Fetal burial trial begins
Federal judge will weigh Texas’ law that mandates a ‘dignified’ ending
AUSTIN — Just off the highway, a cool morning breeze blows through the quiet cemetery, up gentle hills and across the rows of gravestones commemorating babies never born.
A nearby hospital sends the remains from failed pregnancies here to Assumption Cemetery. The bundles of tissue are often smaller than the palm of your hand. Every woman who miscarries and undergoes a procedure to remove the tissue at Catholic-owned Seton Medical Center Austin must consent to having the remains buried in cemeteries like this or arrange a “private burial” themselves.
Just a few miles away in federal court, attorneys for the state of Texas will try this week to convince a judge that every aborted, miscarried or ectopic pregnancy should end with a customary burial or cremation so long as the remains were recovered by an abortion clinic or hospital.
Opponents argue the forced interment is another example of government officials shaming and taking choices away from women. Passed into law in 2017, abortion providers say the mandatory burial or cremation law, which has been temporarily suspended, would create more red tape in a longrunning scheme to dismantle reproductive rights.
This battle of burial is different from many past abortion fights because it focuses debate on the dignity of the fetus instead of the health regulations of abortion clinics. State officials say their goals are to keep fetal and embryonic remains out of sanitary landfills where other medical tissue is disposed of, and banning an outdat-
ed procedure of grinding and flushing the remains into a sanitary sewer.
“This is not going to make abortion unavailable. Abortion is readily available in Texas, that will continue,” said Joe Pojman, executive director of Texas Alliance for Life. “This is merely about assuring that the remains of babies who die from miscarriage and abortion are handled in a dignified manner.”
The law is easy for abortion clinics and hospitals to comply with, he said. To help defray the costs, the state built a registry of participating funeral homes and cemeteries willing to provide free or low-cost burials. Private nonprofit groups, too, can sign up on the registry to signal their willingness to help pay other related costs.
The five-day trial, which begins Monday, is the latest iteration of the war over abortion both in Texas and nationally as debate swirls over whether President Donald Trump’s latest Supreme Court appointee could tip the scales to dismantle the landmark Roe v. Wade ruling that legalized abortion. As in past abortion fights in Texas, the loser in this lawsuit is likely to appeal to the 5th U.S. Circuit Court of Appeals.
Instead of a battery of doctors talking about procedures, the trial will include testimony from people with a variety of backgrounds: funeral home directors who supply caskets for the unborn; the Texas Catholic Conference of Bishops, which is offering to cover the costs of cremations and burials; a woman who was forced to consent to the burial of her miscarried fetus; a minority health bioethicist who focuses on American Muslims; a woman who ended her pregnancy after her doctors confirmed a fetal anomaly would likely lead to miscarriage or stillbirth.
“I think there’s this political interference going on, that the state thinks it knows best what women should do with their bodies and what should happen,” said Autumn Katz, senior staff attorney at the Center for Reproductive Rights, which sued the state on behalf of Whole Woman’s Health and other abortion providers. “It’s not like a woman can opt out if she says, ‘That actually conflicts with my religious and moral view and I find it offensive and that’s not what I would choose.’ ”
That happened to one woman in Austin.
After a miscarriage in her first trimester, Seton Medical Center Austin required she give consent to the burial of her fetal tissue or make private burial arrangements herself. The hospital wouldn’t let her opt out, said her mother, Rep. Donna Howard, a Democrat who shared the story on the floor of the Texas House in 2017. The remains of her daughter’s pregnancy are now buried in the Assumption Cemetery in South Austin.
“The choice has been given to those who want this to bury their fetal remains, so that already exists. This new law limits the choice of everybody else,” said Howard, whose daughter, Blake Norton, plans to testify at the trial.
Howard questions the need for the law: If it’s so important to preserve dignity of the unborn, why is it OK for women performing medicated abortions at home to flush the remains down the toilet?
“Do we not have the same respect for those socalled lives?” she said. “It’s arbitrary. It’s restrictive. It takes away choice. It retraumatizes mothers who are often in a very vulnerable state.”
Cremation questions
About 55,000 pregnancies were terminated in Texas in 2015, according to the most recent data. Of those, about 6,000 were nonsurgical procedures that can be done at home and are not subject to the fetal remains law. The most common procedure performed in clinics involves suctioning tissues out of the uterus, which is most common in the first trimester, when the fetus is no bigger than a plum.
People inquire about fetal burials on a monthly basis, but many never follow through, said Veronica Flores, a funeral director for Resurrection Cemetery at Cordi-Marian in San Antonio. The cemetery has a “Garden of Angels,” a space for some young babies, but mostly for the remains from miscarriages.
“Most of them want to give it a proper burial but they don’t because of money or they think it’s just tissue,” said Flores. The small cemetery typically handles about a dozen fetal internments a year, she said. This year, there have been three.
Under the law, all hospitals and abortion clinics that handle the remaining tissue following a failed pregnancy would have to arrange for its burial or cremation. For abortion clinics, that means hiring a reliable vendor willing to pick up the tissue, have it cleaned and cremated or buried.
Ultimately, abortion clinics and hospitals would be responsible for ensuring the process is carried out. Otherwise, the facility can lose its license and the person responsible can face a $1,000 fine.
Alejandro Estrada, a part-owner of Crown Cremation Center in San Antonio, said hospitals have begun to ask him about cremation services in case the law is upheld. The crematory now gets about two fetuses a month that were less than 20 weeks gestation.
But he worries about how cremations would work for smaller bundles of tissue, those that are so light they could blow out of a pan while they’re being cremated.
“What we’re talking about here is tissue. Ashes are broken up bones. What’s really going to be left after this, per container? It’s going to be a very minimal amount,” Estrada said.
State’s strategy change
Opponents say the law forces the values and customs of Texas lawmakers on women throughout the state, giving them no choice when they are going through what is already a difficult and emotional experience.
For anti-abortion advocates, the law is a change of strategy.
State lawmakers kept losing in the courts after pushing regulations on abortion providers. The latest loss was in 2016 when the U.S. Supreme Court struck down a pair of regulations on abortion clinics that would have required facilities to adhere to the same standards as ambulatory surgical centers and require that physicians who administer abortions have admitting privileges to a nearby hospital.
Although the high court found those regulations burdensome and unconstitutional, half the Texas’ abortion clinics shut down during the yearslong legal wrangling. The result limited abortion access for women in the second largest state in the nation who have to travel farther, often well outside their county, for appointments. Texas lawmakers have passed 22 abortion restrictions since 2010, according to the Center for Reproductive Rights.
If history is any indication, the state will lose in U.S. District Court this time, too. A similar fetal burial regulation quietly published two days after that U.S. Supreme Court decision was struck down by a different federal judge who called the policy “political,” and without “any benefit at all” to public health.
That didn’t stop the Texas Legislature from writing the burial requirement into an omnibus anti-abortion law in 2017, sparking a second trial.
State officials proposed similar laws in Arkansas, Louisiana and Indiana, all blocked by the courts or not being enforced.