendent stated that he recalled one
instance in which Richwine shrouded a body with the family. R. 26-13 at
3. But the plaintiffs do not argue that these activities constitute speech, nor
(continued)

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No. 24-1081 19
Even though the parties vigorously dispute which level of
scrutiny should apply, we find no need to determine whether
the statute should be subject to strict or intermediate scrutiny
because, even under intermediate scrutiny, the statute fails to
pass constitutional muster as applied to Richwine and Death
Done Differently, based on the interests articulated by the
state. This path—declining to decide the appropriate level of
scrutiny when a statute would fail even under a lower level
of scrutiny—is well trod. See e.g., McCutcheon v. FEC, 572 U.S.
185, 199 (2014) (declining to decide appropriate constitutional
standard because law failed to pass more lenient standard).
B.
“A statute survives intermediate scrutiny if it ‘advances
important governmental interests unrelated to the suppres-
sion of free speech and does not burden substantially more
speech than necessary to further those interests.’” Free Speech
Coalition, Inc. v. Paxton, 606 U.S. ---, 145 S. Ct. 2291, 2317 (2025)
(quoting Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 189
(1997)); Tagami v. City of Chicago, 875 F.3d 375, 378–79 (7th Cir.
2017), as amended (Dec. 11, 2017). “There must be a reasonably
close fit between the law’s means and its ends […] though
perfect calibration is not required.” Nicodemus v. City of South
Bend, 137 F.4th 654, 668 (7th Cir. 2025) (citation modified).
“[B]y demanding a close fit between ends and means, the tai-
loring requirement prevents the government from too readily
sacrificing speech for efficiency.” McCullen, 573 U.S. at 486 (ci-
tation modified). Because the plaintiffs challenge the statute
as applied, we focus only on the facts and circumstances of
does the injunction permit the plaintiffs to engage in these activities. See
R. 50.

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20 No. 24-1081
this case and do not opine as to whether another scenario
would warrant a different outcome. Dahlstrom v. Sun-Times
Media, LLC, 777 F.3d 937, 954 (7th Cir. 2015).
Here, the state claims that the statute furthers the follow-
ing interests: 1) preventing the spread of infectious and con-
tagious diseases from human remains; 2) protecting general
health, public safety, and the environment; and 3) consumer
protection. The state argues that, by restricting who can coun-
sel individuals on the final disposition of human remains, the
statute furthers each of these interests. We do not doubt
that—in the abstract—the state has an interest in protecting
the public and the environment from disease and fraud. See
Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975) (“We rec-
ognize that the States have a compelling interest in the prac-
tice of professions within their boundaries, and that as part of
their power to protect the public health, safety, and other
valid interests they have broad power to establish standards
for licensing practitioners and regulating the practice of pro-
fessions.”). However, the method by which the state furthers
these interests must not mean that “a substantial portion of
the burden on speech does not serve to advance its goals.”
Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). As ap-
plied to the plaintiffs, the statute prevents a wide range of
speech activities, including helping survivors determine what
music they want played at their loved one’s funeral.
This approach furthers the state’s interests the way an
atom bomb would further the eradication of a residential ant
infestation. It goes much too far. We do not see how prevent-
ing the plaintiffs from telling a client about his or her options
for the final disposition of their loved one’s remains furthers
the state’s professed interests. The plaintiffs do not claim that

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No. 24-1081 21
they can perform a cremation, a green burial, or a traditional
funeral, nor does the state argue that they counsel clients on
how to do these things themselves. Indeed, the plaintiffs spec-
ify that they do not “perform any services that funeral direc-
tors are licensed to direct such as body care, death certificate
filing, transportation, or making arrangements” and that their
clients must “hire a funeral director.” R. 1-3 at 7. The state
does not explain to us how, under these circumstances, a con-
sumer learning from Richwine or Death Done Differently that
green burial is an option for the final disposition of human
remains poses a threat to the consumer or the public. “[I]nfor-
mation is not in itself harmful […] people will perceive their
own best interests if only they are well enough informed, and
[…] the best means to that end is to open the channels of com-
munication rather than to close them.” See Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S.
748, 770 (1976). Thus, to the extent that the state wants to pre-
vent its citizens’ access to this information about their options,
that is the very type of overregulation that the First Amend-
ment requires us to view with heavy skepticism. See 44 Liq-
uormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996) (opinion
of Stevens, J.) (“The First Amendment directs us to be espe-
cially skeptical of regulations that seek to keep people in the
dark for what the government perceives to be their own
good.”).
The state claims that plaintiffs improperly state on their
website that “the individual given authority to determine
[the] final disposition of the body has up to 72 hours or three
days from the time of death to contact the funeral home of
their choice. In most cases you do not need to have the body
removed immediately following the death. Death is not an
emergency.” R. 26-1 at 2–3. This statement, the state argues,

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22 No. 24-1081
could possibly hurt the individual consumer or public health.
But Indiana law does indeed give the individual with author-
ity 72 hours “after the person receives notification of the
death” to exercise his or her rights to “designate the manner,
type, and selection of the final disposition of human remains,
to make arrangements for funeral services, and to make other
ceremonial arrangements after an individual’s death.” Ind.
Code § 25-15-9-18. If that individual does not exercise his or
her rights, then “the right to determine final disposition
passes to the next person” described in the state’s delineated
hierarchy of individuals vested with that authority. Id. To il-
lustrate the harm posed by the plaintiffs’ statement, the state
relies upon an affidavit in which the affiant—an investigator
with the Indiana Professional Licensing Agency—reports that
she has “been in the presence of dead bodies that are improp-
erly stored” and “without sufficient cooling and/or embalm-
ing” a decaying body can “present a potential public health
concern.” R. 26-1 at 3. Certainly, dead bodies left to nature will
decay. But it is not clear how the plaintiffs’ speech, which
seemingly tracks Indiana law, increases the likelihood that a
dead body will be left until that point. Perhaps there are other
laws that require a quicker removal of a body. But see Ind.
Code § 23-14-54-1 (“[R]emains of all individuals who die in
Indiana […] shall be deposited […] within a reasonable time
after death, except as ordered by the Indiana department of
health.”). But based on the record before us, we struggle to
see the public health harm posed by the plaintiffs’ description
of Indiana law.
Similarly, we do not see how the statute furthers the state’s
interest in consumer protection by depriving its citizens of the
opportunity to have a neutral third party assist survivors in
selecting which items and services to purchase from a funeral

