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Lawsuit Challenges Fetal Burial Rule In Texas

An abortion rights activist holds a sign outside the U.S. Supreme Court earlier this year before the court struck down a Texas law placing restrictions on abortions. Now abortion rights supporters are suing the state again over a new rule.
Mandel Ngan
AFP/Getty Images
An abortion rights activist holds a sign outside the U.S. Supreme Court earlier this year before the court struck down a Texas law placing restrictions on abortions. Now abortion rights supporters are suing the state again over a new rule.

Abortion rights groups filed suit Monday to stop the state of Texas from enacting a rule on Dec. 19 that requires fetal remains to be buried or cremated after miscarriages or abortions.

The lawsuit calls the rule "politically motivated" and says it aims to shame women.

The Texas Department of Health went ahead with the measure despite objections from medical groups. Supporters, however, say its purpose is to provide dignity for "unborn infants."

"What we're saying is, it needs to be humane, and the mother needs to be given the opportunity to have a say and be informed with what's happening," says Kristi Hamrick of Americans United for Life. The group has created model legislation intended for other states, similar to the Texas regulation.

But the Center for Reproductive Rights says it would be costly to require burials or cremation — a cost that may be passed on to women — and would provide no health benefit.

"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," says Nancy Northup, president and CEO of the center.

The Texas regulation is part of a wave of such laws that followed last year's undercover videos targeting Planned Parenthood. The maker of the videos, an anti-abortion activist, accused the women's health organization of unlawfully selling fetal tissue.

The deceptively edited videos sparked congressional hearings and a dozen state investigations. None found any evidence of wrongdoing. But Ohio Attorney General Mike DeWine called a news conference to announce something else he had found.

"Fetuses from abortions are being cooked and then put into landfills and mixed in with all other garbage that's out there," he said. "I think it's just wrong."

By "cooking," he meant sterilized with steam. It turned out there was no legal violation there, either. But it helped spark a different kind of protest against abortion providers — this time behind clinics, where medical waste is picked up.

Mark Harrington, of Created Equal, helps organize these protests. He wants to pressure disposal companies into canceling their contracts, and "shut down abortion clinics around the country."

But as long as abortions happen, Harrington supports mandating burial or cremation. He pushed Ohio lawmakers to do that this year. The bill didn't pass, but Harrington thinks it would have had a big impact on women.

"It goes without saying, if she's given the option to cremate or bury she's going to maybe wonder that this isn't just some kind of blob of tissue," he says. "That this actually may be a child and she may choose not to abort."

Other supporters of such laws don't put it that way at all.

"These efforts have nothing to do with abortion," says Hamrick of Americans United for Life.

The ACLU challenged another fetal burial law in Indiana this year. It was signed by then-Gov. Mike Pence, now vice president-elect. A court has blocked that law while the case plays out. Another law in Louisiana is on hold.

In Texas, the ACLU's Talcott Camp points out the regulation was approved by the state health department, which claimed it could help stop the spread of communicable disease.

"There is clearly no link between that regulation and that kind of public health protection," she says.

The Texas State Funeral Home Association has also questioned the need for the regulation. Spokesman Michael Land tells NPR's Wade Goodwyn the industry is "uncomfortable" with it and expressed its concerns. But he says "the governor's office was not receptive. Nothing we were saying was really making any difference about how they were feeling about this rule."

Land says his industry could not absorb the costs of disposing of the remains from the tens of thousands of abortions and miscarriages that happen in Texas every year.

Northup, of the Center for Reproductive Rights, points out that her group's Supreme Court win against another Texas abortion law this year left the state footing the bill.

"Millions of dollars of legal fees," she says, "and that runs the risk of happening here as well."

Still, Hamrick of Americans United for Life says she expects more states to take up fetal burial mandates next year.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

Jennifer Ludden helps edit energy and environment stories for NPR's National Desk, working with NPR staffers and a team of public radio reporters across the country. They track the shift to clean energy, state and federal policy moves, and how people and communities are coping with the mounting impacts of climate change.
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