Lawsuit Challenging a Mandatory Fetal Burial Law Is Underway in Texas This Week 


The state of Texas is doubling down on its efforts, previously suspended by courts, to require the burial or cremation of fetal remains resulting from abortions or miscarriages—regardless of one’s wishes.

A trial currently underway in the state will determine the legality of the fetal burial provision included in Senate Bill 8, a draconian anti-abortion omnibus bill that the Texas legislature passed into law in 2017. (Since then, other abortion restrictions included in SB8 have been struck down, and a similar fetal burial regulation that was snuck onto the books in 2016 never took effect after the state was sued by the Center for Reproductive Rights.)

Abortion rights advocates charge that the mandatory burial and cremation law is just another way to chip away at abortion access. As Autumn Katz, the senior staff attorney at the Center for Reproductive Rights, which is again challenging the state’s efforts to mandate fetal burial, said to the Texas Tribune, the law would “shame and stigmatize women who seek a range of reproductive health care” and “would infringe on their ability to make personal and private health decisions.”

It also would put a heavy burden on abortion clinics and hospitals, which under the law would have to take the additional step of arranging for the burial or cremation of fetal tissue. If they do not comply, they could lose their license and face a $1,000 fine.

As my colleague Anna Merlan has written, laws requiring fetal burial, in addition to being a “sneaky way to impede abortion access and make patients feel just a little worse, all at the same time” are also “a naked bid to elevate fetal tissue to the status of a human being.” As we contemplate a future without the right to a safe and legal abortion, fetal burial requirements are just one way states have been steadily eroding reproductive access in the decades since Roe v. Wade. According to the Guttmacher Institute, in 2017, 19 states adopted 63 new restrictions on abortion rights and access, bringing the total number of restrictions put in place since 2011 to 401. Texas alone has enacted 22 abortion restrictions since 2010, according to the Center for Reproductive Rights.

And while it’s likely that the state will lose again, the ongoing legal battles have already had dire consequences. In Texas, half of the state’s abortion clinics have shut down since 2013, forcing some to drive hundreds of miles to obtain an abortion.

Update (4:01 p.m.): According to the Guttmacher Institute’s most recent numbers, states have actually enacted 422 abortion restrictions from the start of 2011 to June of this year. As their senior state issues manager Elizabeth Nash put it to us in a written statement, “Abortion opponents have for decades used the law to limit access to abortion services. These laws on fetal tissue disposal continue this strategy of piling on restriction after restriction until clinics cannot keep the doors open.”

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