After peppering lawyers on both sides with skeptical questions, a federal judge said Wednesday that he won’t decide the fate of the state’s fetal burial and cremation rule until closer to the end of January.
A packed court schedule, including a separate challenge to state plans to remove Planned Parenthood as a Medicaid health provider, will delay a ruling until sometime during the week of Jan. 23, U.S. District Judge Sam Sparks said at the end of a two-day hearing.
With his decision pending, Sparks also blocked Texas officials from enforcing the fetal burial rule until Jan. 27, extending a temporary order he had issued in December.
Sparks gave few indications on how he would rule.
The judge repeatedly pressed David Brown, a lawyer representing abortion providers who seek to upend the regulation, to provide concrete examples showing how the rule would pose an unreasonable and unconstitutional government intrusion — appearing unimpressed with many of the responses given.
But when the lawyer for Texas rose to speak, Sparks asked Assistant Attorney General John Langley to explain why there was a pressing need to change a rule, in place since 1989, that allowed fetal tissue to be incinerated and sent to a sanitary landfill or disposed of in a sanitary sewer.
The new rule — requiring fetal tissue to be buried or cremated, with the ashes properly scattered — did nothing to improve public health, Sparks said.
“There was no health problem. There was no problem to be fixed,” the judge said.
The rule was rewritten, Langley replied, because disposal by landfill and sewers “is not the appropriate way to respect life.”
The U.S. Supreme Court has long said that states have a “profound interest in promoting respect for life,” he added.
Sparks, however, suggested the change was a political response by state leaders who opposed the Supreme Court’s review of the state’s House Bill 2, which contained abortion regulations the high court eventually overturned.
Langley disagreed, saying work on rewriting the rule began five months before the Supreme Court ruled.
Wednesday’s hearing began where it left off Tuesday, when Sparks abruptly halted proceedings and ordered the state’s lawyers to answer questions about whether the regulation improperly overruled a state law that allows cremated ashes to be scattered over any private property with the owner’s consent.
In a written filing, state lawyers said there was no conflict, even for landfills that are privately owned.
The law on ashes applies to “human remains” and doesn’t apply to the disposal of fetal tissue “or remains for which no death certificate is required by law,” they wrote.
Sparks opened the hearing by asking if state lawyers considered fetal tissue to be human remains.
“Fetal tissue,” Langley replied, “is not human remains for the purposes of this statute.”
“So it’s the official doctrine of the state that fetal tissue is not human remains?” Sparks asked. “So you’re bringing dignity to nonhuman remains?”
Later in the hearing, Langley said the state cremation law “deals with human bodies, bodies that have been born, lived and died. Fetal remains are categorized as pathological waste. It’s not a human body. It hasn’t been born,” he said. “It’s the state’s best effort to try to make the best of this situation.”
But Brown said the conflict with the cremation law shows that the fetal burial rule should be overturned as unconstitutionally vague.
“There is a history of arbitrary enforcement of abortion laws in Texas, and this has the potential for arbitrary enforcement,” he said.
In other testimony Wednesday, state lawyers sought to show that the new rule wouldn’t substantially add to the cost of abortions or of the treatment of miscarriages and ectopic pregnancies.
Jennifer Carr Allmon, executive director of the Texas Conference of Catholic Bishops, said the organization has offered to bury fetal tissue from abortions, without charge, in Catholic cemeteries across the state. There would be no religious service or Mass said before burial, Allmon added.
Jay Carnes, who owns three funeral homes and a crematorium in Texas City and South Houston, testified that he is negotiating contracts with eight Houston-area hospital groups to pick up and cremate up to 25 fetuses at a time for a combined $350, or about $14 a fetus. The Coast Guard has also agreed to scatter the ashes in the Gulf for free, a service it already provides for human remains, Carnes said.