Texas Will Require Burial of Aborted Fetuses

November 30, 2016
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Originally Published on The New York Times

Texas approved new rules this week requiring health care facilities that perform abortions to bury the fetal remains instead of disposing of them in a sanitary landfill like other forms of biological medical waste, ending months of contentious debate and dismaying abortion rights groups.

The rules, which go into effect on Dec. 19, mandate that aborted fetal tissue must be buried regardless of how long it has been gestating. The rules state it can either be buried directly after an abortion has been performed or it can be buried or scattered after it has been incinerated. Fetal remains can also be steam disinfected before burial, according to the guideline.

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The rule was quietly proposed in July at the direction of Gov. Greg Abbott, according to The Texas Tribune, shortly after the Supreme Court struck down parts of a Texas law that could have sharply cut the number of abortion clinics in the state, particularly those outside large urban areas.

The Tribune reported in July that Mr. Abbott, a Republican, cited the proposal in a fund-raising email as evidence of his commitment to protect the “rights of the unborn” and “turn the tides” against abortion in the state.

“I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life,” he said in the email, which The Tribune published in full. “This is why Texas will require clinics and hospitals to bury or cremate human and fetal remains.”

“I don’t believe human and fetal remains should be treated like medical waste and disposed of in landfills,” Mr. Abbott added.

According to the rules, aborted fetal tissue must be handled like a deceased person and treated “using the process of cremation, entombment, burial, or placement in a niche or by using the process of cremation followed by placement of the ashes in a niche, grave, or scattering of ashes as authorized by law.”

The Texas Department of Health and Human Services held two public comment hearings on the proposal and reviewed about 35,000 comments since it was introduced, said Carrie Williams, a department spokeswoman. She said people’s comments and concerns were taken into consideration as the rules were finalized.

One concern — voiced by the Texas Medical Association and the Texas Hospital Association, among others — was if the proposal would require women who miscarried at home to transport their fetal remains to a health care facility to arrange for burial.

“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,” Ms. Williams said.

But abortion rights activists said the new rules added nothing to the safety and well-being of women undergoing an abortion procedure and amounted to an unnecessary intrusion into patient privacy.

The Texas Medical Association and Texas Hospital Association expressed a similar concern in a letter sent last month to the Department of State Health Services, saying “these rules once again will present regulatory intrusion” into the “unique relationship” between doctors and patients.

Heather Busby, the executive director of NARAL Pro-Choice Texas, an abortion rights group, criticized “the addition of non-medical ritual” to a medical procedure and called the new rules “a thinly veiled attempt to shame Texans who have abortions and make it harder for the doctors who provide them.”

“The state agency has once again ignored the concerns of the medical community and thousands of Texans by playing politics with people’s private health care decisions,” Ms. Busby said, adding that the Texas Department of State Health Services “has failed to show any evidence this rule benefits public health or improves the safe practice of modern medicine.”

Texas is not the first state to approve mandatory burial for fetal remains. Indiana and Louisiana passed similar measures this year but neither state has put the new rules into effect amid continuing legal challenges, said Gavin Broady of the Center for Reproductive Rights, which filed a lawsuit against the rules in Louisiana. Indiana’s law was signed by Gov. Mike Pence, the vice president-elect of the United States.

Nancy Northup, president of the Center for Reproductive Rights, said the Texas rule was not medically justified and would “only increase barriers to reproductive care while deliberately shaming and stigmatizing Texas women.”

“Just five months ago the U.S. Supreme Court struck down two Texas sham laws and declared that medically unnecessary restrictions on abortion access are unconstitutional,” she said. “Texas politicians have now responded with one of the most blatantly pointless and insulting restrictions yet.”

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