How the Funeral Industry is Trying to Limit Free Speech by Targeting Death Doulas

“This case is absolutely a landmark victory for death doulas,” says Ben Field, an attorney with the Institute for Justice about a landmark decision handed down earlier this year in in the California case  of Akhila Murphy and Donna Peizer, and their nonprofit Full Circle of Living and Dying which provides end-of-life care. The nonprofit helps clients make end-of-life plans, and facilitates home funerals, doing work that is broadly considered death doula work. The case stipulated that in order to continue their work, Murphy and Peizer needed to obtain licensing commensurate with a funeral home and for their doulas to become licensed funeral directors.

The ruling in their favor not only affects Full Circle Living and Dying, but creates a beneficial precedent for other death practitioners. “Other end-of-life-doulas in California can reasonably demand to be treated the same way,” says Field. “Outside California, the court’s landmark decision is a powerful precedent against applying funeral-licensing laws in a way that abridges the constitutional rights of end-of-life doulas and their clients.”

The court held that the doulas’ free speech protections are safeguarded – it also ruled that Murphy and Peizer couldn’t be subjected to those licensing requirements, and that the funeral-home requirement was so irrational that it was unconstitutional. Put simply, they saw the legal challenge for what it was – an attempt at the prohibition of death doula care but imposing constraints on their practice that were not only undue and superfluous but in direct violation of the First Amendment.

But that hasn’t stopped lawmakers in Indiana.

Lauren Richwine is the founder of Death Done Differently; the lifelong Indiana resident works with people who have terminal illnesses and their families helping them plan for their final days and providing support as they navigate end-of-life care and funeral planning. This work can include everything from sitting with an individual or family as they go through those final days, to delegating complex logistical tasks like medical expenses and power of attorney, to talking through the many options for funerals and interment – including, but not limited to home funerals and green burial options.

In short, Lauren steps in at the hardest time in someone’s life and helps shoulder the burden of death. She provides empathetic and practical care for people and families during an often emotionally devastating and chaotic time – ensuring that they can spend their last days surrounded by, and focused on what matters most, and with the most information about the options available to them.

It’s critical and honorable work – but the state of Indiana, and the State Board of Funeral and Cemetery Services disagree.

In January of 2023, the state attorney general’s office served Richwine with a cease and desist – ordering her to get a funeral-director and funeral-home licenses to continue advising her clients. To make matters worse, later that year, in August the State Board of Funeral and Cemetery services issued a gag order.

“The Indiana case is nearly identical to that first category of activity in the Full Circle case—the pure speech activities,” says Field. “All that Lauren Richwine does is speak to people: to educate them about end-of-life options, to help them make end-of-life plans, and to be an advocate for them with funeral directors.  Her activities are thus entitled to the full protection of the First Amendment.”

To understand the distinction between the two cases, it’s important to understand non-expressive conduct, and free speech. In the case of Full Circle, both were involved in that Full Circle was providing guidance in the form of speech, and technical support with home funerals – the former, receives an immensely high threshold of constitutional protection under the First Amendment. The latter, which is considered non-expressive conduct, allows for slightly more regulation, which we often see play out with informed consent laws in medicine. Field says even this context doesn’t justify restrictions on practitioners like Full Circle because the care they provide is vastly different from say, performing surgery, for example. (He points out that even still, informed consent laws prove problematic because they often force doctors to have specific conversations with their patients, something we see quite a lot of in the reproductive health space.)

At the heart of these complaints are members of the licensed funeral industry. These are people whose financial gains are threatened by the work that people like Richwine do: empowering people to make informed decisions about deathcare rather than being shepherded into standard – and often expensive – funerary practices under the pretense that it is their only option.

And while both the case against Full Circle and the current case out of Indiana are grim examples of the extent lawmakers will stretch the law to further their deathphobic agendas, this distinction between non-expressive conduct and free speech is what makes Richwine’s case so chilling. The legal threshold in the Indiana case is objectively lower; where Full Circle did in fact provide some physical assistance with home funerals, Richwine’s practice is exclusively speech. “[Her case] presents an even starker case of government outreach,” he says.

So how did we get here? There are a number of driving forces, says Field – one is simply that funeral licensing authorities are stuck in their ways. “In many states, the laws are written incredibly broadly so that they could be read to reach anybody doing anything related to death, and both the laws and the regulators act on the assumption that just about everybody will do a very conventional funeral—at a funeral home, complete with embalming,” says Field. “When people want to do something new—or even very old and traditional like a home funeral—which doesn’t map onto that conventional model, the licensing authorities’ gut reaction is to try to force them into the conventional box.”

