Anti-abortion activists marched in front of the United States Supreme Court in March 2016.EXPAND
Anti-abortion activists marched in front of the United States Supreme Court in March 2016.
Stephen Young

As Fetal Burial Trial Ends, Judge Warns State of Unintended Consequences

The latest trial in Texas' ongoing battle against women's personal autonomy wound down Friday afternoon, with the state arguing that it's in Texas' best interest that all tissue obtained from abortions and miscarriages in the state be cremated and buried. After a week of testimony, U.S. District Judge David Ezra was skeptical of the Texas Attorney General Office's claims and warned the state of the potential consequences of the law if it ever fully goes into effect.

Texas' fetal burial requirement is a piece of Senate Bill 8, the 2017 Texas Legislature's sweeping anti-abortion measure. It's one of two components of the bill — the second is a ban on the safest and most common method of second-trimester abortion — for which the state already has been sued.

Opponents of the law say that it places an unnecessary burden on both abortion providers and women seeking abortions. Providers face increased costs associated with the burials, assuming they can find a funeral home to carry them out. Women are, at the very least, forced into participating in a ceremony they might not want to be a part of.

"We have seen, time and again, how these politically motivated restrictions on abortion interfere with a woman’s relationship with her provider, limit her options, and infringe on her and her family’s deeply personal beliefs and decisions. Let’s be clear: Politicians, not doctors, created these restrictions, not to improve women’s health care, but to push it out of reach. To that we say, not on our watch,” Amy Hagstrom Miller, the president of Whole Woman's Health, one of the plaintiffs in the case, said Friday.

During the trial, James Shields of Our Lady of the Rosary Catholic Cemetery and Morgan Cook of The Gabriels Funeral Chapel and Crematory both testified that their organizations in Georgetown would be willing to help abortion providers meet SB 8's requirements, drawing criticism from Ezra.

“There’s a significant minority of women in this state who are not Christian,” Ezra said, according to Mary Tuma, an Austin Chronicle reporter in the courtroom. “The issue of a Catholic cemetery requiring the placement of a Christian symbol [on the gravestone] offending and discouraging women from having abortion is relevant.”

Texas Attorney General Ken Paxton summed up the state's argument in favor of fetal burial early in the week by .

“Texas has chosen to respect unborn life by adopting rules requiring the dignified treatment of fetal remains, rather than allow health care facilities to dispose of the remains in sewers or landfills,” Paxton said. “The rules are constitutional and do not impact the abortion procedure or the availability of abortion in Texas. I’m confident in our arguments and look forward to the courts ultimately upholding Texas law.”

Throughout the trial, Ezra pressed back on the state's arguments, expressing doubt that Texas funeral providers would be eager to have their businesses associated with abortion providers.

“It’s not what they can do — it’s what they will do, especially as we’ve heard about intimidation and threats facing facilities who then no longer wanted to deal with aborted remains. I’m not going to accept they’re already willing and able [to work with abortion providers]. The fact of the matter is we don’t know, and that’s a problem," Ezra said.

While the district judge seems likely to side with the plaintiffs after he receives written closing arguments next month, Ezra acknowledged where the case would then be headed — the conservative U.S. Court of Appeals for the 5th Circuit and the in-flux Supreme Court — in a warning to Texas' attorneys. Women who seek medical treatment after or during a miscarriage could struggle to find care if a doctor or other health care provider isn't set up to provide fetal burial services.

“Those who staunchly oppose abortion should be concerned that the law doesn’t hamper those women who are also anti-abortion but have a miscarriage, then need to seek medical treatment,” he said. “This needs to be dealt with carefully.”

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