Federal Judge Blocks Texas Aborted Fetus Burial, Cremation Rule

Protesters at the Capitol in 2013 to protest the restrictive Texas abortion law ultimately struck down by the U.S. Supreme Court.
Protesters at the Capitol in 2013 to protest the restrictive Texas abortion law ultimately struck down by the U.S. Supreme Court.

A federal judge has blocked the controversial rule requiring all aborted fetuses to be buried or cremated from going into effect, according to various reports.

In a hearing Thursday, U.S. District Judge Sam Sparks granted a temporary restraining order to stop the rules from taking effect December 19. The plaintiffs — several abortion clinics, including Whole Woman's Health — had argued that the state's fetal burial or cremation rules placed a needless burden on the backs of abortion providers and women, who the plaintiffs anticipate will end up picking up the tab for the fetus funerals in one way or another.

On top of it, as Whole Woman's Health CEO Amy Hagstrom Miller told the Houston Press in an interview this week, neither abortion providers or funeral directors were given any guidance as to how to actually implement the new rule, and even four days before they were set to take effect, still did not know how they would work.

"This is one of the reasons Whole Woman's Health decided to challenge it," Miller told the Press Tuesday. "For one, it's completely unjust and ridiculous. It has no added health benefit to women or added health benefit whatsoever. And it's just sort of a backdoor way to close down access to safe abortion services. The second reason is that it's just completely vague. It's very difficult to figure out what a path to compliance would look like."

The state has repeatedly claimed that the rules' purpose is to enhance "public health and safety" by disposing of aborted fetuses with "methods that prevent the spread of disease." The Center for Reproductive Rights — the organization representing Whole Woman's Health, which also won in the Supreme Court in its fight against Texas's restrictive abortion laws — claims the state has provided no evidence for this assertion.

Instead, the plaintiffs argue that this is simply another attempt to force needless regulations on abortion providers that are difficult or even impossible to comply with, possibly resulting in their closure. Plus, Miller said that, since Texas Medicaid covers no abortion-related services and private health insurance would not cover fetal burials since they are not health care, women are going to end up paying for the fetal burials or cremations, even though the state has said the health-care facilities will pick up the bill.

“I don't know why they haven't been more clear about the fact that this is an additional burden on the backs of women,” she said. “The costs would have to be passed on to the patient, just like any costs in health care are passed on to the patient. It's no different. That's been, in part, a kind of messaging spin from our opposition.”

Judge Sparks is expected to decide the rules' fate at a hearing January 6.


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