Texas Will Force You to Hold a Tiny, Expensive Funeral for Your Miscarriage

Fetal burial law is cruel and wasteful

by JANET JAY

When the U.S. Supreme Court overturned Texas’s restrictive new abortion laws in July 2016, pro-choice advocates celebrated a major victory. But state Republicans were ready for the setback and had another plan in the works.

Just four days later, right before a holiday weekend and without fanfare, Texas’s Health And Human Services Commission proposed a new rule. Every abortion — or even miscarriage — that happens in a medical setting must be buried or cremated.

Every single one, regardless of age of gestation, without the ability to opt out on the woman’s part.

Starting on Dec. 19, 2016, the tens of thousands of Texas women who miscarry or have an abortion every year in hospitals or clinics will soon get a choice … for their fetus. Interment, incineration followed by interment or steam disinfection followed by interment. Full stop.

Why? There are no unique health or safety concerns about fetal tissue. Under current law clinics and hospitals handle embryonic and stem cell tissue like all other human tissue. Advocates of the new regulations say this is precisely the point:

“Governor [Greg] Abbott believes human and fetal remains should not be treated like medical waste, and the proposed rule changes affirms the value and dignity of all life,” HHSC spokeswoman Carrie Williams said, clarifying the motivations of the state-mandated mourning rituals.

Fetal remains should not be “treated like medical waste and disposed of in landfills.” Abbot himself said in a fundraising email he sent last July, not long after the rules surfaced.

It raises so many questions. After the rule was initially proposed, Austin state representative Donna Howard released a letter publicly questioning the specifics of the plan.

She put forth five pages of extremely specific questions about how the rules would actually work, but received about a page of vague politicking in return. “The health commissioner did not specifically answer most of Howard’s questions,” Texas Tribune stated more diplomatically.

“The rules currently contain heinous language related to ‘grinding’ of unborn baby parts, and ‘discharging’ them into a ‘sewer system,’” executive commissioner Charles Smith said in his response. “I charged DSHS to determine how this language could … better preserve the dignity of these unborn lives … This effort will better protect the dignity of human life … and the best interests of the public health of Texas.”

Why is it more respectful to burn up a fetus with flame until it is ashes? How does putting that bundle of cells in a fancy box in the ground to decompose and be eaten by bugs demonstrate a respect and value far greater than if it was disposed of safely and cleanly with medical waste?

Even more importantly, why is the state’s Health and Human Services Commission mandating what citizens are to “value”? What happens if a woman’s deeply held religious beliefs are directly contradicted by this forced grieving ritual?

“We were really appalled that Texas seems to be thumbing its nose at the Supreme Court,” said Trisha Trigilio, staff attorney for the ACLU of Texas. “The court’s decision was really clear, that restricting access to abortion premised on so called health and safety laws would not work. And Texas lawmakers seemed to be saying that they didn’t care much what the Supreme Court had to say, since they tried to pass a very similar law just four days later.”

Notice the wording in the regulation, in the statements and releases from those working to shame and restrict access. One side is saying “heinous,” “grinding” and “unborn babies,” and one side is saying, well, “choice” and “fetuses.” But that’s an obvious divide. The really important difference is, one side is saying “women” — and one side isn’t.

That’s not a metaphor. The words “woman” and “women” appear nowhere in the regulation. And although there have been two public comment periods and two hours-long hearings and Texans submitted more than 35,000 comments, the rule changes were enacted as originally written.

“By leaving out the word ‘women’ from the rule, it can be inferred that the woman’s stake in this issue has been excluded from a rule that directly affects her emotional, spiritual and financial security,” Jim Bates, the executive director of the Funeral Consumers Alliance of Texas, said in a statement. “Excluding women from the development of this proposed rule is ethically negligent.”

“This rule change looks like it will force women into a narrower set of emotional and financial choices, with no added benefit to the woman,” Bates continued. “This is a forced invasion of privacy with no apparent regard for the woman.”

“The bill is part of a wider strategy of what I would call coerced emotionalism, where the requirements are designed to make abortions harder to afford but through mechanisms that are meant to elicit feelings of shame and maternalism on the part of the woman seeking an abortion,” explained Claire McKinney, a Texas native who is now assistant professor of government and gender, sexuality and women’s studies at the College of William & Mary.

“The ultrasound bill Texas made into law in 2012 was premised on the same idea,” McKinney said. “If women seeking abortion are made to treat the fetus as a human life, then there is a hope that they will have an emotional conversion that will make them recognize the moral error of their ways. This bill is an effort at shame dressed in the guise of compassion and ethics.”

“The problem, of course, is that the individual women will not feel shamed, but it will continue to produce a social discourse where everyone else is justified in shaming women for reproductive choices.”