Protected Advice at Life’s End: Seventh Circuit Holds Indiana’s Funeral-Licensing Ban on Death-Doula Counseling Fails Even Under Intermediate Scrutiny—and Consent Orders Don’t Waive Federal Rights

Introduction

This Seventh Circuit decision addresses a modern profession at the intersection of grief, autonomy, and regulation: “death doulas.” Lauren Richwine, through her business Death Done Differently LLC, offers nonclinical, speech-centric services that help individuals and families prepare for, and navigate, end-of-life arrangements—discussing memorial preferences, explaining options for the lawful disposition of remains, supporting families at the funeral home of their choice, and advising (verbally, and under a licensed funeral director’s supervision) about bathing and dressing remains. She does not perform regulated funeral-director tasks like handling final disposition, transporting bodies, or filing death certificates, and she openly discloses that she is not a licensed funeral director.

Indiana’s Board of Funeral and Cemetery Service—prompted by an industry complaint—obtained a cease-and-desist order asserting that Richwine’s counseling and supportive activities constituted the unlicensed “practice of funeral service” as defined by Indiana Code § 25-15-2-22. Richwine sued in federal court, contending that applying the statute to her speech-based services violates the First Amendment. The district court granted a preliminary injunction barring enforcement against her and her company, and the state appealed. Judge Rovner, writing for a panel that included Judges Jackson-Akiwumi and Maldonado, affirms.

The appeal raised three major questions:

Waiver: Did Richwine’s earlier consent to a state “cease-and-desist” order waive her federal constitutional claims?
Abstention: Should federal courts abstain under Younger from hearing Richwine’s challenge in light of the Board’s order?
Merits: Does Indiana’s licensing restriction, as applied to a death doula’s counseling and accompaniment, survive First Amendment scrutiny?

Summary of the Judgment

The Seventh Circuit affirms the preliminary injunction in favor of Richwine and Death Done Differently. It holds:

No waiver of federal rights: The consent order expressly waived only rights “under Indiana law” and did not clearly and unmistakably waive federal constitutional claims. Nor did it reflect a promise by Richwine not to sue in federal court.
No Younger abstention: There was no “ongoing” state proceeding to be interfered with. The Board’s order was final, any enforcement would require a new court action by the Attorney General, and the administrative forum could not adjudicate constitutional challenges. Prospective federal relief therefore does not intrude upon state processes.
First Amendment likelihood of success: Without deciding whether strict or intermediate scrutiny applies, the court concludes the statute fails even under intermediate scrutiny as applied to Richwine’s speech-focused services. Indiana’s interests (public health, safety, environmental protection, and consumer protection) are legitimate, but the statute’s application to Richwine burdens substantially more speech than necessary and lacks a close fit to those interests.
Advertising: Because the underlying speech restrictions are likely unconstitutional as applied, the state’s assertion that Richwine’s advertising is misleading (simply because it advertises “unlawful” services) collapses. The plaintiffs are likewise likely to succeed on their commercial speech claim.

Analysis

Precedents Cited and How They Shaped the Decision

1) Waiver of constitutional rights

Johnson v. Zerbst, 304 U.S. 458 (1938); Krieg v. Seybold, 481 F.3d 512 (7th Cir. 2007); Janus v. AFSCME, 585 U.S. 878 (2018): Waiver must be the intentional relinquishment of a known right and must be “clear and unmistakable,” with courts presuming against waiver of fundamental rights.
Snepp v. United States, 444 U.S. 507 (1980); Domka v. Portage County, 523 F.3d 776 (7th Cir. 2008); SEC v. Romeril, 15 F.4th 166 (2d Cir. 2021): Examples where parties clearly agreed to specific speech restrictions as conditions of employment, diversion, or settlement; those agreements were enforceable because the waived rights were unmistakably identified on the face of the documents.
Fuentes v. Shevin, 407 U.S. 67 (1972): Ambiguous contractual language referencing a seller’s repossession rights did not waive the buyer’s due process right to a hearing; the contract did not clearly address waiver of constitutional process.
American Homeland Title Agency, Inc. v. Robertson, 930 F.3d 806 (7th Cir. 2019): Demonstrates when an agreement explicitly waives judicial review; the Richwine agreement did not.

These cases collectively underscored that the Board’s form, which waived only rights “under Indiana law” and read as the Board’s commands (not Richwine’s promises not to sue federally), did not waive federal First Amendment claims.

