Federal Judge Has Blocked Texas Fetal Burial Law

A federal judge in Texas blocked a law mandating the burial or cremation of fetal tissue from abortions, miscarriages or ectopic pregnancy surgery in a decision on Wednesday.

U.S. District Court Judge David Ezra issued a permanent injunction prohibiting enforcement of the 2017 law, saying that it imposed "significant burdens on women seeking an abortion or experiencing pregnancy loss" and that it conveyed "minimal, if any, benefits."

"At best, enshrining the State's view of pregnancy increases the grief, stigma, shame, and distress of women experiencing an abortion, whether induced or spontaneous," Ezra wrote in his decision. "Women who do not believe embryonic and fetal tissue has a special status will be required to accept the State's prescribed methods of disposition as a condition of obtaining pregnancy-related health care."

"At worst," he continued, "the challenged laws intrude into the realm of constitutional protection afforded to 'personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it.' "

The law, which never went into effect, started off as a regulation that was later folded into a sweeping anti-abortion bill called Senate Bill 8 enacted in July 2017. It sought to change the process, established in 1986, that allows health care facilities to dispose of fetal and embryonic remains in sewer systems or landfills.

The lawsuit was filed on behalf of Whole Woman's Health and other Texas abortion providers, whose lawyers argued the burial and cremation requirements were a "politically motivated" attempt by the state to force abortion providers into closing because only a limited number of vendors would be willing or able to meet the "onerous" disposal requirements.

Ezra agreed, writing, "[The] challenged laws would likely trigger a shutdown of women's healthcare providers unable to cobble together a patchwork of funeral homes, crematoriums, and cemeteries to meet their disposal needs. Clinic closures would further constrain access to abortion in a state where access to abortion has already been dramatically curtailed."

"Today's ruling is a victory for all Texan women and their right to access safe, legal abortion with dignity," Amy Hagstrom Miller, founder and president of Whole Woman's Health and Whole Woman's Health Alliance, said in a statement.

Texas Attorney General Ken Paxton said his office will continue to defend the burial requirement.

"Today's ruling is disappointing, but I remain confident the courts will ultimately uphold the Texas law, which honors the dignity of the unborn and prevents fetal remains from being treated as medical waste," Paxton said in a statement.

He challenged Ezra's ruling saying the law, as written, "is constitutional and does not impact the abortion procedure or the availability of abortion in Texas."

The state has 30 days to appeal, which would send the case to the 5th Circuit Court of Appeals in New Orleans.

"The state of Texas is relentless, but so are we in terms of advocating for the rights of Texas women," Molly Duane, a staff attorney for the Center for Reproductive Rights, one of the groups that filed the lawsuit, told NPR.

She noted that the Center for Reproductive rights along with a coalition of other organizations has challenged dozens of medically unnecessary abortion restrictions that have been on the books for years. Among them, a 24-hour mandatory delay, a forced ultrasound law and a parental consent requirement.