Amicus: Filed November 19, 2021
In November 2019, the California Cemetery and Funeral Bureau ordered Full Circle of Living and Dying, a nonprofit educational consulting group of death doulas, to stop providing and advertising their services with the accusation they were breaking the law by operating a funeral establishment without a license. To comply would have required building a funeral home with a dedicated room for storing or embalming bodies, and staff passing a funeral director licensing exam.
But an end-of-life doula is not a funeral director. They don’t store or embalm bodies, and the licensing exam content is mostly unrelated to doulas’ work. What doulas do do is help families plan for someone’s passing, and provide emotional support and assistance with any needs in the days leading up to a person’s death — often as unpaid volunteers.
Full Circle doulas and others brought suit in a California federal case, Full Circle of Living and Dying v. Sanchez, headed by public-interest law firm Institute for Justice arguing that the licensing requirements violated their First Amendment rights. Compassion & Choices filed an amicus* brief in the case supporting the rights of death doulas in California and discussing the important role doulas play in patient-directed care at the end of life for dying people and their loved ones.
The trial court sided with Full Circle, finding that the requirements would indeed infringe on death doulas’ rights to free speech and “to pursue a lawful calling” by preventing them from offering their clients end-of-life planning advice or truthfully promoting their services. Notably, the court acknowledged and directly quoted Compassion & Choices’ amicus brief in their decision.
“Death doulas offer fundamentally different services than funeral homes and funeral home directors,” said John Kappos, a partner in the O’Melveny law firm, who is counsel for Compassion & Choices on this case. “I am thankful that the court recognized these key differences and declined to expand the Cemetery and Funeral Act to require doulas to own a licensed funeral home.”
This is a significant win, but the case is not over yet. The issue of whether it was constitutional or not to require the doulas to become licensed funeral directors will be resolved at a future trial.