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Judge temporarily blocks Texas fetal tissue burial rules pending legal challenge

A federal judge on Thursday temporarily blocked Texas from enforcing regulations that will require cremation or burial of embryonic or fetal tissue while a lawsuit challenging the rules is pending, the AP/Sacramento Bee reports (Weissert, AP/Sacramento Bee, 12/15).

The regulations were set to take effect Dec. 19. Similar rules in Indiana and Louisiana also are on hold pending legal challenges.

Texas regulations

Currently, abortion providers in Texas contract with third-party services to dispose of fetal tissue. The new requirements, which apply to all stages of fetal development, also apply to fetal tissue resulting from abortion, miscarriage and ectopic pregnancies. The rule does not apply to miscarriages or abortions that occur at home.

Texas officials published the draft rules twice without change. However, when they published the proposed rules the second time, they amended a financial analysis of the rules in response to stakeholders' concerns about who would bear the cost. The amended analysis said the rules would not increase the "total costs" for providers. It claimed that while the methods of fetal tissue disposal permitted under the rules "may have a cost...that cost is expected to be offset" by the costs providers already incur by contracting with third-party medical waste companies.

Stakeholders responded to the proposal with more than 35,000 comments. In comments and public hearings, reproductive-rights advocates, medical professionals and funeral directors voiced opposition to the rules and said the state failed to demonstrate how they are beneficial to public health or improve current best practices.

Lawsuit details

The Center for Reproductive Rights (CRR) filed the lawsuit challenging the rules on behalf of several Texas-based abortion providers.

The lawsuit contends that the requirement "does nothing to improve public health or safety ... rather, it is a pretext for restricting abortion access." Specifically, the lawsuit states that the rules provide no medical benefit, aim to shame women who seek abortion care and make it more difficult for medical professionals to provide abortion care. Further, the lawsuit states that the regulation "threatens women's health and safety by providing no safe harbor for sending tissue to pathology or crime labs."

In the lawsuit, the plaintiffs argue the regulation conflicts with a Supreme Court ruling that earlier this year struck down parts of Texas' omnibus antiabortion-rights law (HB 2). In that case, the Supreme Court said that restrictions on abortion access cannot burden a woman's right to abortion without affording legitimate, medical benefits, according to CRR (Women's Health Policy Report, 12/13).


During a hearing Thursday, lawyers on both sides made cases for whether or not the regulations should take effect.

Texas Assistant Attorney General John Langley argued the plaintiffs could not demonstrate immediate irreparable harm resulting from the rules. He claimed the rules did not target women, but rather focused on "health care facilities." Langley also claimed the rules would not increase costs for providers or patients (Evans, Texas Tribune, 12/15).

According to the Houston Chronicle, District Court Judge Sam Sparks voiced skepticism about the state's claims throughout the hearing. At multiple points during the state's arguments, Sparks pointed out how Texas proposed the fetal tissue rules just days after the Supreme Court's ruling in Hellerstedt, the timing of which he called "curious."

Separately, David Brown, senior staff attorney with CRR, during arguments outlined how all the abortion clinics in the state currently dispose of fetal tissue according to the old requirements.

He also said that contrary to the state's claim, it was "dubious" that the limited number of vendors in Texas could meet the needed cremation and burial services. According to Brown, the insufficient number of vendors would force clinics and women to make arrangements with funeral homes, which can charge up to $2,000 for such services.

Judge issues temporary injunction

Sparks issued a temporary injunction blocking the rules after the state refused to postpone enforcement until a final ruling was issued. Sparks said it was the first time the state had refused such a request by the court (Zelinksi, Houston Chronicle, 12/15).

Sparks scheduled two days of hearings on Jan. 3 and Jan. 4 for both sides to argue their cases. He said he expects to issue a final ruling by Jan. 6.


After the hearing, Brown said the state was not able to demonstrate a public health benefit.

Noting that Sparks pointed out that the state proposed the fetal tissue burial rules just days after the Hellerstedt ruling, Brown said the rules aimed to "defy" the high court's decision and "send a message to women that the state's ideology is more important than women's liberty" (Texas Tribune, 12/15).

Brown added, "We are pleased that the court has prevented these outrageous restrictions from going into effect in Texas, where they would have created immediate and dangerous new barriers on women's access to health care." He said, "We look forward to demonstrating that these regulations are unwise, unjustified and unconstitutional, and should be permanently struck down" (CRR release, 12/15).

Separately, Amy Hagstrom-Miller -- president and CEO of Whole Woman's Health, lead plaintiff in the lawsuit -- said Sparks' order affirms that "women deserve better." She added, "We're confident that our recent victory at the Supreme Court in Whole Woman's Health v. Hellerstedt gives us strong ground to stand as we continue to fight these coerced mandates from overzealous politicians that strip personal decisions away from women and families" (Texas Tribune, 12/15).