Federal Judge Blocks Texas’ Fetus-Funeral Law, for Now

AUSTIN, Texas (CN) — A federal judge Monday temporarily enjoined part of a Texas law that would require healthcare providers to bury or cremate fetal remains.

U.S. District Judge David Ezra said that the fetal burial provision of Senate Bill 8, an omnibus anti-abortion law passed during the 2017 legislative session, may impose an unconstitutional restriction on access to abortion because its burdens appear to outweigh its benefits.

He granted a preliminary injunction to Whole Woman’s Health and other healthcare clinics, which prevailed last year in another suit to stop the Texas Health and Human Services Commission from implementing similar fetal burial rules.

“Granting an injunction gives the Court and the parties time to develop the record regarding the case’s constitutional questions without subjecting plaintiffs or the public to Chapter 697’s [the provision at issue’s] potential harms,” Ezra wrote.

The provision requires that fetal remains be given a funeral after a miscarriage, abortion or ectopic pregnancy. Lawmakers tacked on the provision to S.B. 8 though similar rules already had been struck down in federal court.

The purpose of these fetal burial rules, according to S.B. 8, is to “express the state’s profound respect for the life of the unborn.”

Ezra found, however, that there is evidence to suggest that the stated purpose is merely a pretext for restricting abortion, but that even if it is not a pretext, there is no precedent showing that restricting the disposal of fetal remains is a valid state interest.

Ezra said attorneys for the Center for Reproductive Rights, who represent the plaintiffs, provided evidence that suggests the provision could increase costs for healthcare providers, threaten the availability of abortion services, have a negative effect on woman’s health by causing grief and shame, and even “prescribe what is orthodox concerning the beginning of life.”

Chapter 697, which was to take effect Feb. 1, will not be implemented unless and until the court issues a final judgment after a trial.

General Ken Paxton said Monday that the fetal burial provision of S.B. 8 poses no substantial obstacle to a woman’s right to a pre-viability abortion.

“Texas values the dignity of the remains of the unborn and believes that fetal tissue should be disposed of properly and humanely,” Paxton said in a statement. “My office will continue to fight to uphold the constitutionality of the new law, which simply prevents fetal remains from being treated as medical waste.”

Center for Reproductive Rights president Nancy Northup said Monday that her group will keep fighting Texas in court to challenge any laws that “rob women of their constitutionally protected rights.”

“Today’s ruling reaffirms that the courts will enforce the law and block burdensome restrictions on healthcare providers and the women they serve,” Northup said in a statement.

Ezra cautioned those eager for a final ruling not to read his order has a “signal on who will win at trial or as a determination of the validity of plaintiffs’ claims.”

“Such guesswork would be premature,” Ezra wrote on Page 1 of his 15-page order. “The Court only concludes plaintiffs establish [that] injunctive relief is warranted to preserve the status quo.”

Since June 2016, when the U.S. Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that restrictions on abortion cannot unduly burden a woman without providing a legitimate medical benefit, Whole Woman’s Health and others have successfully challenged Texas in two major cases relating to abortion access.

In November 2017, U.S. District Judge Lee Yeakel struck down another provision of S.B. 8 that would have banned dilation and evacuation abortions, the safest and most common method of ending a pregnancy in the second trimester.

U.S. District Judge Sam Sparks also ruled in favor of plaintiff healthcare providers in January 2017, granting a preliminary injunction to stop the Texas Health and Human Services Commission from implementing its fetal burial rules.

The commission dropped its appeal of Spark’s injunction in anticipation of the implementation of S.B. 8, and the Fifth Circuit dismissed that case in December.

Ezra gave the parties in the latest case 10 days to confer and submit proposed trial dates.

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