Texas Not Budging on Rule Requiring Burial or Cremation of Fetal Remains

_{*Editor's note: This story has been updated throughout.}

Despite intense outcry from the medical community and reproductive rights advocates, Texas isn't budging on a proposed rule to require the cremation or burial of fetal remains.

Following an initial public comment period that sparked medical concerns and a legal threat, Texas health officials have re-submitted for public consideration a proposed rule change that prohibits hospitals, abortion clinics and other health care facilities from disposing of fetal remains in sanitary landfills, instead allowing only cremation or interment of all remains regardless of the period of gestation — even in instances of miscarriages.

After considering hours of public testimony at an August hearing and more than 12,000 comments submitted in writing, the state made no changes to the rules, which are set to be published in the Texas Register on Sept. 30.

The rules were re-published “after reviewing the feedback and comments we received,” health commission spokeswoman Carrie Williams said on Wednesday. This will require another 30-day public comment period before the rules can go into effect.

With little notice and no announcement, the proposed rules were first published in the Texas Register on July 1 at the direction of Republican Gov. Greg Abbott. The health commission has said the rules will result in “enhanced protection of the health and safety of the public.” Abbott said in a fundraising email that the rules were proposed because he doesn't believe fetal remains should be “treated like medical waste and disposed of in landfills.”

The proposed rule has prompted outrage from the reproductive rights community, which has accused state leaders of enacting unnecessary regulations. Medical providers — including the Texas Medical Association and the Texas Hospital Association — also questioned why the rule change does not allow an exception for miscarriages and ectopic pregnancies.

Despite making no revisions to the rules themselves, the commission has amended its analysis on the financial impact of the rule on health care organizations that must comply, saying the rules won’t increase “total costs” for health care facilities.

Medical professionals and funeral directors had raised concerns about who would bear the costs associated with cremation or burial — a figure that can reach several thousands dollars in each case — and questioned whether the new rule would trigger a requirement for death certificates so that fetal remains could be cremated or buried.

The amended fiscal analysis indicates that the methods allowed in the proposed rules “may have a cost” but “that cost is expected to be offset” by costs currently incurred by facilities. Hospitals and abortion providers currently contract with third-party medical waste disposal services.

The changes were made “to help people better understand the impact of the rules,” Williams said.

The health commission also appears to have ignored a suggestion from the anti-abortion group Texas Right to Life that the health commission should clarify the rules so they do not apply to miscarriages that occur at home — a requirement, opponents reiterated, could require a woman who miscarries at home to carry the fetal tissue or blood products of a miscarriage to a doctor’s office or hospital.

Williams pointed out that because of another state regulation, the proposed rules would only apply to fetal tissue generated by a healthcare facility.

The proposed rules are likely to be challenged in court. In a letter sent to health officials last month, reproductive rights lawyers warned that the proposal “will almost certainly trigger costly litigation.”

Read related Tribune coverage:

• Dozens of health care providers, funeral directors and reproductive rights activists packed a hearing before state health officials Thursday to criticize a proposed new rule that would require that all fetal remains be cremated or buried.

• In a little-noticed effort to regulate abortion providers, Texas health officials have quietly proposed rules that would require abortion providers to cremate or bury all fetal remains.

Disclosure: The Texas Medical Association and Texas Hospital Association have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.