Federal judge mulling fate of Texas fetal remains rules; decision expected Friday

Abortion providers told a federal judge Tuesday that Texas’ attempt to require burial or cremation of fetal remains was “government interference” without public health benefits, while state lawyers countered that clinics want to be allowed to continue disposing of such remains in landfills.

The question of what becomes of tissue left over from abortions and miscarriages is the latest legal battle over abortion in Texas, which saw the U.S. Supreme Court last summer strike down much of its larger abortion restrictions that had been among the nation’s toughest.

At issue are state health department rules banning hospitals and abortion clinics from disposing of fetal tissue as biological medical waste, which usually means incineration, followed by disposal in sanitary landfills. Earlier legal challenges blocked similar measures in Louisiana and Indiana.

Texas’ rules seek to require fetal remains to be buried or to be cremated then buried or scattered. Many abortions occur less than 10 weeks into pregnancy, when the amount of tissue can be smaller than a dime.

The new regulations would have taken effect last month, but Austin-based U.S. District Judge Sam Sparks put them on hold while he considers a lawsuit from national activists. Those groups say the rules are meant to shame women who seek abortions and make it harder for doctors to provide them. The health department has written that the rules will “protect the public by preventing the spread of disease while also preserving the dignity of the unborn in a manner consistent with Texas laws.”

Sparks is expected to issue a larger decision on the rules’ fate by Friday.

Amy Hagstrom Miller, who owns abortion clinics in five states including Texas, testified Tuesday that advocates have found just one Texas crematorium willing to work with abortion providers, and that anti-abortion activists could pressure it into rescinding the offer.

State attorneys questioned that assertion, saying there are “at least 157 licensed crematoriums” statewide. But Hagstrom Miller said her clinics have in the past had problems with contractors providing everything from roofing services to security being criticized by anti-abortion activists – making many contractors in any field wary of working with abortion providers.

“I find the interference by the government in women’s personal decision-making offensive,” Miller said.

The new regulations were proposed at the behest of Republican Gov. Greg Abbott in July, days after the U.S. Supreme Court struck down Texas’ larger anti-abortion laws that would have left the state with 10 abortion clinics, down from more than 40 in 2012.

Critics say cremation and burial would cost more and force women to cover the additional expenses. Exactly how much more isn’t clear, though some estimates have put the figure at an extra $400 per fetus – perhaps doubling the existing costs of abortion.

The state argued Tuesday that those estimates assume individualized burial or cremation being required for each fetus when the rules would instead allow groups of remains to be collected and stored for eventual mass burial or cremation, thus lowering the cost to perhaps less than an additional $0.60 per patient. But Hagstrom Miller said the rules were vague enough that they could be enforced many ways.

The Texas Catholic Conference, meanwhile, has announced plans to allow free burial for fetal remains at Catholic cemeteries, to which Hagstrom Miller responded: “Not all of my patients are Catholic.”

Tad Davis, who testified that he had performed thousands of abortions over 40-plus years in Austin, said the rule change “has no benefit for the patient or the state” and would be “another step in terms of making patients feel bad about everything.”

“It would impose someone else’s beliefs on them,” Davis said.

Davis said fetal tissue doesn’t increase infection risk more than any other type of tissue. He said women sometimes flush fetal remains down the toilet after sudden miscarriages without any public health threat and “don’t say they see it as undignified.”