Federal Brief Claims Regulating Death Doulas as Funeral Directors Violates First Amendment Free Speech Right
Warns Outcome of Case Could Force Doulas Out of Business, Harm Many Dying People
Nov 22, 2021 legal advocacy
Compassion & Choices filed an amicus brief in federal court late Friday in support of a lawsuit to protect the First Amendment free speech rights of death doulas in California. Death doulas (aka “end-of-life doulas”) provide important information to dying individuals and their loved ones and ensure dying individuals receive patient-directed care at the end of life that honors their values.
The defendant in Full Circle of Living & Dying v. Sanchez, the California Cemetery and Funeral Bureau, issued an order in November 2019 to the death doula plaintiffs, Full Circle of Living & Dying, to "immediately discontinue advertising and operating as a funeral establishment until a license is issued by the Bureau.” It threatened fines of up to $5,000 if Full Circle continued to operate without a license.
Full Circle of Living & Dying is a non-profit organization that provides death doula services and home funerals to individuals in Nevada County. Its services include practical, emotional, and spiritual support before death for dying individuals and after-death support for families; education on end-of-life options; information and support in organizing end-of-life plans; and assistance in home funerals. Full Circle has a disclaimer on its website that they are not funeral directors, do not offer funeral home services, and do not operate out of a funeral home.
To become a licensed funeral home, Full Circle would need to acquire a physical location suitable for the storage and preparation of human remains, including embalming, even though it does not do embalming. Full Circle does not need a physical location for its services and the cost of obtaining such a location far exceeds the non-profit’s small budget.
“While some death doulas like Full Circle charge modest fees for their services, many death doulas work on a volunteer basis,” said Kevin Díaz, chief legal advocacy officer for Compassion & Choices, a non-profit group whose mission is to improve care, expand options, and empower everyone to chart their end-of-life journey. “We care about this case because a ruling against Full Circle will force most, if not all, death doulas out of practice and adversely impact many individuals who benefit from the crucial services and information that only death doulas provide.”
“Death doulas offer fundamentally different services than funeral homes and funeral home directors and do not touch the activities that legislators intended to regulate through the Cemetery and Funeral Act,” said John Kappos, a partner in the O’Melveny law firm who is the outside counsel for Compassion & Choices on this case. “Regulating death doulas as if they were funeral home directors infringes on their First Amendment free speech right to provide information about end-of-life and after-death care options and of their clients’ right to receive this information.”
"While traditional health care settings focus solely on an individual's medical needs, death doulas address the practical, emotional, and spiritual needs of dying individuals and their loved ones at the end of life," said Jess Pezley, staff attorney for Compassion & Choices. "Death doulas also provide individuals with invaluable information about their end-of-life and after-death options, giving dying individuals and their loved ones the resources and empowerment they need to select the option that is best for them."