Abortion Providers Sue to Block Texas Fetal Burial Rule

Amy Hagstrom Miller of Whole Woman's Health. (Photo by John Anderson)

The Center for Reproductive Rights, representing a group of abortion providers, is suing Texas in an effort to block a new state health department rule that forces women to bury or cremate their fetus or embryo after an abortion or miscarriage, regardless of gestation period.

CRR, who led the legal fight against Texas’ omnibus anti-choice House Bill 2 all the way up to the U.S. Supreme Court, says the fetal burial rule is just another attempt to restrict Texas women’s access to abortion care by increasing the burden of cost and casting stigma and shame around the medical procedure. The rule is in “direct defiance” of this summer’s SCOTUS ruling in Whole Woman’s Health v. Hellerstedt, which mandates states can only pass abortion laws that actually advance public health.

“These regulations are an insult to Texas women, the rule of law and the U.S. Supreme Court, which declared less than six months ago that medically unnecessary restrictions on abortion access are unconstitutional,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.

The suit, filed in the U.S. Western District of Texas Court, features some of the same players as the Whole Woman's suit: In addition to CRR, Austin attorneys Jan Soifer and Patrick O’Connell of O’Connell & Soifer have joined on. The legal team represents Whole Woman’s Health, Austin’s Brookside Women’s Health Center and Austin Women’s Health Center, Alamo Women’s Reproductive Services, and Dr. Lendol Davis.

“This latest attack is an end run game to add restrictions on abortion care and it ignores thousands of Texans' testimony and comments,” said Amy Hagstrom Miller of Whole Woman’s Health. “We at Whole Woman’s Health have a history of fighting restrictions that are deeply rooted in shaming and stigmatizing Texans and today’s filing is no different. We will not stand for Texas putting more undue burdens on women and families who deserve the safe and compassionate abortion care that we provide at Whole Woman’s Health.”

Update: In their 19-page legal filing, providers claim the fetal burial regulation is in violation of privacy, equal protection, due process, and interstate commerce. The rule – quietly slipped into the Texas Register just days after SCOTUS slammed down HB 2 – amounts to a “replacement” for HB 2 and is a direct response to the Supreme Court victory (and the state's loss), CRR writes.

CRR drew parallels between the new regulation and HB 2, writing that it “employs precisely the same tactics” as the now struck part of the law that forced physicians to secure admitting-privileges at a hospital within 30 miles of where the abortion is performed. Both rules compel providers to “maintain a fragile, medically unnecessary third-party relationship,” without which could lead them to closure. Providers say they’re only aware of one facility in the entire state willing and able to provide cremation services at a price that is comparable to their current special waste disposal costs. Since no other state health department regulation or state law similarly requires healthcare facilities to follow particular methods of human remain disposal, the state is unfairly targeting abortion providers.

Unlike HB 2, the rule rests on thinner ice when it comes to showing a purported health and safety benefit. Not only has the state provided zero evidence that the fetal burial rule would promote public health – a requirement established in this summer’s SCOTUS ruling – lawmakers have publicly shown their true intentions. Calling abortion providers “soulless,” Gov. Greg Abbott fundraised off the rule earlier this year. Not mentioning women’s health or safety at all, Abbott said the purpose of the regulation is to show “respect for the sanctity of life” and “protect human dignity.” Similarly, HHSC Commissioner Charles Smith wrote in July that the rule was meant to fall in line with Abbott’s “commitment to protect unborn lives” – again, nowhere does he refer to public health as the main objective.

In addition to the cost burden providers and patients will experience as a result of the rule, women would have their moral agency and privacy compromised, CRR contends. The imposition on women’s “autonomy and invasion of their privacy will also harm women spiritually and emotionally, causing trauma, guilt, shame, anger, and feelings of exploitation and violation … and will ultimately increase the stigma surrounding abortion and miscarriage in Texas.” While the health department changed up language as it relates to the issuance of fetal death certificates, CRR notes they would still require a certificate for a fetus that is 350 grams or more or at 20 weeks or higher gestation period, which would result in disclosing personally-identifying details without consent, “an unprecedented invasion of women’s privacy.” Further, say CRR, it could threaten the safety of women who wish to keep their abortion confidential from abusive family members.

The New York-based legal group is asking the court for a temporary injunction to stop the rule from taking effect as scheduled on Monday, Dec. 19.