Abraham Lincoln’s other legacy: An obsession with open caskets and America’s lifeless death industry

Katrina Spade was studying architecture at the University of Massachusetts-Amherst when she stumbled upon the long tentacles of the death industry.

Urban cemeteries take up acres of valuable space and act as receptacles for massive deposits of waste: bodies embalmed with toxic formaldehyde, encased in caskets made from hard-to-log hardwoods and steel vaults. By one estimate, an average cemetery contains enough furniture-grade wood to build 40 homes.

A friend tipped Spade off about a possible alternative. Some farmers compost dead livestock, not unlike they would with vegetable scraps, turning animals into a mulch-like soil that can nurture new life.

“It occurred to me that if you can compost a cow, you can compost a human,” Spade told Grid. “After I graduated, I kept working at the idea because I kept finding more and more people who said, ‘I would do that.’”

Spade started a nonprofit devoted to the idea of composting people and launched a Kickstarter to raise money. But it wasn’t long before she got an email from a law professor noting there were an “incredible variety of laws” that could contradict what Spade was trying to do: It turned out that human composting was flatly illegal in every state, a fact that hadn’t occurred to her but that she would spend years of her life trying to contend with — and change.

Spade had run into a little-known truth about burial and death in America: Since the end of the Civil War, it has been highly regulated by states, which drew up laws centered around the practice of embalming people and presenting them for open-casket funerals. Those rules were written — and are often enforced by — the people who run traditional funeral homes.

“The funeral industry has been one of the most successful at creating a cartel of licensed funeral directors. Every state has rules about who could sell funeral homes or run a memorial service,” said Jeff Rowes, senior attorney at the nonprofit Institute for Justice, which litigates cases related to funeral law.

“Funerals are unreasonably expensive,” Rowes continued. “The unreasonable expense of funerals is the result of an infrastructure that our laws have created that’s built around a 1930s-era notion of a bells-and-whistles hearse going down the street followed by a hundred cars going to the cemetery, with a casket and brass handles. Because if you loved your dad, you really want to get the nice casket.”

Funeral industry professionals contend they try their best to keep up with what consumers want — and note that, especially in urban areas, many funeral home operators aren’t wealthy.

“The vast majorities of funeral directors I know want to take care of the families they serve,” Ellen McBrayer, a spokesman for the National Funeral Directors Association, told Grid. But there is little doubt traditional funerals are expensive — costing more than $7,000 a piece on average — and surveys show younger people are interested in new types of death care.

A new wave of funeral innovators like Spade is trying to offer cheaper, more eco-friendly ways to handle death, from composting human bodies into usable soil to guiding families through holding at-home funeral services.

If they succeed, they’ll remake not only laws surrounding funerals but also the funeral industry itself and, more broadly, the way America thinks about death.

“We are right now undergoing I think the most dramatic change in death practices certainly in American history, and probably the history of Western civilization,” said Tanya Marsh, the law professor who wrote to Spade. Marsh, a professor at Wake Forest University who teaches a course on funeral law, would soon begin helping Spade scrutinize the rules around funerals — and how to change them.

Lincoln’s funeral and the appeal of embalming

No death has been more influential on the funeral industry than Abraham Lincoln’s.

For years leading up to Lincoln’s lifetime, burial was a straightforward and inexpensive process. When a person died, the family would usually wash and dress the body to be kept at home for a few days while friends and family visited. Afterward, the body would be placed in a simple casket and buried in a cemetery or backyard.

But Lincoln’s death shocked and upset the country, convincing government officials that a grander response was needed. Their solution: Lincoln would be embalmed, his body sent on a train car draped in black for a two-week tour through union towns and cities. At each stop, his casket was processed to city hall, and the former president was put on view for hundreds, and even thousands, of mourners.

Embalming had gained traction during the Civil War as a way to preserve dead soldiers long enough to send them home to families from the battlefields. But for many Americans, Lincoln’s death was the first time they’d ever seen an embalmed body. The idea took off among the public, and the train tour proved to be a key turning point for burial practices in the United States.

Embalming preserves bodies so that they’re presentable for open-casket funerals. The process involves surgically draining the fluids out of the deceased person and replacing blood with a formaldehyde-based liquid. With embalming on the rise in the United States, families could no longer handle funerals on their own. A new category of funeral professionals was needed — so a new group of people who ran funerals, soon called funeral directors, came to be.

Other professions, like doctors and lawyers, were similarly formalizing at the end of the 19th century. The new funeral directors drew up rules and helped lawmakers create standards for the industry, including requirements that only licensed professionals can embalm people and oversee burying them in cemeteries.

Over the next several decades, these rules were created and refined, usually with input from the new class of funeral directors (who also, alongside clergy members, came to run state regulatory and licensing boards).

These laws guiding funerals ostensibly create health and safety standards ensuring that funeral directors have proper training to handle noxious chemicals, cut into bodies and prevent the spread of communicable disease. In many states, funeral laws require that people who want to run funerals complete college degrees in mortuary science, apprenticeships and exams.

