Center for Reproductive Rights sues Texas over fetal remains rule

The Center for Reproductive Rights on Monday asked a U.S. district court to stop the Texas Department of State Health Services from enforcing a new rule requiring the cremation or burial of fetal remains. Center officials had threatened in August to take legal action if the rule was implemented.

The regulations are “an insult to Texas women” and another episode of the state trying to block patients from abortions, Nancy Northup, the center's president and CEO, said in a news release.

“These insidious regulations are a new low in Texas’ long history of denying women the respect that they deserve to make their own decision about their lives and their healthcare,” Northup said.

Under the rule, Texas health providers are forbidden from disposing of fetal remains in sanitary landfills, regardless of gestation period. Throughout the summer and fall, the Texas agency faced intense support and criticism over the proposed rule. During public hearings, reproductive rights, medical and funeral advocacy groups decried the potential costs being passed onto patients, while anti-abortion groups said the practice would be a more humane way to treat unborn life. A small silver lining for some reproductive rights advocates is that the rule makes an exception for miscarriages or abortions that occur at home.  

The rule is slated to go into effect Dec. 19, but the center's lawyers are asking the court for a temporary restraining order to halt the rule from being enforced right away.

Marc Rylander, a spokesman for Texas Attorney General Ken Paxton, said in an email that the state “will continue to defend the safety and dignity of the unborn up to and as far as Supreme Court precedent will allow.”

“These new rules simply provide for the humane disposal of fetal tissue instead of sending it to landfills like unwanted trash, as is the abortion industry’s current practice,” Rylander said. “They do not, in any way, interfere with a woman’s access to abortion. Our office looks forward to proudly defending these common sense rules in court.”

The state and the center are going head to head again just months after a contentious U.S. Supreme Court battle. In June, the high court upended the Texas legislature’s House Bill 2, ending requirements for abortion providers to comply with hospital standards like minimum sizes for rooms and doorways and pipelines for anesthesia. Besides a stinging loss for the state, Texas could also be on the hook to pay the center $4.5 million in legal fees.

Read related Tribune coverage:

• The Texas Health and Human Services Commission Wednesday took its second round of testimony on a controversial rule requiring burial or cremation of fetal remains.
• Texas will implement new rules prohibiting hospitals, abortion clinics and other health care facilities from disposing of fetal remains in sanitary landfills, allowing only cremation or burial.
• In a new letter to the state, reproductive rights lawyers argue Texas' proposed rules requiring the cremation or burial of fetal remains "will almost certainly trigger costly litigation."