Texas Proposes New Rule Requiring Burial Or Cremation After Abortion

Texas officials have proposed a new rule which will require abortion clinics to bury or cremate remains at the expense of the women who undergo the procedure, setting the stage for another legal debate over the right of states to enforce abortion-focused regulation. Coming on the heels of the Supreme Court’s rejection of Texas’s last abortion legislation, the new regulations could face a similar legal challenge by pro-choice advocates who accuse the state of imposing an undue burden on women who seek abortion procedures.

Texas Proposes New Abortion Rules

The Texas Department of State Health Services will enact a series of new rules which will require all aborted fetuses receive burial or cremation services.  Currently, abortion providers in Texas use third party disposal services which deposit the remains in sanitary landfills. The new rules will alter that procedure and make the process of fetus disposal more expensive, leading to an intense debate about the reason for them between pro-life and pro-choice communities.

Federal law, as interpreted by the Supreme Court, prohibits any state regulation on abortion which places an “undue burden” on a woman’s constitutional right to have the procedure. This standard critically evaluates any law or rule which impacts access to or cost of abortions, forcing states to have a legitimate reason — typically public health — for enacting the regulation. Texas’s previous attempt to limit access to abortions by increasing medical standards of clinics to the point where most of the operating abortion centers in the state would need to shut down was ruled unconstitutional by SCOTUS in early July, prompting conservative regulators to propose the latest requirement.

As with its prior abortion regulation, Texas officials have argued that forcing abortion clinics to bury or cremate a fetus has a positive impact on public health due to improved conditions of disposal, however, the debate about passing the rule has largely focused on belief about the dignity owed an aborted fetus.

Texas Abortion Rule Faces Fierce Opposition

At its outset, Texas’s proposed requirement that aborted fetuses be cremated or buried has faced a passionate challenge by pro-choice advocates who claim the state is attempting to burden low-income women who are seeking access to abortion services. Texas officials at the Department of State Health Services wrote that the regulations were in “the best interests of public health,” however, the thrust of the argument for the rule has been from Gov. Greg Abbott who has stated a strong desire to “turn the tides” against the abortion industry.

In a fundraising email, Gov. Abbott wrote that the aim of the new regulation was to give “voice to the unborn,” and told supporters, “Human life is not a commodity or an inconvenience. It is our most basic right. Without it, we have no other rights. … I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life. This is why Texas will require clinics or hospitals to bury or cremate human or fetal remains.” Critics of the rule, including Democratic state Rep. Donna Howard, have denounced the Governor and his allies for using agency back channels to enact anti-abortion regulation without legislative approval or legitimate purpose.

Rep. Howard wrote an open letter to the health commissioner in July after the rule change was proposed, requesting information about how the regulation would improve public health, and received a response which called the current disposal methods “outdated.” Because the reasoning behind the new rule has paid less attention to public health than to anti-abortion politicking, the regulation will likely face a legal challenge immediately after it goes into effect later this month.

Legal Challenge Coming for New Texas Abortion Rule

Opponents of Texas’s new regulation requiring the burial or cremation of aborted fetuses have already announced plans to challenge the rule in federal court. According to pro-choice advocates, the financial impact of the rule could make abortions prohibitively expensive for low-income women, which violates the Supreme Court’s directive that no state may pose an “undue burden” on constitutionally protected abortions. According to the rule’s opponents, it could raise the cost of abortions by as much as $2,000 per procedure, although that figure is a matter of some dispute as supporters of the regulation say it should only cost abortion clinics around $450 annually.

Should the cost of abortions rise significantly, the Texas rule — which will be proposed as a piece of legislation during the state’s next term — is unlikely to survive a legal challenge in federal court. Raising the cost of abortions is likely to negatively impact low income women who cannot afford to pay for a burial or cremation, and given the history of abortion jurisprudence the federal judiciary is likely to find that such an effect constitutes an undue burden. A similar law from Indiana was struck down earlier this year, and Texas’s rule seems unconstitutional on its face, particularly because support for the regulation has paid very little attention to how it would improve public health conditions.

Rules like this are worth keeping an eye on, however, particularly if president-elect Donald Trump is able to appoint a second Supreme Court justice at some point during the next four years. Trump seems aligned with a growing movement among conservatives to overturn Roe v Wade and remove the undue burden restriction. Any legislation that inhibits abortions by any means could serve as the basis for a Supreme Court case that accomplishes this goal.

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