Federal Judge Delays Texas’ Fetal Remains Rule, Again

State & Regional

A federal judge extended a restraining order Wednesday to delay the start of the state’s rules on fetal remains for at least another three weeks.

The decision to delay a ruling, which was expected by Friday, came after the Center for Reproductive Rights and the state of Texas presented their final arguments to conclude a two-day hearing Wednesday.

Witnesses presented by the state on day-two of the hearing included a bishop, a philosopher and a funeral director.

“The state has put on a lot of witnesses but they can’t change the protections that the Constitution of the United States provides to every woman,” said David Brown, senior staff attorney with the Center for Reproductive Rights.

The rules require health care facilities to bury or cremate fetal remains, whether the result of an abortion or miscarriage, regardless of how far along a woman is into her pregnancy.

The rules only apply to women treated at healthcare facilities.

Women’s health providers called to testify Tuesday said the state’s rules are “vague” and “offensive.”

Opponents of the rules argue the rules aim to restrict abortions in Texas and are a violation of a woman’s right to choose and privacy. 

Questions over dignity and who defines it dominated the discussion inside the packed courtroom in Austin Wednesday. 

“The same definition that we would afford to a homeless person or an infant who dies,” said Joe Pojman when . The executive director of the Texas Alliance for Life, Pojman supports the state’s rules and sat in court as spectator.

“Surely, we can afford some measure of dignity to those unborn children who lose their lives from elective abortions or from miscarriage,” Pojman said.  

On the other side of the argument, Brown said every woman has individual dignity. “So it has to be up to them to decide what to do in an intimate and private, family moment,” said Brown. “This law deprives women of dignity by invading their decision making,” said Brown.

Lawyers for the state argued fetal remains are not the same as human remains.

Therefore, the state’s lawyers said, the new rules for fetal remains do not conflict with an existing state law that allows cremated ashes to be spread on private property with the owner’s consent.

The state’s lawyers made the distinction after the federal judge presiding over the case raised questions about the scope of the rules Tuesday.

The judge expressed concern that the rules, written by state health officials, could improperly override Texas’ existing law on spreading ashes.

“Fetal tissue is not human remains for the purpose of this statute,” said Assistant Texas attorney general John Langley.

While the state’s claims addressed the judge’s initial concerns, the argument that fetal remains are different from human remains seemed to cast doubt on the state’s case.

“So you’re bringing dignity to non-human remains?” U.S. District Judge Sam Sparks asked.

The rules first surfaced in the Texas Register four days after the United States Supreme Court struck down two provisions of a state law restricting abortion clinics and providers.

 “I think we are putting together a very strong case and I’m optimistic,” said Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health and the lead plaintiff in the case.

Abortion providers, represented by the Center for Reproductive Rights, took legal action against the state one week before the rules originally slated to take effect Dec. 19, 2016.

Judge Sparks told the complainants to return with more evidence to show the rules place an undue burden on a woman’s right to choose.

A representative from the Texas Conference of Catholic Bishops said the church’s 15 dioceses across the state are willing to offer common burials for fetal tissue free of charge.

However, the executive director for the TCCB also said she was unsure if the church’s facilities are licensed to handle the “commingling” of multiple fetuses and other tissue from pregnancy.

Hagstrom Miller declined to say if the church’s offer changed her opinion on the matter. “I can’t comment on something that doesn’t exist,” Hagstrom Miller said. “That offer has not been actually made in writing or substantially by anybody.”

The leader of the Texas Alliance for Life, Pojman said, “Abortion providers are fighting to keep an option to take those remains and ultimately bury them in the landfills of our cities. We think that’s totally unconscionable. ”

Current rules require fetal tissue to be disposed of in the same way as other medical tissue or waste. The tissue can be incinerated, ground or disinfected and the put in a sanitary landfill or sewer system. 

The two sides will reconvene later this month, both hopeful the judge will issue a ruling in their favor. 

Copyright 2019 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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