At its core, these laws center around ensuring bodies can be safely embalmed like Lincoln was. However, modern science has found it unnecessary to embalm a person immediately after they die in order to keep them from spreading disease. Living people, not the dead, are responsible for spreading most illnesses, and only in extreme cases — like Ebola — do recently deceased people pose a public health threat.

“It’s not about protecting public health, it’s about having open-casket funerals,” Marsh said. “If we did away with embalming as a requirement for licensure and regulations, you would open up the industry to a lot of people who want to help grieving people.”

In other cases, the laws seem strangely arbitrary: In New Jersey, consumers cannot purchase headstones from religious cemeteries — a law that was pushed by the state’s headstone-maker association, who argued churches had an unfair advantage in sales. Until 2007 in Maryland, funeral parlors couldn’t be structured as corporations — except for 58 funeral parlors that were grandfathered when the law was initially passed, a rule that a district court judge called “blatantly anti-competitive” when he struck it down.

In recent decades, regulators and advocates have started to question whether these rules stifle competition and lead to higher prices. Most people approach funeral homes only in times of grief, so they interact with the system only when at their most vulnerable.

The Federal Trade Commission regularly investigates funeral homes for withholding the price of funerals or charging higher-than-listed prices to families, and even threatening to keep the remains of loved ones until families pay. These problems with pricing exist despite the fact that the FTC has a “Funeral Rule” that mandates funeral homes have price lists available for customers to review — a rule that has long been opposed by the funeral industry.

How to change an industry

As it stands, dying is hard on the environment, depositing steel, concrete and hardwoods — like mahogany — that regenerate slowly into the ground in the form of caskets and burial vaults. Embalming, which uses carcinogenic formaldehyde, can be problematic for practitioners: Embalmers are more likely to die from leukemia, brain tumors and a litany of other cancers, researchers have found.

Cremation avoids many of these problems but creates large amounts of carbon dioxide: Cremating a single body can emit more than 500 pounds of carbon dioxide, the equivalent of consuming roughly 25 gallons of gasoline. As nearly half the population today is opting to be cremated, the environmental impact is significant.

In some areas, people have the option of “natural burial,” where a body is often shrouded in cloth and buried on forested land. It’s an approach that has grown in popularity in recent years and can often be done to comply with funeral and cemetery laws, which encourage embalming but don’t demand it. This approach requires a significant amount of forested space — which is less available to city dwellers, where even standard city cemeteries are beginning to warn they may run out of burial plots in the coming years.

Spade’s approach to human composting, which she has piloted and started to use on human bodies in states where it’s legal, requires little energy and emits very little waste. To compost a person, a body is transported to a facility where it is placed in a vessel and surrounded by organic materials like sawdust and straw. Like vegetable compost, a mix of oxygen, heat and microbes help the body break down over the course of four to six weeks. What’s left is compost, bones and medical devices, which are removed. The bones are transported to a special machine that breaks them into small fragments, which are then composted.

The result is roughly a cubic yard of soil that families can donate or use themselves. (The compost is nutritious for plants, Spade said, but not exceptionally so — despite what people might expect from their remains, we do not make “special” compost.)

Convincing state legislatures to allow the practice, which legally has been dubbed natural organic reduction, has been arduous. When she reached out to Spade in 2015, Marsh offered to help her by giving her funeral law students the human composting conundrum as a research project. She set her students off researching all 50 state laws, examining what exactly would need to change in order to legalize human composting. Each state law, the students found, would need to be amended to allow for human composting — or overhauled entirely.

Marsh was skeptical that Spade could make headway, but she gave her a recommendation nonetheless: Try working on states that have legalized marijuana, as “they’ve shown a willingness to break traditions and try new things.”

Spade set quickly to work. She used the money she’d raised to hire lobbyists and started courting lawmakers in Washington state, where she was based, starting by attending a meet-and-greet with her local representative.

Within two years, the Washington state legislature passed Spade’s proposal to legalize human composting and she went to work in Oregon, Vermont and Colorado. For the most part, the opposition to human composting seemed to be that the very concept bewildered lawmakers — but with education and time, state legislatures came around.

This openness to human composting may be changing as more states pick up — and pass — measures to allow it. This summer, New York lawmakers voted to make it the sixth state to allow human composting. The bill whipped through the legislature and passed overwhelmingly — but in the weeks since lawmakers took it up, opponents have started to flex their muscle against it.

Funeral directors have declared their opposition because the bill would put human composting under the control of cemeteries, which are separate from the funeral parlors themselves.

And the New York State Catholic Conference, which represents the church, objected on religious grounds. The church took its case to Democratic Gov. Kathy Hochul, who has to sign the bill by Friday if it is to become law.

“Throughout history and in every culture, the disposition of human remains has been treated with care and following particular rituals, always involving internment or cremation,” Dennis Poust, executive director of the New York State Catholic Conference, wrote in a letter to Hochul on Dec. 5. “Composting is something we as a society associate with a sustainable method of eliminating organic trash that otherwise ends up in landfills. But human bodies are not household waste.”

