A women’s rights group has filed a lawsuit in an attempt to block a new Texas rule that requires fetal remains to be cremated or buried.
Accusing the state of a politically-motivated ploy to make it harder for women to have abortions, the Center for Reproductive Rights launched the legal action on Monday, one week before the regulation is set to take effect on 19 December.
The lawsuit against the Texas department of state health services (DSHS), filed in federal court in Austin, alleges that the regulation has no medical benefits, will pose practical burdens by increasing the cost of healthcare services and is an attempt to stigmatise abortion and heap shame on women seeking the procedure.
Whole Woman’s Health, an abortion provider, is the lead plaintiff in the suit. It claims that the new regulation “burdens women seeking pregnancy-related medical care. It imposes a funeral ritual on women who have a miscarriage management procedure, ectopic pregnancy surgery, or an abortion.
“Further, it threatens women’s health and safety by providing no safe harbor for sending tissue to pathology or crime labs. It also 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.”
Current Texas regulations on disposal by healthcare facilities do not generally distinguish between fetal remains and other kinds of human materials that would typically be disposed of in a sanitary landfill. The new rule changes that, creating a category for “fetal tissue” and ordering it to be buried or cremated regardless of how far along the pregnancy is. Miscarriages or abortions that happen at home are exempt and birth or death certificates are not required to be issued.
The plan, strongly promoted by Texas’ Republican governor Greg Abbott, was publicly announced last July, four days after the supreme court struck down key parts of an onerous 2013 abortion law that prompted a drastic drop in the number of clinics in Texas. The court found that the law, which mandated that clinics have standards akin to surgical centres, caused an undue burden on women seeking an abortion and did not offer sufficient medical benefits. Abbott, though, has vowed to continue efforts to restrict abortion.
“I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life. This is why Texas will require clinics and hospitals to bury or cremate human and fetal remains,” Abbott wrote in July in a fundraising email to supporters reported by the Texas Tribune. He said the proposal would “help make Texas the strongest pro-life state in the nation”.
According to the DSHS, the rule will benefit public health and safety “by ensuring that the disposition methods specified in the rules continue to be limited to methods that prevent the spread of disease” and by “protecting the dignity of the unborn”. Texas’s Republican-dominated legislature is expected to formally enshrine the regulation in state law during the 2017 session, which starts in January.
“These regulations are an insult to Texas women, the rule of law and the US supreme court, which declared less than six months ago that medically unnecessary restrictions on abortion access are unconstitutional,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. “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 healthcare.”
The question of how to handle fetal remains became a rallying point for anti-abortion activists after an organisation released a video in 2015 that falsely appeared to show employees at a Planned Parenthood clinic in Houston illegally selling fetal tissue.
Mike Pence, the Indiana governor and now vice-president-elect, signed a restrictive abortion law in March this year that included a fetal remains provision similar to Texas’s plans. It was stopped by a court in June shortly before it was scheduled to take effect.
Another law in Louisiana is on hold because of an ongoing legal challenge.
Texas rule requiring burial or cremation of fetal tissue shames women, suit says
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