Federal Judge Extends Order Blocking Fetal Remains Burial Rule

Federal Judge Extends Order Blocking Fetal Remains Burial Rule
George Bannister/Flickr
A federal judge Wednesday extended the temporary restraining order blocking Texas's fetal remains burial rules from going into effect, according to various reports.

U.S. District Judge Sam Sparks said at a hearing in Austin that he would make a final ruling on the constitutionality of the rules the week of January 23, while the restraining order is good through January 27, the Texas Tribune reported.

The rules — which would require abortion providers to find a way to bury or cremate all aborted fetuses, no matter the gestation period — have remained highly controversial since they were proposed in July and approved by the Texas Department of State Health Services in November.

Within days, the Center for Reproductive Rights sued the state on behalf of various abortion providers, arguing that the rules offered Texans zero public-health benefits while placing an unnecessary burden on the shoulders of abortion providers. Attorneys say the rules are vague to the point that providers could be at risk of unclear penalties — like, for example, closure — if the state finds they're not complying with the rules in exactly the way they're supposed to work.

The problem: No one really knows exactly how they should.

In an interview with the Houston Press last month, Amy Hagstrom Miller, CEO of Whole Woman's Health, a plaintiff in the suit, said that the state had offered no guidance as to how abortion clinics were supposed to work hand-in-hand with the funeral industry to see that all fetuses, no matter how microscopic, were cremated or buried. Miller said Whole Woman's Health had found only one crematory in the state that agreed to accept fetal remains from the provider's clinics.

Miller said that what made things more confusing is that the rules don't even require clinics to use crematories, but would allow them to use commercial incinerators that incinerate medical waste and haul it off to sanitary landfills. The problem, Miller said, is that incinerators are not in the business of sorting through medical waste and separating fetal remains from the rest, and it was unclear how this would work.

“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.

The Houston Chronicle reported that, to ease the burden on the providers, the executive director of the Texas Conference of Catholic Bishops, Jennifer Carr Allmon, testified at the hearing that bishops would happily take over the fetal remains burials and would even create graveyards for the unborn in each diocese.

It's unclear whether the Catholics can save the state's rules (Carr Allmon expressed some concerns about having the right license to handle the remains, the Chron reported). But in any case, Texas Attorney General Ken Paxton was absolutely certain Wednesday that the state was going to win the lawsuit.

Even though it has already lost to the Center for Reproductive Rights in the U.S. Supreme Court when the organization used the same exact argument — that the law had no public health benefits — to derail the state's restrictive abortion laws.

“I am confident in our arguments today and in the constitutionality of these rules," Paxton said in a statement. "Texas values the dignity of the remains of the unborn and believes that fetal tissue should be disposed of properly and humanely. I look forward to the court upholding the rules on January 27."

Better knock on wood.
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Meagan Flynn is a staff writer at the Houston Press who, despite covering criminal justice and other political squabbles in Harris County, drinks only one small cup of coffee per day.
Contact: Meagan Flynn