2) Younger abstention and federal–state comity

Younger v. Harris, 401 U.S. 37 (1971); FreeEats.com v. Indiana, 502 F.3d 590 (7th Cir. 2007); Sprint Communications v. Jacobs, 571 U.S. 69 (2013): Abstention is the exception; limited to specific categories of ongoing proceedings. The key is whether the federal case would interfere with a live state process.
Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976): Federal courts generally have a “virtually unflagging obligation” to exercise jurisdiction.
Vega v. Chicago Board of Education, 109 F.4th 948 (7th Cir. 2024): Threshold question is whether the federal action threatens interference with an ongoing state proceeding.
Wooley v. Maynard, 430 U.S. 705 (1977): Younger is inapplicable where the plaintiff seeks wholly prospective relief.
Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043 (7th Cir. 1989): Abstention is pointless if the state forum cannot address the federal constitutional claims.

Together, these authorities informed the conclusion that the Board proceeding had ended, any further action would be a new case in state court, and abstention would serve no comity interest—particularly because the agency lacked power to decide constitutional questions.

3) Identifying and reviewing speech restrictions

Reed v. Town of Gilbert, 576 U.S. 155 (2015): Content-based laws are presumptively unconstitutional and subject to strict scrutiny.
City of Austin v. Reagan National Advertising, 596 U.S. 61 (2022); McCullen v. Coakley, 573 U.S. 464 (2014): Not every examination of content triggers strict scrutiny; facially neutral laws are not content-based merely due to disparate impact.
NIFLA v. Becerra, 585 U.S. 755 (2018); Expressions Hair Design v. Schneiderman, 581 U.S. 37 (2017): When regulation is framed as “conduct” but the conduct consists of speech (advice, counseling, information), First Amendment scrutiny applies. NIFLA rejected “professional speech” as a lower-value category.
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010): Even laws “directed at conduct” trigger strict scrutiny as applied when the predicate conduct is the communication of a message.
Inter-circuit guidance on licensing that burdens speech: Hines v. Pardue, 117 F.4th 769 (5th Cir. 2024) (veterinary advice); Billups v. City of Charleston, 961 F.3d 673 (4th Cir. 2020) (tour guides); Pacific Coast Horseshoeing School v. Kirchmeyer, 961 F.3d 1062 (9th Cir. 2020); contrasted with 360 Virtual Drone Services v. Ritter, 102 F.4th 263 (4th Cir. 2024) and Del Castillo v. Sec’y, Fla. Dep’t of Health, 26 F.4th 1214 (11th Cir. 2022).
Sorrell v. IMS Health, 564 U.S. 552 (2011); Bartnicki v. Vopper, 532 U.S. 514 (2001): The creation and dissemination of information is speech.
McCutcheon v. FEC, 572 U.S. 185 (2014): Courts may resolve a case on narrower grounds (e.g., failure under intermediate scrutiny) without choosing between strict and intermediate scrutiny.

4) Tailoring and evidence of harm

Free Speech Coalition, Inc. v. Paxton, 145 S. Ct. 2291 (2025); Turner Broadcasting v. FCC, 520 U.S. 180 (1997); Tagami v. City of Chicago, 875 F.3d 375 (7th Cir. 2017); Nicodemus v. City of South Bend, 137 F.4th 654 (7th Cir. 2025): Intermediate scrutiny requires that a law advance important non-speech-suppressive interests and not burden substantially more speech than necessary; a “reasonably close fit” is required.
McCullen, 573 U.S. at 486; Ward v. Rock Against Racism, 491 U.S. 781 (1989): Tailoring demands a tight fit between means and ends; the government may not sacrifice speech for administrative ease.
Turner Broadcasting, 512 U.S. 622 (1994): Government must demonstrate real, not conjectural, harms, and that the regulation alleviates them in a material way.
Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975): States have strong interests in regulating professions—but regulation still must comport with the First Amendment.
Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996): Courts are wary of paternalistic suppression of truthful information.

5) Commercial speech

Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980): Truthful, non-misleading commercial speech about lawful activity is protected; the state’s “it’s misleading because it advertises unlawful services” argument fails where the underlying restriction is unconstitutional as applied.

Legal Reasoning

A. Waiver: Consent order did not surrender federal constitutional claims

The state’s waiver argument turned on a consent-based cease-and-desist order. The court looked for a “clear and unmistakable” waiver of First Amendment rights and found none. The waiver clause explicitly addressed only rights “under Indiana law.” Elsewhere, the agreement read as a set of commands the Board “may” issue, not promises by Richwine to forgo federal litigation. By contrast, the cases in which waivers were enforced—Snepp, Domka, and Romeril—featured explicit, face-of-the-document commitments to specific speech restraints or to forego judicial review. The closest analogue here was Fuentes: a contract that contemplates what a government actor may do does not waive the other party’s constitutional protections unless the waiver is expressly and unmistakably stated.

