Women’s rights groups sue Texas over ‘unconstitutional’ fetal burial rule

Amy Hagstrom Miller, founder & CEO of Whole Women's Health, with Nancy Northup, president of The Center for Reproductive Rights, and Ilyse Hogue, president of NARAL Pro-Choice America, in front of the Supreme Court in March. (Lorie Shaull/Flickr)

A coalition of women’s rights groups has filed a lawsuit against new abortion restrictions in Texas that would require medical providers to bury fetal and embryonic tissue from miscarriages and abortions.

According to the restrictions, which are set to take effect Sunday, medical providers must ensure that any woman who has a miscarriage, abortion or ectopic pregnancy will have to bury the embryonic or fetal tissue. Cremation will be allowed, but ashes must still be interred and cannot be scattered or disposed of in a sanitary landfill, as is often the case under current guidelines.

The legislation was approved by the state’s Republican Gov. Greg Abbott, who said fetal tissue remains should not be “treated like medical waste and disposed of in landfills.”

The Center for Reproductive Rights (CRR) and other groups filed the lawsuit Monday, arguing that the rule is “unconstitutional” and puts pressure on abortion providers to “work with an extremely limited number of third-party vendors for burial or scattering ashes, threatening abortion clinics’ provision of care and their long-term ability to remain open.”

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The lawsuit also argues that the new regulation could compromise women’s health and safety. Fetal material is often sent to a pathological crime lab for testing, either to help in sexual assault cases or to help identify possible genetic disorders after a miscarriage. But according to Amy Hagstrom-Miller, president and CEO of Whole Woman’s Health and lead plaintiff in the lawsuit, this may no longer be possible if a pathology lab or crime lab has no way to properly dispose of the material.

“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 CRR President Nancy Northup in a press release.

Texas Attorney General Ken Paxton says he plans to defend the fetal burial legislation in court. “All human beings deserve to be treated with respect after death. To that end, Texas will continue to defend the safety and dignity of the unborn up to and as far as Supreme Court precedent will allow,” a spokesperson for Paxton told the Austin American-Statesman.

Similar measures have been proposed and blocked in Louisiana and Indiana. The resurgence of the trend is recent, according to Amanda Allen, senior state legislative counsel at CRR, but are not unprecedented.

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“A handful of states, including Minnesota and Georgia, passed laws on the same topic decades ago,” Allen said in an email to Humanosphere, “but those statutes also allow disposal in other ways approved by the public health department, or they apply only to certain stages of fetal development.”

The new regulations provide no similar exemptions, she said, making them even stricter.

Since President-elect Donald Trump has promised to appoint anti-abortion judges, some pro-life activists hope laws restricting abortions will be able to more or less cruise through the judicial process. Ohio Right to Life’s President Mike Gonidakis agreed this is cause for concern, but said passing this legislation would not be as simple as some of these activists believe.

“Everyone is swept up in Trumpmania,” Gonidakis told USA Today, “but let’s be realistic.”

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Lisa Nikolau

Lisa Nikolau is a Madrid-based reporter for Humanosphere, covering gender equality, indigenous rights and poverty in Latin America and worldwide. Find her on Twitter at @lisanikolau, email lisa.nikolau@humanosphere.org or see her latest work at www.lisanikolau.com