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Abortion Providers Sue Texas Officials Over Fetal Burial Rule

Planned Parenthood clinical assistant Nicki Bailey discusses the new abortion laws with a patient in Austin.
Eric Schlegel for the Texas Tribune
Planned Parenthood clinical assistant Nicki Bailey discusses the new abortion laws with a patient in Austin.

The Center for Reproductive Rights announced it is filing a federal lawsuit today against the State of Texas over a rule set to go into effect Dec. 19. The rule requires abortion providers and hospitals to bury or cremate fetal remains from miscarriages and abortions – regardless of gestation time or a woman’s wishes.

This agency rule was proposed shortly after the state lost Whole Woman’s Health v. Hellerstedt in June. That’s the U.S. Supreme Court case that struck down parts of House Bill 2, a restrictive 2013 abortion law also challenged by the Center for Reproductive Rights.

According to a press release from the groups, the Whole Woman’s Health clinics and the center are working together again to challenge the state's latest measure.

“The lawsuit demands that the state halt implementation of regulations finalized late last month by the Texas Department of State Health Services (DSHS),” group’s said in a press release. “The final rules disregard widespread objection from medical organizations, legal experts and others who argue that these unconstitutional new restrictions offer no public health or safety benefit.”

Gov. Greg Abbott has defended the rule in fundraising emails, saying he “doesn’t believe human and fetal remains should be treated like medical waste and disposed of in landfills.”

But abortion rights groups say requiring all women to bury or cremate fetal remains is unconstitutional.

“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. “These insidious regulations are a new low in Texas' long history of denying women the respect that they deserve to make their own decision about their lives and their healthcare.” 

Earlier this year, a federal court weighed in on an Indiana law that also required abortion providers and hospitals to cremate or bury fetal remains, among other things.

The Indiana law was signed by then-governor and current Vice President-elect Mike Pence. Like the Indiana law, attorneys say Texas' measure faces tough legal odds because of Whole Woman's Health v. Hellerstedt.

“The Supreme Court just in the Whole Woman’s Health Case in June held that a law that imposes pointless burdens that offer no benefit to women and simply cuts off access to medical care is unconstitutional,” said David Brown, an attorney Center for Reproductive Rights.

The lawsuit was filed by Brown and Molly Duane of the Center for Reproductive Rights, Austin attorneys Jan Soifer and Patrick O’Connell of the law firm O’Connell & Soifer, and J. Alexander Lawrence of the law firm Morrison & Foerster in the U.S. District Court for the Western District of Texas on behalf of Whole Woman’s Health, Brookside Women’s Health Center and Austin Women’s Health Center, Alamo Women’s Reproductive Services, Reproductive Services and Dr. Lendol Davis.   

You can read the filing in its entirety below.

Ashley Lopez covers politics and health care. Got a tip? Email her at Follow her on Twitter @AshLopezRadio.
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