Judge Extends Bar on Texas’ Fetal Funeral Rules

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AUSTIN, Texas (CN) — In a twist on common anti-abortion logic, Texas state attorneys told a federal judge Wednesday that “fetal tissue” is not “human,” as they defended rules that require all fetal remains to be given a funeral after a miscarriage, abortion or ectopic pregnancy.

During a two-day hearing on the constitutionality of the rules, state attorneys said they were written to ensure that the “unborn” are treated with dignity.

The rules require that all fetal remains be cremated and/or buried, and prohibit healthcare facilities from disposing of them in sanitary landfills.

On Tuesday, the first day of the hearing, U.S. District Judge Sam Sparks told state’s attorneys the rules appear to violate a state law that allows ashes to be scattered on any property.

Assistant Attorney General John Langley told the judge Wednesday that the law pertains to scattering the ashes of a “human body” and that fetal remains are pathological waste, not human remains.

“So you’re bringing dignity to non-human remains?” Sparks responded.

Later Wednesday, Sparks asked Langley how the rules could be anything but a “100 percent purely political thing.”

The Department of State Health Services developed the rules at the direction of Gov. Greg Abbott. The state proposed the rules in July last year, four days after the U.S. Supreme Court ruling in Whole Woman’s Health v. Hellerstedt, which held that restrictions on legal abortion cannot unduly burden a woman without providing a legitimate medical benefit.

The rules to take effect on Dec. 19, but Whole Women’s Health, four other women’s clinics and a doctor sued the state health department on Dec. 11, and Sparks temporarily restrained enforcement.

On Wednesday, Sparks restrained enforcement again, until Jan. 27, and said he will issue a final ruling sometime during the week that begins Jan. 23.

During the hearing, the plaintiffs argued that the rules could distress women seeking abortion or suffering a miscarriage, and could jeopardize clinics’ ability to operate in Texas due to costs and the availability of service providers capable and willing to dispose of the remains.

In the rule filing, the state estimated that the annual cost per facility to dispose of remains under the rules would be approximately $450, but critics are skeptical, given that there are approximately 55,000 abortions every year in Texas, according to state health data.

State’s witness Jay Carnes, a funeral director, testified Wednesday that he is willing to contract with medical facilities to help dispose of fetal remains, and could do mass cremations for as little as $14 per “set” of remains.

In Texas City, near Houston, Carnes operates the state’s “largest volume crematorium” in Texas — he has a contract with the state prison system to cremate all deceased inmates.

He said he already is working on contracts with eight hospital systems within a 50-mile radius of his crematorium to help dispose of fetal remains, should the rules be implemented.

Carnes said that while his Southeast Texas crematorium has not dealt with fetal remains of less than 20 weeks gestation, his facility has handled more-developed miscarried fetal remains. After a fetal remain the size of a hand is cremated, he said, “one flick of a cigarette butt is what you get back” in ashes.

Carnes said he will charge medical facilities $350 total, including transportation costs, to dispose 25 sets of fetal remains at a time. He said the Coast Guard has offered to scatter the ashes at sea.

Medical facilities outside of a 50-mile radius wishing to contract his services can do so, but will be charged an additional $2.50 per mile after pickup. In a state as big as Texas, that $2.50 can add up fast. For example, the branch of Whole Women’s Health in McAllen would have to pay a transportation cost of more than $800 per pickup, should they choose to contract with Carnes.

The Texas Catholic Conference of Bishops has said it will help bury aborted fetuses at no charge in Catholic cemeteries, but clinics will have to cover transportation costs, which can get complicated when remains are sent to pathology labs first for tests before disposal.

“We have absolutely no idea how it’s going to affect the cost,” Sparks said at the end of the hearing.

The judge gave attorneys until Jan. 12 to make any additional filings, and encouraged them to submit findings of fact. He said he had yet to hear any clear evidence about how the rules are reasonably or unreasonably burdensome to women.

“There’s no health benefit, no problem to be fixed,” Sparks said. “I think all life needs dignity, but that’s not the point.”

In a statement Tuesday, Attorney General Ken Paxton said he was “confident” in the state’s arguments and in the constitutionality of the rules and believes the court will uphold them.

“Texas values the dignity of the remains of the unborn and believes that fetal tissue should be disposed of properly and humanely,” he said.