AUSTIN, Texas — A federal judge nominated to the bench by then-President George W. Bush issued a preliminary injunction this week against a new Texas regulation requiring that abortion facilities arrange for deceased babies to be either buried or cremated instead of being treated as medical waste, stating that the requirement places an “undue burdens on a woman’s right to seek a previability abortion.”
“It seems unlikely DSHS’S professed purpose is a valid state interest and not a pretext for restricting abortion access,” U.S. District Judge Sam Sparks extended his restraining order against the rule on Friday. “By comparison, Plaintiffs face likely constitutional violations, which could severely limit abortion access in Texas.”
He expressed uneasiness about the state’s argument that the rule is necessary to treat the unborn with dignity, opining that the negatives outweigh the positives in that the lack of funeral services willing to handle the babies could make it difficult for abortion facilities to comply, “which would deliver a major, if not fatal, blow to health-care providers performing abortions.”
Sparks also said that Texas’ testimony surrounding estimated costs for abortion facilities were made “using simple, back-of-the-envelope math, which is unsupported by any research and relies heavily on assumptions.” The state had suggested that abortionists could pool together and utilize a mass grave for the remains of aborted babies, which it said would cost less than $2 a baby.
As previously reported, in Texas, abortion facilities customarily contract with third party medical waste companies to dispose of the aborted babies, which are usually classified as “pathological waste.” The containers of aborted babies, mixed in with boxes of bodily fluids, tissues and other items that are not permitted to be thrown in the trash, are then transported to an incineration plant where they are burned into ash and then dumped into landfills.
However, current Texas law also allows for other types of disposal, including “grinding and discharging to a sanitary sewer system,” “chlorine disinfection/maceration followed by deposition in a sanitary landfill” or other “approved alternate treatment process, provided that the process renders the item as unrecognizable, followed by deposition in a sanitary landfill.”
Last month, the Department of State Health Services finalized a rule at the request of Gov. Greg Abbott that requires abortionists to utilize burial or cremation services provided by funeral homes rather than hiring medical waste companies to dispose of the children with other medical trash.
But days later, several abortion facilities filed suit to stop the regulation from going into effect, including Whole Woman’s Health, Brookside Women’s Medical Center, Austin Women’s Health Center, Alamo Women’s Reproductive Services and others. As previously reported, the medical waste company Stericycle was fined $42,000 in 2011 for dumping fetal remains from Whole Woman’s Health with household and commercial trash.
The lawsuit was filed in part by the New York-based Center for Reproductive Rights.
On Dec. 15, Judge Sparks issued a temporary injunction, halting the rule, and earlier this month, he heard oral argument over the issue. He became befuddled as the state argued before the court that “fetal tissue is not human remains” under the law and is simply “pathological waste” since the child hasn’t yet been born.
“Fetal tissue is not human remains for the purposes of this statute,” Assistant Attorney General John Langley replied in response to a question from Sparks, who pondered whether the rule requiring burial or cremation of aborted babies conflicts with the state’s current cremation law. The law allows human ashes to be sprinkled on private property without permission—which could include landfills.
Langley’s position was that the state cremation law and the aborted baby burial requirement did not conflict because “fetal tissue is not human remains” under Texas law.
“So it’s the official doctrine of the state that fetal tissue is not human remains?” Sparks inquired. “So you’re bringing dignity to non-human remains?”
“[Texas cremation law] deals with human bodies—bodies that have been born, lived and died. Fetal remains are categorized as pathological waste. It’s not a human body. It hasn’t been born,” Langley later stated. “It’s the state’s best effort to try to make the best of this situation.”
On Friday, Sparks opined in extending his injunction that the rule allows the state “to exercise arbitrary, and potentially discriminatory, enforcement on an issue connected to abortion and therefore sensitive and hotly contested.”
Abortion facilities in the state applauded the move.
“Anti-abortion attacks cannot and will not slow us down,” said Amy Hagstrom Miller of Whole Woman’s Health. “It is so important that our resiliency continues to blaze a path that people in all communities are empowered to stand up and continue to fight back against political interference that attempt to regulate our lives.”
But Attorney General Ken Paxton vowed to appeal.
“Texas has chosen to dignify the life of the unborn by requiring the humane disposition of fetal remains,” he said in a statement. “These rules would simply prevent health care facilities from disposing of the remains of the unborn in sewers or landfills.”
“Today’s ruling, however, reaffirms that the abortion lobby has grown so extreme that it will reject any and every regulation no matter how sensible,” Paxton lamented. “Indeed, no longer content with merely ending the life of the unborn, the radical left now objects to even the humane treatment of fetal remains.”
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