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Texas holds hearing on proposed fetal tissue regulation

Texas officials on Thursday held a hearing on a new proposal that would require the burial or cremation of fetal tissue, the Texas Tribune reports.

According to the Tribune, stakeholders have submitted more than 12,000 comments on the proposed rules (Ura, Texas Tribune, 8/4).

Proposed rules

Currently, abortion providers in the state contract with third-party special waste 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 published the proposed rules in the Texas Register on July 1 without an announcement and minimal other notification. The rules were open to a 30-day public comment period. Texas Health and Human Services Commission spokesperson Bryan Black said final rules are expected by September (Women's Health Policy Report, 8/3).

Hearing comments

At the hearing on Thursday, reproductive-rights advocates, medical professionals and funeral directors voiced opposition to the proposed rules, the Tribune reports.

Many stakeholders echoed concerns previously expressed by the Center for Reproductive Rights (CRR) that the proposed rules were unconstitutional (Texas Tribune, 8/4). In a comment letter, CRR cited a recent Supreme Court decision also involving Texas, explaining that an abortion regulation is unconstitutional if the burden it imposes on a woman seeking abortion care outweighs the benefit for the state (Women's Health Policy Report, 8/3).

Heather Busby of NARAL Pro-Choice Texas said, "I fear the Texas taxpayers are going to have their hard earned money spent on further lawsuits as Texas passes more unconstitutional laws trying to remove health care from Texans" (Koski, Fox 7, 8/4).

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. Trisha Trigilio of the American Civil Liberties Union of Texas also cited the lack of supporting evidence (Texas Tribune, 8/5). "The real effect is that these regulations will make abortions more expensive," she said (Fox 7, 8/4).

Planned Parenthood officials in a letter to state officials noted that the proposed revision does not apply to other tissue resulting from surgery or associated with abortion care or miscarriages, such as the gestational sac or the placenta. "While we support reasonable updates to rules that are within the department's statutory authority and protect and enhance public health and safety, the proposed rules go beyond the limits of this authority, do not further these aims and appear motivated solely by political forces," Yvonne Gutierrez, executive director of Planned Parenthood Texas Votes, said.

According to the Tribune, several medical professionals 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. According to a letter from the organization, the funeral services incur a "basic fee" of $2,000, but the proposed rules do not specify who would be required to cover the cost (Texas Tribune, 8/4).