Weeks After Abortion Loss, Texas Tries Changing Fetus Disposal Rules

by | July 11, 2016

By Andrea Zelinski

Fetal remains from abortions and miscarriages would have to be buried or cremated under new rules proposed by state health officials, renewing pressure on abortion providers just weeks after the U.S. Supreme Court struck down two of Texas' most restrictive requirements on the procedure.

The new regulations would apply to fetal remains at all periods of gestation collected by health care facilities, according to rules proposed by the Health and Human Services Commission this month.

The change would stop providers and third parties from disposing of the materials in sanitary sewers and landfills for medical waste, such as organs removed during surgeries.

Gov. Greg Abbott began urging state health officials to implement the new rules regarding disposal of fetal remains this year, his spokeswoman Ciara Matthews said.

"Gov. Abbott believes human and fetal remains should not be treated like medical waste, and the proposed rule changes affirms the value and dignity of all life," Matthews said. "For the unborn, the mothers and the hospital and clinic staff, the governor believes it is imperative to establish higher standards that reflect our respect for the sanctity of life."

Officials in the governor's office and the Health and Human Services Commission did not answer why the state was instituting the rule changes now instead of waiting for the next legislative session except to say officials had been talking internally about this proposal for months.

The policy does not address who would pay for the additional burial or cremation process, although abortion providers say they assume the cost will fall to them and their patients.

"This is another tactic that the extreme anti-abortion groups are employing in other states, so it's not that surprising," said Heather Busby, executive director of NARAL Pro-Choice Texas, which argues that patients and providers will have to bear the cost of cremations and burials. "What's surprising is how sneaky they've tried to be with it by slipping it in a regulation instead of going through the democratic process. This is, obviously, a new low for Texas."

Most in first trimester

More than 90 percent of the abortions reported to the state in 2014 were performed during the first trimester, according to statistics released by the Texas Department of State Health Services last month. Within those first 12 weeks of pregnancy, the fetus ranges from the size of a poppy seed to roughly the size of a lime.

The proposed rule change was published July 1 in the Texas Register, a state publication, less than a week after the U.S. Supreme Court struck down a pair of abortion regulations approved by lawmakers in 2013. The high court threw out requirements that abortion clinics adhere to the standards of ambulatory surgical centers, which are expensive to implement, and require doctors who perform abortions to obtain admitting privileges at nearby hospitals. The court said the regulations created an unconstitutional barrier to abortion for many Texas women.

Since the 2013 law went into effect, some 20 clinics have closed, resulting in a 14 percent drop in the number of abortions performed in Texas.

States across the country have approved or considered similar laws dictating what can and cannot be done to fetal remains, with some banning research or sale of the remains and others requiring burial or cremation.

Indiana is one of the latest to pass a law requiring fetal remains be given a burial or cremated, joining Arkansas and Georgia. State lawmakers in Ohio, Mississippi and South Carolina have considered similar laws, although a federal judge has issued an injunction on Indiana's law, which also included a ban on abortions based on fetal genetic abnormalities.

Americans United for Life, an anti-abortion advocacy group credited with authoring burial legislation, did not return calls for comment.

Abbott seeks legislation

The new rules are up in Texas for public review through the end of July, and are expected to go into effect in September, according to HHSC spokesman Bryan Black.

"The Health and Human Services Commission developed new rules to ensure Texas law maintains the highest standards of human dignity," Black said.

The proposed rules can be implemented by the Health and Human Services Commission without the Legislature's approval, but Abbott is calling on lawmakers to write the policy into law in the 2017 legislative session that begins in January.

Anti-abortion lawmakers and advocates are working to craft legislation that can clamp down on abortion access that would withstand a legal challenge, said Emily Horne, legislative associate for Texas Right to Life. One way to do that,she said, is to shift attention to the life of the fetus. The proposed rule change is a "good move by the department to restore human dignity," she said.

Other abortion opponents said the new rule should appeal to people on both philosophical sides of the issue.

"I think it's horrendous," said Kyleen Wright, president of the Texans for Life Coalition. "Applying some dignity to these human remains is not any kind of major onus on abortion clinics or women. ... They're just quietly trying to add some dignity to the process for what we all recognize are human remains."

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