Advocacy groups filed a lawsuit Monday seeking to prevent Texas from requiring hospitals and abortion clinics to bury or cremate fetal remains rather than disposing of them in a sanitary landfill, as they most often currently do with such remains and other biological medical waste.
The lawsuit filed in a federal court in Austin by the Center for Reproductive Rights and other groups contends that the rules set to take effect next Monday serve no medical purpose and are meant to shame women who seek abortions and make it harder for doctors to provide them.
“Texas has failed to provide any credible evidence of what health benefit this might serve because there aren’t any,” Nancy Northup, the Center for Reproductive Right’s president, said on a conference call. “Women do not want these laws. Doctors do not want these laws. And the Constitution does not allow them.”
Carrie Williams, a spokeswoman for Texas’ Health and Human Services Commission, said the agency is reviewing the lawsuit and will respond “at the appropriate time.” Louisiana and Indiana have similar requirements, but they are on hold due to court challenges.
Texas officials have denied that their new requirements are meant to shame women who get abortions or make things harder on abortion providers. In response to the more than 35,000 public comments it received about the proposed rule changes, the health department wrote it “believes the methods allowed by the rules will protect the public by preventing the spread of disease while also preserving the dignity of the unborn in a manner consistent with Texas laws.”
The new rules were proposed to the health commission at the behest of Republican Gov. Greg Abbott in July, just days after the U.S. Supreme Court struck down anti-abortion laws that would have left Texas with 10 abortion clinics, down from more than 40 in 2012.
They would require fetal remains from miscarriages and abortions, regardless of the state of gestation, to be treated like those of a deceased person by having them buried or cremated. Cremated remains would still have to be buried or scattered.
Remains are currently most often disposed of in sanitary landfills, and that cost is included in the price of getting an abortion or otherwise undergoing treatment for a terminated pregnancy. Critics say cremation, and especially burial, would cost more and force women to have to cover the additional expenses.
Mandating burial or cremation “imposes a funeral ritual on women who have a miscarriage management procedure, ectopic pregnancy surgery, or an abortion,” the lawsuit argues. “Further, it threatens women’s health and safety by providing no safe harbor for sending tissue to pathology or crime labs.”
Amy Hagstrom-Miller, president of Whole Woman’s Health, which operates Texas abortion clinics and is a lead plaintiff in the case, said it would be absurd to require all fetal tissue to be disposed of in this way.
“For every embryo. Even at five weeks. Even if you can’t see it,” Hagstrom-Miller said.
Republican state lawmakers also have pre-filed bills that would codify the coming agency rule into Texas law. The GOP-controlled Legislature convenes Jan. 10.