Judge: Vendors needed to bury fetuses

Comments may signal what could determine ruling in abortion remains case

AUSTIN — A lack of companies willing to handle remains from abortions could pose a problem for Texas’ fetal burial law, U.S. District Court Judge David Ezra said Monday, tipping his hand about what could sway him in the latest debate over reproductive rights.

The comments are the first indication of what the Republicanappointed judge is looking for in the five-day trial this week to test whether Texas can lawfully require abortion providers and hospitals to ensure burial or cremation of nearly all fetal and embryonic tissue.

“If they can’t find anybody to do it, that’s an issue,” said Ezra.

The trial comes as the consensus of the U.S. Supreme Court is expected to tip in favor of abortion restrictions, causing some to fear an unraveling of the landmark Roe v. Wade decision.

Ezra opened the trial noting the possible shift, saying he would not “lick my finger, put it up in the air and base my decision on what the Supreme Court might do” if conservative Judge Brett Kavanaugh, nominated last week, is confirmed to the high court.

This case isn’t about when personhood begins, Ezra said.

“What I’m interested in really here is how SB8 burdens a woman’s right under current law to seek and have an abortion or any abortion-related procedure,” he said, referencing the 2017 legislation that went into law.

Dignity vs. shame

The state argues required fetal burial will ensure the dignity of the unborn by treating the fetal tissue differently from other medical waste that is incinerated and spread in landfills. The law applies to all ectopic pregnancies, miscarriages and abortions in which procedures to remove the tissue from pregnancy are removed at a hospital or clinic. It does not apply to medical abortions performed at home.

Opponents to the 2017 law say the requirement will shame and stigmatize women and create hurdles for abortion providers.

Blake Norton, an Austin woman who miscarried a wanted pregnancy in 2015, testified that Catholic-owned Seton Medical Center Austin required she consent to a fetal burial before she could have the remains surgically removed from her uterus. She said she tried to fight the hospital, but felt trapped given that she already had an IV and nurses were about to wheel her into the procedure.

“I felt personally shamed and stigmatized by the policy itself ” and the hospital’s insistence she talk to a social worker or chaplain there, said Norton, the daughter of Austin Democratic Rep. Donna Howard. She said she felt “that I was doing something wrong and that somebody needed to correct me.”

Whole Woman’s Health, one of the leading abortion providers in Texas challenging the law, has had trouble securing providers to dispose of their medical waste, testified founder and CEO Amy Hagstrom-Miller. Several vendors have told her they won’t work with abortion providers, or have expressed interest only to back out later.

The abortion provider landed a vendor to dispose of fetal tissue through incineration and spreading the ash remains in sanitary landfills, HagstromMiller said, although she told the court she has not explored whether the company will continue working with Whole Woman’s Health if the new law requires the tissue to be buried or cremated.

In a related matter, a federal appeals court has halted a lower court’s order requiring the Texas Conference of Catholic Bishops to disclose internal communication about abortion to a chain of reproductive clinics attempting to challenge the state law mandating fetal burial.

‘Transparency’ is goal

A ruling by a panel of the 5th U.S. Circuit Court of Appeals on Sunday put a stop to a lower court judge’s order that the bishops’ group needed to disclose internal correspondence.

A religious liberty group touted the ruling as a move that protects religious leaders from government overreach. One of the three jurists filed a dissenting opinion, upholding the order.

“Letting trial lawyers put religious leaders under constant surveillance doesn’t make sense for Church or State,” Eric Rassbach, vice president and senior counsel at Becket, a religious liberty firm based in Washington, D.C., said in a news release.

The bishops were not party to the Whole Women’s Health lawsuit, but their group drew the interest of the health clinics after the bishops offered to allow burials in Catholic cemeteries

Lawyers for the clinics said their request did not reflect hostility toward the bishops, but they wanted to know the extent of their support for the law.

“We just want them to be transparent,” said Stephanie Toti of the Lawyering Project, one of the groups representing abortion clinics in the fetal burial case. “They claim that they are going to offer to facilitate compliance with this law, but it’s not really clear that that’s true. We want the evidence.”