The State of Texas is moving forward with a rule requiring abortion providers and hospitals to bury or cremate fetal remains from miscarriages and abortions. Groups are already gearing up to possibly sue the state over this rule, but the state could have a tough time defending it.
This past summer, the Supreme Court drew a line in the sand for how far states can go in regulating legal abortions. It was a Texas case, actually: Whole Women’s Health v. Hellerstedt. It was a legal challenge to House Bill 2 , a sweeping abortion law from 2013.
However, just days after that ruling and parts of the law were struck down, Texas lawmakers got to work creating new regulations. This time they didn't pass a law, creating an agency rule requiring medical providers cremate or bury fetal remains.
“The fact that it only took them four days to issue it – and the fact that it was it was issued along with a letter from the governor insulting our clients, using inflammatory religious language, calling them 'soulless' and so forth – demonstrates that all this is an attempt by the government of Texas to make an end run around the Supreme Court and women’s constitutional rights,” said David Brown, an attorney with the Center for Reproductive Rights.
That language was used in one of Gov. Greg Abbott’s fundraising emails, actually. In the same email, Abbott defended the rule with what's become the main argument in favor it.
The email read, Abbott “doesn’t believe human and fetal remains should be treated like medical waste and disposed of in landfills.”
And, with that, the state began moving forward with this new rule.
The state health agency adopting the rule has received thousands of letters and criticism from medical professionals, who argue the rule is unnecessary. As an attorney, Brown says it’s a bad legal move, too.
“The Supreme Court just in the Whole Women’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,” he said.
And there is already a case of a fetal burial law not passing this test.
Earlier this year, a federal court weighed in on an Indiana law that also required abortion providers and hospitals cremate or bury fetal remains, among other things.
The Indiana law – which was signed by then-governor and current Vice President-elect Mike Pence – was the first of its kind, but Brown says he won’t be surprised to see this sort of measure pop up in other states. The Center for Reproductive Rights says it is already looking at possibly taking the state to court.
The State of Texas could be setting itself up for yet another legal battle which, Brown says, it will likely lose.