Attorneys Warn Texas's Rule to Cremate Aborted Fetuses Could Trigger Lawsuit

Governor Greg Abbott has used the proposed rule to cremate and bury aborted fetuses as a great excuse for fundraising.
Governor Greg Abbott has used the proposed rule to cremate and bury aborted fetuses as a great excuse for fundraising.

The lawyers who fought Texas all the way to the U.S. Supreme Court over its restrictive abortion laws are suggesting state health officials take another gander at the high court's ruling that struck them down. They aren't too sure Texas paid much attention to the ruling, evidenced by the new abortion regulations health officials quietly proposed shortly after losing the Supreme Court case.

State officials announced in the obscure Texas Register  that they wanted to start mandating the cremation or burial of aborted or miscarried fetuses — an idea that came just four days after Texas lost Whole Women's Health v. Hellerstedt. The 5-3 Supreme Court decision prevented the state from implementing restrictive abortion regulations that were expected to shutter all but nine abortion clinics in Texas.

This week, lawyers for the Center For Reproductive Rights — which fought Texas in court — wrote in a letter to the state that these proposed rules will "almost certainly trigger costly litigation for Texas."

Just as Texas claimed its proposed abortion law would protect the health and safety of women — despite experts' insistence that it would do just the opposite — the state claimed this new fetus cremation rule would "enhance protection of the health and safety of the public." And just as the Supreme Court ruled in Whole Woman's Health, attorneys for the Center For Reproductive Rights are calling BS on Texas.

Using the same argument they used in that SCOTUS case, these lawyers say these rules create an undue burden for Texas abortion providers by forcing them to perform otherwise religious rituals on aborted fetuses with "zero" benefit to the health of Texans. Here's how the lawyers stuck it to the state:


"Clearly, [Department of State Health Services'] stated reason of 'enhanced protection of public health and safety' is utterly and demonstrably false. These proposed amendments have nothing to do with health and safety, and everything to do with Texas' crusade against abortion. As such, they are a sham, and they will not withstand constitutional review."

The attorneys also point out how Governor Greg Abbott even used these proposed rules as a fundraising ploy. As the Texas Tribune reported, Abbott said in his LIFE Initiative fundraising email, “I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life. This is why Texas will require clinics and hospitals to bury or cremate human and fetal remains.”

He added that he doesn't think fetuses should be treated as "medical waste and disposed of in landfills," which is how it currently works.

Public comment on the state's proposed abortion rule closes tomorrow. Apparently, if Texas doesn't want to lose another lawsuit, it may do well taking the attorneys' advice and get to reading Justice Ruth Bader Ginsburg's scathing opinion in Whole Women's Health.


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