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Commentary addresses fetal-remains legislation, the 'new front in the attack on abortion'

Abortion-rights opponents have "open[ed] a new front in the attack on abortion -- fetal-remains legislation," columnist Rebecca Grant writes for The Nation.

States using legislative, regulatory approach to impose restrictions

According to Grant, 28 states in 2016 "introduced legislation relating to the disposition of fetal remains." Of those bills, nine have passed, five have been implemented and four are facing legal challenges. In addition, Grant writes, some states are "using administrative bodies, like their departments of health, to lay down additional and unnecessary regulations surrounding what happens to fetal tissue."

Grant explains that the requirements "fall into two main categories." One category includes measures aimed at "restrict[ing] the donation of fetal tissue for research and experimentation, a practice that has contributed to lifesaving advances in scientific and medical research since the 1930s, and ban[ning] its sale -- an unnecessary provision, since the sale of fetal tissue is already a federal crime." According to Grant, such restrictions "may affect research into treatment for Ebola, HIV, and Alzheimer's."

The second category includes restrictions that "gover[n] how abortion providers dispose of [fetal] tissue that is unsuited to medical research." Grant explains that while "[c]linics generally treat [fetal] tissue like other human tissue by contracting with medical-waste companies that dispose of it in a safe and sanitary way," some states -- including Indiana, Texas, Louisiana and Ohio -- are advancing measures that require "all [fetal] tissue be buried or cremated."

Grant outlines several of the various types of restrictions, including an Indiana law (HEA 1337) -- currently placed on hold by the courts -- that mandates the cremation or burial of fetal tissue. Under the law, the process means that a woman seeking abortion care must state in writing how she wants to dispose of the tissue, which must be given a burial-transit permit and moved to a funeral home. Such "requirements load additional administrative and logistical burdens on clinics," and, according to advocates, further stigmatize women seeking abortion care, Grant writes.

She spotlights another blocked law (Act 593) in Louisiana that "requires the burial or cremation of remains resulting from abortion and prohibits the 'post-abortion harvesting of fetal organs.'" In Ohio, lawmakers proposed companion legislation (SB 254, HB 417) "that redefine[s] the 'humane' disposition of fetal remains to mean burial or cremation," requiring not only that women specify the form of disposition in writing, but also imposing additional costs for abortion providers.

According to Grant, Texas took a different approach by proposing burial or cremation requirements through its Department of State Health Services, spurring widespread criticism and concerns from abortion-rights and medical groups.

Fetal-remains requirements based on AUL model legislation

Grant explains that these fetal-remains requirements originated in much the same way as Targeted Regulation of Abortion Providers (TRAP) laws: The antiabortion-rights group Americans United for Life introduced both types of restrictions via model legislation disseminated to conservative lawmakers throughout the country. According to Grant, fetal-remains regulations took the spotlight following the release of misleading videos targeting Planned Parenthood's fetal tissue donation program, and most of them are based on AUL's model legislation.

Elizabeth Nash, senior states-issues manager at the Guttmacher Institute, said the model language lets "these measures ... spread from state to state, quickly, kind of like a virus." She added that fetal-tissue disposal legislation "is one of the larger trends for 2016. I think it's going to be around for a while."

According to Grant, the fetal-remains requirements spring also from failed efforts to pass "personhood" laws, which "not only criminalize abortion but also ban many forms of contraception" based on the claim that life begins at the moment of conception. Personhood laws "have collapsed time and time again," Grant writes. Dr. Alta Charo, a professor of law and bioethics at the University of Wisconsin-Madison, contended that fetal-remains legislation "is about trying to build a culture of attitude around the fetus which would then set the stage for revisiting earlier decisions about the rights of wom[e]n to control their body at [the] expense of fetal development."

"This cultural war is pernicious," Grant writes. She explains, "Centering the discussion on the fetus rather than the woman obscures the real issue at stake -- a woman's constitutional right to access abortion and determine what happens to her body" -- and it "vilifies the women who assert this right, as well as the care providers."

Restrictions would have wide-ranging complications

Grant highlights some of the many problematic ramifications of fetal-remains legislation.

For instance, according to Grant, "these proposals create a swirling gray area for women who miscarry or abort at home." Under such restrictions, the abortion would have to take place at a clinic, Grant writes, "rendering medication abortion -- which accounts for around 40 percent of abortions up to nine weeks and one-in-four non-hospital abortions overall in the United States -- unusable."

Grant explains that this last point reveals "the true purpose of this legislation, which is to make abortion as difficult for the woman as possible." Noting how one type of TRAP law, hospital admitting privileges requirements, forced many abortion clinics to close because they "struggled to find physicians or hospitals who agreed to make this arrangement," Grant writes, "In theory, the same problem could arise if abortion clinics were forced to contract with funeral directors."

Staci Fox, president and CEO of Planned Parenthood Southeast, said, "We definitely think about requirements around cremation and interment as another barrier, because we’d have to find new vendors to work with." She added, "It can be difficult for us to find office space to rent or furniture. If those types of things are hard, I can only imagine how hard it would be to find a vendor, like a funeral home or crematorium, who can help us."

Further, in terms of logistics, Dr. Tanya Marsh, a professor at Wake Forest Law School, explained that the funeral industry is not designed to provide services for fetal remains. The Funeral Consumers Alliance of Texas, expressing concern over Texas' proposed fetal-remains requirement, also pointed out the additional cost, noting that the typical fee for funeral services is $2,000. "Many clinics are already operating on razor-thin budgets, which means they would likely have to pass some of those costs on to the patient," Grant writes, adding, "For many women, the cost of abortion services is already prohibitively high."

"Privacy is yet another concern," Grant continues, explaining that burial and cremation require "a death certificate, which can be a matter of public record." Lisa Wurm, the policy manager at the American Civil Liberties Union of Ohio, said any breach of privacy protections on such information would "pu[t] women in jeopardy and limi[t] access to safe and legal abortion care" (Grant, The Nation, 10/11).