Judge Blocks Texas Fetal Tissue Burial Law

Update: U.S. District Judge Sam Sparks blocked the Texas fetal tissue burial law in a preliminary injunction, the Austin American-Statesman reports. The injunction will indefinitely prohibit Texas from enforcing the law. In his ruling, Sparks said the law allowed the state "to exercise arbitrary, and potentially discriminatory, enforcement on an issue connected to abortion and therefore sensitive and hotly contested."

Sparks also noted that state officials admitted that the law had no health benefits. It would also replace existing tissue-disposal regulations with no new benefits. Sparks characterized it as "pretext for restricting abortion access."

Texas Attorney General Ken Paxton vowed to appeal the decision.

The state of Texas continues its war on safe and legal abortion with a new and deeply disturbing regulation: Starting December 19, the state will begin enforcing a new rule that requires the cremation or burial of fetal remains. Under the new rule, hospitals, abortion clinics, and other health care facilities are prohibited from disposing of fetal remains in sanitary landfills. Instead, they must finance cremation or burial of the remains. As the Texas Tribune notes, the wave of opposition from both the medical community and reproductive rights supporters did not deter officials from the Texas Department of Health and Human Services (DSHS) from adopting the new requirements — though DSHS later clarified that the rules would not apply to abortions or miscarriages that took place at home, in response to privacy concerns. “Hospitals and clinics already follow the state’s standards for safe disposal of medical tissue. The addition of non-medical ritual to current clinical practice only serves to further interfere with a patient’s autonomy and decision making in their own medical care,” Heather Busby, executive director of NARAL Pro-Choice Texas, said in a statement. “Instead of passing laws that further complicate a patient’s experience and force them to consider burial services, we should focus on making sure that patients are supported, respected, and empowered in their decision.” Texas is not the first state to flirt with such a provision. In fact, it was Vice-President-elect Mike Pence who signed the nation’s first fetal burial provision into law earlier this year as Governor of Indiana. The law, which not only required health care facilities to inter or cremate fetal remains but also banned fetal tissue donation, has since been blocked by a federal judge. Laws like this may seem ridiculous, even silly, on the surface, but they have a deliberate effect: They are a source of intimidation for abortion clinics and yet another cruel and punishing way of stigmatizing those who have abortions. Over the past six years, hundreds of abortion restrictions have sailed through state legislatures. Many of these laws directly targeted abortion clinics, mandating medically unnecessary, onerous, and exorbitantly expensive regulations that were designed to close clinics — laws that are known as Targeted Regulations of Abortion Providers, or TRAP laws. Texas led the charge, requiring abortion clinics to meet the standards of ambulatory surgical centers and requiring abortion providers to have admitting privileges at local hospitals — provisions that left the entire state of Texas with only a handful of safe clinics.

In June, the Supreme Court struck down the Texas TRAP law and handed a decisive victory to abortion access. But the battle to keep safe abortion accessible isn’t over, and mandating fetal burial and cremation may be the latest form of TRAP law. The latest Texas rule could open abortion clinics up to further regulatory interference from state health officials who may already be openly hostile to abortion care. The potential financial cost of fetal burial could also lead to additional clinic closures, making safe abortion care even more inaccessible in states that already face a dearth of safe clinics. Not only that, but it becomes yet another source of shame and stigma for anyone seeking an abortion. In addition to the mandatory 24-hour waiting period, forced ultrasound, and hundreds of miles traveled to reach a clinic, a woman who has an abortion in Texas is now made to feel like a murderer by the health department that is supposed to ensure her care and safety. Requiring the cremation or burial of fetal remains from an abortion frames abortion as murder, and the woman who chose to have one as a criminal. Again, this is legislation that the vice-president-elect of the United States signed into law as Governor of Indiana, and it does not end with Texas. Earlier this year, fetal burial legislation was signed into law in Louisiana. Ohio legislators are considering a fetal burial bill as well as a ban on abortions at 20-plus weeks. Legislation like this is being considered in both Arkansas and Virginia. All of this is happening before the new president, who has publicly committed to trying to end Roe v. Wade, has even taken office. While national attention turns to the latest Twitter rant from the president-elect or the newest fanatical cabinet appointee, state legislatures will continue to erode safe and legal abortion access with new and increasingly absurd restrictions. It’s up to us to stop it.