Abbott Fundraising Off Rule to Bury or Cremate Fetal Remains

Weeks after Texas health officials quietly proposed rules that would require the cremation or burial of fetal remains, Republican Gov. Greg Abbott is raising political funds off his administration's new effort to regulate abortion providers.

In a fundraising email sent to supporters Thursday, Abbott cited the rule change, saying Texas is working to “turn the tides” against the abortion industry in the state and protect the “rights of the unborn.”

“I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life,” Abbott said in the email. “This is why Texas will require clinics and hospitals to bury or cremate human and fetal remains.”

The new rules would prohibit abortion providers from disposing of fetal remains in sanitary landfills, instead allowing only cremation or interment of all remains — regardless of the period of gestation. Abortion providers currently use third-party special waste disposal services.

With little notice and no announcement, the proposal was published in the Texas Register on July 1, triggering a 30-day public comment period. That prompted outrage from the reproductive rights community, which accused state leaders of putting unnecessary regulations on abortion providers and increasing the financial burden on a woman seeking an abortion.

Democratic lawmakers have questioned the rationale for the proposed rules, and why they are being enacted by the state health department without vetting by the Legislature. Because the proposed rules would not be in statute, it appears they will not require approval by lawmakers.

Though the rules were proposed by the Health and Human Services Commission on behalf of the Department of Health Services, they came at Abbott’s directive. The governor's influence appears to have been confirmed by Executive Health Commissioner Charles Smith.

In a letter obtained by The Texas Tribune responding to Democratic state Rep. Donna Howard of Austin's questioning of the “necessity” for the rule changes, Smith detailed that the Department of State Health Services in January began to “research and analyze needed changes” to the rules, which had not been updated in more than 20 years.

“In line with Governor Abbott’s commitment to protect unborn lives, I directed DSHS to evaluate potential changes to portions of the rules that pertain to disposition of fetal remains,” Smith wrote. He added that rule change “is consistent with the Governor’s direction” for the health commission and “the best interests of the public health of Texas.”

Howard wrote to the health commissioner earlier in July with a long list of questions about the proposed changes, including questions about how the rules originated, how they would improve public health and what they would mean for women who suffer miscarriages.

The burial or cremation rule seems to apply to the disposal of both “spontaneous or induced” abortions. A similar measure was signed into law in Indiana but was later blocked by a federal judge.

On Thursday, Howard questioned why the state would “expedite” the rule change six months before the legislative session and without waiting for an outcome in the Indiana case.

“There’s a lot that’s unanswered about what will happen as a result of this and it seems it's being fast-tracked without due diligence,” Howard said in an interview.

The health commissioner did not specifically answer most of Howard’s questions in his response, instead explaining an effort to amend “heinous” language in the current rules referring to a disposal method that included “grinding and discharging” the “products” of abortions into a sanitary sewer system — a disposal term he said was “outdated.”

In his fundraising email, Abbott focused on prohibiting the disposal of fetal remains in sanitary landfills like other medical waste.

It remains unclear whether the rules will prompt a legal challenge. The rules were filed with the secretary of state’s office on June 20 — seven days before the U.S. Supreme Court overturned Texas’ 2013 abortion restrictions and made clear that lawmakers must provide sound evidence that an abortion regulation furthers a state interest, like promoting health, without placing an undue burden on women’s access to the procedure to be constitutional.

It’s unknown whether costs associated with cremating or burying fetal remains would increase the cost of an abortion. But some within the reproductive rights community have argued the rule change would place a financial burden on women seeking abortions.

A commission spokesman previously said the final rules are expected to take effect in September. A request by Howard for a public hearing on the rule change was referred to the health department; a spokesman did not immediately respond to a request for comment.

Abbott’s office has said he’s counting on lawmakers to write the rules into law when they reconvene in January. Republican state Sen. Don Huffines of Dallas confirmed he would pursue such legislation.