Fetal remains rules questioned

Texas judge asks if new regulations override current law

AUSTIN, Texas — A federal judge appears to be casting doubt on the legality of hotly debated Texas rules requiring burial or cremation of fetal remains, questioning Wednesday whether they would override separate, existing state laws on scattering ashes.

Health department regulations in the country’s second-largest state are seeking to protect “human dignity” by banning the disposal of remains from abortions and miscarriages as biological medical waste — usually meaning they are incinerated and deposed of in sanitary landfills.

National advocacy groups who sued to stop the rules contend they don’t provide any public health benefits and instead seek to shame women who undergo abortions and make it tougher for doctors to perform them.

The rules would have taken effect last month, but U.S. District Judge Sam Sparks put them on hold while he considers the lawsuit.

Sparks is hearing evidence before making a more-binding decision.

Federal courts already blocked similar measures in Louisiana and Indiana.

Sparks has suggested the rules could supersede established Texas law that allows scattering of ashes on any private property with owner’s consent, which could include landfills.

Texas Attorney General Ken Paxton’s office says that law applies only to human remains and not specifically to fetal tissue — a distinction that Sparks pressed state lawyers on Wednesday during a hearing in Austin.

“Fetal tissue is not human remains for the purposes of this statute,” John Langley, an assistant Texas attorney general, told the judge.

“It’s the official doctrine of the state that fetal tissue is not human remains,” Sparks responded. “So you’re bringing dignity to non-human remains?”

It’s a potentially important point because the Texas health department says the rules are meant to “protect the public by preventing the spread of disease while also preserving the dignity of the unborn in a manner consistent with Texas laws.”

Texas has some of the nation’s toughest anti-abortion measures.