Hochul received the bill on Dec. 1, and has 10 days to review it before it expires. Spokesperson Avi Small told Grid that “Governor Hochul is reviewing the legislation.”

These increasingly complicated politics were also on display last year in Colorado, when some Republicans opposed a human composting bill in the state House, echoing the Catholic Church’s concerns that it was not a “dignified” process.

“Why not?” asked Matt Soper, a Republican who co-sponsored the bill, at the time. “Why should the government be prohibiting this type of option to be available to Coloradans?” The bill eventually passed and was signed into law.

A “corporate influence dynamic at work, but totally concealed within this regulatory body”

To McBrayer, who runs a Georgia-based funeral home her family has owned since the 1950s, the problem is simple: “Nobody likes change, but it’s the only thing that’s constant.”

“The vast majority of funeral directors I know want to take care of the families they serve,” McBrayer told Grid. The National Funeral Directors Association (NFDA), for which McBrayer is a spokesperson, will support any “respectful” way to care for the dead that families are asking for, McBrayer said, including human composting.

This permissive attitude doesn’t always carry through to the association’s state affiliates: In New York, the state chapter of the NFDA opposed the human composting proposal because it would have limited the ability of funeral directors to become involved in the business.

Human composting isn’t yet being discussed in Georgia, but McBrayer noted her funeral home has started offering reef memorials in which the ashes of a cremated person are mixed with concrete to form a dome that can be dropped onto the ocean floor. Proponents say the structures give coral a place to grow and can help repopulate reefs. Because the deceased person is already cremated, these strategies don’t require as much regulatory wrangling as other new ideas.

Other upstart ideas are gaining interest, too. Proponents of water cremation, also known as alkaline hydrolysis, have been pushing state legislatures one by one to approve the cremation alternative, which uses lye to break down bodies and thus doesn’t release carbon into the atmosphere like traditional cremation does.

And in California, a pair of women practicing as death doulas who want to help families care for bodies at home are embroiled in a lawsuit that could upend both funeral law and broader debates over the value of occupational licensing for professions such as funeral directors.

The doulas at Full Circle argue they want to help families care for the dead at home like most families did before the Civil War. This often involves temporarily preserving a body in dry ice (as opposed to embalming) and holding a service at the deceased person’s home rather than at a funeral parlor.

In doing this work, the doulas were reported to state regulators for violating state law — because only a licensed funeral director is allowed to direct the care of a dead body. But to become licensed, funeral directors need to pass an exam that is meant in no small part to ensure people don’t misuse formaldehyde, which the doulas don’t use as part of their practice. (In other states, funeral directors are required to have significantly more training, like degrees in mortuary science.) They eventually filed a counterclaim and gained representation from Rowes, the lawyer at the Institute for Justice, a libertarian nonprofit.

To libertarians like Rowe, much of the dysfunction in the funeral industry is the result of occupational licensing — the rules that require people to obtain licenses to perform work — gone awry. While it makes sense to require a doctor to undergo extensive training and pass an exam in order to practice, Rowe and others argue the litany of licensing requirements guiding everyone from funeral directors to hairdressers could be greatly reduced, or even eliminated.

The main value of licenses like those for funeral directors are clear, these critics say: They keep entrepreneurs from starting businesses in the funeral space, and protect funeral directors and, increasingly, the large corporations and private equity funds that are buying up successful funeral homes, from competition. It is a “corporate influence dynamic at work, but totally concealed within this regulatory body,” Rowe said.

An industry in flux

Right now, most alternative death practices are practiced only by a small minority of people. Spade’s company, Recompose, composted around 100 people this year.

But they are quickly gaining traction. While Spade started Recompose as a public benefit corporation, companies like Earth Funeral have raised venture capital money and claim they can more quickly bring human composting to scale, in part by partnering with large funeral home companies. Another human composting startup, Return Home — which calls its human composting process Terramation — promises families “inclusive, gentle, transparent death care.”

The traditional funeral industry itself is experiencing a shake-up, too, as corporations and private equity companies grab increasing market shares. While the majority of funeral homes are still privately owned, in recent decades funeral homes have increasingly merged into larger corporations, with the biggest — Services Corporation International — now owning roughly 15 percent of the market.

Private equity companies are beginning to buy into the industry, too, and now own roughly 1,000 funeral homes, Kaiser Health News reported earlier this year. In Arizona, private equity buyers raised the prices on funerals after they acquired funeral homes by hundreds of dollars, according to consumer advocates.

But to bring down costs and give consumers more options, states may have to overhaul the century-old foundation of their funeral laws, said Marsh, the professor. It goes back to the post-Civil War ideas that funeral parlors should be involved in embalming, which makes it difficult for alternative means of burying someone to take hold.

“The meta legal change that needs to happen is that the industry needs to be opened up so more people can participate,” said Marsh. “As a society, we don’t appreciate that the constraints that are being placed on our behavior right now were written through the lens of 18th century Protestantism.”

Thanks to Lillian Barkley for copy editing this article.