Federal Judge Blocks Fetal Burial Rule … For Now

U.S. Judge Sam Sparks

A draconian rule that would force women to bury or cremate their fetus after an abortion or miscarriage, regardless of gestation period, has been blocked – at least temporarily.

U.S. Judge Sam Sparks has granted abortion providers a temporary restraining order against the rule, which was set to take effect this Monday, Dec. 19. After an hourlong hearing today, Sparks suspended the rule until Jan. 6. He has scheduled longer arguments from each side on Jan. 3 and 4.

Represented by the Center for Reproductive Rights and Austin-based attorney Jan Soifer, abortion providers (including local abortion physician Dr. Lendol Davis) filed suit against the Department of State Health Services rule on Monday, arguing the regulation is unconstitutional, imposes an undue burden on women, and forces them to adhere to the state’s beliefs. Providers say the rule is just another attempt at restricting abortion access and increasing the shame and stigma of the medical procedure.

During a hearing at the U.S. Western District Court today, Soifer and CRR attorney David Brown argued the rule would dissuade women from obtaining medical care; put abortion clinics in jeopardy as they’ve identified only one service provider that offers cremation services at a reasonable cost; and does nothing to advance health. Brown said the rule is simply a “pretext” to deterring abortion, as the health department doesn’t require the same rule for other bodily remains.

Sparks appeared far more confrontational toward state defendants, commenting that Texas must show reasons for implementing the rule other than “political” ones. He also cast ample skepticism on the state’s timing of the rule – filed just four days after their loss in the House Bill 2 case at the U.S. Supreme Court – calling it “curious,” more than once. In a moment of commentary, Sparks said the war against abortion rights is raging “quicker and meaner” than it has in the last 40 years.

State assistant attorney John Langley defended the rule as a “modest step” to protect the unborn, but failed to give evidence of its public health benefit. He argued that the rule in “no way regulates a woman’s right to choose” or places an imposition on clinics. Revealing the intention of the anti-choice regulation, Langley was unable to answer how the rule practically advances a health and safety interest – the very objectives the state health department is tasked with. When asked about how the rule prevents the spread of disease and protects health, the attorney called it a “side issue” to the real goal: Protecting the “dignity” of the unborn. “I acknowledge I don’t have a satisfactory answer, your honor,” said Langley.

Following the hearing, CRR’s Brown called the state’s inability to provide a health rationale “remarkable” and more evidence that the rule is meant to "disrespect" abortion-seeking women. “This rule is really intended to send a message to the Supreme Court that Texas is defying them,” said Brown.

When Langley objected to the temporary restraining order, an agitated Sparks noted that "this is the first time the state of Texas has ever said it was going to go ahead [with a rule] when there’s a suit of substance before the federal court," and before full trial arguments were heard. “I'm going to remember that."