Mimesis Law
5 July 2020

Texas Considers Fetus Burial Bill

November 17, 2016 (Fault Lines) — On Wednesday morning, a group of 30 abortion rights activists, health professionals and women strongly urged Texas state officials to reconsider the consequences of implementing House Bill 201, a proposal that would require embryonic and fetal tissue to be buried or cremated after an abortion, miscarriage or ectopic pregnancy.

Opponents of the Bill, which was filed in July by Rep. Byron Cook, R-Corsicana, claim that implementing this law would unnecessarily rub salt into the wounds of women who have lost a fetus during pregnancy. Moreover, since the state has no intention of covering the costs of these “dignified” burials, they will invariably fall on potentially cash-strapped abortion providers and patients who would prefer to either get on with their lives or mourn their miscarriage in privacy and peace.

And the extra financial burden imposed by this new regulation would be prohibitive, to say the least: The Funeral Consumers Alliance of Texas estimated the rule could add a whopping $2,000 to the cost of each abortion, in a blistering missive that was sent to the state in opposition to the proposed rule.

Austin resident Ashley Blinkhorn was one of a handful of women who testified on Wednesday. She talked about how she had miscarried twice by age 25.

There’s no health reason that we should do this. Health clinics are already following state standards, there’s no reason to change the rule for this kind of waste. It’s not reasonable and not necessary. This is targeted at [women], and this is not something we need to stand for.

She told the Department of State Health Services that she would not have sought medical care for her miscarriages if this regulation had been in effect at the time, because the costs of burying the fetal tissue would have been too high

“You’re monkeying around with people’s lives here,” Blinkhorn said.

Texas Health Commission spokesman Bryan Black told the Texas Tribune in July that Bill 201 was promulgated to “ensure Texas law maintains the highest standards of human dignity.” Agency officials have also made the dubious claim that the rule would protect the public from communicable diseases, without proffering a shred of evidence that Texas’s current rules have somehow failed to protect the health and safety of the public.

Rules vary from state-to-state, but for decades, abortion providers have simply held contracts with medical waste service providers, who tend to incinerate fetal tissue.

“These proposed rules are not meant to protect people’s health and safety,” said Yvonne Gutierrez, executive director of Planned Parenthood Texas Votes. “They are just another attempt to restrict access to care that’s deeply needed and shame and hurt women in the process.”

“I think it’s an interesting move away from women’s health,” Elizabeth Nash, senior state issues manager with the Guttmacher Institute, a policy and research organization that focuses on reproductive rights, told The Huffington Post.

For many years … abortion opponents were attempting to make the case that restrictions were necessary to protect women’s health, and this is a real shift from that. This isn’t about women’s health. This is about trying to change attitudes toward the fetus and products of conception in order to try and revisit abortion rights.

“I’m sure that after last night’s results many people feel emboldened to continue their attacks on women,” said Sheila Sorvari, who testified Wednesday. “But if you thought we were going to pull up the covers and cry and go away, you’re wrong.”

Beyond the question of preferences, however, and the bravado of maintaining the fight, there is a serious question of whether the added burden of requiring a “dignified” disposition of the remains is constitutional. If there is a constutional right to an abortion, which there is (at least for now), then this adds a substantial burden on the exercise of that right.

Does the state have a substantial interest in imposing a requirement addressing the “dignity” of the disposition of fetal tissue, as pro-choice advocates would describe it, or an unborn person, as pro-life advocates would characterize it?  That first question would be followed by whether requiring the individual or provider to pay for burial or cremation is the least burdensome means of accomplishing that interest.

There is nothing to prevent Texas, if its concern for dignity is real, to assume the costs associated with hits new law. But then, that would require the state to actually care more about it claimed purpose than doing what it can to impair the exercise of a constitutional right. It could always put its money where its mouth is, but it didn’t.

3 Comments on this post.

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  • Scott Jacobs
    17 November 2016 at 10:01 am - Reply

    Oh good. I was afraid I wouldn’t have anything to hate my local Republicans for.

    I should have known they wouldn’t let me down.

  • william the stout
    17 November 2016 at 2:39 pm - Reply

    My wife and I experienced two miscarriages interspersed among four live, healthy births. Both in Texas. Words fail me to describe the feeling of loss and guilt that accompanies a miscarriage, which is aggravated by the attitude among a lot of people (but not everybody) that “hey, the baby was never born, so you didn’t lose anything”. Those two times remain the darkest periods of my life, at least so far.

    Sometimes now, 20 years later, I still occasionally find myself thinking about what might have been.

    Wherever one stands on abortion, you can still say screw these neanderthals for putting their politics above empathy. May they rot in hell.

    • David Meyer-Lindenberg
      17 November 2016 at 7:29 pm - Reply

      I’m sorry, brother. And Tara, you nailed it with this post. Well done.