As trial over fetal remains law ends, judge says he still has questions

State and reproductive rights attorneys wrapped up a five-day trial in federal court on Friday that will determine whether a Texas law requiring health providers to cremate or bury fetal remains can go into effect.

U.S. District Judge David Alan Ezra told attorneys on Friday that he has “not made up my mind on how I'm going to rule on this case” and is awaiting written closing arguments due on Aug. 3.

He’s expected to rule around the end of August.

The law at the center of the case is Senate Bill 8, passed in 2017, which requires the burial or cremation of fetal remains. Legislators passed the bill following a ruling that year by U.S. District Judge Sam Sparks that struck down a similar rule implemented by the Texas Department of State Health Services. Sparks said that rule was vague, caused undue burden on women and had high potential for irreparable harm.

Throughout the five-day trial, a wave of patients, health providers, state agency officials, bioethicists, cemetery directors and religious leaders flowed through the witness stand.

Before dismissing attorneys Friday morning, Ezra rattled off a list of questions and concerns he wanted both sides to answer in closing arguments, including: What authority does Texas have to pass laws around giving dignity to the unborn? What would happen to women’s access to care for abortions and miscarriages if health providers did not have a facility to handle fetal remains? And how many facilities — secular or otherwise — have committed to helping with burials and cremation?

Ezra noted that the case is unique because state attorneys waived the argument that SB 8 protects the health or safety of patients and plaintiffs' attorneys waived arguments about costs to patients and providers.

The dynamics involved “makes this case extremely unique in many ways and makes finding precedent all the more difficult because those issues are generally not only present in these kind of abortion-related cases — they’re often paramount in those cases,” Ezra said.

Going into the trial, Ezra said he anticipated his ruling would be appealed to the 5th U.S. Circuit Court of Appeals. Abortion opponents have argued that the law is a means to bring human dignity to fetuses, while reproductive rights advocates said it was another way for Texas to punish women who choose to have an abortion, saying the cost of the burials would be passed on to patients, making abortions harder to obtain for low-income Texans. The fetal remains provision of SB 8 was slated to go into effect Feb. 1. Fetal remains from pregnancies that ended with abortions, miscarriages or treatments for ectopic pregnancy would have had to be buried, regardless of their patients’ personal wishes or beliefs. The Center for Reproductive Rights and Whole Woman’s Health sued the state over that part of SB 8 and won a temporary injunction that blocked the law from being implemented.

Blake Howard Norton, a licensed family therapist and daughter of state Rep. Donna Howard, D-Austin, testified during the trial about her miscarriage and the stress of being required to follow Seton Medical Center Austin’s policy of burying fetal remains in a shared grave. Seton is a Catholic hospital. Howard Norton did not want to deal with a burial at all.

“There was a place in the form where I had to handwrite in my relationship to what I was thinking of as tissue at that point,” Howard Norton said. “I had to write in my relationship to it as mother, I had to begin thinking about a funeral and burial arrangements, which is a very specific way of thinking about this kind of loss ... It was pigeonholing me of needing to define this experience in a way that was incongruent with my value system.”

Amy Hagstrom Miller, CEO of Whole Woman’s Health, said during the trial that patients have called their clinics asking about SB 8 and have expressed concern about the law adding an extra step to getting an abortion and being forced to do something they don’t agree with. She also expressed concern that vendors who come forward would have strong religious or political ties and that the final resting site would become a political location.

“I don’t want our patients feeling like their fetal tissue became politicized,” Hagstrom Miller said.

Multiple providers who testified said women oftentimes don’t ask what happens to their fetal tissue, since they assume it’ll be treated like medical waste. Providers also said they have experienced challenges trying to find vendors willing to work with their clinics. A top reason, they said, is that vendors are unwilling to endure backlash and harassment from anti-abortion advocates. During the trial, state attorneys said the rule was designed to provide aborted or miscarried fetuses a better resting place than a landfill. They argued that women would not be harmed by the law and that there were churches and cemeteries statewide willing to help medical providers dispose of fetal remains.

Texas Attorney General Ken Paxton said in a news release earlier in the week that he and his office were “confident in our arguments and look forward to the courts ultimately upholding Texas law.”

Jennifer Allmon, executive director of the Texas Catholic Conference of Bishops, said the organization did an assessment and found they have the capacity to bury fetal remains with as many as 100 to 150 per casket in a burial site. Plaintiff attorneys questioned whether the organization and its affiliates would be willing to enter into long-term contracts with providers.

“The bishops have said they’re willing to negotiate and enter into a contract,” Allmon said. “The content of those contracts would have to be negotiated.”

State attorneys brought in multiple religious leaders and cemetery directors to talk about how they would work with fetal remains and their commitment to helping. It was revealed during the trial there are 1,300 licensed funeral homes and 164 actively licensed crematories in Texas.

The trial comes as President Donald Trump vies to get his Supreme Court nominee Brett Kavanaugh through Senate confirmation. If confirmed by the U.S. Senate, Kavanaugh would replace Justice Anthony Kennedy, who announced his retirement this month. The prospect of Trump appointing a second Supreme Court justice has fueled speculation about the future of abortion policy, including the potential overturning of Roe v. Wade.

But throughout the trial, Ezra warned attorneys to stay within the boundaries of SB 8 and not veer into other abortion policy issues.

“For me to lick my finger put it up in the air and base my decision on what the Supreme Court might do if Kavanaugh gets on the court and the issue is presented to them would be folly and a great deal of injustice to the old knighthood, and I won’t do it,” Ezra said.

Disclosure: Seton Healthcare Family has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.