Texas fetal remains burial trial begins in federal court

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AUSTIN — A Texas law requiring fetal remains from abortions or miscarriages to be buried or cremated is up for debate in federal court this week. 

This is part of Senate Bill 8, which was passed in 2017.  It places the requirement of burial or cremation on medical providers, who would otherwise treat the fetal tissue as medical waste. The requirement is temporarily blocked by the courts during this challenge. 

U.S. District Judge David Ezra reminded all parties involved on Monday that “this case has nothing to do with the constitutionality of Roe v. Wade.” 

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said her organization is fighting the law because of the burden it could place on medical providers to comply with the statute. 

“What’s happening with this regulation is that they’re sort of focusing on the tissue from a pregnancy and focusing on a procedure that only women have and asking for things to be treated differently, for a reproductive procedure to undergo a different process that actually doesn’t have any health benefit,” she said during an interview. 

Hagstrom Miller said finding Whole Woman’s Health’s current vendor for its facilities – one who would follow the required policies for medical waste disposal – wasn’t easy. She told attorneys two contracts fell through in the process and the difficulty in locking in vendors isn’t limited to only finding people to properly discard medical waste. 

“There’s a history of having it be really challenging as abortion providers to be able to find buildings we can lease or landlords that are welcoming of our practices,” she said. “We’ll have difficulty finding service providers, whether it’s somebody who is going to provide construction services for your building, do a remodeling project, lay new floors, somebody who is going to service your parking lot.” 

Judge Ezra acknowledged that could be problematic. 

“Inability to find a provider and therefore how that may or may not impinge on the availability of the procedure is an issue and if they can’t find anybody to do it, that’s an issue,” he said. 

Attorneys for the state said the legislation created a registry that shows different organizations who could provide services to help comply with the law. However, Miller said her concern was that these groups would be “religious in nature or political in nature.” 

Marc Rylander, a spokesperson for the Office of the Texas Attorney General, said this law was created with an interest of respecting fetal remains. 

“It appears that the plaintiffs in this case want fetal remains to be ground up and tossed into a sewage system or sent to a landfill as if they were common trash,” he said in a statement. “The U.S. Supreme Court has consistently held that states may express their respect for the unborn as long as they do not impose a substantial obstacle to a woman’s right to a pre-viability abortion.” 

Rylander said attorneys for the state will present “compelling, common sense evidence” in support of the law in the upcoming days. 

The trial is expected to last until Friday. 

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