Health care providers, funeral operators and women's rights activists on Thursday are expected to tell Texas health officials that a rule requiring the cremation or burial of fetal remains will do little to improve public health and could be burdensome to women who miscarry and those seeking abortions.
Following outcry over the new requirements, which state health officials quietly proposed in July, the Texas Department of State Health Services will hold a public hearing on a rule change that would no longer allow abortion providers to dispose of fetal remains in sanitary landfills, instead allowing only cremation or interment of all remains — regardless of the period of gestation. The burial or cremation rule seems to also apply to miscarriages.
With little notice and no announcement, the proposal was published in the Texas Register on July 1, triggering a 30-day public comment period. In a fundraising email sent to supporters last month, Gov. Greg Abbott said the rules were proposed because he didn't believe fetal remains should be "treated like medical waste and disposed of in landfills." But health care providers have raised questions about the new requirements and are likely to bring up those concerns at the hearing.
In a joint letter from the Texas Medical Association and the Texas Hospital Association, medical professionals questioned whether the rules were even feasible, when it comes miscarriages that occur outside a doctor’s office or hospital.
“Would the rules, if adopted as proposed, require a woman who experiences a spontaneous miscarriage to carry the fetal tissue to a physician’s office or other health care setting for assessment?” they wrote, adding whether the state should consider exceptions for miscarriages and ectopic pregnancies or in cases where the fetal tissue weighs less than 350 grams.
Because it is estimated that 10 percent to 15 percent of women miscarry, the medical professionals pointed out that one hospital estimated that an average of 140 fetal tissue specimens weighing less than 350 grams are disposed of each month from miscarriages or ectopic pregnancies, where “there is no hope of fetal viability” and fetal tissue is removed to save the mother’s life.
Another concern that the medical professionals and others have mentioned is whether the new rules would trigger a requirement for death certificates so that fetal remains could be cremated or buried.
Under current rules, the state requires funeral directors or a “person acting as such” who take custody of a dead body or fetus to obtain an electronic report of death before transporting the body, according to the associations’ letter.
It’s also unclear who would bear the costs associated with cremation or interment — a figure that can easily reach several thousand dollars in each case.
And if a woman cannot or will not pay, “there is a significant impact, by current practice and law, that county government will pay for the disposition of the fetus,” said Jim Bates, director of the Funeral Consumers Alliance of Texas.
“This rule change looks like it will force women into a narrower set of emotional and financial choices, with no added benefit to the woman,” Bates wrote to health officials in public comments submitted ahead of the hearing. “It is anticipated that social, psychological, financial and pastoral services will be immediately affected by the new rule; with little or no experience in how to support the woman during this newly regulated life event.”
In questioning the health-related justifications for the proposed rules, Planned Parenthood pointed out that the proposed rules treat fetal tissue differently than other medical tissue. The rule change would not apply to other human tissue that might be removed during surgery, for instance, and the existing disposal methods were not modified for the placenta, gestational sac and other tissue that results from miscarriages and abortions, the organization wrote to health officials.
"While we support reasonable updates to rules that are within the department’s statutory authority and protect and enhance public health and safety," Planned Parenthood wrote, "the proposed rules go beyond the limits of this authority, do not further these aims and, in fact, appear motivated solely by political forces."
Anti-abortion groups have applauded the rule change, echoing Abbott's statements that the remains should not be treated like medical waste.
And state officials have defended the rule change, saying it was proposed in “the best interests of the public health of Texas.” They also say the proposed rule change reflects the state’s efforts to affirm the “highest standards of human dignity.”
This prompted outrage from the reproductive rights community, which accused state leaders of putting unnecessary regulations on abortion providers and increasing the financial burden on a woman seeking an abortion. And they’ve said that the proposed rules “will almost certainly trigger costly litigation.”
In its letter to health officials, the Center for Reproductive Rights — which represented abortion providers in their recent landmark victory over Texas’ 2013 abortion restrictions — argued that the rules are "plainly in violation" of the legal standard abortion regulations must meet to be deemed constitutional.
That legal standard was clarified by the U.S. Supreme Court in its ruling overturning the 2013 abortion restrictions, which spelled out that lawmakers must prove that an abortion regulation furthers a state interest, like promoting health, without placing an undue burden on women’s access to the procedure to be constitutional.
A similar fetal remains measure was signed into law in Indiana but was later blocked by a federal judge, who ruled the state did not have a “legitimate state interest in treating fetal tissue similarly to human remains” once a pregnancy was terminated.
A spokesman for the Health and Human Services Commission, which proposed the rules on behalf of the health department, previously said they would "continue to follow state statute when proposing and implementing new rules." The state agency previously said it is adopting the rule through its “specific rulemaking authority” granted by the Legislature.
The final rules are expected to take effect in September.
Disclosure: The Texas Medical Association, the Texas Hospital Association and Planned Parenthood have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.