A controversial new rule requiring Texas abortion clinics to bury or cremate fetal tissue won’t go into effect Monday as planned, after a judge temporarily blocked the rule Thursday.
But abortion advocates warn the lawsuit has teed up a battle that could open up a brand-new front in the abortion wars.
“This is Texas once again trying to decrease women’s access to abortion care,” said Vicki Saporta, the president of the National Abortion Federation, a member organization for independent abortion clinics. “And Texas, in recent memory, has been leading the way on anti-abortion restrictions.” She predicted that a wave of states with anti-abortion legislatures would soon follow suit. “They don’t do anything one at a time.”
The rules, which Texas’ health department quietly introduced this summer, require healthcare facilities to dispose of fetal remains from abortions and miscarriages through burial or cremation, with the only exceptions for miscarriages and abortions that take place in the home.
Whole Woman’s Health, a group of abortion clinics with several locations in Texas, filed suit, claiming the logistics of following the new rules could force clinics to close or drive up the cost of the procedure.
“It imposes a funeral ritual on women,” the suit claims. “It also forces healthcare providers to work with an extremely limited number of third-party vendors for burial or scattering ashes, threatening abortion clinics’ provision of care and their long-term ability to remain open.”
The rule was slated to take effect on 19 December. But on Thursday, a federal judge temporarily blocked the rule until a hearing on the Whole Woman’s Health lawsuit could be held in January.
Texas is not the first state to pass requirements for how abortion clinics deal with fetal remains. But because the state often sets the agenda for others seeking to curtail abortion rights, its court fight could signal that a wave of similar laws is coming.
Louisiana passed a similar measure which has been blocked pending the outcome of a lawsuit. And in March of this year, Indiana governor Mike Pence, the vice-president elect, signed a bill requiring individual women to seek funerary services for fetal tissue – regardless of whether they have had a miscarriage or an abortion. A federal judge blocked that law from taking effect.
Clinics typically dispose of the contents of a pregnancy through medical waste companies. The new rules, say Texas abortion providers, would force clinics to do business with funeral homes and pass on steep costs to abortion patients. According to one estimate, the rules would double the cost of the procedure.
“For women who are already struggling to pay, it could be a barrier and a burden that they can’t overcome,” said Saporta.
Saporta also pointed out that funeral homes would have the power to prevent abortion clinics from offering the procedure by refusing to handle their fetal tissue.
Anti-abortion protesters have been known to harass companies that do business with clinics as a way to interrupt the clinics’ operations. As a consequence, many companies are reluctant to work with abortion clinics.
The recent wave of proposals to regulate clinics’ medical waste may have been touched off by Americans United for Life, an anti-abortion group that provides lawmakers around the country with legal advice and model legislation.
In 2015, it introduced a new model bill called the Unborn Infants Protection Act, requiring all fetal tissue from abortions to be buried or cremated. Under the bill, either the woman must make the arrangements herself, or she or an “authorized representative” must decide which method the clinics use. It prohibits the donation of the tissue to medical research – an endeavor that has produced vaccines for deadly viruses such as polio.
“The momentum for creating a culture that respects life in the law increases each year,” Charmaine Yoest, the group’s president, said in a statement accompanying the draft legislation. The bill, she said, “ensures that mothers are given the opportunity to ensure that their deceased infants receive respectful treatment, and that the bodies of aborted infants are not exploited”.
AUL circulated the draft bill to state legislators late last year. At the time, many anti-abortion lawmakers were seeking to build on the outrage over a series of sting videos that falsely accused Planned Parenthood officials of illegally selling fetal tissue from abortions for profit.
One state where legislators seem to have embraced the model is Ohio. Following on the heels of the sting videos, the state’s attorney general accused Planned Parenthood of disposing of fetal remains in a general landfill – a charge Planned Parenthood denied.
Lawmakers responded by introducing a bill that
requires women who have had an abortion or a miscarriage to decide whether the clinic or hospital uses cremation or burial to dispose of the remains. “The idea of respectfully treating the remains of an infant who has been aborted, I think, is critical,” said one of the bill’s sponsors. So far, it has failed to pass the legislature.
Bills such as these may be an attempt to exploit uneasy feelings about fetal tissue. Even Planned Parenthood, in the wake of the sting videos, acknowledged that the topic was an emotional one. While denying that Planned Parenthood broke the law, Cecile Richards, the group’s president, apologized for the clinical tone used by Planned Parenthood officials when discussing fetal remains.
Saporta acknowledged that some women might find it helpful to have the remains buried or cremated. But forcing a woman to deal with funerary options, she said, is cruel. “This doesn’t take into account women’s preferences, their wishes, their religious beliefs – it tramples on all of that,” she said.
Speaking to the Guardian earlier this year, other skeptics of the model legislation warned of its potential adverse impact.
“They intend to demean and shame a woman needing abortion,” said Kelly Baden, the policy director of the the Center for Reproductive Rights.
Elizabeth Nash, who tracks state restrictions on abortion for the Guttmacher Institute, a pro-abortion rights thinktank, said: “The language being used is all about trying to elevate the status of the fetus while questioning the women’s decision-making. It seems to me that the purpose of this legislation is to make accessing services as unpleasant as possible.”
What stands out to critics about Texas’ rule is its timing. The Texas health commission proposed the rule on 1 July, just days after the US supreme court struck down a health restriction that would have shuttered half of the state’s abortion clinics.
“They didn’t like the fact that they lost, and now they’re looking for new ways to limit women’s access to abortion care,” said Saporta.
In a fundraising email, Greg Abbott, Texas’ Republican governor, said the rules would “help make Texas the strongest pro-life state in the nation”.
Texas says its critics are blowing the impact of the rules out of proportion. The annual cost to each clinic probably won’t exceed $ 500, the state claims, because it will be offset by a reduction in medical waste disposal costs.
But a spokesperson for the Texas Funeral Directors Association said each burial could cost clinics and hospitals more than $ 1,000. (The way the rule is written, some believe that even remains that are cremated would have to then be interred.) He also worried that the rules could prove burdensome to funeral homes, which usually offer their services for free to parents who are grieving for a miscarriage and want to hold a funeral. If every miscarriage in the state were subject to these rules, he said, that practice could become unsustainable.
Saporta said she was confident that Whole Woman’s Health would prevail in court. The June supreme court ruling that struck down several Texas restrictions held that states regulating abortion for health reasons had to show evidence that its regulations were medically necessary.
“There’s no health reason whatsoever for these requirements,” she said. “All the state health department wants to do is increase costs for women and make abortion care less accessible. It’s not even disguised as anything else.
“I think the courts will strike these laws down,” she continued. “But that doesn’t preclude other states from passing the same legislation, and wasting a lot of money and effort.”
Texas measure requiring burial of fetal remains may herald wave of similar laws
