Sharp Disagreements at Fetal Remains Hearing

In the aftermath of a car accident in 2014, Denee Booker was told by her doctor that the child she was carrying had died in utero.

To avoid complications, she agreed with her doctor’s suggestion to remove the fetus instead of waiting for it to “naturally pass,” Booker told state health officials during a Thursday hearing on a proposed state rule that would require the cremation or burial of fetal remains.

“That I would have had to take or make either of those decisions is mind-boggling and terrifying,” Booker said of the proposed requirements. “I can’t imagine how much worse that would’ve made my situation.”

Booker was among dozens who testified on a pending rule change that prohibits hospitals, abortion clinics and other health care facilities from disposing of fetal remains in sanitary landfills, instead allowing only cremation or interment of all remains — regardless of the period of gestation — even in instances of miscarriages.

Packed into a conference room at the Texas Department of State Health Services, health care providers, funeral directors and reproductive rights activists testified that the change would do little to improve public health and could be burdensome to women who miscarry and those seeking abortions. A contingent of anti-abortion activists and two Republican lawmakers endorsed the measure, which was quietly proposed in July at the directive of Republican Gov. Greg Abbott.

With little notice and no announcement, the proposed change was published in the Texas Register on July 1. In a fundraising email sent to supporters last month, Abbott said the rules were proposed because he didn't believe fetal remains should be "treated like medical waste and disposed of in landfills."

That prompted outrage from the reproductive rights community, which accused state leaders of placing unnecessary regulations on abortion providers. Medical professionals also raised concerns about who would bear the costs associated with cremation or interment — a figure that can reach several thousand dollars in each case — and why the rule change does not allow an exception for miscarriages and ectopic pregnancies.

During the hearing, opponents of the change reiterated those concerns — which were mentioned by the Texas Medical Association and the Texas Hospital Association in a joint letter to state health officials — and questioned if women who miscarry at home would be required to carry the fetal tissue or bloody products of a miscarriage to a doctor’s office or hospital.

Responding to those concerns, John Seago with the anti-abortion group Texas Right to Life suggested that the health department should clarify the rules so they do not apply to miscarriages that occur at home.

Medical professionals and others have also questioned whether the new rules would trigger a requirement for death certificates so that fetal remains could be cremated or buried.

Under current rules, the state requires funeral directors or a “person acting as such” who take custody of a dead body or fetus to obtain an electronic report of death before transporting the body, according to the associations’ letter.

The Funeral Consumers Alliance of Texas came out against the measure. Sarah Reeves, a representative for the group, testified that the state’s fiscal analysis of the rule change was incomplete because it found there would be no significant cost to individuals or businesses that must comply.

In a letter submitted to health officials, the group’s director wrote that the average “basic fee” for funeral services is $2,000. 

The proposed rule does not indicate who would pay those costs. Hospitals and abortion providers currently contract with third-party medical waste disposal services.

During the hearing, Joe Pojman, executive director of Texas Alliance for Life, suggested that abortion providers should absorb any “nominal increase” in costs associated with the cremation or burial rule as some funeral homes and cemeteries do in cases of miscarriages.

In questioning the health-related justifications for the proposed rules, Planned Parenthood and NARAL Pro-Choice Texas testified that state health officials have not provided any evidence that current methods used by abortion providers to dispose of fetal tissue — which have been approved by the state for 20 years — are less safe or not optimal for public health and safety.

State officials have defended the rule change, saying it was proposed in “the best interests of the public health of Texas.” They also say the proposed rule change reflects the state’s efforts to affirm the “highest standards of human dignity.”

Planned Parenthood has pointed out that the proposed rules treat fetal tissue differently than other medical tissue.

The rule change would not apply to other human tissue that might be removed during surgery, for instance, and the existing disposal methods were not modified for the placenta, gestational sac and other tissue that results from miscarriages and abortions, the organization wrote to health officials.

"While we support reasonable updates to rules that are within the department’s statutory authority and protect and enhance public health and safety, the proposed rules go beyond the limits of this authority, do not further these aims and appear motivated solely by political forces," said Yvonne Gutierrez, executive director of Planned Parenthood’s political arm in Texas.

The possibility of a legal challenge to the rule change hung over the hearing, with many repeating a warning by reproductive rights lawyers that the proposal “will almost certainly trigger costly litigation.”

In a letter sent to health officials ahead of the hearing, the Center for Reproductive Rights — which represented abortion providers in their recent landmark victory over Texas’ 2013 abortion restrictions — argued that the rules are "plainly in violation" of the legal standard abortion regulations must meet to be deemed constitutional.

That legal standard was clarified by the U.S. Supreme Court in its ruling overturning the 2013 abortion restrictions, which spelled out that lawmakers must provide 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.

On Thursday, Trisha Trigilio, a lawyer with the Texas chapter of American Civil Liberties Union, echoed that sentiment, saying the rule change was an unnecessary regulation and was not supported by any evidence.

Those warnings have not discouraged Republican lawmakers who have backed the rule change and plan to write the rules into law when they reconvene in January.

At the hearing, Republican state Rep. Mark Keough of The Woodlands read a letter on behalf of the House Republican Caucus in support of the rule change. And Republican state Sen. Don Huffines of Dallas — who has confirmed he would pursue such legislation — once again endorsed the rule.

“For too long, Texas has allowed the most innocent among us to be thrown out with the daily waste,” Huffines said on Thursday.

A similar fetal remains measure was signed into law in Indiana but was later blocked by a federal judge, who ruled the state did not have a “legitimate state interest in treating fetal tissue similarly to human remains” once a pregnancy was terminated.

A spokeswoman for health department said it would “carefully review” Thursday’s testimony and the more than 12,000 comments that were submitted in writing as they finalize the rule change.

“Once the rules are finalized they will be posted in the Texas Register and would be effective 20 days later,” said Carrie Williams, the department’s spokeswoman. She added the department is hoping to finalize the rule change before the fall.

Disclosure: The Texas Medical Association, the Texas Hospital Association and Planned Parenthood have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.