National Partnership for Women & Families

In the News

Texas fetal tissue regulation could foreshadow abortion-rights restrictions to come

While a federal judge has temporarily blocked Texas regulations that require cremation or burial of embryonic or fetal tissue, abortion-rights advocates say the Texas measure could be indicative of antiabortion-rights efforts to come, The Guardian reports (Redden, The Guardian, 12/19).

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 have said the rules would not increase the "total costs" for providers. The state has 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.

Regulations on hold

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.

A federal judge last week temporarily blocked Texas from enforcing the regulations while the lawsuit is pending (Women's Health Policy Report, 12/16).

Restrictions based on antiabortion-rights model legislation

According to The Guardian, the fetal tissue rules are based on model legislation introduced by the antiabortion-rights group Americans United for Life in 2015. The group began distributing the bill to state lawmakers in late 2015, following the release of deceptively edited videos targeting Planned Parenthood.

The model bill would require fetal tissue from abortion to be buried or cremated. Further, the bill would require the woman or an "authorized representative" to determine how the clinic should handle the fetal tissue. The bill would also ban donation of fetal tissue for medical research.

Earlier this year, the Guttmacher Institute's Elizabeth Nash touched on the implications of such legislation. "The language being used is all about trying to elevate the status of the fetus while questioning the women's decision-making," she said, adding, "It seems to me that the purpose of this legislation is to make accessing services as unpleasant as possible."

Separately, CRR's Kelly Baden said, "They intend to demean and shame a woman needing abortion."

Other states could follow Texas' lead

While Texas is not the first state to try to impose fetal tissue burial requirements, it "often sets the agenda" for state-level abortion restrictions, meaning that Texas' "court fight could signal that a wave of similar laws is coming," The Guardian reports (The Guardian, 12/19).

Other states that have tried to implement fetal tissue burial requirements include Indiana and Louisiana, both of which have since been blocked pending legal challenges (Women's Health Policy Report, 12/16). Meanwhile, lawmakers in Ohio proposed legislation that would require a woman who has had an abortion or miscarriage to decide whether the provider cremates or buries the remains. The Ohio effort followed claims the state attorney general made against Planned Parenthood regarding fetal tissue disposal.

Vicki Saporta, president of the National Abortion Federation, said, "This is Texas once again trying to decrease women's access to abortion care." She continued, "And Texas, in recent memory, has been leading the way on anti-abortion restrictions."

Saporta touched on the potential ramifications of the Texas rule. With one estimate projecting that the Texas rule could double the cost of care, she said, "For women who are already struggling to pay, it could be a barrier and a burden that they can't overcome." In addition, she pointed out that funeral homes could theoretically prevent clinics from providing abortion care by refusing to handle fetal tissue.

Further, Saporta said the rules do not "take into account women's preferences, their wishes, their religious beliefs -- it tramples on all of that." In fact, according to a spokesperson with the Texas Funeral Directors Association, the rules could prove so financially burdensome to funeral homes in the state that they might no longer be able to offer free funeral services to women who experienced miscarriages who wish to bury the remains.

Citing the Supreme Court's Texas ruling, Saporta added that "[t]here's no health reason whatsoever for these requirements ... All the state health department wants to do is increase costs for women and make abortion care less accessible. It's not even disguised as anything else."

Yet while Saporta expressed confidence that "the courts will strike these laws down," she said "that doesn't preclude other states from passing the same legislation, and wasting a lot of money and effort" (The Guardian, 12/19).