After Court Hearing, Texas' Fetal Burial Requirements Remain in Limbo

A controversial Texas mandate that some fetal tissue be buried or cremated after medical procedures remains on hold, at least for another three weeks.

After a testy two-day hearing in Austin, U.S. District Judge Sam Sparks said late Wednesday afternoon that he would not issue his final ruling on the matter until the week of Jan. 23, extending his injunction against the regulation until Jan. 27.

The plaintiffs in the suit against the state — Whole Woman's Health and the Center for Reproductive Rights — argue in their filings that the burial requirement will place an undue burden on Texas women seeking abortion by making abortion more expensive. The mandate would "impose a funeral ritual on women who have a miscarriage management procedure, ectopic pregnancy surgery or an abortion" and "force health care 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."

The state claims that the state health regulations, put in place last summer, aren't about restricting abortion at all. Instead, the Texas Attorney General's office argues, requiring fetal burials is about "expressing the state's respect for life."

Wednesday, Judge Sparks seemed disagreeable to several of the state's arguments for the regulation, according to the Associated Press. Sparks questioned John Langley, a Texas assistant attorney general, as to whether or not requiring fetal burial, cremation and internment would violate current Texas law, which allows ashes created from human remains to be scattered on any private property, as long as the owner consents.

"Fetal tissue is not human remains for the purposes of this statute," Langley told the judge, much to Sparks' consternation.

"It's the official doctrine of the state that fetal tissue is not human remains," Sparks replied. "So you're bringing dignity to non-human remains?"

As he brought the hearing to a close, Sparks told the attorney's arguing for the state that it was obvious that the requirements did nothing to improve public health, calling them "100 percent political."

Sparks' response to claims from both sides about potential costs was more circumspect. Whole Woman's Health and the Center for Reproductive rights have claimed that each burial or cremation could cost as much as $400, a little less than 80 percent of the current cost of a first trimester abortion. Jay Carnes, the operator of Texas' largest volume crematorium, testified for the state that costs get be limited to as little as $14 per fetus.

"We have absolutely no idea how it's going to affect the cost," Sparks said.

In making his ruling, Sparks will have to consider whether or not the rules, even if he doesn't believe they have any health benefit, would place an undue burden on a significant number of Texas women who would otherwise seek an abortion, the precedent set by Planned Parenthood v. Casey in the early '90s. In Whole Women's Health vs. Hellerstadt, a previous lawsuit brought by these plaintiffs against the state, the Supreme Court eventually ruled that 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 did create an unconstitutional burden on the state's women.