New attempt to restrict abortions: Texas’ fetal burial law

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Texas recently passed yet another series of restrictions regarding abortions by requiring that any aborted fetal remains be buried or scattered after incineration rather than disposed of in a landfill with other biological medical waste.  According to the rules, which were set to go in effect on December 19, 2016, any fetal tissue resulting from an abortion, regardless of the gestation period, must be buried, cremated, or steam disinfected then buried.  These rules provide the procedure for the treatment and disposition of both human and animal waste from health care facilities.  All types, except aborted fetal remains, are deposed to sanitary landfills and sanitary sewer systems.

[T]he burial or cremation requirement was “imperative to establish higher standards that reflect our respect for the sanctity of life.”

The rules were proposed by the Health and Human Services Commission on behalf of the Department of Health Services and under the directive of Texas Governor Greg Abbott.  In a fundraising email published by the Texas Tribune, Governor Abbott cites the rule change as a way to “turn the tides” against Texas’ abortion industry and protect the “rights of the unborn.”  He also added that the burial or cremation requirement was “imperative to establish higher standards that reflect our respect for the sanctity of life.”  The Texas Tribune also reported that Democratic State Representative Donna Howard of Austin questioned the origin of these rules and how they would improve public health.  Executive Health Commissioner Charles Smith responded by explaining that the rule change was a part of a much-needed update, which had not occurred in 20 years.  Mr. Smith stated the rule change was consistent with “the best interest of the public health of Texas.”

Because the rules were not codified in statute, no approval or vetting by the legislature was required, although two public comment hearings on the proposal were held.  In a report on some of the comments heard during the hearings, the New York Times revealed that the Texas Medical Association and the Texas Hospital Association inquired as to whether the rules would require women who miscarried at home to transport their fetal remains to a health care facility to arrange for burial.  In response, the drafters included language to clarify that the rules do not apply to abortions or miscarriages that occur at home and that death certificates are not required for proper disposition under the rules.

In a letter to the Department of State Health Services, the Texas Medical Association and Texas Hospital Association expressed another concern, saying, “these rules once again will present regulatory intrusion” into the “unique relationship” between doctors and patients.  Heather Busby, the executive director of NARAL Pro-Choice Texas, an abortion rights group, also criticized “the addition of non-medical ritual” to a medical procedure and called the new rules “a thinly veiled attempt to shame Texans who have abortions and make it harder for the doctors who provide them.”  Ms. Busby went on to say “the state agency has once again ignored the concerns of the medical community and thousands of Texans by playing politics with people’s private health care decisions.”  Common throughout most concerns was the inquiry as to what medical benefits would be received from these regulations. As the Texas Tribune reports, Health Commissioner Smith answered that the previous rules were “heinous” by referring to a disposal method that included “grinding and discharging” the “products” of abortions into a sanitary sewer system, a method he defined as “outdated.”

The concerns expressed here are similar to those voiced earlier in 2016…in Whole Woman’s Health v. Hellerstedt.

The concerns expressed here are similar to those voiced earlier in 2016 regarding Texas’ House Bill 2, which placed certain restriction on physicians and facilities providing abortions.  Under that law, the “admitting privileges requirement” provided that any physician performing an abortion must have admitting privileges at a hospital no more than 30 miles from the abortion facility.  The law also included a “surgical center requirement,” which requires an abortion facility to meet the minimum standards for ambulatory surgical centers under Texas law.  This would include minimum sizes for rooms and doorways, and pipelines for anesthesia.  A group of abortion providers opposing the bill argued that these provisions violated the Fourteenth Amendment as interpreted in Planned Parenthood v. Casey, which mandates that restrictions placing an “undue burden” on those seeking or administering abortions are unconstitutional.  The Supreme Court of the United States agreed with petitioners, and in a 5-3 vote struck down the bill in Whole Woman’s Health v. Hellerstedt.

Justice Stephen Breyer, writing for the majority, indicated that the facility requirement on abortion clinics does not “benefit patients and is not necessary.”  As for the “admitting privileges requirement,” the Court held that “sufficient evidence” existed to prove that requirement “led to the closure of half of Texas’ clinics, or thereabouts,” while “nothing in Texas’ record evidence” indicated that “the new law advanced Texas’ legitimate interest in protecting women’s health.”  Perhaps most striking about this decision was that Justice Anthony Kennedy, the most senior justice and typically a swing vote for abortion cases, chose not to write the opinion.

Two important questions at the heart of Hellerstedt are whether the Texas restrictions place so heavy a burden on women seeking abortions as to effectively deny their constitutional right, and whether the courts are entitled to question the motives of the legislature that passed the laws.  By following the Casey precedent, the Court answered both questions affirmatively and determined that the courts are required to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

[A] lawsuit has already been filed to prevent the rules from enactment.

Whether or not a court would find the rules requiring the burial of fetal remains unduly burdensome for those seeking and administering abortions remains to be answered.  However, a lawsuit has already been filed to prevent the rules from enactment.  It argues that the rules serve no medical purpose and are meant to shame women who seek abortions and make it more difficult for physicians to provide them.  Just days before the rules were scheduled to become law, Austin-based U.S. District Judge Sam Sparks blocked them until the following month.  According to a Fox News report on the lawsuit, Judge Sparks scheduled two days of testimony for early next month, with a decision on whether or not the rules can be allowed to stand going forward expected by January 6, 2017.

Critics say cremation – and especially burial – would cost more and force women to have to cover the additional expenses, while funeral home operators also have worried about the added costs interment and cremation.  The Texas Catholic Conference, however, has announced that it is readying plans to allow free burial for fetal remains at Catholic cemeteries.  In defense of the state’s law, the Health Department has also claimed that the new rules could help stop the spread of communicable disease, although pro-choice activists reject this argument.

Texas’ volatile relationship with abortion activists dates back to 1973 when the Supreme Court of the United States decided Roe v. Wade, ruling that a woman’s right to abortion was encompassed in the “right to privacy” under the 14th Amendment.  Since then, a seesaw of restrictive policies and backlash from pro-choice activists has remained consistent not just in Texas, but throughout the country as well.  Indiana enacted a similar law, signed in by vice president-elect Mike Pence, and Louisiana’s law is currently on hold.  Like the Texas rules at issue now, pro-life groups such as The Center for Reproductive Rights and the American Civil Liberties Union have also challenged the Indiana and Louisiana laws.

Once arguments and evidence are presented from both sides, the impact that these rules may have on women seeking abortions and the facilities providing them will be better understood.  Given the recent Hellerstedt decision, a court will likely balance the negative impacts and the benefits resulting from the rules and come to a conclusion as the weight of the burden it imposes on the woman’s right to choose.