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Texas officials republish fetal tissue disposal rules without change, despite widespread concerns

Texas officials have republished proposed rules that would require the cremation or burial of fetal remains without any changes, despite widespread criticism from stakeholders and the threat of a legal challenge, the Texas Tribune reports (Ura, Texas Tribune, 9/22).

Background

Currently, abortion providers in the state contract with third-party services to dispose of fetal tissue. The new requirements, which seem to apply to all stages of fetal development, also appear to apply to fetal tissue resulting from abortion and from miscarriage.

Texas officials originally published the proposed rules in the Texas Register on July 1 without an announcement and with minimal notification. The rules were open to a 30-day public comment period.

Stakeholders voice widespread concerns about proposed rules

Stakeholders responded to the initial proposal in more than 12,000 comments, and during a public hearing with reproductive-rights advocates, medical professionals and funeral directors voiced opposition to the rules.

Many stakeholders echoed concerns previously expressed by the Center for Reproductive Rights that the proposed rules were unconstitutional and would result in a legal challenge. In addition, representatives from Planned Parenthood and NARAL Pro-Choice Texas said the state has not submitted evidence that existing protocol for fetal tissue disposal is not optimal for public health and safety, or any less safe than the proposed revision.

Several medical professionals also reiterated concerns expressed by the Texas Medical Association (TMA) and the Texas Hospital Association (THA) regarding the logistics of the rule's enforcement. Specifically, they questioned how the rules would be applied in cases when a woman miscarries at home, asking whether a woman would be required to take tissue resulting from miscarriage to a health care provider.

Stakeholders also asked whether the proposed requirements would create a mandate for death certificates necessary for cremation and burial. According to the TMA and THA letter, current rules regarding burial and cremation require the funeral director or "person acting as such" to produce an electronic death certificate before transporting any remains.

Separately, Sarah Reeves, a representative for Funeral Consumers Alliance of Texas, voiced concerns about how the state's fiscal analysis of the rule was incomplete, noting that the state claimed individuals or businesses that have to comply with the law would not incur a substantial cost (Women's Health Policy Report, 8/8).

Officials re-submit rules with amended financial analysis

State officials submitted the rules in the Texas Register for publication on Sept. 30 for another 30-day public comment period prior to enforcement.

Carrie Williams on Wednesday said the state re-submitted the rules for comment "after reviewing the feedback and comments we received." However, the rules remain unchanged. They still appear to apply to all stages of fetal development and include miscarriages, ectopic pregnancies and abortions.

While officials did not change the proposal, 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 (Texas Tribune, 9/22).