The new fetal burial rules in Texas have been blocked in court

A federal district court on Friday blocked new Texas regulations that would have required fetal tissue to be cremated or buried, no matter the stage of development. The rules had been temporarily blocked until the district court could hear arguments for an injunction, which it did in a two-day hearing earlier this month.

The unusual health department regulations, if they had gone into effect as planned on December 19, would have dramatically increased the cost of an abortion for women without adding any clear public health or safety benefits. That’s why the Center for Reproductive Rights filed a lawsuit to block the new rules, which were finalized in late November.

“Today’s ruling acknowledges that these regulations do nothing to protect public health while imposing new burdens and uncertainty on health care providers and the diverse communities they serve,” Center for Reproductive Rights president Nancy Northup said in a statement Friday. The Center now plans to seek a court order to permanently strike down the regulations.

Health department officials had clarified that the rules wouldn’t have applied to abortions or miscarriages that happen at home, the Texas Tribune reported, and that no birth or death certificates would have to be issued. The regulations would have applied to hospitals, abortion clinics, and other health care facilities, but not individual women.

That wasn’t the case for a similar law in Indiana signed by Vice President-elect Mike Pence earlier this year. That law, which was later blocked by a judge, was so poorly written that it could have technically required women to cremate or bury their menstrual blood. (The law, which also included a ban on abortions based on the fetus’s race, sex, or “disability,” was blocked because it unconstitutionally restricted a woman’s choices in seeking abortion.)

Some states have laws that allow fetal remains to be cremated or buried — but Texas and Indiana both tried to require these methods to be used, instead of incineration or any of the other normal methods of sanitary disposal.

Laws like these are sometimes described as requiring “funerals for fetuses.” To be clear, this doesn’t mean that women are required to host or attend memorial services. But it does effectively require women to pay for funerary services, cremation or burial, that are normally optional (if they’re offered at all) for fetuses or fetal tissue.

That’s because using funerary services instead of normal medical waste procedures is likely to dramatically increase costs for health care centers (as much as two- to fourfold, Planned Parenthood estimated). While health department officials claimed that these costs would be "offset by the elimination of some current methods of disposition,” Texas funeral directors contend that the costs would likely be much higher than the state anticipated.

Funeral directors told the Texas Tribune’s Alexa Ura that they worried about how the rules will affect the families they serve. For instance, funeral homes currently offer cremation to parents grieving a miscarriage as a charitable service — but increased demand from the state could end that practice.

“These rules requiring burial or cremation of fetal and embryonic tissue will not only further stigmatize abortion care patients, but they will undoubtedly increase costs by potentially thousands of dollars, further burdening low-income Texans who already need financial assistance to be able to access abortion care,” said Amanda Williams, executive director of the Lilith Fund (which provides financial assistance to women seeking abortion in Texas) in a statement.

Advocates say they fear the regulations could even close clinics that aren’t able to find a funeral service provider who will work with them.

Fetal burial bills are becoming the latest trend in anti-abortion lawmaking

Guttmacher Institute

Fetal burial requirements like the ones in Texas appear to be the hot new trend in tactics that could use burdensome regulations to limit abortion indirectly.

In addition to the blocked law in Indiana, Ohio has been trying to pass a law requiring fetal tissue to be cremated or buried. That push started after state Attorney General Mike DeWine made baseless claims last year that Planned Parenthood improperly disposed of fetuses in landfills. (He used inflammatory language to describe a normal, legal waste disposal process, and in December 2015 he backed off of threats to pursue legal action against the organization.)

This is definitely not the first time abortion opponents have pushed laws that would either burden abortion providers or close clinics without any clear medical benefit, nor is it the first time such laws have been copied in other states that hope to use them to restrict abortion.

Ever since Republicans took over many state legislatures in the 2010 wave election, states have passed hundreds of laws designed to limit abortion in various ways.

Not all of these laws are unique. Many are copies of model legislation proposed by lobbying groups like Americans United for Life. And many start off being proposed or passed in just one or a few states, before spreading to others as the ideas catch on among lawmakers eager to limit abortion in any way they can.

The Supreme Court recently struck down two such laws in Texas — one that required doctors to have difficult-to-obtain “admitting privileges” at a nearby hospital, and another that required abortions to be provided in mini hospitals that are expensive to build. The Court found that these laws created an unconstitutional “undue burden” on women seeking abortion.

But while similar laws have fallen since the Court’s decision in states like Wisconsin, Louisiana, Mississippi, and Alabama, many still remain in place and will require a specific legal challenge in order to be struck down in court. (Some of these laws are similar enough to the overturned Texas laws that they could easily be struck down on the same grounds — but not quite similar enough that it would be automatic.)

That’s why pushing state anti-abortion laws has been a pretty effective strategy for the anti-abortion movement — even if those laws are likely to be found unconstitutional eventually. Fighting them takes a lot of time, money, and effort. And in the end, at least a few restrictions are likely to survive, or at least do a lot to limit abortion as long as they are allowed to remain standing.

Update: This post has been updated with news that the rules have been blocked in court; to clarify that miscarriages that occur in hospitals are also subject to the new rules; to explain how the Texas regulations compare to fetal tissue disposal provisions in other states; and to add comments from funeral directors on the potential costs and impacts of the rules.

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