Texas fetal remains burial rule blocked by federal court again

Texas’ second attempt to require health providers to bury or cremate fetal remains has been temporarily thwarted by a federal judge and another court battle is imminent.

In his Monday afternoon ruling, U.S. District Judge David Alan Ezra said the Texas Department of State Health Services’ arguments “lack merit.”

“For those eager for a result in this case, it is tempting to read the Court's decision as a signal on who will win at trial or as a determination of the validity of Plaintiffs' claims,” Ezra said. “Such guesswork would be premature. The Court only concludes Plaintiffs establish injunctive relief is warranted to preserve the status quo.”

The current fight is over Senate Bill 8, a law passed during the 2017 legislative session that has a provision forcing health care facilities to bury or cremate any fetal remains from abortions, miscarriages or treatments for ectopic pregnancy, regardless of their patients’ personal wishes or beliefs. That provision was supposed to go into effect Feb. 1.

In his temporary ruling, Ezra said attorneys for the Center for Reproductive Rights, who are representing the plaintiffs, showed evidence that the new rule would infringe on women’s right to an abortion and that medical providers would have a difficult time following through with the rule, causing them to be fined.

Ezra's ruling echoes a case from 2016 where reproductive rights groups sued to stop the Health and Human Services Commission from implementing a similar fetal burial rule. During the multi-day court hearing at the time, state attorneys said the rule was designed to provide aborted or miscarried fetuses a better resting place than a landfill. They also argued that there would be no cost for patients to worry about and only miniscule costs for providers. The state also said that there were multiple groups willing to help with costs.

U.S. District Judge Sam Sparks struck that rule down in 2017, saying it was vague, caused undue burden on women and had high potential for irreparable harm.

Nancy Northup, president and CEO of the Center for Reproductive Rights, which sued on behalf of Whole Woman's Health, said in a news release that the Monday ruling "reaffirms that the courts will enforce the law and block burdensome restrictions on health care providers and the women they serve."

"The Center for Reproductive Rights has taken Texas to court before and won, and we’ll take Texas to court again to challenge any laws that rob women of their constitutionally-protected rights," Northup said. 

During previous public hearings, Texas Department of State Health Services officials heard stories of abortions, miscarriages, and general grief over losing a baby. While anti-abortion groups argued that the rule was a means to bring human dignity to the fetuses, reproductive rights advocates said it was another way for Texas to punish women who choose an abortion, saying the cost of the burials would be passed on to patients, making abortions harder to obtain for low-income Texans.

This isn’t the first time reproductive rights groups have taken Texas to court over SB 8. During the summer, the Center for Reproductive Rights and Planned Parenthood sued the state over another provision in the bill that outlawed dilation and evacuation abortions unless the fetus is deceased. In that procedure, a doctor uses surgical instruments to grasp and remove pieces of fetal tissue. A federal judge struck down that provision in November.

Attorney General Ken Paxton said in a news release that his office would continue fighting for the fetal remains rule.

“Texas values the dignity of the remains of the unborn and believes that fetal tissue should be disposed of properly and humanely,” Paxton said. “My office will continue to fight to uphold the constitutionality of the new law, which simply prevents fetal remains from being treated as medical waste.”

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