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Judge Blocks Rule Forcing Texas Abortion Providers to Bury, Cremate Fetal Tissue


A federal judge on Friday blocked indefinitely Texas' rule requiring abortion providers to cremate or bury fetal remains, saying the barrier the rule poses to abortion access "substantially outweighs the benefits."

The ruling comes after days of testimony in Austin earlier this month before federal district court Judge Sam Sparks. The fetal burial rule, originally proposed by Gov. Greg Abbott in June, would require all state physicians to cremate or bury the fetal remains from any abortion or miscarriage that takes place at their clinic. Women's health advocates have argued that it's simply another way to burden abortion providers and shame women who decide to get a legal medical procedure.

Texas Attorney General Ken Paxton vowed to appeal Sparks' injunction blocking the fetal burial rule from going into effect (you can read his prepared, scorched-earth comments about sewers and landfills and babies and the "abortion lobby" here). Nancy Northup, president and CEO of the Center for Reproductive Rights, which filed the lawsuit, put out a statement Friday saying Sparks' ruling underscores how the law is "unnecessary, unconstitutionally vague, and manifestly insulting to women."

Sparks' order also cites Whole Woman's Health v. Hellerstedt, the landmark U.S. Supreme Court ruling last year that blocked Texas from implementing restrictions that decimated abortion access in the state. In overturning regulations that shuttered abortion clinics across Texas, the Supreme Court actually set a new legal standard: that in deciding whether a law is an unconstitutional burden on a woman’s right to choose, you have to consider actual science, research and experts (basically, facts matter). Attorneys fighting for reproductive rights have called the case a tremendous victory because it gave them a new tool to challenge other abortion regulations that don't meet the new standard set by the Supremes — like Texas' fetal burial rule (among many others).

While the state of Texas has argued that the main purpose of its fetal burial rule is to enhance and protect "the health and safety of the public," Sparks' Friday order concludes that the rule would do nothing of the sort. Sparks also writes that the rule simply replaces the old tissue-disposal regulations (which experts note have not been tied to any public health problems) with a new system that poses an obvious, medically-unnecessary burden on abortion providers. Which, as the Supreme Court pointed out in Whole Women's Health, state's simply cannot do.

In his order, Sparks also calls the rule vague and so open to interpretation that it would basically give Texas officials a pretext to restrict abortion — or, as Sparks puts it, "to exercise arbitrary, and potentially discriminatory, enforcement on an issue connected to abortion." Sparks is the same judge who temporarily blocked Texas from arbitrarily booting Planned Parenthood from the state's Medicaid program earlier this month.

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