National Partnership for Women & Families

In the News

Texas officials finalize fetal tissue disposal rules

Texas health officials on Monday announced that rules requiring the cremation or burial of fetal remains will take effect on Dec. 19, despite widespread concern from stakeholders and the threat of legal action, the Texas Tribune reports.

According to the Tribune, the rules were originally drafted through the "rulemaking authority" of the state health department. However, state lawmakers have already filed proposals to make the rules law when the Texas Legislature reconvenes in January (Ura, Texas Tribune, 11/28).

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. In September, after an initial 30-day comment period, state officials republished the rules without any changes. At the time, the rules appeared to apply to all stages of fetal development and included 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 (Women's Health Policy Report, 9/26).

Stakeholders voice widespread concerns about proposed rules

Stakeholders responded to the proposal with more than 35,000 comments (Texas Tribune, 11/28). In comments and public hearings, 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 (CRR) 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 (Women's Health Policy Report, 9/26).

Latest developments

In the rules finalized Monday, state officials clarified that the requirements would not apply to miscarriages or abortions that take place at home. In addition, in response to concerns about privacy, officials said the rules would not require the submission of birth or death certificates.

According to the Tribune, reproductive-rights advocates on Monday criticized the state's decision, noting that officials had not demonstrated that the requirements are beneficial to public health or improve current best practices.

Heather Busby, executive director of NARAL Pro-Choice Texas, said, "The state agency has once again ignored the concerns of the medical community and thousands of Texans by playing politics with people's private healthcare decisions."

Separately, David Brown, a senior staff attorney at CRR, said the rules were "an unnecessary burden and an intrusion" on a woman's "personal beliefs." He added, "These new restrictions reveal the callous indifference that Texas politicians have toward women" (Texas Tribune, 11/28).