In a ruling highly critical of the state of Texas, federal District Judge Sam Sparks last week issued a preliminary injunction blocking the state from implementing new health department rules that would require the cremation and burial of aborted fetal tissue. In response, Texas Attorney General Ken Paxton said he would immediately appeal the ruling to the notoriously conservative 5th Circuit Court of Appeals instead of waiting for a full trial and final ruling from Sparks on whether the rules would be permanently blocked. The new rule, Sparks wrote in the January 27 order, reads more like a “pretext for restricting abortion access” and less like a reasonable measure designed to “protect the dignity of the unborn,” as state officials have professed is their goal. It was the first test in Texas of the strength of a June 2016 ruling by the U.S. Supreme Court reiterating the right to abortion and further defining the level of scrutiny with which regulations restricting that right should be judged by the courts — though it certainly won’t be the last test, in Texas or elsewhere. For 28 years, the state of Texas had on the books regulations for the disposal of all medical waste that would allow the tissue to be incinerated and disposed of in a sanitary landfill. Last year, state officials suddenly decided that in order to improve public health and safety the state would define “fetal tissue” as a separate and distinct category of medical waste and would eliminate the option that this tissue be disposed of along with everything else, instead requiring separate cremation and burial. Notably, the new rules were first published just days after the U.S. Supreme Court overturned two of Texas’s onerous abortion regulations, in the case Whole Woman’s Health v. Hellerstedt. In that ruling the court made plain that abortion-related restrictions cannot be arbitrary, and instead must be based on a legitimate, fact-based state interest and may not create an undue burden for women seeking to access care.

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There is nothing in Texas’s fetal tissue burial rules that would seem to fit within the parameters of the Whole Woman’s Health ruling. While the state first said its goal was “enhanced protection of the health and safety of the public,” none of the witnesses who testified for the state at a hearing in Sparks’s courtroom in Austin in early January offered any evidence that public health and safety had in any way been compromised by the longstanding rules regarding the disposal of medical waste. In fact, before the final rules were posted in December 2016, the Department of State Health Services changed its rationale, claiming that the rule changes were justified as a means to “express the [Texas] Legislature’s will to afford the level of protection and dignity to unborn children as state law affords to adults and children.” In his order, Sparks attacked the state’s motives and actions in bringing forward the new rules. While the Supreme Court made clear in an important 1992 opinion that states have a “substantial” interest in “potential life,” that could not possibly justify rules that relate to the disposal of medical waste. “The [rules] regulate activities after a miscarriage, ectopic pregnancy, or abortion — activities that occur when there is no potential life to protect,” he wrote. Moreover, it appears that the rule may serve as a backdoor to defining life at conception, “potentially undermining the constitutional protection afforded to personal beliefs and central to the liberty protected by the Fourteenth Amendment,” Sparks wrote. The lengths to which Texas would go to further its agenda were on clear display during the January hearing. After being confronted by Sparks with the fact that the fetal burial rule directly conflicts with state law that allows cremated human remains to be disposed of liberally — including in a landfill — the state changed its tune, saying that fetal remains weren’t actually human remains and thus could be regulated without running afoul of existing law.

Photo: Ed Andrieski/AP