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Texas law requiring burial or cremation of fetal remains struck down by judge

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AUSTIN, Texas >> A federal judge today struck down a Texas law that would have required abortion providers and other health care facilities to bury or cremate fetal remains, the latest in a series of legal setbacks for anti-abortion activists and state Republican leaders who pushed for the law.

The Texas Legislature passed the law in 2017. It would have required hospitals, abortion clinics and other providers to arrange for the burial or cremation of fetal remains, regardless of a patient’s personal wishes or religious beliefs, and regardless of whether the remains were from an abortion or miscarriage.

David Ezra, a senior judge with the U.S. District Court in Austin, issued a permanent injunction that blocked enforcement of the law, which had been set to go into effect in February. Texas abortion providers had won a temporary injunction earlier; Ezra issued his final ruling today following a five-day trial in Austin in July.

In some ways, the case was a sequel to Texas’ most significant courtroom battle on abortion — the three-year fight over what had been one of the toughest anti-abortion laws in the country, a battle that ended in 2016 when the U.S. Supreme Court tossed out two of the law’s main provisions. One required clinic doctors performing abortions to obtain admitting privileges at a nearby hospital, and the other mandated that all clinics meet the same standards as hospital-style surgical centers.

The fetal burial law, one of a handful debated recently in states around the country, marked the next chapter in the abortion fight in Texas — and one that could provide new fodder for the national legal fight over abortion rights if, as expected, the case makes its way through the appellate courts.

“Make no mistake, these restrictions were designed to shame and stigmatize patients and health care providers,” said Amy Hagstrom Miller, the president and chief executive of Whole Woman’s Health, which operates abortion clinics in Texas and was the lead plaintiff in both the fetal-remains case and the case decided by the Supreme Court in 2016. “This decision reaffirms that Texan women are fully capable of making their own personal medical decisions about their families, futures and reproductive health care.”

In the past, Texas law had treated fetal tissue as a type of human waste, known as pathological waste. Health care facilities could dispose of such tissue using a variety of methods, including grinding and discharging it into a sewer system, incineration, and placement in a landfill. The 2017 law required health care facilities that provide care to pregnant women to dispose of fetal remains by burial, cremation, incineration followed by burial, or steam disinfection followed by burial.

The Texas attorney general, Ken Paxton, whose office defended the law in court, said in a statement that the law was focused on preventing health care facilities from disposing of fetal remains in sewers or landfills. Paxton and other supporters of the law have cast it as an issue involving “the humane disposition of fetal remains.” Opponents have said it was designed to shame women seeking abortions and increase the obstacles, costs and bureaucracy facing abortion providers.

Paxton suggested that Texas would appeal Ezra’s ruling.

“Today’s ruling is disappointing, but I remain confident the courts will ultimately uphold the Texas law, which honors the dignity of the unborn and prevents fetal remains from being treated as medical waste,” Paxton said in the statement.

In his ruling, Ezra said the law imposed significant burdens on women seeking abortion or undergoing pregnancy loss.

One of the burdens cited by the judge involved the lack of vendors in Texas to perform these services. The entities “traditionally used to inter human remains or scatter their ashes are not structured or prepared to accommodate disposal” of embryonic and fetal tissue remains “to the degree that will be required,” the judge wrote. “Put another way, reliable and viable options for disposing of embryonic and fetal tissue remains in compliance with the challenged laws do not exist.”

Ezra also highlighted the sweeping nature of the law. He wrote that if a pregnant woman visited an ophthalmologist’s office and miscarried while there, “that office has a legal obligation to inter or scatter the ashes of the embryonic or fetal tissue in accordance with the challenged laws.”

Many of the Republican officials and lawmakers who dominate state government are staunch opponents of abortion, including Gov. Greg Abbott, Lt. Gov. Dan Patrick and the attorney general. They and other leaders have made it increasingly difficult for Texas women to get abortions in recent years, passing and backing laws that have increased restrictions on abortion clinics and doctors who provide abortions.

Former Gov. Rick Perry once told an anti-abortion rally in Austin that his goal was to “make abortion, at any stage, a thing of the past.”

But their push has lately struggled. After the Supreme Court decision in 2016, 10 abortion clinics that were in danger of being forced to close were allowed to continue operating. Ezra’s ruling was a second blow to Texas’ efforts to require the cremation or burial of aborted fetal remains. State officials had made a similar requirement part of the state’s medical-waste disposal rules, but another federal judge struck down that rule last year, saying in part that it was too vague.

Ezra’s decision comes as the national debate over abortion takes on a renewed urgency. As the confirmation hearings of Brett Kavanaugh, President Donald Trump’s nominee to the Supreme Court, play out in Washington, the future of Roe v. Wade, the 1973 Supreme Court ruling that effectively made abortion legal, remains in doubt.

Texas officials are likely to appeal Ezra’s ruling to the 5th U.S. Circuit Court of Appeals, in New Orleans, regarded by many as one of the most conservative federal appellate courts in the country. Any 5th Circuit decision would likely then be appealed to the Supreme Court.

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