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No. 24-1081 23
home. The plaintiffs’ services protect consumers who are
likely to benefit from the perspective of an individual who has
no financial stake in the purchase. Contrary to the state’s as-
sertion, the plaintiffs are not providing the same service as the
funeral home. Funeral homes have a financial stake in the
purchases customers make. The plaintiffs have none. Both
Consumer Reports Magazine and car dealership salespeople
help car shoppers select cars, but no one would claim that
they provide the same service.
Finally, we fail to see any connection between preventing
the plaintiffs from helping survivors determine how to inte-
grate their loved one’s biographical information, preferred
music, readings, religious practices and other programming
into funerals and the state’s professed interests. Although a
funeral director could provide the same service, if a survivor
would prefer the plaintiffs’ help to that of a funeral director,
then we see no harm in permitting them to make that choice.
Rather than connecting the dots between the statute’s
means and ends, the state emphasizes that Richwine is free to
“engage in advocacy and educational activities about death
as she sees fit,” so long as her speech falls outside of the stat-
ute’s sweep. Reply Br. at 24. We note that it makes no differ-
ence for our First Amendment analysis that the plaintiffs sell
their advice to consumers. NIFLA, 585 U.S. at 767 (“Speech is
not unprotected merely because it is uttered by profession-
als.”). And as applied to the plaintiffs, the statute burdens al-
most the entirety of their professional speech. Even though
the plaintiffs can engage in some other forms of speech, that
does not demonstrate that the statute is well-tailored to
achieve its interests, nor does it mean that the statute does not
burden “substantially more speech than is necessary.” Turner

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24 No. 24-1081
Broad. Sys., Inc., 512 U.S. at 662 (citation modified). All speech-
related statutes leave some speech unregulated. Our inquiry
is whether substantially more speech than necessary falls
within the regulation’s purview. Id.; Ward, 491 U.S. at 799.
Some additional considerations further illustrate the poor
fit between the statute’s means and its ends. For example, no
consumer has ever complained about Richwine or Death
Done Differently, nor has the state been able to identify any
harm that Richwine has caused as a death doula. See Turner
Broad. Sys., Inc. v. F.C.C., 512 U.S. at 664 (“When the Govern-
ment defends a regulation on speech as a means to redress
past harms or prevent anticipated harms, it must do more
than simply posit the existence of the disease sought to be
cured. […] It must demonstrate that the recited harms are real,
not merely conjectural, and that the regulation will in fact al-
leviate these harms in a direct and material way.”) (citation
modified). Given that the plaintiffs make clear that the client
must hire a licensed funeral director, the possible risk to con-
sumers appears quite low. And, more perplexingly, other in-
dividuals or entities are permitted to “arrange[], supervise[],
or conduct[] a religious or memorial service for a deceased in-
dividual” with the deceased individual’s remains present so
long as a licensed funeral director will complete the final dis-
position of human remains and obtain a burial permit. Ind.
Code § 25-15-2-10(6)(B).
As applied, the statute prevents the plaintiffs from telling
clients that cremation is an option for the final disposition of
a loved one’s remains, that a survivor does not need to pur-
chase the most expensive casket offered, or that reading a
loved one’s favorite poem would be a meaningful way to re-
member him or her. In light of the state’s articulated interests

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No. 24-1081 25
and the statute as applied to the plaintiffs, the plaintiffs are
likely to succeed on the merits of their First Amendment
claim.5
IV.
Finally, we turn to the restrictions on the plaintiffs adver-
tisements. The parties agree that the advertisements are com-
mercial speech. Commercial speech is protected by the First
Amendment if it is lawful and not misleading. Cent. Hudson
Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S.
557, 564, (1980) (“If the communication is neither misleading
nor related to unlawful activity, the government’s power is
more circumscribed.”).
Indiana argues that because the statute prohibits the plain-
tiffs from engaging in the advertised activities, the advertise-
ments are therefore misleading. This argument, of course, de-
pends on whether the statute’s restrictions are constitution-
ally appropriate. Because we find that the plaintiffs are likely
to succeed on the merits of their speech claim, they are also
likely to succeed on the merits of their advertising claim.
V.
Not everyone who experiences the death of a loved one
will have a trusted companion to call for assistance and guid-
ance on how to proceed. In the name of consumer protection,
health, and safety, Indiana prevents Richwine and Death
Done differently from filling that role of trusted companion.
5 In an undeveloped footnote, the defendants argue that the prelimi-
nary injunction should be narrowed to exclude certain disclosures. But by
failing to meaningfully develop this argument, Indiana has waived it. Ev-
ergreen Square of Cudahy v. Wisconsin Hous. & Econ. Dev. Auth., 848 F.3d 822,
829 (7th Cir. 2017).

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26 No. 24-1081
The state’s means are disproportionate to its articulated inter-
ests and therefore we find that the plaintiffs are sufficiently
likely to succeed on their claims that the statute impermissi-
bly infringes on their First Amendment Rights.
For the reasons stated above, we AFFIRM the injunction of
the district court and remand for further proceedings con-
sistent with this opinion.

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