Court blocks Texas’ fetal burial law
In ordering temporary halt, federal judge cites potential ‘significant burdens on abortion access.’
In another setback for a Texas abortion regulation, a federal judge on Monday temporarily blocked a state law requiring health centers, including abortion clinics, to bury or cremate fetal remains.
U.S. District Judge David Ezra said abortion providers submitted enough evidence to show that the law, intended to take effect Thursday, was likely to impose “significant burdens on abortion access,” but he also noted that a final ruling will not come until after a trial to fully examine the law’s impact.
“Based on the evidence before it at this time, the court concludes (the law’s) burdens likely outweigh its benefits,” Ezra wrote.
The judge gave both sides 10 days to submit proposed dates for a trial on whether the law should be tossed out permanently.
Enacted by the Legislature in
May with strong Republican support, the fetal burial requirement replaced a similar state health department rule that had been blocked last year by U.S. District Judge Sam Sparks of Austin, who said the regulation appeared to be a pretext for restricting abortion because few vendors were available to bury or cremate fetal tissue.
Texas abandoned its appeal of that ruling in December because the new law was close to taking effect, and Sparks reassigned the case to Ezra, a Hawaii judge appointed by former President George H.W. Bush who is helping with the heavy workload in the understaffed Western District of Texas, which includes Austin.
Texas Attorney General Ken Paxton said his office will vigorously defend the law, which was part of Senate Bill 8, a sweeping compilation of abortion regulations that Gov. Greg Abbott signed into law in June.
“Texas values the dignity of the remains of the unborn and believes that fetal tissue should be disposed of properly and humanely,” Paxton said. “My office will continue to fight to uphold the constitutionality of the new law, which simply prevents fetal remains from being treated as medical waste.”
Amy Hagstrom Miller, president of Whole Woman’s Health, an abortion provider and the lead plaintiff in the case, praised Monday’s ruling.
“Texans deserve better, and today we got that. The Legislature’s relentless attacks on access to reproductive health care prevent women from getting the care that they need,” she said. “Today’s decision is a strong affirmation of what we have always fought for — that women deserve to have dignity when making health care decisions.”
The blocked law requires health centers, including abortion clinics and hospitals, to ensure that fetal tissue — whether from an abortion or miscarriage — is buried, cremated or incinerated, with ashes buried or properly scattered. The requirement would not apply to miscarriages and drug-induced abortions that occur at home or outside a medical center.
The goal, according to the law, is to “express the state’s profound respect for the life of the unborn by providing for a dignified disposition of embryonic and fetal tissue remains.”
Currently, Texas abortion providers most commonly dispose of fetal remains no differently from other tissue removed during a medical procedure — incineration, with the ashes placed in a landfill.
In his order, Ezra said abortion providers argued that a limited number of vendors are “willing and able” to properly dispose of fetal tissue as required by the law. “If true, such a fact would threaten the continued availability of abortion services,” he wrote.
In addition to raising costs, the requirement also could have a “negative effect on women’s health by causing grief and shame and possibly discouraging women from obtaining gynecological care, particularly abortions and miscarriage management, from a medical facility,” Ezra wrote.
The judge emphasized that the claims still must be proved in a trial.
“For those eager for a result in this case, it is tempting to read the court’s decision as a signal on who will win at trial or as a determination of the validity of plaintiffs’ claims. Such guesswork would be premature,” Ezra wrote.
But Ezra also expressed skepticism about a central claim made by the law’s defenders, including Paxton, who argue that states have a valid interest in showing respect for fetal life.
The U.S. Supreme Court has not acknowledged that states have a valid interest in showing respect for fetal remains, he said, adding, “Thus far, legitimate state interests include protecting the potentiality of human life and protecting women’s health.”
Ezra’s order was the second federal court ruling to block a provision of SB 8.
In November, U.S. District Judge Lee Yeakel of Austin tossed out a provision that banned a common type of second-trimester abortion unless doctors added a procedure to ensure fetal demise. Yeakel said the law required doctors to use risky, unproven and medically unnecessary methods to cause fetal demise before beginning the safest and most common procedure after the 15th week of pregnancy.
Paxton has asked a federal appeals court to overturn Yeakel’s ruling.
In addition, Sparks last year blocked state efforts to remove Planned Parenthood from Medicaid, a ruling that also has been appealed.
Both antiabortion activists and abortion rights activists were present at the Texas Rally for Life at the Capitol on Saturday.