Texas Federal Judge Blocks State’s Fetal Burial Requirement

Late Friday afternoon, U.S. District Judge Sam Sparks issued a preliminary injunction banning the state of Texas from implementing a rule, drafted last summer, that would require the burial or cremation of any tissue resulting from an abortion performed in the state. In granting the injunction sought by Whole Woman’s Health and the Center for Reproductive Rights, Sparks said that the burial rule would place substantial burdens on Texas women’s access to abortion that “substantially outweigh the benefits,” the rule might create.

Rather than sitting on his hands as the lawsuit to stop the requirement moves forward in Sparks court, Texas Attorney General Ken Paxton said Friday that he would appeal Sparks’ decision to the U.S. Fifth Circuit Court of Appeals in New Orleans.

“Today’s ruling, however, reaffirms that the abortion lobby has grown so extreme that it will reject any and every regulation no matter how sensible,” Paxton said. “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. Texas stands committed to honoring the dignity of the unborn and my office is proud to continue fighting for these new rules.”

In his order Sparks made it clear that he believes any fetal burial requirement passed by the state is an attempt to stymie abortion rights, rather than, as the state has argued, an attempt to protect the dignity of the unborn.

“[The Texas Department of State Health Services] admits the [fetal burial rules] have no health benefits and the prior version of regulations governing tissue disposal induced no health problems. Instead, DSHS maintains the singular purpose of the [rules] is to promote respect for life and protect the dignity of the unborn while also claiming fetal tissue is not human remains. Unlike the legitimate state interests recognized by the Supreme Court, DSHS’s professed interest regulates a time when there is no potential life and may be pretext for restricting abortion access,” Sparks writes.

“Today, Judge Sparks saw past the state’s claims and ruled on the right side of history. This ruling allows Texans to have the dignity to continue to make their own private health care decisions,” Amy Hagstrom Miller, the founder of Whole Woman’s Health, said in a statement following the order. “This restriction, just like the many before it, all across our nation, does not create any health benefit for women and is strictly designed to limit access to safe, quality abortion care. We will not back down and are thrilled that we were victorious for Texans.”

Arguing for the injunction, attorneys for the Center of Reproductive Rights have said that the potential high costs of burial or cremation for abortion providers could vastly limit access to abortion in the state, especially for poor women. The state, citing a single cremation provider’s cost estimate, said that costs would be insubstantial, a claim that Sparks shot down as “using simple, back-of-the-envelope math, which is unsupported by any research and relies heavily on assumptions.”