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New Texas Law Will Require Aborted Fetuses to Be Buried or Cremated Months After Landmark US Supreme Court Ruling

Abortion rights activists cheer after the US Supreme Court struck down a Texas law placing restrictions on abortion clinics, outside of the Supreme Court on June 27, 2016 in Washington, DC.
(Credit: Mandel Ngan /AFP/Getty Images)

Abortion rights activists cheer after the US Supreme Court struck down a Texas law placing restrictions on abortion clinics, outside of the Supreme Court on June 27, 2016 in Washington, DC. (Credit: Mandel Ngan /AFP/Getty Images)

The Governor says they are “giving voice to the unborn.” Critics say they are a naked attempt to shame and financially burden Texas women seeking abortions.

They are controversial new rules in Texas which will require abortion clinics to bury or cremate fetal remains.

They follow a landmark US Supreme Court defeat for abortion opponents this summer. After the high court struck down a Texas law restricting abortions, state health officials quickly got to work proposing the new rules, which they claim will help stop the spread of communicable disease. More than a dozen states have similar rules or laws for fetal remains.

After a few months of fairly evenly-split debate consisting of tens of thousands of comments (31 groups were in favor of the rules, while 26 opposed them), the Texas Department of State Health Services rules are slated to take effect later this month.

Still, the controversy rages. Are the new rules about public health? Or are they just aimed at restricting abortions?

Here’s how they came to pass, along with some arguments for and against.

Governor’s backing

In July, mere days after the high court ruling in Whole Woman’s Health v. Hellerstedt, which threw out Texas’ so-called “clinic shutdown” law, Gov. Greg Abbott lauded the rules.

In a fundraising email, published by The Texas Tribune, he made it clear the initiative was aimed more at “giving voice to the unborn” than it was at public safety.

“Human life is not a commodity or an inconvenience. It is our most basic right. Without it, we have no other rights,” the email said. “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 or hospitals to bury or cremate human or fetal remains.”

But pro-choice advocates questioned the timing of the governor’s letter, noting that Justice Stephen Breyer wrote in the 5-3 Whole Women’s Health ruling days earlier that the Texas law in question cured “no significant health-related problem.”

The SCOTUS ruling

That law required doctors who perform abortions to have admitting privileges at nearby hospitals and and it mandated that abortion clinics have facilities on par with an ambulatory surgical center.

“We agree with the District Court that the surgical-center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so,” Breyer wrote for the majority.

Proponents of legal abortion say the Department of State Health Services rules, which go into effect December 9, are no different than the law shot down by the high court.

The Center for Reproductive Rights issued a statement calling the new rules unconstitutional and in “direct defiance of the high court’s ruling” in the Whole Women’s Health case.

“These new restrictions reveal the callous indifference that Texas politicians have toward women,” said David Brown, the center’s senior staff attorney. “Forcing a woman to pay for a burial after she ends a pregnancy or experiences a miscarriage is not just absurd — it is an unnecessary burden and an intrusion on her personal beliefs.”

The costs

According to estimates provided by critics of the rule, the price of cremation or burial could cost, on average, $2,000 per procedure. The Texas Medical Association and Texas Hospitals Association, both of which oppose the rules, said cremation could cost between $1,500 and $4,000.

Planned Parenthood says the cost of an abortion ranges from $300 to $950, depending on the type of procedure required.

In responding to those estimates, the state said that it had received cost data from numerous groups and determined that the cost was a fraction of the opponents’ estimate. It said the cost would be $450 annually per facility.

“This cost would be offset by the elimination of the current method of disposition,” the state said.

Marilyn Robertson, board president of Jane’s Due Process, which provides legal representation for pregnant girls in Texas, called this assertion “fundamentally incorrect” in testimony presented to the state.

“Undoubtedly, if these rules are implemented, the clinics are forced to pass along the costs of this unnecessary regulation, which is not insignificant,” she said.

The rules will disproportionately affect black and brown women who already have trouble shouldering the costs of medical procedures, Robertson wrote. She further said the rules were cruel, unnecessary and aimed solely at deterring women from exercising their constitutional rights.

“Texas healthcare providers like hospitals and abortion clinics already follow the state’s standards for the sanitary disposal of medical waste including embryonic tissue,” she said. “An additional procedure with no recognized medical value only unnecessarily interferes with a woman’s autonomy and her decision making in her own medical care.”

Supporters: It’s about dignity

Within the letters and statements of support for the rules are few references to any health benefits. Most of the support, which largely emanates from religious and pro-life groups, cites the need to treat fetuses with dignity, rather than discarding them in a landfill.

“While the Supreme Court tragically does not allow states to ban most abortions, we believe that Texas law should be changed to assure that the bodies of the victims of abortion are not treated like medical waste. These proposed rules validate the dignity of those unborn babies whose lives are unfortunately lost to abortion,” Joe Pojman, executive director of Texas Alliance for Life, said when the rules were proposed in July.

Texas Right to Life, whose legislative director, John Seago, successfully urged the state to direct the rules solely at health care facilities, and not miscarriages and “chemical abortions” that occur in a woman’s home, also employed the dignity defense. The group decried how opponents of the rules compared “preborn children to amputated limbs and ovarian cysts, calling preborn children ‘products of our bodies’ and ‘waste.'”

“As usual, abortion advocates claimed that ‘access to abortion is a fundamental liberty,’ failing to mention that The Declaration of Independence actually lists ‘Life’ first,” its statement said.

According to Texas Right to Life, the fetal-burial rules may be elevated in stature next year. Sen. Don Huffines, a Dallas Republican, has said he would file legislation to codify the rules when the Legislature convenes in January.

According to the Legislature’s website, House Bill 201 — “relating to disposition of fetal remains by a health care facility” — was filed last month, and the Texas Catholic Conference of Bishops has already issued its support for the bill.