Judge Temporarily Blocks Texas Fetal Burial Requirement

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Late Thursday afternoon, U.S. District Judge Sam Sparks issued a temporary restraining order that blocks the state of Texas from requiring burial or cremation for any tissue stemming from a miscarriage or abortion that takes place outside of a woman's home. Without Sparks' order, the burial requirement would've gone into effect on Monday.

Thursday's hearing was the first in a lawsuit filed by Whole Woman's Health and the Center for Reproductive Rights that challenges the fetal burial requirement. The same two organizations sued in 2013 over a Texas law that required all abortion clinics to be ambulatory surgical centers (basically mini-emergency rooms) and required all doctors performing abortions in the state to have admitting privileges at a hospital within 30 miles of their clinic. The U.S. Supreme Court sided with the plaintiffs in that case over the summer.

Like the surgical center and admitting privileges requirements, requiring fetal burials places an undue burden on Texas women seeking an abortion, the plaintiffs argue, because it "imposes a funeral ritual on women who have a miscarriage management procedure, ectopic pregnancy surgery, or an abortion," "threatens women’s health and safety by providing no safe harbor for sending tissue to pathology or crime labs" and "forces healthcare providers to work with an extremely limited number of third-party vendors for burial or scattering ashes, threatening abortion clinics’ provision of care and their long-term ability to remain open, as well as cost increases for women seeking pregnancy-related medical care."

In its reply, the state argues that the new requirement, slipped into state health regulations earlier this year, isn't about restricting abortion. Instead, requiring fetuses to be buried is a way of "expressing the state's respect for life," the Texas Attorney General's Office says in its brief.

Initially, according to reporters in Judge Sparks' Austin courtroom, the judge asked the state to stop implementation of the burial requirement until the next scheduled hearing in the case on Jan. 3. When the state refused, Sparks then issued the temporary restraining order, effective until Jan. 6, when Sparks anticipates making a final decision on whether or not to keep the state from enforcing the burial regulation while the lawsuit proceeds.

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