Abortion rights activists on Monday filed a challenge in federal court to stop Texas' new rules requiring health clinics to bury all fetal remains from abortions and miscarriages.
The regulations also aren't sitting well with another group in Texas, one that hadn't expected to find itself in the middle of the abortion battle: funeral home directors. (Read the rules here and the adopted changes here.)
"If the regulations do go into effect, we as an industry, we're real uncertain and real uncomfortable at this point cause we really don't know what to expect," says Michael Land, a past president of and current spokesman for the 4,000 members of the Texas State Funeral Directors Association.
When Gov. Greg Abbott first proposed the new regulations requiring all fetal remains from hospitals, health facilities and abortion clinics to be cremated or buried as if they were expired human beings, funeral home directors went to Austin to convey their apprehensions.
"Members of our legislative committee did meet with the governor's office to express our concerns. However, the governor's office was not receptive. Nothing we were saying was really making any difference as to how they felt about this rule," Land says.
Currently funeral homes in Texas are required to cremate the remains from miscarriages after the fifth month of pregnancy. That doesn't happen very often, though, and Land says frequently funeral homes do it pro bono. But Land says there's no way the industry could absorb the costs if it were faced with disposing of the remains from the tens of thousands of abortions and miscarriages in Texas every year.
"Fetal death cremation could approach $400, $450," Land says. "Just a grave space alone in a little moderate cemetery will cost at least $500, $550."
Fetal remains before the fifth month are treated as medical waste and the vast majority are incinerated and buried in a landfill.
The state of Texas contends it won't cost that much and that the additional costs could be absorbed by the service providers, not the pregnant women. But the new rules do not require hospitals, abortion providers or medical waste disposal providers to absorb the cost; it's more of a suggestion. The question of who pays could be legally important. A federal court might reject Texas' new rules if it decides they'll place an undue burden on a woman's ability to get an abortion.
"This is just another attempt in a long history of attempts that we've seen throughout Texas to try to block women's access to safe abortion care by any means necessary," says Amy Hagstrom Miller, the CEO of Whole Women's Health. It was Whole Women's Health that successfully sued Texas in federal court after the state passed one of the most restrictive abortion laws in the country.
"The state announced these administrative rules just a day or two after we won in the Supreme Court," she says. "These kinds of restrictions and this kind of regulation is rooted in a strategy to stigmatize and to shame women."
Emily Horne, a senior legislative staffer with Texas Right to Life, disagrees.
"I have heard that and that to me is the most puzzling objection of all because this rule does not actually interact with women," she says. "This rule strictly deals with medical facilities; it does not interact with the mothers of these children at all."
Abbott's office and the state's Health and Human Services Commission did not respond to requests for comment. The state also believes the new regulations will pose no burden on women.
But there's another legal question: legal standing.
"Under the [U.S.] Constitution, the fetus does not have any standing until birth," says John Robertson, a professor at the University of Texas Law School who specializes in reproductive law. Robertson says these regulations break new legal ground by characterizing all fetal remains as essentially the same as deceased human beings.
"Even though there's no constitutional requirement for treating the fetus that way, a state would not be prohibited from doing so if it would not otherwise impose an undue burden on women," he says.
Robertson says Texas will have to demonstrate to a federal court's satisfaction that it has a compelling legal interest here.
The rules are scheduled to go into effect on Dec. 19.
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