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Judge Blocks Texas Fetal Burial Law

A federal judge Wednesday permanently blocked Texas regulations requiring the burial or cremation of fetal remains, predicting they could lead to a “near catastrophic failure” of the reproductive health care system in the state.

AUSTIN, Texas (CN) - A federal judge Wednesday permanently blocked Texas regulations requiring the burial or cremation of fetal remains, predicting they could lead to a “near catastrophic failure” of the reproductive health care system in the state.

U.S. District Judge David Alan Ezra found the fetal burial provision of Senate Bill 8, an omnibus anti-abortion law passed during the state’s 2017 legislative session, violates the Equal Protection and Due Process clauses of the Fourteenth Amendment.

The provision, which applies to the disposition of fetal remains from miscarriages, abortions and ectopic pregnancies, would have affected every Texas health care facility providing medical care to pregnant women.

The purpose of the fetal burial regulations, according to the bill, is to “express the state’s profound respect for the life of the unborn by providing for a dignified disposition of embryonic and fetal tissue remains.”

But Ezra said the fetal burial rules impose an undue burden on women seeking an abortion or experiencing a pregnancy loss by requiring medical facilities to use “unreliable and nonviable waste disposal options” that would result in reduced access to abortion in Texas. Ezra found the provision also imposes heavy burdens on women whose beliefs differ from the viewpoint endorsed by the state.

“In enacting the challenged laws, Texas endorses the viewpoint that embryonic and fetal tissue remains should be afforded special status from the moment of conception and should be handled in a manner similar to human remains,” Ezra wrote in his 53-page opinion. “Such a viewpoint communicates strong implications about when life begins and the meaning of a miscarriage or abortion. And that state-sanctioned viewpoint goes to the heart of the liberty protected by the Fourteenth Amendment and recognized in the protection given to a woman's right to decide whether to carry a child to term.”

Ezra added that “dignified” is a subjective term, pointing out as an example that Islam generally forbids cremation.

“In addition, the process of life and death is inherently messy and thus, at least in part, undignified,” Ezra said.

Currently in Texas, medical facilities incinerate and dispose of fetal remains in sanitary landfills – the same as other medical waste.

Plaintiffs Whole Woman’s Health, other women’s clinics, and doctors have been fighting the fetal burial restrictions for nearly two years, first challenging the fetal disposition rules proposed by the Texas Department of State Health Services in 2016, then suing the state over the rules imposed by SB 8.

The clinics argued that the fetal burial rules were unconstitutionally burdensome, did not serve any legitimate medical benefit, and would shame and stigmatize women seeking abortions or suffering from miscarriages and ectopic pregnancies.

Ezra agreed, noting that the  “lack of capable and reliable options to dispose of embryonic and fetal remains in compliance with the challenged laws would likely cripple the ability of healthcare providers to offer surgical abortions.”

“As the disposal system is currently structured, implementation of the challenged laws would likely cause the shutdown of women's healthcare providers unable to patch together a hodgepodge of funeral homes, crematoriums, and cemeteries to meet their disposal needs,” Ezra wrote. “Women would experience further limited abortion access in a state where such access had already been greatly diminished.”

Ezra also worried the restrictions would push women to seek abortions outside of health care facilities and the doctor-patient relationship.

Texas already imposes more restrictions than most states on women seeking abortions, including a pre-procedure ultrasound, a 24-hour waiting period, and enhanced informed consent disclosures. Given the numerous mechanisms already enforced by the state, Ezra said the fetal burial rules would likely have only a minor effect on a woman’s decision to seek an abortion.

While primarily siding with the clinics, Ezra stopped short of finding that the state has no interest in promoting the “respect for potential life, even when that potential no longer exists.”

Texas Attorney General Ken Paxton said in a press release Wednesday that his office would continue to fight to uphold the fetal burial provision of SB 8.

“Today’s ruling is disappointing, but I remain confident the courts will ultimately uphold the Texas law which honors the dignity of the unborn and prevents fetal remains from being treated as medical waste,” Paxton said.

Lead plaintiff Whole Woman’s Health could not be reached for comment Wednesday afternoon, but tweeted that, “Today serves as a reminder that Texans of all faiths and backgrounds should be able to make the decisions that are best for them based on their own beliefs.”

Whole Woman’s Health CEO Amy Hagstrom Miller said on Twitter that while she and others struck down SB 8 in Texas today, “There is something bigger happening right now.”

She encouraged her followers to try to stop the appointment of Brett Kavanaugh to the U.S. Supreme Court.

“Keep fighting, y’all,” she said. “We can all do it together.”

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