Beyond that though, there are financial incentives – invariably, at the heart of these complaints are members of the licensed funeral industry. These are people whose financial gains are threatened by the work that people like Richwine do: empowering people to make informed decisions about deathcare rather than being shepherded into standard – and often expensive – funerary practices under the pretense that it is their only option.

“We are nearly certain that’s what triggered enforcement in both the California and Indiana cases—and the regulators are also typically either current or former members of the industry,” says Field. “They have an obvious self-interest in trying to shut down information about alternatives to what has become the conventional funeral, especially when those alternatives don’t involve buying expensive services from funeral homes like embalming or elaborate caskets. When end-of-life doulas inform their clients that embalming isn’t a requirement, or about natural burial options, or about home funerals, industry incumbents fear about their pocketbooks.”

But what’s at stake here is much greater than the financial security of funeral homes who rely on the false supposition that embalming is necessary – there are critical constitutional protections implicated in these cases including religious freedom, the First Amendment, and government overreach.

“The most central right at issue here is free speech,” says Field. Most of what end-of-life doulas do is communicate to other adults about death and end-of-life options. That is core speech protected by the First Amendment.  The government can only silence speech like that when it has an exceedingly good reason—like national security—and it has exhausted all the alternatives to censorship.  Shutting down end-of-life doula speech can’t hope to satisfy that rigorous constitutional standard.”

These cases also involve issues pertaining to irrational government regulation – a matter protected through both the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. Comparatively speaking, the government is allowed more wiggle room with this kind of challenge and is only required to show that there is some rational basis for the challenged regulation. But even that has its limits – “And the California case showed that,” says Field. “Forcing end-of-life doulas to build a funeral home they would never use just to be able to help a family perform a home funeral that the family could lawfully do itself is so absurd that the court held it to be unconstitutionally irrational.”

Cases like Richwine’s are causing growing concerns for death doulas and practitioners nationwide: can legislators use the power of death phobia to restrict or outright ban their ability to provide this critical care?

“Yes, I think there is cause for concern,” says Field.

If regulations are applied reasonably to cover activities like embalming or cremation, he says – those can be justified – but that’s not what we’re seeing play out. Instead, we’re seeing the broad nature of these state laws being used to target progressive deathcare providers; terms like ‘funeral services’ and ‘funeral director’ being left ostensibly vague in legislation which leaves “tremendous discretion in the hands of regulators,” says Field.

“The problem in both the California and Indiana cases was that licensing agencies, when faced with a complaint from a member of the industry and armed with a vague and broadly written statute, applied the statutes in ways that make no practical sense to sweep in death doulas,” he explains. The way forward is, at least in part, to include more specificity in legislation. Bills should be carefully drawn so that they are limited to technical and sensitive activities—like embalming or taking possession of a body—rather than being written broadly enough to encompass the constitutionally protected speech of end-of-life educators.

Cases like Richwine’s are causing growing concerns for death doulas and practitioners nationwide: can legislators use the power of death phobia to restrict or outright ban their ability to provide this critical care?

As it stands, the district court agreed that Lauren’s speech – and therefore her work – is fully protected by the First Amendment; it entered a preliminary injunction which essentially puts a hold on the legal challenges and allows her to continue running her business while the lawsuit is underway. If Death Done Differently prevails, says Field, it will set yet another powerful precedent that funeral licensing authorities cannot impose onerous requirements on practitioners just to shut down speech they don’t like.

In the meantime, there are steps practitioners can take to protect themselves; at a recent conference, the Institute for Justice provided some tips to follow for peace of mind. Start by reviewing your state’s funeral licensing laws, as these seem to be one legal inroad that these challenges take. You can also consider adding disclaimers on documents or web pages about your licensing status to preempt any attempt to distort what you do. Bear in mind that most regulatory measures are complaint driven – so reactive to circumstance, not proactive measures made to advance care. And finally, when it comes to legal challenges: remember that speech is more protected than conduct and engaging in non-technical activities may make your case more amenable to constitutional protections – as does abstaining from holding money before services are rendered. Finally – and without hesitation – if a regulator reaches out, or if you feel unsure about where you stand, contact an attorney and discuss anywhere you might be vulnerable to challenges and importantly: your rights and protections to continue doing this critical work.