Judge Blocks Fetal Funeral Rules in Texas

AUSTIN, Texas (CN) – A federal judge in Texas temporarily halted the state Friday from enforcing rules that would require fetal remains to be given a funeral after a miscarriage, abortion or ectopic pregnancy.

U.S. District Judge Sam Sparks said in a preliminary injunction order that the fetal burial rules, finalized in November by the Texas Department of State Health Services, “likely are unconstitutionally vague and impose an undue burden on the right to abortion.”

The potential costs of implementation, combined with the fact that there is currently only one facility in the entire state that has said it is both willing and able to handle the disposal of fetal tissue as required by the rules, would “deliver a major, if not fatal, blow to healthcare providers performing abortions,” Sparks wrote in Friday’s ruling.

The fetal burial rules require that all fetal remains be cremated and/or buried. They amend current rules for handling fetal tissue, by prohibiting health care facilities from disposing the remains in sanitary landfills, which is currently the most used and least expensive method of disposal.

Whole Woman’s Health, four other women’s clinics and a doctor sued the state last month, calling the new rules an unconstitutional burden and a “pretext for restricting abortion access.”

Sparks issued the injunction until he can hold a trial on the merits of the case. He said the rules, which were scheduled to go into effect Friday, allow the state health department to exercise arbitrary and potentially discriminatory restrictions on “an issue connected to abortion.”

“But the problem extends beyond vagueness in a regulation related to a sensitive constitutional right,” Sparks said in the order. “[The department] admits the Amendments have no health benefits … the singular purpose of the Amendments is to promote respect for life and protect the dignity of the unborn while also claiming fetal tissue is not human remains.”

During a three-day hearing earlier this month, state’s attorneys told the judge that fetal remains are “pathological waste” and not human remains, an argument made to circumvent a state law that allows the ashes of human remains to be scattered on any property.

“[The department’s] professed interest regulates a time when there is no potential life and may be a pretext for restricting abortion access,” Sparks said in the order.

The judge added that the plaintiffs “have established a high likelihood of success on the merits” of the case by providing evidence that the rules would “increase costs for healthcare providers, enhance the stigma on women associated with miscarriage and abortion care, and create potentially devastating logistical challenges for abortion providers throughout Texas.”

The state health department, Sparks said, provided only an approximation of the costs of implementing the rules, using “simple, back-of-the-envelope math, which is unsupported by any research and relies heavily on assumptions.”

Sparks said the department has not explained how the new rules better protect the dignity of the unborn, especially given the fact that they have suggested health care providers can commingle fetal tissue from various procedures in one container to freeze until burial or cremation.

The state has also said that fetal remains from miscarriages that take place at home can be treated differently than those that take place in a clinic.

“[The department] does not offer any reason why fetal tissue must be treated differently at home compared to in a doctor’s office,” Sparks wrote. “Such inconsistency reduces the strength of the asserted benefit.”

The health department drafted the rules last summer at the request of Texas Gov. Greg Abbott, as the state was fighting Whole Woman’s Health in the U.S. Supreme Court, defending a bill that would have required abortion doctors to have admitting privileges at a hospital within a 30-mile radius, and require abortion facilities to meet the same standards as ambulatory surgical centers.

The nation’s highest court ruled in favor of Whole Woman’s Health in June, holding that restrictions on legal abortion cannot unduly burden a woman without providing a legitimate medical benefit.

Sparks said in his order that he is not persuaded by the state health department’s “alleged interest in protecting the dignity of the unborn.”

“Alternatively, even assuming DSHS is acting upon a legitimate interest, the record contains evidence the burdens on abortion access substantially outweigh the benefits,” he wrote.

Texas Attorney General Ken Paxton said in a statement Friday that he plans to appeal the court’s injunction.

“These rules would simply prevent healthcare facilities from disposing of the remains of the unborn in sewers or landfills,” Paxton said. “Today’s ruling, however, reaffirms that the abortion lobby has grown so extreme that it will reject any and every regulation no matter how sensible. Indeed, no longer content with merely ending the life of the unborn, the radical left now objects to even the humane treatment of fetal remains.”

Whole Woman’s Health founder and CEO Amy Hagstrom Miller said in a statement that the ruling allows Texans to continue to make their own private health care decisions.

“Today, Judge Sparks saw past the state’s claims and ruled on the right side of history,” she said. “Anti-abortion attacks cannot and will not slow us down. It is so important that our resiliency continues to blaze a path that people in all communities are empowered to stand up and continue to fight back against political interference that attempt to regulate our lives. We will not back down and are thrilled that, yet again today we were victorious for Texans.”

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