Federal Judge Delays Fetal Burial Rule. Again.

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RENA SCHILD / SHUTTERSTOCK.COM
  • Rena Schild / Shutterstock.com
A federal judge has put Texas's proposed fetal burial rule on hold until the end of the month — at least for now. After two long days of testimony in Austin, federal district court Judge Sam Sparks said he needed more time to sort through the evidence and arguments presented by both sides. But to the surprise of women's health advocates, Sparks did actually make one thing clear this week: Texas' new rule offers no health or safety benefits to Texans.

The fetal burial rule, originally proposed by Gov. Greg Abbott in June, would require that all state physicians cremate and bury the fetal remains from any abortion or miscarriage that takes place at their clinic. While women's health advocates argue it's simply another way to burden abortion providers and shame women who get abortions, the state claimed the rule's main purpose is "enhanced protection of the health and safety of the public."

"There's no health benefit, there's no health problem, there was no problem to be fixed," Sparks told state's attorneys, according to the Texas Tribune. "I think all life matters and needs dignity, but that's not the point."

The state focused the majority of its testimony on the "dignity of human life," instead of public health. This included the testimony of Saint Louis University philosophy professor Jeffrey Bishop, who cited poets and philosophers' thoughts on respecting "human animals." (According to Austin's KUT, Judge Sparks slowly spun around in his chair during this particular presentation.)

Attorneys with the Center for Reproductive Rights — the group arguing that the new rule is unconstitutional — brought women's health experts and doctors to the stand. David Brown, a senior counsel with CRR, said he was pleased with the outcome of the week's hearings.

"The impression I got was that the judge heard us loud and clear," he told the Current. Brown said the biggest surprise was that the state's witnesses seemed unclear about how the rule was supposed to work.

"They presented a lot of self-contradictory statements, it didn't seem like they knew what they were asking doctors to do, or how to even do it," he said. "It's proof that the state didn't take our original concerns seriously."

In the fall, the state held two jam-packed hearings to get the public's feedback about the proposed rule. Doctors, funeral directors, policymakers from both sides of the aisle begged for a clearer understanding of the vague text. But when Texas' Department of State Health Services released the rule's final draft in November, none of the major questions had been answered. CRR promptly filed suit.

Sparks was the same federal judge who delayed the rule's original start date, December 19, to the start of 2017. Now, it's unclear when the state's anti-abortion rule will actually go into effect — if at all. Sparks told attorneys he'll announce his ruling by the end of January.

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