Judge blocks Texas fetal remains burial law

State & Regional

AUSTIN — U.S. District Judge David Ezra struck down a Texas law requiring fetal remains from abortions or miscarriages to be buried or cremated.

Attorney General Ken Paxton announced Wednesday afternoon his office would continue “fighting to honor the dignity of the unborn…”

Paxton said Ezra’s ruling was disappointing, but he remains confident the courts will ultimately uphold the Texas law, which was passed in 2017 as part of Senate Bill 8.

“We established during a weeklong trial in July that the law is constitutional and does not impact the abortion procedure or the availability of abortion in Texas,” Paxton said in a statement. “My office will continue to fight to uphold the law, which requires the dignified treatment of fetal remains, rather than allow health care facilities to dispose of the remains in sewers or landfills.”

In a 52-page decision, Judge Ezra said the court found the laws to violate both the Equal Protection and Due Process Clauses.

“Furthermore, the challenged laws place substantial obstacles in the path of women seeking pregnancy-related medical care, particularly a previability abortion, while offering minimal benefits,” Ezra wrote.

Ezra said evidence in the case “overwhelmingly demonstrated that if the challenged laws were to go into effect now, they would likely cause a near catastrophic failure of the healthcare system designed to serve women of childbearing age within the State of Texas.” 

When Texas legislators passed this law, the state formed a registry of funeral homes and cemeteries willing to provide free or low-cost burial services. However, records from the Texas Health and Human Services Commission show there are only 16 businesses that signed up. 

“The simple fact is that Texas currently has no viable, integrated system in place for disposing of embryonic and fetal tissue remains in compliance with the challenged laws nor has Texas appropriated resources to insure the challenged laws operate as intended,” Ezra continued.

The five-day trial over the law took place in July, with a significant amount of testimony from witnesses on both sides. Funeral directors were also closely monitoring what the potential impact of this law would be if it were to go into effect.

“We’re feeling very excited, very optimistic and very happy to hear the court’s ruling in favor of all the women in Texas,” Andrea Ferrigno, corporate vice president of Whole Woman’s Health, said.  

Whole Woman’s Health was one of the plaintiffs who fought this law.

Ezra said the State of Texas has a legitimate interest in enacting a statute that respects potential life by providing for the dignified disposal of embryonic and fetal tissue remains. But he said under U.S. Supreme Court precedent, a law cannot violate the Equal Protection Clause and “may not impermissibly place substantial obstacles in the path of women seeking pregnancy-related care such that it constitutes an undue burden in abortion access, violating the Due Process Clause.”

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