Activists deride Texas' fetal remains burial rule as unconstitutional

Texas’ newly adopted amendments requiring the burial or cremation of fetal remains every time a woman has an abortion are set to take effect on Dec. 19.

The state’s Health and Human Services Commission (HHSC) adopted the new rules on behalf of the state’s Department of State Health Services (DSHS) on Monday. They will prevent abortion providers from disposing of fetal remains in sanitary landfills, “regardless of period of gestation.”

Activists say the new rules place an unconstitutional burden on a woman seeking an abortion, which is a legally protected procedure after the Supreme Court’s 1973 Roe v. Wade ruling. There is also concern that the new rules could lead to more women performing unsafe abortions outside of medical facilities.

“These new restrictions reveal the callous indifference that Texas politicians have toward women,” David Brown, the senior staff attorney at the Center for Reproductive Rights, said in a statement. “Forcing a woman to pay for a burial after she ends a pregnancy or experiences a miscarriage is not just absurd — it is an unnecessary burden and an intrusion on her personal beliefs.”

After the rules were first proposed in July, there was considerable pushback from abortion-rights advocates and the medical community, prompting the HHSC to make several changes.

“We held two public comment hearings and reviewed approximately 35,000 comments, taking them into consideration as we finalized these rules. They will take effect 20 days after the filing date (so will be in effect Dec. 19),” Carrie Williams, the chief press officer for HHSC, said in an email to Yahoo News on Wednesday.

“We made certain changes to the rules along the way, including adding language to make clear that these rules don’t apply to miscarriages or abortions that occur at home, and adding language to clarify that birth or death certificate issuance is not required for proper disposition under the rules.”

The Texas Tribune, which has followed the story from the beginning, reported Monday that the commission acted at the behest of Republican Texas Gov. Greg Abbott, who said fetal remains should not be “treated like medical waste and disposed of in landfills.”

The preamble to the final documents filed with the Texas registrar says, “The rules carry out the department’s duty to protect public health in a manner that is consonant with the State’s respect for life and dignity of the unborn.”

But many are concerned about what these new rules mean for women’s health care and abortion rights in the Lone Star State. They also frame the rules as part of an ongoing campaign of anti-abortion legislators to regulate the procedure out of existence through a myriad of state laws.

The Center for Reproductive Rights, a global advocacy organization, had argued that the DSHS does not have “statutory authority” to promulgate the amendments and that they are further shaming women who seek reproductive health care.

The center called the amendments “unconstitutionally vague” and accused DSHS of pushing its own moral code upon women in Texas. This, they said, places unwarranted stress on abortion access and miscarriage management.

In the official filings, in response to these allegations, the HHSC cited the Texas Health and Safety Code to argue that the department does indeed have statutory authority. The department contended that the rules impose an obligation only on facilities, not on Texans seeking abortions.

After the regulations were finalized, the Center for Reproductive Rights quickly released a statement saying the group has made clear to Texas officials that it would take the battle to court to make sure women can have legally protected abortions without “politically motivated interference.”