Date: July 01, 2020
01) End-of-Life Doulas Sue for First Amendment Right to Offer Advice and Support
“For many, talking about dying is—unfortunately—a taboo subject. So, as someone nears the end of their life, getting answers and finding support can be difficult. That’s what end-of-life doulas do—they help families plan and care for someone transitioning from life to death. From helping families plan for the day that someone passes away, to providing emotional and practical support to the dying person and their family along the way, doulas offer a set of unique services rooted in a holistic approach to life and death.
But don’t tell that to the regulators in the California Cemetery and Funeral Bureau (CCFB), which—to preserve the funeral director monopoly on end-of-life services—have cracked down on retirees Akhila Murphy and Donna Peizer, two Sacramento-area end-of-life doulas who operate a tiny nonprofit called Full Circle of Living and Dying.
In November 2019, the CCFB responded to an anonymous complaint and ruled that Akhila and Donna were engaging in the illegal act of running a funeral establishment without a state-issued funeral-home license. The CCFB said that to continue to help families, Akhila or Donna must obtain a state-issued funeral director’s license, and that Full Circle must operate a full-service funeral home, capable of storing and embalming bodies, neither of which Akhila or Donna do.
Without the time, financial resources or desire to obtain the burdensome license and build a funeral home, Akhila and Donna faced a choice: Either they could shut down Full Circle or fight back. They choose the latter.
Today, Akhila and Donna—along with the Institute for Justice (IJ) and a group of families who want Full Circle’s services—filed a federal lawsuit to vindicate their right to help those approaching the end of their life.
“The Funeral Bureau is silencing free speech and interfering with the ancient right to hold a funeral in a private home,” said Jeff Rowes, a senior attorney at IJ. “California cannot force end-of-life doulas to become funeral directors to carry out their labor of love: providing compassion and guidance to the dying and their families.”
Unlike funeral directors, whose primary set of responsibilities is focused on the physical transportation or embalming of a recently deceased body, end-of-life doulas offer families experience and peace of mind throughout the entire process, both before and after death. Part of their post-death work involves helping families hold their own funeral in a private home. Home funerals are legal in all 50 states because they are safe and simple. The remains of a deceased person present no public-health risk in the hours and days following death.
Families are increasingly opting for home funerals for a variety of reasons: to care for their loved one personally, to honor the deceased in the familiar comforts of a private home or to observe religious customs, such as the Catholic Wake or Jewish Shemira. Once the home funeral is over, Akhila and Donna rely on a licensed funeral director to take the remains for final disposition.
“The goal of Full Circle of Living and Dying has always been to create a community that fully understands options and rights in death and dying. We advocate for the dying and empower families and communities to bring back the tradition of family-led death care through conversation, guidance, education and local resources,” said Full Circle Co-Founder Akhila Murphy. “We asked the Bureau for an explanation of what we did wrong. They told us to get our own lawyers if we wanted to know. That’s when we teamed up with IJ to defend our rights and the rights of consumers to know all their options in end-of-life care.”
Akhila, Donna and the other end-of-life doulas that work at Full Circle have a constitutional right to provide advice and aid to families in mourning a loved one. Specifically, the First Amendment protects the right of Americans to speak, and the Supreme Court has held that providing advice or instruction is protected speech. Earlier this month, in fact, a federal appeals court ruled that a Sacramento-area vocational school represented by IJ had a First Amendment right to teach students, regardless of their educational background. The Constitution also requires that governments have a legitimate reason for denying Americans their right to earn an honest living. Here, the government’s only interests appear to be blind economic protectionism for funeral directors and bureaucracy for its own sake.
“Akhila and Donna represent a movement that helps families experience the process of dying and death in a way that is unfamiliar to many now, but has been part of American culture since the founding,” said IJ Constitutional Law Fellow Adam Griffin. “This resurgence of interest in home funerals led the CCFB to overreact wildly, trying to shut down Full Circle to protect the funeral industry from the options that end-of-life doulas offer consumers. That is unconstitutional, and we will vindicate our clients’ rights.”
This video falls a little bit outside of the scope of this series…but I think it still compliments the series well…So, I’m including it.