The federal judge who will determine the future of a Texas law requiring that fetal tissue be buried or cremated ended five days of trial testimony Friday by assigning homework to the opposing sides in the case.
Instead of hearing final arguments to close the trial, Senior U.S. District Judge David Ezra gave lawyers two weeks to sum up their arguments in writing — and he listed specific questions to answer, providing a road map of the issues that will determine whether the Texas law is upheld or overturned.
Ezra also stressed that the final outcome remains in doubt.
“I have not made up my mind on how I’m going to rule on this case. I am going to wait to see your arguments,” he said, adding that he leaned one way, then the other, as witnesses testified about the law’s impact. “I have changed my mind many, many times.”
One main question, Ezra said, was whether the state has a valid interest in requiring that fetal tissue be treated like a human body instead of medical waste that is typically incinerated and deposited in a landfill.
According to a preamble in the law, the requirement is intended “to express profound respect for the life of the unborn by providing for a dignified disposition of embryonic and fetal tissue remains,” and the reason is the state’s main justification for the law.
In blocking the regulation from taking effect Feb. 1 to allow time for a trial, however, Ezra noted in January that there are no U.S. Supreme Court rulings that establish a state interest in regulating abortions to show respect for fetal remains.
A second major issue will be access.
The law requires health centers to ensure that fetal tissue, whether from an abortion or miscarriage, is buried or cremated, with the ashes properly scattered. If clinics are forced to close because there are not enough businesses willing and able to pick up, transport and properly dispose of fetal tissue, “that is a concern of the court,” Ezra said.
In addition to the potential for infringing on the constitutional right to an abortion, such an outcome could place an unacceptable burden on women seeking care for a miscarriage, he said.
“Many more women have miscarriages than have abortions,” Ezra said. “The question of whether women are able to get services is of grave concern, and should be a grave concern to every citizen in the state of Texas.”
Lawyers for Texas said 12 cemeteries, three funeral homes and a nonprofit organization have joined a state-sponsored registry to ensure that the law’s requirements can be met. They also said abortion providers failed to do any research to determine if any vendors were available to comply with the law.
Lawyers for abortion providers countered that the registry includes religious affiliates that oppose abortion, providing a questionable support system for a vital service.
Ezra said he was concerned that there was no guarantee that organizations on the registry would follow through on their commitments, and he directed the state’s lawyers to detail how many firmly agreed, either through contracts or other means, to provide the promised services. He also wanted to know if the registry included secular organizations and whether there was enough geographic diversity to serve health centers statewide.
“How should the logistical uncertainties here be weighed by the court?” Ezra asked.
Other questions raised by Ezra included:
• Who do the cremated ashes of fetal remains belong to? Ashes are typically returned to a family member, but the law appears silent on the question, Ezra said, and patients are not consulted about how fetal remains are to be handled.
• Is the Constitution’s guarantee of equal protection violated because the law does not treat all fetal remains the same? Ezra noted that the law does not apply to women who miscarry at home or have a drug-induced abortion at home, or to clinics that dispose of extra fertilized embryos during fertility procedures.
• How should the court tackle the unique aspects of this case? Ezra said both sides abandoned arguments typically raised in trials over abortion regulations, with state lawyers declining to argue that the law was needed to improve health or safety and abortion providers declining to argue that the requirement increases the burden on women by raising the cost of abortions.
“That makes this case extremely unique and makes finding precedent all the more difficult. Those issues are often paramount in abortion cases,” he said. “I certainly want parties to address that.”
Ezra did not seek additional input on one of the main arguments advanced this week by abortion providers — that the law would improperly inflict grief, shame and stigma on many women who seek an abortion, ignoring their values and preferences in favor of a religion-based premise on how human remains should be treated.
The judge did not say when he expected to issue his ruling on the Texas law, noting only that he would not work on the case until he receives each side’s written closing arguments.
Those briefs, Ezra added, were to be submitted by both sides Aug. 3 and limited to 30 pages.