Federal judge blocks Texas fetal tissue burial rule


Judge says rule serves no medical purpose but can serve as a pretext to limit access to abortion.

State Attorney General Ken Paxton quickly promises to appeal the ruling, which indefinitely blocks the rule.

A federal judge on Friday blocked Texas from requiring that fetal remains to be buried or cremated, saying the rule placed burdens on access to abortion that “substantially outweigh the benefits.”

Texas Attorney General Ken Paxton quickly vowed to appeal, setting up another high-stakes battle over Texas’ attempts to regulate abortion providers — seven months after the U.S. Supreme Court overturned two Texas regulations that would have left nine abortion clinics operating in the state.

After hearing two days of testimony early this month, U.S. District Judge Sam Sparks issued a preliminary injunction Friday that indefinitely prohibits Texas from enforcing the rule, which would require health facilities to ensure that fetal tissue is buried or cremated — with the ashes buried or appropriately scattered — whether from an abortion or miscarriage.

The rule didn’t apply to miscarriages at home or to early-term, drug-induced abortions that typically take place at home.

Sparks said the new standards were vague, inviting interpretations that would allow state health officials “to exercise arbitrary, and potentially discriminatory, enforcement on an issue connected to abortion and therefore sensitive and hotly contested.”

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Worse, Sparks wrote in his order, state officials admitted that the new policy offered no health benefits and replaced tissue-disposal regulations that caused no health problems. While Texas leaders said the change was needed to promote respect for life and to protect the dignity of the unborn, it appeared that the rule “may be pretext for restricting abortion access,” Sparks said.

With only one identified vendor willing and able to dispose of fetal tissue as required by the new rule, the judge said it was reasonable to conclude that a lack of vendors could prohibit compliance — “which would deliver a major, if not fatal, blow to health-care providers performing abortions.”

Sparks, appointed to the bench in 1991 by President George H.W. Bush, also criticized state arguments that the rules would impose minimal costs, saying the figures were derived “using simple, back-of-the-envelope math, which is unsupported by any research and relies heavily on assumptions.”

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Paxton said he wouldn’t wait for Sparks to schedule a trial necessary to impose a permanent injunction, opting instead to ask the 5th U.S. Circuit Court of Appeals — among the most conservative federal appeals courts in the nation — to overturn the injunction.

“Texas has chosen to dignify the life of the unborn by requiring the humane disposition of fetal remains,” Paxton said in a statement. “These rules would simply prevent health care facilities from disposing of the remains of the unborn in sewers or landfills.”

Current Texas rules allow fetal remains to be incinerated and deposited in a landfill — the method most commonly used by Texas abortion providers — as well as ground and discharged into a sanitary sewer system or disinfected and placed in a landfill.

“Today’s ruling, however, reaffirms that the abortion lobby has grown so extreme that it will reject any and every regulation no matter how sensible,” Paxton said. “Indeed, no longer content with merely ending the life of the unborn, the radical left now objects to even the humane treatment of fetal remains.”

The new rule was scheduled to take effect Dec. 18 before it was blocked by Sparks to allow for the two-day hearing and time to research and write Friday’s opinion.

Texas lawmakers might have a chance to vote a similar policy into law. House Bill 201 by state Rep. Byron Cook, R-Corsicana, would require health care facilities to bury or cremate fetal remains, with a $1,000 fine for each infraction.

“Today’s ruling is disappointing,” Cook said in a statement. “However, the two-day court hearing provided us with essential input to ensure we pass good, constitutionally sound public policy. Committed to changing antiquated, abhorrent practices that do not offer dignity for unborn children, as we do for all deceased humans, I am committed to pursuing this important endeavor.”

Sparks also was assigned to another high-profile, abortion-related case.

Planned Parenthood sued to block state plans to oust it as a Medicaid health care provider over the contents of undercover videos shot by abortion opponents. After a three-day hearing last week, Sparks barred Texas from terminating Planned Parenthood’s participation until Feb. 21 and ordered both sides to provide additional information to help him issue an opinion by that date.

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