Fifth Circuit Hears Challenge to Texas Fetal Burial Law

NEW ORLEANS (CN) – A Fifth Circuit panel heard arguments Thursday in a lawsuit over a Texas statute that requires the burial of fetal remains, after a federal judge in Austin rejected the challenge.

Beth Ellen Klusmann, arguing for the state of Texas, told the three-judge panel that the law provides dignity to human life by providing sacred burial.

“How you treat the dead impacts how you treat the living,” Klusmann said.

But David Patrick Brown, who argued on behalf of Whole Woman’s Health and the other health care provider plaintiffs, said the law “fails to respect the dignity of women” and “creates an undo burden” by making them feel shame.

The case stems from a 2016 amendment to state law that would require facilities handling the remains of aborted and miscarried fetuses to bury or incinerate them, rather than send them to a landfill, as previous law allowed.

U.S. Circuit Judge Gregg Costa, an appointee of Barack Obama who was very vocal throughout Thursday’s hearing, wondered aloud whether the case should be held until after the U.S. Supreme Court decides on a pending abortion case known as June Medical.

Costa, evidently as a tongue-in-check gauge of the parties’ claims, asked Klusmann whether Texas might consider requiring women who have lost a pregnancy to wear a mourning ribbon for a month, or whether those women’s names might be printed in a local newspaper, for instance.

It was a light back and forth, with Klusmann appearing to choke back a laugh and Costa appearing to have a slight smile.

“Stigma and shame are not burdens we have to consider,” Klusmann answered more than once. She said the only requirement, as laid out by the Supreme Court, is that women’s choices not be violated.

Although it’s unclear how the judges will ultimately decide, U.S. Circuit Judge Rhesa Hawkins Barksdale, an appointee of George H.W. Bush, appeared aggravated at times in questions posed to plaintiffs’ attorney, Brown.

Barksdale asked Brown to respond to the lower court’s finding that the burial law does not place undo shame or burden upon women.

The attorney said the record holds evidence that “women are extremely disturbed by things done to their tissue without their knowledge.”

Brown said it’s a woman’s right to choose the “moral status” of the termination of a pregnancy – whether that be through miscarriage or abortion – and the state’s law violates that right.

Fetal and embryonic burial rules became a popular focus for conservative lawmakers and anti-abortion activists following the 2015 release of heavily edited videos that falsely purport to show Planned Parenthood staff members discussing the sale of fetal tissue obtained through abortions. Although multiple investigations cleared Planned Parenthood of wrongdoing, the residual effects of the videos remain.

In May, the Supreme Court ruled Indiana’s similar but less stringent fetal burial law could go into effect. In addition to Texas and Indiana, Arkansas, Louisiana and North Carolina have all also passed measures requiring fetal tissue to be buried or cremated.

The Texas law is opposed by major medical associations, including the Texas Medical Association, Texas Hospital Association, and the American College of Obstetricians and Gynecologists, according to the Center For Reproductive Rights, which also represents the plaintiffs.

Texas Attorney General Ken Paxton, a Republican, said in a statement after Thursday’s hearing that the law does “nothing to affect the availability of abortion in Texas.”

“So why does the abortion industry object so strenuously? The unpleasant answer is that it will go to any lengths to obscure this fundamental reality: the child in the womb is a human being,” Paxton said.

Chief U.S. Circuit Judge Carl E. Stewart, an appointee of Bill Clinton, was the third member of the panel. It is unclear when the judges will issue a ruling.

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