Federal Judge Chary About Texas’ Fetal Funeral Law

AUSTIN (CN) — A federal judge Tuesday said Texas rules requiring fetal remains to be given a funeral after a miscarriage, abortion or ectopic pregnancy may violate a state law that permits cremated ashes to be scattered on any public or private property.

The rules, developed by the defendant Department of State Health Services, require all fetal remains to be cremated and/or buried, and prohibit healthcare facilities from disposing of them in sanitary landfills — the most common method of disposition.

Whole Women’s Health, four other women’s clinics and a doctor sued the state on Dec. 11, calling the new rules an unconstitutional burden and a “pretext for restricting abortion access.”

U.S. District Judge Sam Sparks restrained the state from enforcing the rules on Dec. 15, four days before they were to take effect. The Department of State Health Services wrote the rules at the request of Gov. Greg Abbott.

The Health and Human Services Commission said in its November rule filing that the rule 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.”

But when Sparks asked Assistant Attorney General John Langley, at the hearing on the restraining order, how the rules would benefit public health, Langley acknowledged that he did not have a “satisfactory answer” to the question.

At the Tuesday hearing, Sparks told the state’s attorneys that the rules “flat out” violate state law.

“How can you violate the law that says you can scatter ashes anywhere with permission?” Sparks asked on the first day of the two-day hearing. Sparks’ restraining order runs out on Jan. 6.

“I want the state to give me answers about how one regulation can overrule another state statute,” Sparks said in court Tuesday. He ordered state attorneys to bring him answers before proceedings begin Wednesday morning.

Langley told Sparks Tuesday that “the rules don’t regulate women at all,” but merely regulate health care centers’ disposal practices.

But Amy Hagstrom Miller, president of Whole Women’s Health, said in a statement Tuesday that Texas’s “latest political interference into women’s healthcare” was “morally offensive.”

Witnesses testified Tuesday about the potential costs, benefits and purpose of the rules.

Asked if there were any particular health benefit in treating fetal remains differently than other medical waste, such as preventing the spread of contagious disease, Deputy Commissioner of the Department of State Health Services Jennifer Sims replied, “No.”

But Sims said she believes that “clarifying language and disposition methods enhances public health.”

The U.S. Supreme Court ruled in June, in Whole Woman’s Health v. Hellerstedt, that restrictions on legal abortion cannot unduly burden a woman without providing a legitimate, medical benefit.

John Hellerstedt, M.D., the commissioner of the Texas Department of State Health Services, is also the defendant in the case at issue here.

Witnesses for the plaintiffs testified Tuesday that the rules have no public health benefit and are unfairly burdensome to women and clinics.

Hagstrom Miller testified that clinics could have difficulty finding crematoriums and burial service providers because they may be targeted by anti-abortion activists.

The Texas Catholic Conference of Bishops has said it will help bury aborted fetuses at no charge in Catholic cemeteries, but an economist testified Tuesday that relying on the church to do this work for all healthcare facilities in the state would be a “fragile solution.”

“These organizations, their ultimate goal is to shut down these facilities, so it would be in their best interest to stop providing those services eventually,” said Anne Layne-Farrar, a Chicago-based economist.

Hagstrom Miller said in her statement that “I testified to ensure women are able to access safe, compassionate abortion care in their communities without these medically unnecessary burdens.”

The hearing was to resume at 9 a.m. Wednesday.

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