Judge Temporarily Blocks Texas’ Controversial ‘Fetal Burial’ Rule

By | January 8, 2016

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A federal judge has temporarily blocked Texas from enacting a controversial abortion regulation that would require clinics to bury or incinerate fetal and embryonic tissue following an abortion or miscarriage. 

In a hearing on Thursday that the Houston Chronicle described as “testy,” U.S. District Judge Sam Sparks granted a temporary restraining order against the rule. It was set to go into effect Monday, December 19.

Earlier this month, The Center for Reproductive Rights filed a lawsuit on behalf of a coalition of abortion providers in the state seeking a permanent injunction against the rule.

The restraining order issued Thursday is only temporary, preventing the regulation from going into effect while the lawsuit continues to be litigated. But the Center for Reproductive Rights hailed it as a victory.

“We are pleased that the court has prevented these outrageous restrictions from going into effect in Texas, where they would have created immediate and dangerous new barriers on women’s access to health care,” David Brown, senior staff attorney said in a press release Thursday. 

The proposed regulations, which first emerged this summer, call for health care facilities in Texas to immediately bury or incinerate any fetal tissue after an abortion. Incinerated remains must subsequently be buried or scattered, which is why these types of rules have come to be known as “fetal funeral” regulations.

Texas Governor Greg Abbott stated in a fundraising letter sent in July that the rule was meant to reflect “respect for the sanctity of life.” (Abbott has been outspoken about his plans to prioritize anti-choice legislation in the upcoming session.) The state’s health department has claimed the rules are aimed at stopping the spread of disease. 

However, many questions about how the rules would actually be implemented remain unanswered. As ABC News reports, medical waste facilities are ill-prepared to handle fetal tissue, and it is entirely unclear what role ― if any ― funeral homes would be required to play. Many funeral directors in Texas have been vocal in their opposition to the rule. 

Reproductive rights advocates argue the Texas rule, as well as similar regulations that have been proposed around the country, are simply another way for anti-choice legislators to curb abortion access.

“For many years … abortion opponents were attempting to make the case that restrictions were necessary to protect women’s health, and this is a real shift from that,” Elizabeth Nash, senior state issues manager with the Guttmacher Institute, told The Huffington Post last month. “This isn’t about women’s health. This is about trying to change attitudes toward the fetus and products of conception in order to try and revisit abortion rights.”

A preliminary injunction hearing in the Texas case is set for January 3, 2017.

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