Lawmakers across the country want you to have funerals for your fetuses.
They want you to think it’s because they care about the sanctity of life: because they believe fetuses are babies and life begins at conception. But in reality, they just want to make accessing abortion a more fraught and untenable process.
Arkansas, Indiana, Louisiana, Minnesota, Ohio, Tennessee, and Texas all have laws regulating the disposition of fetal tissue (though all but Indiana’s, Minnesota’s, and Tennessee’s have been blocked by the courts, and Minnesota’s is facing a legal challenge), and lawmakers in numerous other states have introduced similar legislation. These laws require health-care providers to manage fetal and embryonic tissue from an abortion (or a miscarriage, in Indiana) like human remains, through cremation or burial. They create a climate where providers are forced to interface with patients about their abortion care in a way that is directly tied to funerary and death care.
Americans are afraid of death, and these lawmakers know it. As I wrote in April:
Death-phobia is more than just the fear of death and dying: It’s a culture of shame and stigma surrounding death and end of life that breeds anxiety and misunderstanding. … By invoking images of death through the requirement of burying or cremating fetal tissue, lawmakers are forcing patients to confront their abortion decision as a death. But many don’t see abortion as a death or loss of life at all. And while we know that some people do grieve their abortions as they would a pregnancy loss, we also know that for many people abortion brings on feelings of relief and everything in between.
Beyond the emotional turmoil these laws create, there is a nefarious legal impetus behind them. Anti-abortion lawmakers are frothing at the mouth to enshrine the concept of “fetal personhood”—that is, the idea that life begins at conception—in the law. And requiring funerals for fetuses is one way to do that.
Roe has collapsed and Texas is in chaos.
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If lawmakers can get a fetal burial law to pass judicial scrutiny in a circuit court or even the Supreme Court on the basis of fetal personhood, that would drastically reframe the concept of personhood and set a legal precedent that would enable the criminalization not only of abortion, but of pregnancy loss, in vitro fertilization, and likely some forms of contraception.
As if this isn’t damaging enough, these laws can also function as a type of TRAP law, or targeted regulation of abortion providers. Similar to laws that mandate abortion providers have hospital admitting privileges, fetal burial laws require providers to contract with potentially hostile organizations that are unlikely to agree. In regions where Catholic and other religiously affiliated hospitals are the norm, abortion providers struggle to comply with admitting privileges laws.
This is, of course, the intent, and it’s likely the same for laws mandating the disposition of fetal tissue: force providers into a working relationship with a largely conservative entity—and when clinics predictably cannot find a hospital or funeral home to help them comply, they’re forced to close. As Rewire News Group reported in 2019, cremation and burial are more expensive than incineration, which is the most common method for disposing of medical tissue in clinics and hospitals.
Funerary care is overwhelmingly white, male, and old school—not exactly the ideal demographic for abortion providers seeking an ally to help them stay open. But what if it didn’t have to be this way? Relying on conservative lawmakers to wake up one morning and realize these laws are absurd is not the safest bet. But what if there were a band of funeral providers allied with abortion rights, ready to step in and navigate these laws for the best interest of patients and providers?
Enter progressive death care.
Progressive death care can encompass many services, from green burials to home wakes. But at its core, progressive death care is just that: progressive. It is death care that centers the deceased and their loved ones’ needs and that puts a premium on having one’s wishes respected in death. Progressive death-care providers often offer services more affordable and hands-on than many mainstream funeral homes. They also share in the values of death positivity, a movement that seeks to destigmatize death and better facilitate healthy conversations around end of life and dying.
The death-care workers changing the funeral industry
“The first thing that comes to mind [about] progressive death care is it’s individualized and it’s creative—and for those two reasons I think it’s just more soulful,” said Donna Baker, the founder of Columbus Community Deathcare, a progressive funeral home in Ohio. “What we’re suggesting alternatively is that you individualize the day for the person who you are honoring.”
Progressive death care and death positivity share many values with reproductive justice and abortion advocacy, including an intersectional approach to ensuring everyone is able to make fully autonomous choices about their lives and their bodies.
“To me, the death positive movement is all about bodily autonomy and coming to terms with your own mortality,” Ericka Cameron, the project and development coordinator for the Order of the Good Death, told Rewire News Group. “Much like those engaged in the reproductive justice movement, being death positive means that you are empowered to make decisions about what happens to your body.”
The majority of funeral directors in the United States are white men, and typical funeral care reflects this homogeneity—it’s incredibly costly, with limited options for families when it comes to the way they choose to say goodbye to their loved ones.
And it’s in that environment that conservative lawmakers pass fetal burial laws, knowing full well that providers will be forced to deal with an industry that, by virtue of its demographic, has a high likelihood of being hostile to abortion access.
“They’re designed to create a barrier and create a compliance standard that puts clinics in the position of not being able to comply,” said Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health Alliance, which operates a clinic in Indiana. Lawmakers in Indiana enacted a fetal burial law in 2016, and after an extended legal battle, the Supreme Court allowed it to go into effect in 2019. (A different Indiana abortion provider challenged the law in a separate complaint in 2020.)
“You have to send the tissue to a funeral home or it has to be cremated or buried, and then the clinics are in a position where they can’t actually get any vendor to provide the service that will allow us to comply. So by default, it’s a way to shut clinics down.”
But, as Rewire News Group learned, progressive death-care providers could help neutralize the harms of these laws by allying with clinics to provide the services they need and do so with the same compassion and progressive values central to the work of abortion providers.
