Federal judge again blocks Texas fetal remains rules
Austin, Texas — A federal judge late Friday again blocked Texas rules mandating burial or cremation of fetal remains, in a victory for abortion rights groups.
Austin-based U.S. District Judge Sam Sparks said that the health department regulations would remain suspended until further notice and that a trial date would be set in coming weeks.
Sparks had previously suggested in court that the proposed rules had public health benefit. Opponents argue they could unduly shame and burden women seeking abortions.
The rules seek to ban hospitals and clinics from disposing of fetal remains from abortions or miscarriages as biological medical waste, usually meaning they are incinerated and placed in sanitary landfills.
They were set to take effect in December, but Sparks issued restraining orders after national advocacy groups sued. He then heard two days of testimony before eventually issuing Friday’s injunction. Federal courts previously blocked similar measures in Louisiana and Indiana.
Nancy Northup, president and CEO of the New York-based Center for Reproductive Rights called the rules “unnecessary, unconstitutionally vague, and manifestly insulting to women.”
“Our Constitution protects a woman’s fundamental right to access reproductive health care without needless barriers, and we will continue fighting for decisions like this wherever politicians choose to ignore that right,” Northup said in a statement.
Texas could appeal the injunction and ask a higher court to allow the rules to move forward while it waits for trial. Texas Attorney General Ken Paxton’s office hasn’t commented on that possibility but vowed Friday to keep fighting for the rules.
“Texas has chosen to dignify the life of the unborn by requiring the humane disposition of fetal remains,” Paxton said in a statement. He said the ruling “reaffirms that the abortion lobby has grown so extreme that it will reject any and every regulation no matter how sensible.”
Texas first proposed the rules in July, days after the U.S. Supreme Court voided much of the state’s larger anti-abortion law, which was approved in 2013 and would have left Texas with 10 abortion clinics, down from more than 40 in 2012.
The state health department said the rules sought to protect human dignity in a manner consistent with Texas’ past restrictions on abortion. But while hearing evidence earlier this month, Sparks said they were “100 percent political” and suggested they could supersede established Texas law that allows scattering of ashes on any private property with owner’s consent, which might include landfills.
Lawyers for Paxton’s office countered that that law applied only to human remains and not specifically to fetal tissue, which prompted Sparks to exclaim: “It’s the official doctrine of the state that fetal tissue is not human remains. So you’re bringing dignity to non-human remains?”
The groups suing say cremation and burial would cost more and force women to cover the additional expenses. Exactly how much more isn’t clear, though some estimates have put the figure at an extra $400 per fetus — perhaps doubling the costs of an abortion.
Texas argues that those estimates assume individualized burial or cremation being required for each fetus when the rules would allow groups of remains to be collected for mass burial or cremation, lowering the cost considerably.
Even amid the legal fight, top Republican state lawmakers have filed bills to codify similar fetal remains rules into formal Texas law. Since the Legislature’s session ends in late May, those measures could be approved and signed into law before the trial over the health department rules is completed.