B. Younger abstention: No ongoing state proceeding to defer to; no interference risk

Abstention was inappropriate because there was no ongoing state proceeding. The Board’s “Final Order” stated that the matter was concluded and not subject to further review; any enforcement would require the Attorney General to initiate a separate court action. Federal adjudication of a purely prospective constitutional claim therefore posed no risk of interfering with pending state adjudication. The agency also lacked authority to resolve constitutional disputes, making abstention doubly pointless. The court thus applied the general rule that federal courts must exercise jurisdiction absent a genuine, live conflict with state proceedings.

C. The merits: The statute fails even under intermediate scrutiny as applied to Richwine’s counseling and accompaniment

The parties’ central dispute was whether the statute’s application to Richwine’s services was content-based (triggering strict scrutiny) or a regulation of conduct with incidental effects on speech (inviting intermediate scrutiny). The Seventh Circuit declined to decide that question because, even assuming intermediate scrutiny applies, the statute is unconstitutional as applied to Richwine.

Indiana invoked three interests: preventing disease from human remains, protecting health/safety/environment, and consumer protection. These are indisputably important in the abstract. But the question under intermediate scrutiny is whether the law, as applied here, burdens substantially more speech than necessary and maintains a reasonably close fit to those interests.

The fatal mismatch was twofold:

Overbreadth of the restriction relative to the risk: As applied to Richwine’s counseling, the statute bars a sweep of speech such as discussing whether cremation, traditional burial, or green burial are lawful options; accompanying families to a funeral home and reviewing price lists; or helping choose music, readings, and religious observances. None of those activities present the health or environmental risks associated with the physical handling, transportation, or final disposition of remains—functions reserved to licensed funeral directors and not performed by Richwine. Suppressing this neutral advice is akin to “using an atom bomb to kill an ant.”
Insufficient evidence of harm and underinclusive exceptions: Indiana presented no history of consumer complaints or concrete harms from Richwine’s services. It argued that a website statement about a 72-hour window to exercise disposition rights could lead to improperly stored remains, but the statement tracked Indiana Code § 25-15-9-18, and nothing in the record showed this information caused harm. At the same time, state law allows non-licensees to arrange or conduct memorial services when a funeral director will obtain the burial permit and complete final disposition (Ind. Code § 25-15-2-10(6)(B)), revealing that non-licensee participation is not per se hazardous. This underinclusiveness further undermined the tailoring rationale.

The consumer-protection rationale fared no better. A neutral third party with no financial stake—like a death doula—can help families make more informed choices about costly funeral goods and services. The court analogized: a car buyer benefits from both Consumer Reports and a salesperson; they do not serve the same function. Banning neutral advice does not protect consumers; it keeps them in the dark for paternalistic reasons the First Amendment disfavors (see Virginia Pharmacy, 44 Liquormart).

Having concluded that Indiana’s application of the statute burdens substantially more speech than necessary to achieve the state’s asserted interests, the court held that Richwine is likely to succeed on the merits of her First Amendment claim even under intermediate scrutiny.

D. Commercial speech: Advertising rises and falls with the underlying constitutionality

For commercial speech, the first step under Central Hudson asks whether the advertisement concerns lawful activity and is not misleading. The state argued Richwine’s ads were misleading because they offered “unlawful” services. But where the underlying prohibition is likely unconstitutional as applied, the advertised activity is not “unlawful” for Central Hudson purposes. Thus the plaintiffs are also likely to prevail on their advertising challenge.

E. Preliminary injunction posture

The appeal addressed only likelihood of success; the state did not challenge the district court’s analysis of irreparable harm, inadequacy of legal remedies, or the equities/public interest—factors that typically favor plaintiffs asserting First Amendment violations. The Seventh Circuit therefore affirmed the injunction on the merits determination alone.

Impact

1) Death doulas and end-of-life counseling

This decision is the first at the federal appellate level to squarely protect the speech-based work of “death doulas” from overbroad application of funeral-licensing regimes. In Indiana, Illinois, and Wisconsin (the Seventh Circuit), state boards will need to calibrate enforcement to ensure they do not treat neutral counseling and accompaniment as the “practice of funeral service.” Regulators should focus on genuinely regulated conduct—handling remains, filing vital records, controlling final disposition—rather than speech about lawful options or price information.

