Federal judge delays Texas' fetal remains rule until Jan. 6

By Marissa  Evans

*Editor's note: This story has been updated.

A federal judge has delayed Texas' fetal remains burial rule until Jan. 6.

Judge Sam Sparks ruled Thursday afternoon that the Texas Department of State Health Services would have to push back its start date for requiring health providers to bury or cremate aborted fetuses. The agency had originally slated the rule to go into effect Dec. 19.

Under the rule, Texas health providers are forbidden from disposing of fetal remains in sanitary landfills, regardless of gestation period.

Sparks said each side would get about five hours for a hearing on Jan. 3-4 to make their cases. He said there would likely be a decision on Jan. 6.

About 34 people crammed into the seats of the federal court in Austin to watch as state lawyers and the Center for Reproductive Rights made arguments about whether the rule should go into effect on Dec. 19.

Texas Assistant Attorney General John Langley said during the hearing that the rule was about treating fetal remains with dignity and that incinerating them and putting them in landfills "is disrespectful and where garbage and medical waste go." He said there was no increase in costs to health care providers and patients.

"The issue here today is whether or not the plaintiffs can show immediate threat of irreparable harm, and they cannot," Langley said. "These regulations in no way, in any way, shape or form, regulate women. They only regulate health care facilities."

Langley said the state could not just simply agree to suspend the rule on its own, but Sparks then made his decision to postpone its effective date.

Sparks said he's looking for both sides to put "their best feet forward" when they come back in January.

"This is the first time, though, the state of Texas has ever said, 'We're going to go ahead' when there's a lawsuit of substance before the United States District Court," Sparks said. "I'm old. I won't remember as long, but I'll remember."

The court's decision, a victory for the Center for Reproductive Rights, came just three days after the organization sued the state over the fetal remains burial rule.

David Brown, senior attorney for the organization, said after the hearing that the state fumbled in its response over the public health benefits of the rule because there wasn't one. He pointed to Sparks’ observation that the rule was proposed just days after the U.S. Supreme Court tossed out another Texas law that forced abortion providers to comply with hospital standards like minimum sizes for rooms and doorways and pipelines for anesthesia.

"I think the rule is intended to send a message to the Supreme Court that Texas is going to defy them, and it's to send a message to women that the state's ideology is more important than women's liberty," Brown said.

The Texas health department heard fierce outcries of support and dismay throughout the summer and fall about its proposal to disallow health providers from trashing fetal remains in sanitary landfills. Testimony at public hearings ranged from sadness to anger as reproductive rights, medical and funeral advocacy groups argued the rule would be a financial and emotional burden for families. Witnesses also were unconvinced the patients wouldn't pick up the tab to cover provider costs for cremations and burials.

But anti-abortion groups said incinerating unborn fetuses was cruel and the new rule would give more dignity and respect to them. While DSHS decided on Dec. 9 to proceed with the rules, there is an exception for women who miscarry or have abortions at home.


Amy Hagstrom Miller, founder and CEO for Whole Woman’s Health, the main plaintiff in the case, said in a news release that the court’s decision reaffirms what the organization has always said: “women deserve better.”

“We’re confident that our recent victory at the Supreme Court in Whole Woman’s Health v. Hellerstedt gives us strong ground to stand as we continue to fight these coerced mandates from overzealous politicians that strip personal decisions away from women and families,” Miller said.

Earlier this week, Marc Rylander, a spokesman for Texas Attorney General Ken Paxton, said the rules "simply provide for the humane disposal of fetal tissue instead of sending it to landfills like unwanted trash, as is the abortion industry’s current practice.”

This article originally appeared in The Texas Tribune.

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