Opening Statements

Consumer activists seek to challenge 'protectionist' funeral laws

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If you’re alive, you may not realize that a quiet revolution is happening in the funeral industry. But state regulations, some charge, just might kill it.

Joshua Slocum, executive director of the nonprofit Funeral Consumers Alliance, says the old-line funeral home business is dying. Families are increasingly turning down expensive full-service funerals in favor of simpler services, cremation or handling matters themselves.

But the industry has one advantage keeping it alive: regulatory capture. According to Slocum, most states regulate the funeral business with boards that are packed with established funeral directors. As a result, regulations tend to suppress legitimate complaints and smother new competitors.

That’s one of the complaints behind Heffner v. Murphy, a recent decision from the 3rd U.S. Circuit Court of Appeals at Philadelphia that may end up before the U.S. Supreme Court. Plaintiff Ernest Heffner, a licensed funeral director from York, claimed that the Pennsylvania Funeral Directors Law imposes “arbitrary, burdensome and unreasonable” restrictions on funeral businesses, including who may own funeral homes and requirements for on-site embalming rooms.

A lower court agreed that 10 provisions of the law were unconstitutional, but the 3rd Circuit overturned the decision, saying even antiquated laws can be constitutional.

Now the libertarian-leaning Institute for Justice has stepped in and petitioned the U.S. Supreme Court for certiorari. IJ senior attorney Jeff Rowes says the case raises legal issues central to a core mission for the institute: stopping unreasonable regulations on small businesses.

Heffner is the latest in a line of funeral regulation challenges brought by the IJ. Since 2002, it’s sued over regulations on who may sell caskets in Louisiana, Missouri, Oklahoma and Tennessee, and over funeral home ownership in Maryland. It also successfully sued to strike down a Minnesota embalming room requirement similar to the one being challenged in Pennsylvania. Slocum cites the plaintiff in that case, Verlin Stoll, as an example of a new generation of “streamlined” funeral providers.

Rowes plans to argue that the Pennsylvania law violates the 14th Amendment’s due process clause because the state’s regulations on the funeral industry aren’t rationally related to a legitimate government interest.

“The big question,” Rowes says, “is whether or not circumstances can so thoroughly change that a law that may have once been rational is no longer rational.”

This article originally appeared in the August 2014 issue of the ABA Journal with this headline: “Regulated to Death: Consumer activists seek certiorari for challenge to ‘protectionist’ funeral laws.”

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