In the end of November, Texas lawmakers finalized a controversial and bizarre rule requiring medical providers to bury or cremate all fetuses aborted in a hospital or clinic setting. On Monday, the Center for Reproductive Rights announced that they'd be challenging that provision in court—something they've been threatening to do since August, when they wrote in a letter addressed to public health officials in the state that "the proposed amendments will almost certainly trigger costly litigation for Texas."
The fetal burial rules, which have been widely condemned by reproductive rights groups, medical organizations, and funeral planners in the state, are supposed to take effect next week. The Center for Reproductive Rights is asking for a temporary restraining order to prevent that from happening while the lawsuit is ongoing.
"These regulations are an insult to Texas women, the rule of the law, and the US Supreme Court," said Nancy Northup, the CEO and president of the Center for Reproductive rights, in a statement, noting that the new rules were proposed just four days after the Supreme Court declared that Texas' previous abortion restrictions were unconstitutional in a landmark ruling. "These insidious regulations are a new low in Texas' long history of denying women the respect that they deserve to make their own decision about their lives and their healthcare."
In their August letter threatening a lawsuit, the Center for Reproductive Rights noted that Texas taxpayers "can scarcely afford" more litigation, considering the fact that the state spent millions of dollars defending the unconstitutional abortion restrictions which the Supreme Court struck down in June.
Reproductive rights advocates fear that, if allowed to stand, the fetal burial rules could have a potentially devastating effect on women's reproductive health and futures: To this date, no one is really sure how the fetus funerary services would be arranged nor who would pay for them, according to several providers and legal experts interviewed. Some have expressed fears that providers who are unable to arrange burial or cremation services will be forced to close their doors; others note that the additional costs associated with fetus funerals could make abortion prohibitively expensive for low-income women who are already hugely affected by restrictions on their reproductive healthcare access.
"Three-quarters of women seeking abortion care live near or below the federal poverty line, which for a single woman is an annual income of less than $12,000 a year," Trisha Trigilio, a staff attorney at the ACLU of Texas, told Broadly after the rule was first finalized. "Forcing a woman who lives on $12,000 a year to pay for unnecessary burial or cremation, in addition to the cost of the medical procedure itself, will almost certainly put a safe abortion out of her reach."
Opponents of the rules remain optimistic that they'll prevail in court, especially given the precedent set this June by the Supreme Court. "We at Whole Woman's Health have a history of fighting restrictions that are deeply rooted in shaming and stigmatizing Texans and today's filing is no different," said Amy Hagstrom-Miller, the president and CEO of Whole Women's Health and lead plaintiff in the case. "We will not stand for Texas putting more undue burdens on women and families who deserve the safe and compassionate abortion care that we provide at Whole Woman's Health."