2) Professional speech and licensing boards

The opinion resists the “label it conduct” move when the regulated activity is predominantly speech. It adds to a growing body of appellate cases (e.g., Billups, Hines, Pacific Coast Horseshoeing) requiring meaningful tailoring when licensing affects counseling, instruction, or advice. The Seventh Circuit deliberately left open the strict vs. intermediate scrutiny question—signaling that many such regimes will fail even under intermediate scrutiny if applied to neutral, non-misleading advice by unlicensed speakers who are not performing core regulated tasks.

3) Consent orders and waiver doctrine

Agencies cannot “contract around” federal constitutional litigation via boilerplate consent orders that waive only state-law procedural rights or recite what the agency “may” order. To bar federal suits, a consent order must contain a clear, unmistakable, voluntary waiver of federal rights or judicial review—language often susceptible to challenge and public controversy (as in Romeril). Expect agencies to revise forms cautiously, and expect courts to scrutinize any asserted waivers closely.

4) Younger abstention in administrative contexts

The court’s practical approach underscores that a closed administrative matter is not an “ongoing proceeding,” and federal courts need not stand down when prospective constitutional relief will not interfere with state adjudication—particularly where the agency lacks authority to entertain constitutional challenges. This provides useful guidance where state boards conclude cases with “final orders” but retain general supervisory jurisdiction.

5) Legislative and regulatory responses

States concerned with public health and consumer protection in funeral services can respond by:

Clarifying that non-licensees may provide non-misleading, neutral advice and accompaniment, so long as licensed directors handle final disposition, transportation, and legal documentation.
Creating safe-harbor disclosures (e.g., “I am not a licensed funeral director; I do not handle remains or file death certificates; I provide nonclinical, speech-based support”).
Narrowly defining “practice of funeral service” to exclude advice and education not involving physical handling or control over remains.
Targeting demonstrable harms with narrowly tailored rules (e.g., prohibiting misrepresentations of licensure; requiring referral to licensed directors for regulated tasks).

Complex Concepts Simplified

Waiver of constitutional rights: You can agree to give up your rights, but the agreement must say so clearly. Courts presume you did not give up fundamental rights unless the waiver is explicit and unmistakable.
Younger abstention: Federal courts usually hear cases. They abstain only in narrow circumstances to avoid interfering with ongoing state proceedings. No ongoing state case = no abstention.
As-applied vs. facial challenge: An “as-applied” challenge targets how a law is used against a particular person or set of facts; a “facial” challenge argues the law is invalid in all (or most) applications. This case is as-applied to Richwine’s speech-based services.
Strict vs. intermediate scrutiny: Strict scrutiny is the toughest standard (law must be narrowly tailored to a compelling interest). Intermediate scrutiny is less demanding (law must not burden substantially more speech than necessary to serve important interests). The court did not decide which applies because the law failed even under the more forgiving standard.
Content-based vs. conduct regulation: Governments sometimes claim they regulate “conduct,” but if the “conduct” is giving advice, explaining options, or conveying information, the First Amendment is implicated. Courts examine the real-world effect on speech.
Commercial speech (Central Hudson): Ads for lawful, non-misleading services are protected. The state cannot label an ad “misleading” simply by making the underlying service “unlawful” through an unconstitutional restriction.

Conclusion

Richwine v. Matuszak establishes a clear, modern principle in the law of professional speech: the state may not, under the guise of licensure, suppress neutral, non-misleading counseling about lawful end-of-life options by someone who is not performing core regulated tasks. Even accepting important interests in health, safety, and consumer protection, Indiana’s application of its funeral-licensing statute to a death doula’s speech-based services burdened far more speech than necessary and lacked a close fit to the harms asserted. The Seventh Circuit’s refusal to presume waiver from a consent order that disclaimed only state-law rights reinforces a strong presumption against surrender of federal constitutional protections. Its abstention analysis confirms that closed administrative matters do not bar federal adjudication of prospective claims, particularly when agencies cannot address constitutional issues.

The decision has practical consequences: It invites regulators to differentiate carefully between speech and conduct; encourages narrow, evidence-driven rules that actually target risk; and affirms that, in a sensitive arena like death and grieving, access to truthful, neutral information is a constitutional value. For professionals who primarily speak—teachers, advisors, guides, doulas—this case is another data point in a growing consensus that licensing regimes must be tailored with the First Amendment in mind.