Abortion Clinics Sue Texas Over Fetal-Burial Rules

AUSTIN, Texas (CN) – Attorneys for the Center for Reproductive Rights filed a federal complaint against the state of Texas on Monday, challenging new regulations that require all embryonic tissue, including miscarriages, to be buried or cremated.

The lawsuit, filed in Austin federal court, could halt the implementation of the new fetal-burial rules finalized last month by the Texas Department of State Health Services and scheduled to go into effect early next week.

The plaintiffs, a coalition of women’s health care providers, said in Monday’s complaint that the rules are a “pretext for restricting abortion access” and are unconstitutional.

“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,” Center for Reproductive Rights President Nancy Northup said in a statement Monday.

Texas first proposed the new rules in July, just four days after the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, which held that restrictions on legal abortion cannot unduly burden a woman's right to access abortion care without providing a legitimate, medical benefit.

The new rules prohibit health care facilities from disposing fetal remains in sanitary landfills and require that all fetal tissue, regardless of gestation period, be cremated or buried, be they from abortion, miscarriage or ectopic pregnancy.

In its rule filing, the Texas Health and Human Services Commission said that “the methods allowed by the rules” would protect the public “by preventing the spread of disease while also preserving the dignity of the unborn in a manner consistent with Texas laws.”

In Monday’s complaint, the women’s health groups say that the state health department never cited any evidence or “set forth any rationale” to show that the new rules will protect against the spread of contagious disease.

The plaintiffs also claim the new rules are an “unprecedented invasion of women’s privacy,” as the department “appears to be taking the position” that abortions after 20 weeks would require a death certificate. That document becomes available right away to the deceased’s immediate family and to the general public after 25 years.

According to the complaint, this requirement would threaten the safety of women who need to keep their abortion confidential from abusive family members.

The rules further threaten women’s health and safety, according to the complaint, by forcing clinics to “work with an extremely limited number of third-party vendors for burial or scattering ashes,” which could result in clinic closures and cost increases for women seeking pregnancy-related medical care.

Whole Woman’s Health is also the lead plaintiff in Monday’s lawsuit. The organization’s CEO Amy Hagstrom-Miller said in a statement that the new fetal-burial rules demonstrate the state’s “profound disrespect of women’s health and dignity.”

“We at Whole Woman’s Health have a history of fighting restrictions that are deeply rooted in shaming and stigmatizing Texans and today’s filing is no different,” Hagstrom-Miller said. “We will not stand for Texas putting more undue burdens on women and families who deserve the safe and compassionate abortion care that we provide at Whole Woman’s Health.”

The other plaintiffs are Brookside Women’s Health Center, Austin Women’s Health Center, Dr. Lendol Davis, Alamo Women’s Reproductive Services and Nova Health Systems Inc. dba Reproductive Services.

The women’s health groups seek a court order that the state’s fetal-burial rules are unconstitutional. They are represented by Patrick O’Connell of O’Connell & Soifer in Austin, and by attorneys from the Center for Reproductive Rights in New York City.

The Texas Department of State Health Services did not immediately respond Monday afternoon to phone and email requests for comment on the lawsuit.

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