State health officials can't say they weren't warned.
After telling the state in a letter that the new fetal remains burial rule would "almost certainly trigger costly litigation," the Center for Reproductive Rights has followed through on that quasi-threat and has sued the Texas Department of State Health Services Commissioner John Hellerstedt over the rule, representing various abortion providers including Whole Woman's Health.
Calling the rules an "insult to Texas women," Center for Reproductive Rights CEO Nancy Northup said in a statement: “These insidious regulations are a new low in Texas' long history of denying women the respect that they deserve to make their own decision about their lives and their healthcare."
The new rule, set to go into effect December 19, requires all hospitals and abortion clinics to inter all aborted fetuses — no matter the gestational period — through burial or cremation. The rule requires healthcare facilities to bear the costs. Proposed quietly in the obscure Texas Register four days after the U.S. Supreme Court struck down Texas's restrictive abortion laws, the rule was implemented by the Texas Department of State Health Services despite receiving more than 30,000 complaints and concerns from abortion providers, hospitals, funeral industry representatives and women.
Now, the Center of Reproductive Rights (which represented the plaintiffs in that U.S. Supreme Court case) is asking a federal judge to declare the new regulation unconstitutional, because the group argues the rules place an undue burden on women seeking abortions.
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While the state has repeatedly claimed that the fetal remains burial/cremation rule will enhance "public health and safety" by disposing of aborted fetuses with "methods that prevent the spread of disease," Center for Reproductive Rights is calling BS. (Again.) "At no time has DSHS set forth any rationale, nor cited any evidence, to show that the Regulation will improve protections against the spread of contagious disease," attorneys wrote. Instead, the center asserts that this is just another attempt by pro-life Texas politicians to restrict abortion as much as possible by additionally burdening women and abortion providers with a needless requirement.
For proof, attorneys pointed to Governor Greg Abbott's fundraising email that he sent while the rules went through public comment: "He referred to abortion providers as 'soulless,' asked for money, and stated that the then-proposed Regulation’s purpose was to promote 'respect for the sanctity of life' and 'protect human dignity,' attorneys wrote.
The center's attorneys also seemed to take some pleasure in ripping apart the logistics of the rules. Because the state allows abortion providers to incinerate the remains before ashes are interned, attorneys note that commercial incinerators burn remains in batches, not separately, and "safety risks and regulations prohibit employees from sorting through their customers’ waste" for which human remains to inter and which to send to a landfill. Also, if a woman has an abortion before six weeks, attorneys say it is "impossible" to find the actual fetus among all pregnancy tissue "without micro-surgical skills and tools."
Carrie Williams, a spokeswoman for the the Texas Health and Human Services Commission, said in an email that health officials were reviewing the lawsuit but have yet to be served.