In Texas, women must navigate a frustrating, insulting labyrinth in order to terminate unwanted pregnancies. Because draconian restrictions have forced over half the abortion clinics in the state to close, women who don't live in major urban centers have to drive hundreds of miles to their nearest provider. There, medical professionals are legally obligated to offer each patient state-mandated, misleading information about abortion, which includes blatantly false statements, such an implied link between abortion and breast cancer. Afterwards, women must wait for 24 hours—either returning home or staying in a hotel near the clinic—before returning for the actual procedure.
This week, Texas lawmakers added another particularly bizarre and callous step to this already arduous process. On Monday night, state health officials finalized new rules mandating that all fetuses aborted in a hospital or clinic must be buried or cremated, regardless of gestational stage. These regulations will now take effect on December 19; reproductive rights advocates say the effect on women in the state of Texas will be devastating.
Texas Governor Greg Abbott first publicly voiced his support for mandatory fetus funerals in a fundraising email, in which he wrote that he felt it was "imperative to establish higher standards that reflect our respect for the sanctity of life" and that, accordingly, fetal remains should not "be treated like medical waste and disposed of in landfills." Now, however, along with other legislators who support the rules, he claims that the measure is simply meant to ensure the "enhanced protection of the health and safety of the public."
For months, major medical organizations, reproductive rights advocacy groups, and funeral directors in the state have vehemently argued that there's no absolutely no medical or public health justification for a rule requiring fetal tissue to buried or cremated—fetal tissue disposal is already regulated by states, along with the disposal of other medical waste.
"This regulation has no basis in public health, and it's just a pretext for putting an additional burden on women who choose abortion or who suffer miscarriage," David Brown, a senior staff attorney for the Center for Reproductive Rights, told Broadly.
The rules, as they were originally written, would have required even women who miscarry at home to arrange for funerary services for fetal tissue; this provision was lambasted as particularly cruel and nonsensical. The updated rules specify that women who suffer miscarriages outside of a medical setting don't have to bury or cremate the fetus—nor do women who opt for medication abortion, in which each patient takes a pill in the presence of a doctor before returning home, where she essentially experiences an induced miscarriage.
This regulation has no basis in public health, and it's just a pretext for putting an additional burden on women who choose abortion.
But these exceptions, which are ostensibly meant to assuage concerns about government indifference to the suffering of women, undermine the state's argument that fetus funerals are primarily a public health concern. "These rules obviously have nothing to do with public health," said Trisha Trigilio, a staff attorney for the ACLU. "These are special regulations that only apply to fetal tissue, not other human tissue, and the rules only apply to health care facilities like abortion providers, not women who may miscarry in their homes. Texas has advanced zero evidence—zero—that there is a public health reason to treat miscarriages and abortions differently."
When the law takes effect, Trigilio added, abortion clinics that cannot find a nearby funeral home willing to provide fetus funeral services could be forced to close their doors, exacerbating the dire lack of access in the state. And, as the director of the Funeral Consumers Alliance of Texas noted in July, the costs associated with cremating a body are substantial: An average basic services fee costs $2000. Though health officials in the state insist that clinics, not women, will be forced to cover the costs, it's very unlikely that there won't be some sort of financial effect on abortion patients.
"It's just common sense that if they increase the cost of providing medical care, that is going to raise the price of medical care," Brown explained. "And certainly for these kinds of care—which are disproportionately needed by poor women, by women of color, by women of limited means—that could have a tremendous impact." According to the Guttmacher Institute, 49 percent of women seeking abortion care live below the federal poverty line.
"These regulations are unconstitutional," said Trigilio. "These laws do not support Texan women. They are the latest step in a campaign by anti-abortion extremists who want to outlaw abortion altogether." Tellingly, the Texas Department of Health and Human Services first proposed them just four days after the Supreme Court ruling struck down the state's onerous clinic restrictions in a landmark ruling. It's likely that the precedent set in that case will be used against the new fetal burial rules: "I think [the Supreme Court ruling] teaches that states cannot enact a regulation that is a pretext for punishing women who seek reproductive healthcare," said Brown.
Though Texas is notorious for its grievous track record with reproductive rights, especially in the past five years, these new regulations aren't an isolated occurrence. Indiana and Louisiana enacted fetal burial laws earlier this year, though both are currently on hold pending litigation, and Ohio is currently considering a bill of its own. "Texas is not even the lead state in this effort. They're sort of recycling old bad ideas and trying to implement them in new ways," said Brown. "Certainly I don't expect Texas to be the last one to try and do this. It isn't the first, either."