Texas appeal to reinstate fetal burial rule can proceed, court says

Updated June 21, 2017
A requirement that fetal tissue be buried or cremated was included in Senate Bill 8 by state Sen. Charles Schwertner, R-Georgetown.

Texas Attorney General Ken Paxton can proceed with an appeal seeking to resurrect a state rule that requires fetal tissue to be buried or cremated, a federal appeals court has ruled.

The 5th U.S. Circuit Court of Appeals on Tuesday rejected a request, filed two weeks ago by several abortion providers, to dismiss Paxton’s appeal.

The court’s three-judge panel gave no explanation for the decision, which included a separate order rejecting Paxton’s request to speed the appeal toward a resolution.

The appeal revolves around U.S. District Judge Sam Sparks’ January ruling that blocked enforcement of a rule requiring abortion clinics, hospitals and health centers to bury or cremate fetal remains after an abortion or treatment for a miscarriage.

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Sparks said the regulation was vaguely worded, placing abortion clinics at risk of arbitrary enforcement from hostile state agencies and provided no health benefits while replacing tissue-disposal regulations that caused no health problems. The rule, Sparks concluded, appeared to be a pretext for restricting abortion access because few vendors were available to meet the requirements.

Paxton appealed, saying the regulation was intended to preserve the dignity of human remains and that states may set rules expressing “profound respect for the life of the unborn.”

On June 8, the clinics argued that Paxton’s appeal should be dismissed because the Legislature passed a fetal burial bill that was signed into law by Gov. Greg Abbott and will take effect Feb. 1. Senate Bill 8 includes important differences from the blocked regulation, the motion to dismiss said.

“There is little to be gained from devoting this court’s resources to revisiting a preliminarily decision regarding a superseded (rule),” the clinics argued.

Paxton opposed the request, telling the court that the appeal raised significant legal questions on when a state “can require the respectful disposition of fetal remains.”

“Plaintiffs are not entitled to a seven-month moratorium on any challenges to the preliminary injunction of those rules while (waiting) for SB 8’s substantially similar requirements to take effect,” Paxton argued.

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Abortion rights advocates have indicated that they will sue to overturn the fetal-burial provision and other aspects of the bill, which became the vehicle for a number of abortion regulations during the legislative session that ended May 29.

Under the new measure, clinics and medical centers must ensure that fetal and embryonic tissue — whether from an abortion or miscarriage — is buried, cremated or incinerated. Ashes must be buried or properly scattered “and may not be placed in a landfill,” the law says. The law will not apply to miscarriages and drug-induced abortions that occur at home or outside a medical center.

The law also restricts the most common procedure for second-trimester abortions, prohibits medical researchers from using fetal tissue from abortions and creates state crimes for two practices already prohibited by federal law — selling fetal body parts and “partial-birth” abortions.