Texas fetal burial law suffers another legal setback; appeal likely


Judge says rule puts abortion clinics in danger of closing because of a lack of businesses to handle issue.

State Attorney General Ken Paxton says the federal court’s ruling will be appealed.

A federal judge on Wednesday blocked a Texas law that requires fetal tissue to be buried or cremated, the latest setback for a state regulation that has yet to survive a legal challenge.

Senior U.S. District Judge David Ezra issued a permanent injunction halting enforcement of the 2017 law, ruling that it put abortion clinics in danger of having to close for noncompliance because there are a limited number of businesses willing and able to meet the statute’s requirements.

RELATED: U.S. judge defends actions as trial on Texas’ fetal burial law begins

“There is some evidence that the challenged laws are part of a thinly veiled effort to further restrict abortion access in the state,” Ezra wrote, listing abortion regulations the Republican-controlled Legislature has passed in recent years that have prompted more than half of the state’s abortion providers to close.

“The challenged laws would likely trigger a shutdown of women’s health-care providers unable to cobble together a patchwork of funeral homes, crematoriums and cemeteries to meet their disposal needs,” Ezra wrote in a 53-page order. “Clinic closures would further constrain access to abortion in a state where access to abortion has already been dramatically curtailed.”

The fetal-burial requirement also imposes an “intrusive and heavy burden” on women whose beliefs differ from the state-endorsed viewpoint that fetal remains “should be afforded special status from the moment of conception and should be handled in a manner similar to human remains,” Ezra wrote.

“People hold diverse beliefs about the status of developing human life based on religion, science, culture and personal experience,” he said.

Texas Attorney General Ken Paxton, whose lawyers fought to preserve the law, said the ruling will be appealed.

“Today’s ruling is disappointing, but I remain confident the courts will ultimately uphold the Texas law, which honors the dignity of the unborn and prevents fetal remains from being treated as medical waste,” Paxton said Wednesday.

Announcing his ruling from the Federal Courthouse in downtown Austin, Ezra said his decision included a significant concession to Paxton’s legal team by acknowledging that states have a legitimate interest in enacting “a well-thought-out and workable” law designed to “promote respect for potential life.”

“However, in doing so … the state must provide an adequate and workable system by which medical providers can dispose of tissue without providing an undue burden on women and medical providers,” the judge said.

If lawmakers are interested, the Legislature can craft a viable law that includes a reliable disposal system, Ezra said.

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Currently, abortion clinics can dispose of fetal tissue by having it incinerated and sent to a landfill or ground up and discharged into a sanitary sewage system.

The law, passed by the Legislature in 2017 and blocked from taking effect Feb. 1 while the legal challenge proceeded, required health care facilities to ensure that fetal tissue, whether from an abortion or miscarriage-related procedure, is buried or cremated, with the ashes properly scattered.

The law would not apply to miscarriages at home or to early-term, drug-induced abortions that typically take place at home.

A similar fetal-burial rule, drafted by a state health agency, was blocked in January 2017 by U.S. District Judge Sam Sparks, who ruled that the regulation was adopted by a state health agency in an apparent attempt to restrict access to abortions while offering no health or safety benefits.

Texas appealed, but the case became moot when the Legislature replaced the regulation with a similar state law in May 2017, requiring a new round of legal challenges.

After Wednesday’s ruling, John Seago, legislative director for Texas Right to Life, said the decision was disappointing but not unexpected. “This is a well-established pattern for pro-life policies — passing the Legislature with overwhelming support, being struck down by a District Court and getting a fair shake at the appeals level.”

Amy Hagstrom Miller, president of Whole Woman’s Health, one of the abortion providers that challenged the law, called the ruling a victory for women.

“Make no mistake, these restrictions were designed to shame and stigmatize patients and health care providers,” she said. “This decision reaffirms that Texan women are fully capable of making their own personal medical decisions about their families, futures and reproductive health care.”

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