California Death Doulas Fight

by Henry Fersko-Weiss

“Becoming Funeral Directors or Cease Operation”: California Death Doulas Fight

by Henry Fersko-Weiss

Compassion & Choices, a nonprofit working to improve patient rights at end of life, filed an amicus brief in support of a group of California death doulas. The doulas of Full Circle of Living and Dying, a nonprofit organization providing death doula services to people in Nevada County, sued the California Cemetery and Funeral Bureau in response to an order that they must become licensed funeral directors or cease operations. The original case was filed two years ago and resulted in the doulas winning a preliminary injunction against the Bureau. Now Compassion & Choices has joined the fight to end the order.

“Our attorneys have taken this case to federal court because the bureau [California Cemetery and Funeral Bureau] is violating end-of-life doulas’ first and 14th amendment rights,” said Akhila Murphy, founding director of Full Circle and an INELDA-trained end-of-life doula who is one of the primary plaintiffs in the case. “We have the right to earn an honest living by educating, guiding, and assisting consumers in how to care for a deceased loved one’s body in a home environment without the threat of citations and fines,” she added. “And consumers have the right to hear their options.”

If the bureau prevails, the doulas at Full Circle would have two choices. One would be to become funeral home directors, which would necessitate spending hundreds of thousands of dollars to buy a funeral home equipped to store and embalm bodies. Full Circle never intended to offer traditional funeral home services, which are outside the scope of death doula work. In fact, Full Circle has a disclaimer on its website stating that their doulas are not funeral directors, do not offer funeral home services, and do not operate out of a funeral home. Their only other choice would be to stop providing doula services to dying people and their loved ones in Nevada County.

People involved in this case from the plaintiff side suspect that the bureau issued its order based on a complaint from someone in the conventional funeral industry who was afraid that death doulas providing information on home funerals and green burials would trigger a loss of business. If the bureau wins this case, it would provide a legal precedent for other funeral home regulators to shut down death doulas operating in their jurisdiction. This could force most private practice death doulas out of business. 

The brief by Compassion & Choices supports the claim that the order by the bBureau infringes on the First Amendment free speech rights of doulas to provide information to their clients. “It’s nonsensical to apply these onerous regulations to death doulas who are offering services completely different from the services offered by the conventional funeral industry, which is what the California legislature intended to regulate,” said Jess Pezley, a staff attorney at Compassion & Choices who worked on the amicus brief. She added that the order by the bureau was not narrowly tailored and does not serve a compelling state interest.

Both sides have asked for a summary judgment, meaning that neither side contests the facts of the case. A decision by the judge at the trial court level is expected within the next several months. “I look forward to a positive ruling in our favor,” said Murphy, “which will set precedent for all death workers nationwide.” After the judge makes a ruling, if the losing side decides to appeal, the case would go to the California Appellate Court. For more information click here and here.