3rd Circuit Reinstates Irrational Pennsylvania Funeral Laws

J. Justin Wilson
J. Justin Wilson · February 19, 2014

Arlington, Va.—Today, the 3rd U.S. Circuit Court of Appeals overturned a lower court ruling that invalidated 10 of Pennsylvania’s outdated, irrational and, in most cases, blatantly anti-competitive funeral regulations as unconstitutional. The case was brought by a group of Pennsylvania funeral directors and challenged several of Pennsylvania’s funeral laws, including a requirement that every funeral home have an embalming room. The Institute for Justice filed a friend-of-the-court brief in the case, arguing the regulations are ineffective and wasteful and that it is the judiciary’s job to engage in a meaningful evaluation of whether laws serve their purposes and to strike them down as unconstitutional when they do not.


“Today’s court decision completely ignored evidence that Pennsylvania’s funeral regulations do nothing to advance the public health and did little more than rubber stamp an irrational, protectionist law,” said IJ Attorney Dan Alban, who authored IJ’s amicus brief in the Heffner v. Murphy case. “As IJ’s brief argued, proper application of the rational-basis test demands that courts engage in a genuine, meaningful review of the evidence to determine whether a law actually accomplishes its purposes, which is something that the court did not do today.”

The lawsuit brought by several smaller Pennsylvania funeral directors challenged 10 of Pennsylvania’s funeral regulations as unconstitutional and anti-competitive. Included among the challenged regulations is Pennsylvania’s requirement that all funeral homes be outfitted with an embalming room, even if the embalming room is never used—a law that is nearly identical to the embalming-room requirement that IJ successfully challenged in Minnesota.

“The 3rd Circuit’s decision essentially makes it impossible for entrepreneurs to change useless laws that exist only to protect large funeral homes from competition,” Alban said. “As the court acknowledged, funeral directors tried to get the law changed in the legislature in 2008 and failed because large funeral homes opposed it. Nonetheless, the court refused to do its job and strike down the law, stating that entrepreneurs should just try again in the legislature, even though history shows their attempts would be futile.”

“Today’s ruling shows what happens when courts fail to subject regulations to meaningful scrutiny and reinforces the need for courts to reclaim their role as the branch of government responsible for checking the legislature,” said Clark Neily, IJ senior attorney and author of “Terms of Engagement,” a book arguing in favor of judicial engagement.