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Since the Texas Legislature passed a multifaceted anti-abortion bill in June, most of the focus has been on a lawsuit
against one piece of the sweeping law that blocks the safest second-trimester abortion procedure.
But there's another contested part to the SB 8 bill, aiming to go into effect in February, that's returned to the spotlight — the piece that forces clinics to cremate and bury the remains of an abortion or miscarriage, regardless of the woman's wishes or religion. In some cases, this means cremating and burying fetal tissue around the size of a quarter.
It's the rule's second shot at becoming law. Mandated burial of fetal remains was originally put into place by Gov. Abbott in July 2016, days after the U.S. Supreme Court ruled that Texas' 2014 anti-abortion law, House Bill 2, was unconstitutional. After a federal judge blocked Abbott's rule in January,
conservative lawmakers made sure it passed through the state legislative session, this time tucked into SB 8.
This burial requirement was the focus of a Monday Health and Human Services Commission hearing at the Texas Capitol, where around 25 members of the public responded to the state's new tweaks to the pending rule.
These tweaks, published in November, clarified that while fetal remains should be treated as a deceased human body, they do not need a birth nor a death certificate, and that the rule only
applies to abortions or miscarriages that take place at a health center.
The state originally argued that mandated fetal burial is a public health benefit — but that is no longer in the bill's text. Now, the law's only "public benefit" is that it will "express the state's profound respect for the life of the unborn by providing for the dignified disposition of embryonic and fetal tissue remains."
It's pulled straight from the talking points of far-right Christian lobbying groups.
"The proposed changes ... will work towards affording the same dignity to deceased preborn children as any other human being," said John Seago, testifying on behalf of Texas Right to Life at the Monday hearing.
The only people who echoed his testimony Monday also represented religious anti-abortion groups. Beth Johnson, who testified on behalf of herself, called their identical arguments "utterly ridiculous."
"Some people's definition of 'dignified' aren't other's definitions of 'dignified'," Johnson said. "Just because some people in this room have religious beliefs doesn't mean other people have to have them. Do not force your ideals and beliefs on others."
Others argued the rule went directly against
their own religious beliefs.
"As a Jewish woman, I would not want my fetal tissue to be incinerated in a mass grave," said Lucy Stein, with Progress Texas. "This violates my religious faith."
Paige Nelson, who brought her baby with her to the hearing, said the rule's contradictory changes show the obvious politics embedded into the "health" law.
"The currently proposed rules no longer make any claims promoting state health, and say fetal tissue can still be flushed down the toilet at home. It's inconsistent," said Nelson. "But it's hard to be consistent when you're not being truthful. Why does HHS continue to lie for Texas? It's because these rules, at best, are a political gain."
When Abbott proposed this rule in 2016, U.S. District Judge Sam Sparks blocked it, saying the regulatory burdens “substantially outweigh” the alleged benefits
— and that it was ridiculously vague. The Center for Reproductive Rights — the group representing abortion clinics in the other SB 8 lawsuit — said it plans on asking Sparks to expand his ruling to apply to the legislature's near-identical fetal burial rule.