Texas' fetal burial law is out, pending appeal, but, oh boy, will there be appeals.
U.S. District Judge David Ezra ruled Wednesday afternoon that the Texas Legislature's requirement that all tissue resulting from an abortion, miscarriage, still birth or ectopic pregnancy be buried or cremated, rather than disposed of as medical waste, doesn't pass constitutional muster.
"The implementation of this law, as I have pointed out, would cause and, if allowed to go into effect, would be a violation of a woman's right to obtain a legal abortion under the law as it stands today," Ezra said, according to the Texas Tribune .
During the trial over the law in July, the Texas Attorney General's Office argued that the law is intended to allow fetal tissue to be buried with dignity, a theme Attorney General Ken Paxton echoed after the ruling Wednesday.
“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. “We established during a week-long trial in July that the law is constitutional and does not impact the abortion procedure or the availability of abortion in Texas. My office will continue to fight to uphold the law, which requires the dignified treatment of fetal remains, rather than allow health care facilities to dispose of the remains in sewers or landfills.”
Opponents of the law say that it was intended only to shame women having an abortion and make it more difficult for them to seek one out. A dearth of funeral homes and organizations willing to take on the remains could lead to limited access to abortion in Texas, they said.
Amy Hagstrom Miller, the founder of Whole Woman's Health, one of the plaintiffs in the case, said Wednesday that women's health decisions are best left to women themselves.
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“Make no mistake, these restrictions were designed to shame and stigmatize patients and health care providers," Hagstrom Miller said in statement. "This decision reaffirms that Texan women are fully capable of making their own personal medical decisions about their families, futures and reproductive health care.”
The next step for Paxton is to appeal Ezra's decision to the 5th U.S. Circuit Court of Appeals. The 5th Circuit is conservative and has upheld Texas abortion restrictions in the past. Should the appellate court side with the state, the case would then presumably head to the U.S. Supreme Court.
Paxton lost his most recent abortion case at the Supreme Court when, in 2016, a 5-3 majority struck down a Texas law requiring doctors performing abortions to have admitting privileges at a hospital within 30 miles of the clinic at which they were performing abortions and that abortions be performed in hospital-like conditions. The makeup of the court could be drastically different by the time the fetal remains case gets there, though. Conservative Brett Kavanaugh, who is currently participating in Supreme Court confirmation hearings, would give right-wingers a 5-4 majority on the court, if he makes it to the bench.