Forging radical partnerships
Lauren Richwine, an end-of-life advocate and death doula, works with families as they navigate end-of-life and funerary care for a loved one, advocating for them with funeral directors, helping them make arrangements, and ensuring their needs and wants are respected. She spoke to Rewire News Group about what progressive death-care workers and funeral directors could provide abortion clinics.
“I think the first thing I would do is I would probably connect them with the funeral director that I have worked with, that has supported families in this region in doing non-traditional whatever it may be,” she said in an interview.
Laws regulating the disposition of fetal remains are often called fetal burial laws, but even this title is a misnomer designed to invoke death-phobia. After a patient has an abortion, the clinic reaches out to a funeral home to manage the disposition of remains, and as Richwine explained, funeral care providers likely have a few options here—interment (or burial) or cremation. For remains from an abortion or miscarriage, batch cremations can offer a more affordable option.
Richwine stressed the importance of appreciating that not all patients feel similarly about their abortions and of respecting and meeting each person’s unique needs.
“I would want to provide a full spectrum of care,” Richwine said. “So what that would mean is, I presume there’s going to be [pregnant people] from all different walks of life, and there’s going to be some who may have strong feelings about the process and may want to navigate those in a safe space, with a safe person. And there may be others who are very frustrated that they have to jump through these hoops of choosing cremation or burial and you know, navigating it as though it’s the death of a living human being. So I think it would be very important to provide space for both of those types of people.”
In creating an abortion restriction that invokes death, lawmakers provide cover for these laws—they rely on people’s reticence to understand death and their rights when it comes to end-of-life care.
Baker, the founder of Columbus Community Deathcare, agreed, saying she would hope progressive death care could offer pregnant people the respect they deserve by allowing them to opt in or out of a conversation about the fetal tissue’s disposition.
“For those who choose to opt out, they don’t want to know if it’s going to be cremated or buried, they don’t want to know about the fact that their pea-sized tissue needs a death certificate,” Baker said. “And as death workers, we’re their advocates—we make these decisions for them, and that way, they also have choices.”
Baker said she envisions death doulas acting as a conduit between abortion providers and funeral homes—helping clinics clarify what state laws actually expect of them, and supporting them as they work with funeral homes by ensuring their rights are upheld and not exploited.
Forging relationships between progressive death-care providers and abortion clinics could be critical, because, as Hagstrom Miller said, most of the logistics go through clinic staff and typically the patient has minimal if any contact with the funeral home. She said having the ability to coordinate with progressive death-care providers who share pro-choice values would be hugely beneficial to the work she and her staff do.
“If we could figure out creative ways for them to take care of the fetal remains that would be compliant, that would be awesome for the patient,” Hagstrom Miller said.
Hagstrom Miller also said it could be an interesting way to beat anti-abortion lawmakers at their own game.
“It would be fun to sort of flip the script—fun is the wrong word—but it would be fun, you know, like in a movement way, to flip the script and figure out creative ways that we could comply with the spirit of the law but not have it shut us down in the way it’s intended to,” she said.
The future is funerary—and reproductive—autonomy
A funeral can be whatever someone wants. Home wakes are legal, as is forgoing embalming. Wicker caskets offer people a more affordable and eco-friendly way to bury a loved one, as does a simple death shroud. In some religious communities, mainstream U.S. funeral practices like embalming and expensive caskets were never adopted to begin with. In some states, funeral providers even offer aquamation—a more environmentally sound method of cremation that uses water.
But in creating an abortion restriction that invokes death, lawmakers provide cover for these laws—they rely on people’s reticence to understand death and their rights when it comes to end-of-life care. They rightly assume that when people hear the word “funeral” they imagine a casket and a religious service. They assume that people find the very concept of death and dying repellent, and therefore won’t have the wherewithal to understand their rights and options.
And lawmakers benefit from death-phobia, which ensures fetal burial laws will invoke shame, trauma, and grief for patients.
“Fetal burial laws are one step away from criminalizing fetal death—these laws seek to punish people who experience the death of their fetus by playing on their shame and grief,” Cameron said. “One of the intentions of fetal burial laws is to further stigmatize reproductive health access by weaponizing the fear of death. The death positive movement gives people the tools to introspect about their own mortality and to have conversations with their loved ones about death.”
Hagstrom Miller has seen firsthand the impact of fetal burial laws on patients at her clinic.
“It adds this overarching religious element to the choice of abortion because for many people they associate the rituals around death or passing or fetal remains or human remains in general with, like, funerals, cremation, with ceremony,” Hagstrom Miller said. “So many people feel like there’s this sort of religious value that’s being communicated and underneath it is shame.”
Just as progressive death-care providers can offer a solution for the logistics of fetal burial laws, their approach to death and dying easily aligns with abortion providers.
Baker said the birth of her daughters nearly 20 years ago was a turning point for her. “I just realized that, ‘Oh, there’s another way to do this, right?’ The same with weddings and all of these milestones that we have—we just do what we think we’re supposed to do, and [you have to] understand what your rights and options are.”
By forcing fetal burial on abortion patients, Baker added, lawmakers are unlikely to change the mind of any pregnant person. But they’ll succeed in imbuing the abortion experience with shame and stigma.
“It’s yet another attempt to create doubt, to infantilize and shame women into questioning our values,” she said. “As a society, we are already so death-phobic. Asking us to think about aborted remains as a kind of death forces us into the position of seeing the abortion-seeker as a murderer. Even more than before. Now there’s a ‘death’ to be memorialized and ‘mourned.’”