Texas faces lawsuit over fetal tissue burial rules

December 13, 2016 — Reproductive-rights advocates on Monday filed a lawsuit asking a federal court to block Texas regulations that will require cremation or burial of embryonic or fetal tissue, the Washington Post reports (Somashekhar, Washington Post, 12/12).

Indiana and Louisiana have imposed similar regulations, which are on hold pending legal challenges (Weissert, AP/Sacramento Bee, 12/12).

Texas regulations

The regulations are set to take effect Dec. 19 (Forsyth, Reuters, 12/12).

Currently, abortion providers in the state 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 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.

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.

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 (Women's Health Policy Report, 11/30).

Lawsuit details

The Center for Reproductive Rights (CRR) filed the lawsuit on behalf of several Texas-based abortion providers (Whole Woman's Health et al. v. Hellerstedt complaint, 12/12). The lawsuit contends that the requirement "has no public health benefit. It does nothing to improve public health or safety ... rather, it is a pretext for restricting abortion access" (Reuters, 12/12).

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. According to the lawsuit, the rule "imposes a funeral ritual on women who have a miscarriage management procedure, ectopic pregnancy surgery, or an abortion." 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" (AP/Sacramento Bee, 12/12).

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) (Washington Post, 12/12). 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 (CRR press release, 12/12).

State's response

Marc Rylander, a spokesperson for Texas Attorney General Ken Paxton (R), said the state plans to defend the regulations in court (Evans, Texas Tribune, 12/12).

According to the AP/Sacramento Bee, state lawmakers have pre-filed measures for the next legislative session that would codify the rules into law (AP/Sacramento Bee, 12/12). A spokesperson for Gov. Greg Abbott (R) said the governor supports such an effort. Texas Right to Life, an antiabortion-rights group in the state, also expressed support for passing a law on the regulations, but it said it would prioritize other abortion restrictions, including a ban on a medically proven method of abortion care (Washington Post, 12/12).


CRR President and CEO Nancy Northup, said, "Texas has failed to provide any credible evidence of what health benefit [the new regulations] might serve because there aren't any ... Women do not want these laws. Doctors do not want these laws. And the Constitution does not allow them" (AP/Sacramento Bee, 12/12).

Northup added, "These regulations are an insult to Texas women, the rule of law and the U.S. Supreme Court, which declared less than six months ago that medically unnecessary restrictions on abortion access are unconstitutional." She continued, "These insidious regulations are a new low in Texas' long history of denying women the respect that they deserve to make their own decision about their lives and their healthcare" (Washington Post, 12/12).

Separately, Amy Hagstrom-Miller, lead plaintiff in the case and president and CEO of Whole Woman's Health, said, "Texas' profound disrespect of women's health and dignity apparently has no bounds with this new regulation announced just days after our June victory in the Supreme Court. This latest attack is an end run game to add restrictions on abortion care and it ignores thousands of Texan's testimony and comments" (CRR press release, 12/12).