A federal hearing challenging a proposed state health department rule that would force women to bury or cremate their fetal and embryonic remains after an abortion, miscarriage, or ectopic pregnancy (regardless of gestation period) began in U.S. Judge Sam Sparks’ downtown courtroom on Tuesday, Jan. 3.

Sparks temporarily halted the anti-choice rule from taking effect as previously scheduled on Dec. 19, awaiting a full trial.

During the five-hour hearing, abortion providers, represented by the Center for Reproductive Rights, relayed their fears about the “vaguely worded” rule and the burden it would place on patients and providers, already struggling in the wake of damage caused by House Bill 2 abortion restrictions.

Longtime Austin OB-GYN and abortion provider Dr. Tad Davis of both Brookside Women’s Medical Center and Austin Women’s Health Center called the rule “very unreasonable,” “cruel,” and “emotionally traumatic” for his patients. “There is no benefit for the patient or the state,” said Davis. In his more than three decades of medical practice, Davis could only recall less than four instances a year of women requesting a fetal burial after an abortion, and only one request (ever) from women who miscarried. If the rule goes into effect, it “would make patients feel very bad and add another burden that is unjust,” said Davis.

Speaking to the difficulty of securing a burial service provider, Amy Hagstrom Miller of Whole Woman’s Health, a network of reproductive health clinics, said companies her clinics contract with – from roofers to waste management – have faced intimidation and threats from anti-choice activists at children’s schools, the grocery store, and even church. Likewise, Davis said his Austin practice was in jeopardy of shuttering due to a vendor pulling out after anti-choice threats. As abortion providers have identified only one cremation company that will offer services that comply with the updated regulations at a reasonable cost, they worry that business will similarly be targeted and force the health clinics out of commission. Both Miller and Davis know well the impact of arbitrary abortion restrictions: HB2 forced three Whole Woman’s Health centers to close, including its flagship clinic in Austin, while Davis’ Killeen center shut its doors.

Missing the point that a right is no longer viable if there is no actual access to it, state attorney John Langley continually asserted the rule does “not regulate” women’s bodies or their right to an abortion, only health facilities. While with one hand the state sought to paint plaintiff witnesses as ideological, they used the other to point to an offer made by the Texas Catholic Conference of Bishops to pay for burial services as a possible low-cost solution for providers. However, as Miller and Davis both noted, not all patients are Catholic and so the service would be a religious imposition. Moreover, economist Dr. Anne Layne Farrar noted the Catholic group has a vested interest in shutting abortion clinics down, making the offer inherently risky. Plaintiff testifier Rev. Dr. Debra Haffner told the court the rule alone improperly enshrines a “specific view” of personhood (that life begins at conception) not shared by most religions. Calling the regulation “morally wrong,” Haffner said it would only serve to increase abortion stigma and “erase” women’s input from their own reproductive health choices.

State witness Jennifer Sims, deputy commissioner at the Texas Department of State Health Services, indirectly revealed the state’s weak defense: When asked how the rule enhances public health, Sims replied with ambiguity, saying, “When things are more clear, public health is ensured.” Sims was also unable to point to any instance in which depositing fetal tissue in a sanitary sewer or landfill (the current method employed by clinics) caused disease or infection, ostensible problems the department has claimed to protect with the regulation. That’s because, as admitted by state officials themselves, the goal of the rule is to instead protect the “dignity of the unborn," and as, providers argued, shut down abortion clinics.

The two-day hearing is expected to continue on Wednesday, Jan. 4. Check back online for updates.