Federal judge again blocks Texas rules requiring burial or cremation of fetal remains

Abortion opponents demonstrate near Planned Parenthood in Tyler, Texas, on Jan. 23, 2017.
(Sarah A. Miller / Associated Press)

A federal judge Friday blocked Texas from requiring that fetal remains to be buried or cremated.

U.S. District Judge Sam Sparks said the new rule placed burdens on access to abortion that “substantially outweigh the benefits.”

In issuing a preliminary injunction that indefinitely prohibits Texas from enforcing the rule, Sparks said the new standards were vague, inviting interpretations that would allow state health officials “to exercise arbitrary, and potentially discriminatory, enforcement on an issue connected to abortion and therefore sensitive and hotly contested.”

Worse, Sparks wrote in his order, state officials admitted that the new policy has no health benefits and replaced a tissue-disposal regulation that causes no health problems. While Texas leaders said the change was needed to “promote respect for life and protect the dignity of the unborn,” the rule may be pretext for restricting abortion access, the judge said.

State Attorney General Ken Paxton said he would appeal the preliminary injunction granted by Sparks.


“Texas has chosen to dignify the life of the unborn by requiring the humane disposition of fetal remains,” Paxton said. “These rules would simply prevent health care facilities from disposing of the remains of the unborn in sewers or landfills. Today’s ruling, however, reaffirms that the abortion lobby has grown so extreme that it will reject any and every regulation no matter how sensible.”

Abortion providers sued to overturn the rule — which requires health facilities to ensure that fetal tissue is buried or cremated, with the ashes buried or appropriately scattered — saying the change was intended to restrict access to abortion, not to promote public health as state officials originally claimed.

Lawyers for Texas argued that the regulation was intended to ensure that fetal remains, whether from an abortion or miscarriage, are treated with dignity in ways that won’t substantially increase costs or impose a burden on women.

Sparks had blocked the rule from taking effect as intended on Dec. 18 and scheduled a two-day hearing early this month, after which he extended his order blocking enforcement until Friday to allow time to research and write his opinion.

Under the rule, fetal tissue could no longer be incinerated and deposited in a landfill — the method most commonly used by Texas abortion providers. Nor could the tissue be disinfected and placed in a landfill, or ground up and released into a sanitary sewer system, as previously allowed.

Instead, each health facility was required to ensure that fetal tissue was properly buried and cremated. The rule did not apply to miscarriages at home or to early-term, drug-induced abortions that typically take place at home.

During the two-day hearing, abortion providers testified that the rule could put clinics in danger of closure because there are a limited number of vendors available to comply with the burial or cremation mandate, and they feared that protests by anti-abortion activists could discourage vendors from doing business with abortion clinics.

Abortion providers also said the rule was vague, placing them at risk of violations that could lead to a crackdown by state regulators, and imposed an unjustified burden on women seeking treatment for miscarriages or ectopic pregnancies.

Lawyers for Attorney General Ken Paxton argued that the rule would not burden women because it imposes additional requirements solely on hospitals and clinics.

They also said concerns about increased costs were overblown, noting that Texas Catholic bishops have offered to bury fetal remains, without charge, in Catholic cemeteries across the state, and that a funeral home operator was negotiating contracts with Houston-area hospital groups to pick up and cremate up to 25 fetuses at a time for a combined $350, or about $14 a fetus.