State of Texas Sued Over Fetal Burial Rule

Whole Woman's Health and the Center for Reproductive Rights are suing the state of Texas again. This time, the team that beat the state in the Supreme Court this summer is seeking to stop the state from enforcing a new regulation that would require the burial or cremation of any embryonic and fetal tissue resulting from abortions, miscarriages or ectopic pregnancy surgeries performed in the state. The regulation is set to go into effect on Dec. 19.

According to Texas Governor Greg Abbott, the fetal burial requirement, which isn't a state law, just a regulation slipped into health department guidelines, is about respecting the sanctity of life.

“I don’t believe human and fetal remains should be treated like medical waste and disposed of in landfills,” Abbott said in a July email to supporters about his proposal.

Abortion-rights advocates say requiring the burials isn't about respect at all. Instead, Nancy Northrup, the president and CEO of the Center for Reproductive Rights, said Monday that the new rule is another attempt by the state to limit access to abortion care.

"These regulations are an insult to Texas women, the rule of law and the U.S. Supreme Court, which declared less than six months ago that medically unnecessary restrictions on abortion access are unconstitutional," she said. "These insidious regulations are a new low in Texas' long history of denying women the respect that they deserve to make their own decision about their lives and their health care."

In their previous suit, Northrup and Whole Woman's Health founder Amy Hagstrom Miller argued that a Texas state law requiring that any clinic providing abortion be certified as an ambulatory surgical center (essentially a mini emergency room) and that all doctors performing abortions have admitting privileges at a hospital within 30 miles of their clinic placed an undue burden on Texas women who sought abortion. After the 5th Circuit sided with the state of Texas, the Supreme Court overturned the law.

The fetal burial requirement will create a similar undue burden, Miller and Northrup 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."

"Texas’ profound disrespect of women’s health and dignity apparently has no bounds with this new regulation announced just days after our June victory in the Supreme Court. This latest attack is an end run game to add restrictions on abortion care and it ignores thousands of Texan’s testimony and comments," Miller said.

A federal court struck down a similar requirement in Indiana, signed into law by Vice President-elect Mike Pence, in June. In that case, Indiana Planned Parenthood affiliates argued that their cost could go up two to four times if they were required to change the way they handled fetal remains.