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Lawsuit ‘likely’ amid new Texas rules over fetal remains

In this  2013 file photo, abortion rights advocates protest in the State Capitol as anti-abortion rights supporters pass them in Austin, Texas. (Tamir Kalifa / Associated Press)
In this 2013 file photo, abortion rights advocates protest in the State Capitol as anti-abortion rights supporters pass them in Austin, Texas. (Tamir Kalifa / Associated Press)
By Paul J. Weber Associated Press

AUSTIN, Texas – New Texas rules requiring the burial or cremation of fetal remains are likely to face a court challenge before taking effect, an abortion-rights attorney said Friday, months after the U.S. Supreme Court knocked down sweeping abortion restrictions in the state.

The new regulations, which the state plans to implement starting Dec. 19, are the latest battleground in Texas over abortion and would prohibit facilities from continuing to dispose of fetal remains as biological medical waste. Lawsuits this year blocked similar measures in Louisiana and Indiana, where the law was signed in March by governor and now Vice President-elect Mike Pence.

About 35,000 public comments poured into the Texas Health and Human Services Commission about the rule change, and funeral home operators worry about interment and cremation costs. The revisions came at the behest of Republican Gov. Greg Abbott and were first proposed in July – just four days after the Supreme Court struck down anti-abortion measures that would have left Texas with 10 abortion clinics, down from more than 40 in 2012.

“This is such an obvious end-run against the Supreme Court decision,” said David Brown, an attorney for the Center for Reproductive Rights, which was involved in the Supreme Court case. He said a lawsuit over the fetal remain rule is “highly likely” but could not say with certainty.

His and other abortion-rights groups have accused Texas of trying to create more barriers to abortion and shaming women into not ending a pregnancy. State health officials have denied those claims and framed the change as partly a matter of public health. But the state health department also wrote in response to public feedback that “the state’s history of protection of the unborn” factored into the decision.

The rules state that fetal tissue must be buried or cremated regardless of the stage of gestation. Internment is defined under the rules as “placement of the ashes in a niche, grave, or scattering of ashes.”

Indiana officials have argued that its law was passed as “a legitimate means of ensuring human remains are treated with dignity and respect.” A federal judge blocked that rule in June, along with another that would have banned abortions sought because of a fetus’ genetic abnormalities.

Michael Land, a funeral director and spokesman for the Texas Funeral Directors Association, said it has been common practice for funeral homes to cremate fetal tissue from miscarriages as a matter of charity for grieving families. Now, he said, “we can’t keep giving away all this merchandise at no cost.”

“Nothing like this in a number of years has left us with such open questions,” Land said.

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