Unless a federal judge swoops in to block the new law, in just four days, abortion providers will have to start making burial or cremation arrangements for every aborted fetus at their clinic.
A little problem: It seems that many providers, as well as those in the funeral industry, still have no idea how this new requirement will actually work in practice. And the state hasn't offered any guidance, either, according to Whole Woman's Health founder and CEO Amy Hagstrom Miller.
In fact, that's part of the reason Whole Woman's Health and several other abortion providers decided to sue Texas Department of State Health Services Commissioner John Hellerstedt in federal court over the new fetal remains burial rules. Miller said the state fails to consider various complications that would make complying with the law difficult for abortion providers, which she fears could ultimately result in the state's shuttering abortion clinics. Even worse: Miller is certain that patients — not clinics, as the rules say — will end up paying for the fetus burials and cremations in the end.
“By design, this rule is creating a huge barrier, and I think that was completely the intention of the rule in the first place — to create this sort of bottleneck where you have a rule on the books that's impossible to comply with,” Miller said. “I don't think any of us have a clear solution at this point.”
Miller said Whole Woman's Health has found only one crematory in the state that has agreed to accept fetal remains from the provider's clinics. The crematory is more than 500 miles from Whole Woman's Health's McAllen location.
Michael Land, a funeral director and spokesman for the Texas Funeral Directors Association, said there are also various technicalities for the cremation or burial process, such as authorization paperwork — signed, usually, by next-of-kin — that are unaddressed in these new rules. Is an abortion clinic now stepping in the way a deceased person's son or daughter would? “I don't think anyone is prepared for this,” Land said.
To add to the confusion, the state's rules don't necessarily require clinics to use a crematory or funeral home to comply with the rules, saying they could still use an incinerator. Incinerators are what abortion providers and hospitals currently contract with to handle disposal of remains, so it would appear to be the most feasible route. But Miller said the problem is that, now, commercial incinerators would suddenly be expected to sort through all the types of human waste they receive from hospitals and clinics, isolate the fetal remains and then — as a Texas Health and Human Services Commission spokesperson told the Houston Press — bury the remains themselves. Miller said this is impractical.
“They use terms like 'incineration' and 'cremation' interchangeably, but they're extremely different, and they're regulated differently and by different organizations,” Miller said. “That vagueness is concerning to us. Beyond that, it really ties our hands in a few really critical ways.”
Two of those ways: Miller said when a victim of sexual assault gets an abortion, sometimes the clinic works with law enforcement to provide the fetal remains as evidence for the prosecution. “What are we supposed to do in that case? It's not like I can tell law enforcement they have to have a burial or cremation,” she said. And second, sometimes the woman may ask that the fetal remains be sent to a lab for genetics testing to examine an anomaly or abnormality. “Again: Can we continue to do that? Is the pathology lab now required to have burial or cremation?” Miller said.
But worst of all, Miller is concerned about the inevitable trickle-down costs that will fall on the backs of women. As with any medical provider, abortion clinics' only source of revenue is from patient fees or insurance reimbursements. Texas Medicaid does not cover any abortion-related services, and the burial or cremation costs could not be absorbed by health insurance because they have nothing to do with health care, Miller said. Therefore, Miller said, it is only inevitable that the costs of the new rule will be absorbed by the patients themselves, in one way or another.
Miller said she feels that the state has attempted to obscure this fact by claiming health-care facilities would be responsible for handling the costs. Which is only half-true, Miller said.
“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 as 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.”
Land said that funeral directors across the state are also worried about how, if providers do choose crematories, this will affect their resources.
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According to the most recent annual report from the Texas Department of State Health Services, there were roughly 183,300 deaths in Texas in 2014 and 54,900 abortions — meaning that, if all of those fetuses were to also require cremation or burial services, that would increase the demand for funeral services by 30 percent, in theory. (But not if all the providers prefer to use incinerators.)
We reached out to the state to ask questions about Land's and Miller's concerns, about enforcement of the rules (such as, will abortion clinics be shuttered for failing to comply?), and even whether the rules threaten some people's religious freedom, given that some religions bar cremation. Carrie Williams, spokeswoman for the Texas Health and Human Services Commission, did not respond to our questions, but sent an FAQ.
According to the FAQ, the cost is estimated, somehow, to be only $450 a year per clinic. Land said cremation could cost between $75 and $100 per fetus.