Judge Requests More Info as Fetal-Burial Trial Wraps

AUSTIN, Texas (CN) – At the end of a five-day trial over Texas’ fetal burial law, a federal judge said he is concerned not only with whether the law violates a woman’s right to abortion, but with whether it will also restrict women who are seeking other types of health care.

U.S. District Judge David Ezra said in court Friday that he wants people to understand that the fetal burial requirements of Texas’ Senate Bill 8 will affect not only women who are seeking elective abortions, but also women who have miscarriages or ectopic pregnancies.

“The question of whether woman are able to get services … should be of grave concern to every citizen of the state of Texas, not only for those who support a woman’s right to have an abortion,” Ezra said. “Those who oppose abortion staunchly should be concerned, as the court is, that this law doesn’t hamper those women who are themselves maybe staunchly opposed to abortion but have a miscarriage and then need to seek medical treatment.”

The fetal burial provision of S.B. 8, an omnibus anti-abortion law passed during the 2017 legislative session, requires health care providers to bury or cremate fetal remains from abortions, miscarriages and ectopic pregnancies. Under current law and practice, such remains are typically incinerated and disposed of in a sanitary landfill.

The provision does not apply to women who miscarry at home or to tissue created in a laboratory environment.

Texas claims the fetal burial requirements protect the “dignity” of life. The purpose of the rules, according to the bill, is to “express the state’s profound respect for the life of the unborn.”

Reproductive health care providers who are challenging the rules say they’re unconstitutional, medically unnecessary, and could have a grave impact on women’s access to health care in a state that already has some of the most restrictive abortion laws in the country.

The lawsuit against the state’s fetal burial law is one of a series of challenges brought by the Center for Reproductive Rights and The Lawyering Project on behalf of lead plaintiff Whole Woman’s Health and other reproductive health care providers.

In 2016, the U.S. Supreme Court ruled in favor of Whole Woman’s Health in another case, striking down a Texas law that required abortion providers to have admitting privileges at hospitals and required clinics to meet the same minimum standards as ambulatory surgical centers.

In that case, Whole Woman’s Health v. Hellerstedt, the nation’s highest court ruled that restrictions on abortion cannot unduly burden a woman without providing a legitimate medical benefit.

Over the course of the fetal burial trial, the health care providers argued that the rules could force them to stop offering abortion services – or to shut down their clinics completely – because it is difficult to find vendors who are willing to work with them to dispose of fetal remains.

“What happens if we have a total breakdown of the system?” Judge Ezra asked. “Is there a failsafe, is there a backup, is there some sort of way women could receive these services if SB 8 was put into immediate effect?”

The state has created a registry of entities willing to provide fetal disposition services – including two dozen cemeteries and a handful of funeral homes – and representatives of the Texas Catholic Conference of Bishops testified that they would be willing to provide free burials of fetal remains in Catholic cemeteries.

However, none of these entities have entered into any type of contract with any of the clinics that handle fetal tissue. Moreover, health care providers are concerned that there is a dearth of options for women who are not Catholic or not religious at all.

Ezra, who asked attorneys to submit their closing arguments in writing, told them to be sure to include how many entities have “firmly agreed” to dispose of the fetal remains, how many secular crematories and cemeteries have committed, where those entities are located, and how many remains could be handled by those entities.

Ezra said he is concerned that if he lifts his preliminary injunction — which kept the fetal burial rules from taking effect Feb. 1 — there will not be “adequate logistics to do what needs to be done under SB 8.”

“I know some people want the system to go down,” the judge said.  Even those people should understand that it doesn’t just cover abortions, it covers women who have miscarriages … I think we need to focus on that as well.”

“If I were on Aug. 30 to issue an opinion that says SB 8 is constitutional and SB 8 can go into effect … what then?” Ezra added.

Attorneys must submit their closing arguments by Aug. 3.

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