Lawyers: Rule to Bury or Cremate Fetal Remains Could Lead to Suit

Texas' proposed rules requiring the cremation or burial of fetal remains "will almost certainly trigger costly litigation," reproductive rights lawyers say.

In a letter to the Texas Department of State Health Services, lawyers with the Center for Reproductive Rights on Monday argued that the new rules — proposed at Gov. Greg Abbott's directive — are "plainly in violation" of the legal standard abortion regulations must meet to be deemed constitutional. 

In a fundraising email sent to supporters last month, Abbott said he didn't believe fetal remains should be "treated like medical waste and disposed of in landfills."

With little notice and no announcement, Texas health officials in July proposed new rules to 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. The burial or cremation rule seems to also apply to "spontaneous abortions," or miscarriages.

A similar measure was signed into law in Indiana but was later blocked by a federal judge.

“Texas politicians are at it again, inserting their personal beliefs into the health care decisions of Texas women,” Stephanie Toti, senior counsel for the Center for Reproductive Rights, in a statement. “The Center for Reproductive Rights is prepared to take further legal action to ensure that Texas women can continue to access abortion and other reproductive health care without interference by politicians.”

Representatives from the governor's office did not immediately respond to requests for comment on Monday. A spokesman for the Health and Human Services Commission, which proposed the rules on behalf of the health department, said they would "continue to follow state statute when proposing and implementing new rules."

The state agency previously said it is adopting the rule through the “specific rulemaking authority” granted by the Legislature.

In defending the rule change, state health officials previously said it was proposed in "the best interests of the public health of Texas" and to affirm the "highest standards of human dignity." In the fundraising letter, Abbott cited the rule change in saying that Texas is working to “turn the tides” against the abortion industry in the state and protect the “rights of the unborn.”

But the reproductive rights lawyers say the disposal requirements are "burdensome for both abortion care and miscarriage management." And they say the proposed rules are out of line with the legal standard for abortion — that the burdens imposed on women from restrictions on the procedure cannot outweigh the benefits they provide the state, like promoting health.

That legal standard was clarified by the U.S. Supreme Court in its recent decision overturning Texas' 2013 abortion restrictions. The center represented Texas abortion providers in that lawsuit, formally known as Whole Woman's Health v. Hellerstedt. 

The proposed disposal rules were in the works months ahead of the Supreme Court's ruling clarifying the legal standard for abortion restrictions, and they were filed with the Texas Secretary of State’s office on June 20 — seven days before the high court's decision.

The Center for Reproductive Rights' letter was submitted as part of a public comment period on the new rules. A public hearing is set for Thursday. The final rules are expected to take effect in September.