U.S. District Judge David Ezra will hear arguments and witness testimony this week in a challenge brought by reproductive healthcare providers who say the state’s fetal burial rules violate women’s freedom of belief and arbitrarily restrict access to medical services.
The fetal burial requirements are contained in Senate Bill 8, an omnibus anti-abortion law passed during the 2017 legislative session. The purpose of the rules, according to the bill, is to “express the state’s profound respect for the life of the unborn.”
The rules require healthcare 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.
Ezra, who temporarily enjoined enforcement the law in January, began the scheduled five-day trial Monday by assuring attorneys that he has “no predisposition” in the case, referring to unusual Fifth Circuit opinions issued Sunday night which seem to suggest otherwise.
The Fifth Circuit ruled that Ezra improperly ordered a group of Roman Catholic bishops to produce their emails and other private documents to the plaintiffs. The Texas Conference of Bishops is not a party to the suit, but its executive director testified on behalf of the state that the bishops would be willing to provide free burial of fetal remains in Catholic cemeteries.
Fifth Circuit Judge James Ho wrote in concurrence that he wondered why Ezra required the bishops to comply with the discovery order within 24 hours after it was issued, “if not in an effort to either evade appellate review — or tax the Bishops and their counsel for seeking review.”
Ho, recently appointed to the Fifth Circuit by President Donald Trump, said the proceedings made him wonder if discovery was sought “to retaliate against people of faith for not only believing on the sanctity of life — but also for wanting to do something about it.”
Ezra said Monday that he moved so quickly because he had a limited time to try the case, not because he had any bias against the bishops.”
“Nothing could be further from the truth,” Ezra said.
Ezra said he would ignore the “extraordinary” Fifth Circuit opinions — which include a concurrence and a dissent from the three-judge panel — but that he had asked state attorneys if they wanted to ask for his recusal because of “any perceived bias.” The state declined to do so.
Fifth Circuit Judge Gregg Costa wrote a dissent that concludes with a shot aimed directly at Ho and his colleague in the majority, Fifth Circuit Judge Edith Jones: “Even more troubling are the potshots directed at the district court, and the concurring opinion then piles on,” Costa wrote in wrapping up his 11-page dissent.
“That the pecking order of the system allows appellate judge’s view of the law to ultimately prevail should be satisfaction enough for us. While vigorous disagreement about the law is part of the judicial function, there is no need to go beyond the identification of legal error by questioning the motives of our district court brethren. That is especially true when the legal issue is one that the majority opinion concedes is novel, and when the ill motives are pure conjecture. What is one of the sins of the trial court according to the majority opinion? Working and issuing orders on a weekend.
“Our district court colleagues deserve most of the credit for making the federal judiciary the shining light that it is. They work under greater docket pressures, with greater time constraints, yet with fewer resources. And unlike appellate judges on a divided panel who can trade barbs back and forth, a district judge has no opportunity to respond to personal attacks in an appellate opinion. They deserve our respect and collegiality even when, or especially when, they err as we all do at times. Among the exemplary group of trial judges who serve our circuit, the one handling this case stands out: with over three decades of service, he is now essentially working for free as a senior judge, and volunteering to travel thousands of miles outside the district of his appointment to help with the heavy docket in the Western District of Texas. Speculating that malice is behind his decisions seeking to expedite a high profile case with a rapidly approaching trial date is not the award he is due.”
Plaintiffs’ attorney David Brown, from The Lawyering Project in New York, said in his opening statement Monday that the fetal burial rules are incompatible with the beliefs of many women and do not advance a legitimate interest in protecting women’s health.
The U.S. Supreme Court ruled in Whole Woman’s Health v. Hellerstedt (2016) that restrictions on legal abortion cannot unduly burden women without providing a legitimate, medical benefit.
Brown said that the fetal burial requirement would make it more difficult for providers to care for their patients, because it is difficult to find vendors who are willing to work with abortion clinics to dispose of fetal remains.
He said the state’s new registry of vendors, including funeral homes and cemeteries, is no solution because the registered entities are not required to be “reliable partners” for abortion providers, and that some are ideologically opposed to abortion.
The plaintiffs say SB 8 violates the Due Process and Equal Protection clauses of the Constitution.
State attorney Darren McCarty said the burial requirement ensures that fetal remains will not end up in a “city dump or a sewer system” and that it does not require any kind of mourning ritual.
“It is not an attempt to burden a woman’s right to choose an abortion or anything like that,” McCarty said.
He said the state has an interest in ensuring the “dignified treatment of human remains” and that abortion providers have “no idea what Texas women feel” about the disposition of fetal remains.
“Plaintiffs will have greater choice under this law than they do today,” McCarty said.
Whole Woman’s Health founder and CEO Amy Hagstrom Miller testified that patients already are allowed to have a funeral for their fetal remains, though she could remember only four cases — all involving late, second-trimester — in which a woman said she wanted a funeral service.
“The system that we currently use is completely adequate and it’s working just fine,” Hagstrom Miller said.
“I think this is another way that stigma and shame around abortion can be inserted into a woman’s experience,” she added.
The fetal disposition rules have not yet gone into effect, but some healthcare providers in Texas already require the burial of fetal remains.
Blake Howard Norton, a witness for the plaintiffs, testified that she was shocked and confused when an Austin hospital told her she had to sign off on one of two options for the disposition of the remains of her miscarried fetus, which had stopped developing at nine weeks gestation.
After the surgical procedure to remove the miscarried remains from her uterus, the hospital said it would either arrange for the remains to be buried in a mass funeral — the details of which Howard could elect to know or not know about — or she could arrange a private burial at her own expense.
She was informed of these options shortly before her procedure, when she was already connected to IVs.
“It didn’t feel like a realistic option to unhook myself and leave,” Norton said, adding that she would not have chosen to have the procedure at that hospital had she been informed of the policy in advance.
She said that since she miscarried so early in her pregnancy, the fetus did not feel like a “separate and distinct person; it felt like a part of me.”
“To allow it to be my pregnancy that I was mourning, as opposed to someone else’s definition of a living, breathing child, was really important to me,” Norton said. “There was a place on the form where I had to handwrite in my relationship to what I was thinking of as tissue at that point.
“It communicated to me that my autonomy was going to be restricted because of the hospital’s policies and value system, regardless of what I wanted and needed.”
The trial in the District Court for the Western District of Texas is scheduled to end Friday.