Women's Reproductive Health Advocates Sue To Block Texas' New Fetal Remains Rule

AUSTIN, TX — Providers of abortion filed a federal lawsuit on Monday in an effort to block a new state rule that requires all embryonic tissue — the product of fetal remains from either miscarriages or abortions — to be buried or cremated without exception.

Filed in Austin federal court, the lawsuit seeks to halt implementation of a new rule that critics view as nothing short of an effort by conservative, family-values lawmakers to shame and/or financially burden women who undergo abortions, Courthhouse News and other media outlets reported. The rule dictates that fetal remains in Texas, regardless of gestation period, be buried or cremated rather than disposed of in a sanitary landfill as has been done in the past.

The Texas Department of State Health Services rules calling for burial of fetal remains were finalized last month, and are scheduled to take effect on Dec. 19.

Deeming the rules as unconstitutional, plaintiffs in their lawsuit termed that new rules as representing a "pretext for restricting abortion access."

Nancy Northup, president of the Center for Reproductive Rights, expounded on that stance in a prepared statement: “These regulations are an insult to Texas women, the rule of law and the U.S. Supreme Court, which declared less than six months ago that medically unnecessary restrictions on abortion access are unconstitutional.”

Northup's reference was to the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt — a case decided four days before Texas finalized the new fetal remains burial/cremation rule — which maintained that restrictions on legal abortion cannot unduly burden a woman’s right to access abortion care without providing a legitimate, medical benefit.

In addition to having the net effect of shaming women who have abortions, the new rule potentially threatens the safety of women needing to keep their abortion confidential from abusive members of their families, according to the lawsuit.

And then there's the cost. Industry trade groups such as the Texas Medical Association and the Texas Hospital Association previously raising concerns about the new requirements, touched on the question of who would be responsible for costs associated with cremation or burial of fetal remains. TMA and THA officials note the costs associated with cremation run from $1,500 to $4,000 while burial costs range from $7,000 to $10,000.

In a previous joint letter from both groups, medical professionals also questioned the proposed rules' feasibility -- particularly as it relates to miscarriages occurring outside a medical setting.

“Would the rules, if adopted as proposed, require a woman who experiences a spontaneous miscarriage to carry the fetal tissue to a physician’s office or other health care setting for assessment?” the letter partially reads. "If a death certificate is required to be issued, under which circumstances will the report be publicly available? Who would be responsible for paying for the costs of cremation and/or interment of fetal tissue?"

The state's new requirements on fetal remains have long been championed by Gov. Greg Abbott, who has made "sanctity of life" a key theme of his political platform. The rules on fetal remains are an offshoot of Abbott's “Life initiative,” designed to “protect the unborn and prevent the sale of baby body parts,” according to his official website.

The issue has proved a touchstone issue resonating with the GOP base, and Abbott has used it as an effective part of his political fundraising efforts.

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