Texas' fetal burial law to go on trial
Abortion providers say clinics might close if measure is enforced.
In a five-day trial set to kick off Monday morning in Austin, the fate of another abortion-related restriction in Texas will be decided by a federal judge — this one requiring that fetal remains be buried or cremated instead of incinerated and deposited in a landfill.
Lawyers for Texas plan to argue that the 2017 law, which has not been enforced, promotes respect for human life and the dignified treatment of fetal remains, pretrial court filings show.
Abortion providers will argue that the law puts clinics in danger of being forced to close because there is only one known business willing to pick up, prepare and properly dispose of fetal remains — a bottleneck that could make it impossible to comply with the law’s demands if that vendor is lost.
The state has already lost one round in federal court when U.S. District Judge Sam Sparks temporarily blocked Texas from enforcing a similar fetal burial rule in January 2017. In his ruling, Sparks said the regulation was adopted by a state health agency in an apparent attempt to restrict access to abortions while offering no health or safety benefits.
According to pretrial filings, expert witnesses for the state will testify that requiring fetal remains to be buried or cremated is consistent with long-standing cultural norms that are not specific to one religion or culture.
Texas appealed, but the case became moot when the Legislature replaced the regulation with a similar state law in May 2017 — requiring a new round of legal challenges.
This time, there is a new judge on the case, Senior U.S. District Judge David Ezra, who is based in San Antonio but will preside over the nonjury trial at the Austin federal courthouse.
Ezra replaced Sparks, who, in addition to blocking the original fetal burial regulation after a two-day hearing, has ruled against two other abortion-related Texas restrictions in recent years.
Challenges for Texas
Under the state law, health centers that provide care to pregnant woman must ensure that fetal tissue is buried or cremated — with the ashes buried or appropriately scattered — after an abortion or a miscarriage-related procedure.
The law, which prohibits the sending of ashes to a landfill, would not apply to miscarriages at home or to early-term, drug-induced abortions that typically take place at home.
The law was intended to take effect Feb. 1, but Ezra blocked state officials from enforcing it until he can issue a written opinion that is not expected until well after the trial ends.
In temporarily blocking the law, Ezra was careful to note that he was acting on limited information provided by both sides, adding that he will be able to “render a meaningful decision” on the statute’ s constitutionality after the trial.
However, Ezra also acknowledged several challenges for state lawyers working to preserve the fetal tissue law.
First, he said, abortion providers presented evidence that the requirement places a burden on access to the procedure — raising costs, possibly discouraging women from obtaining an abortion by causing grief and shame, and undermining the Constitution’s protection given to personal beliefs by subjecting all women to a state-approved idea of when life begins.
Second, evidence indicates that abortion providers could be constrained by the limited number of vendors willing and able to handle fetal remains as required by the law, Ezra noted.
“If true, such a fact would threaten the continued availability of abortion services,” he wrote.
Third, and perhaps most problematic for the state’s lawyers, Ezra said there is no legal precedent for Texas having a valid interest “in expressing respect for the unborn” — Texas Attorney General Ken Paxton’s main justification for the fetal burial law.
The closest the U.S. Supreme Court came was a 2007 decision acknowledging that states have an interest in creating abortion regulations that show “profound respect for the life within the woman,” Ezra said, adding that the fetal burial requirement governs actions “after the potential for life no longer exists.”
Finally, the judge said, it appeared that the fetal burial requirement was an effort to curtail abortions because it was included in Senate Bill 8. The sweeping legislation contained several prohibitions on abortion — including limits on the most common type of second-trimester abortions that were blocked by another federal judge in November. Paxton has appealed that ruling.
‘Humane disposition’
Court records show that Texas abortion clinics dispose of fetal tissue by having it incinerated and sent to a landfill, though state law also allows tissue to be disinfected and placed in a landfill or ground up and released into sanitary sewage systems.
Paxton, a vocal supporter of the fetal tissue law, said the change was needed “to dignify the life of the unborn by requiring the humane disposition of fetal remains.”
“The abortion lobby has grown so extreme that it will reject any and every regulation no matter how sensible,” Paxton said in 2017. “Indeed, no longer content with merely ending the life of the unborn, the radical left now objects to even the humane treatment of fetal remains.”
According to pretrial filings, expert witnesses for the state will testify that requiring fetal remains to be buried or cremated is consistent with long-standing cultural norms that are not specific to one religion or culture.
Abortion providers counter that fetal tissue is treated no differently from other human tissue removed during medical procedures.
They also argue that forced burial or cremation is a backdoor attempt to close abortion clinics.
“Anti-abortion activists have long identified medical waste disposal as a ‘weak link’ in abortion clinic operations and sought to close clinics down by depriving them of the ability to transport, treat and dispose of medical waste,” abortion providers told Ezra in pretrial filings.
One group of abortion clinics lost three vendors “for this reason” in recent years, they said. Another Austin clinic — which lost two vendors, including one that quit almost immediately after a driver was followed and harassed — came close to shutting down when it took almost two months to find a replacement, the court filing said.
According to Paxton, however, the state law also created a state-run registry that includes funeral homes and cemeteries, including Catholic cemeteries statewide and a crematory operator in the Austin area, available to provide free or low-cost burials for fetal remains. The registry assures that costs will not dramatically rise and that clinics will be able to comply with the law, Paxton said.
Abortion providers disagree, arguing that the cemeteries and funeral homes on the state registry are affiliated with religions that are morally opposed to abortion and leaving clinics vulnerable to a pool of vendors that are not obligated to continue serving clinics.