Court blocks Texas’ fe­tal burial law

In or­der­ing tem­po­rary halt, fed­eral judge cites po­ten­tial ‘sig­nif­i­cant bur­dens on abor­tion ac­cess.’

Austin American-Statesman - - FRONT PAGE - By Chuck Lin­dell clin­dell@states­man.com

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.

JAY JANNER / AMER­I­CAN-

Both an­tiabor­tion ac­tivists and abor­tion rights ac­tivists were present at the Texas Rally for Life at the Capi­tol on Satur­day.

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