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Federal judge again delays Texas' fetal remains rule

U.S. District Court Judge Sam Sparks announced Wednesday that he was delaying the start date of the state's fetal remains burial rule for another three weeks. State officials had originally scheduled the rule to go into effect on Dec. 19.

Protesters on both sides of the issue face off in front of the U.S. Supreme Court on Capitol Hill in Washington, D.C. as Whole Woman’s Health v. Hellerstedt is argued inside, March 2, 2016. The case is focused on Texas law HB2, which if enforced would result in the closure of more than 75 percent of all women’s health clinics that provide abortion services in the state.

Editor's note: This story has been updated throughout.

As he considers a final ruling on the state's fetal remains burial rule, U.S. District Court Judge Sam Sparks is delaying the start date of the rule for at least another three weeks.

On Wednesday afternoon, after attorneys for the state of Texas and the Center for Reproductive Rights made their closing remarks, Sparks said he would need more time to review evidence and witness testimony before making a final ruling about the state's effort to require medical providers to bury or cremate aborted fetuses. The Texas Department of State Health Services had originally scheduled the rule to go into effect Dec. 19.

Sparks also cited scheduling issues for sentencing cases and an upcoming Planned Parenthood hearing on its Medicaid status. He was slated to deliver a ruling on Jan. 6 after the two-day hearing. 

Sparks grilled attorneys on both sides about the evidence they were presenting.

For the state, Sparks said he wanted further explanation on the logic behind barring providers from incinerating fetal remains, a medical waste procedure the state has long allowed. He also wanted direction on why the state's rule should not be viewed as a political statement. He said he did not "think there's any question" that there isn't public health benefit to the proposed rule.

"There's no health benefit, there's no health problem, there was no problem to be fixed and it's for the dignity of the fetus or however you want to describe it," Sparks told state's attorneys. "I think all life matters and needs dignity but that's not the point ... The point is just as I asked opposing counsel: What is the thought of taking the majority of disposal out?"

Sparks told attorneys with the Center for Reproductive Rights that he wanted them to identify from their evidence and witness testimony how the rule is unconstitutional and how it would create a burden for women.

Sparks said neither side had made headway on establishing how providers' costs would be affected if the rule were implemented.

Texas Attorney General Ken Paxton said Wednesday that he was confident in the state's arguments for the rule and its constitutionality.

"Texas values the dignity of the remains of the unborn and believes that fetal tissue should be disposed of properly and humanely," Paxton said in a statement. "I look forward to the court upholding the rules on January 27."

The setback for the rule ends two days of hearing testimony from witnesses.

Karen Swenson, an OBGYN for Women Partners in Health, said in court that her office has not yet made a plan for complying with the rule as the state had not provided any guidance. She also said there was a wide assumption that processing the fetal tissues differently would likely mean additional expenses and could lead to other problems.

"When you have deviations from the standard of care, there can be an increase in mistakes happening," Swenson said.

Cost continued to be a pain point for both sides Wednesday as neither could determine how much providers would have to pay for separating fetal remains or for paying for extra transportation to get the remains to nonprofit and religious organizations willing to help cremate and bury them. While both sides had varying estimates, both acknowledged that their numbers could be lower than what providers may actually pay.

Texas attorneys put Jennifer Allmon, executive director for the Texas Conference of Catholic Bishops, and Jay Carnes, the owner of Carnes Funeral Home, on the stand to testify about their willingness to help health providers comply with the rule. Carnes said his company was in talks with eight providers in the Houston area to establish potential contracts for taking care of fetal remains. While his company is not licensed to handle biohazard materials, they already help with private cremations and burials of fetal remains, he said.

"I don't look to make a killing on this," Carnes said. "I can tell you that with infant and fetal cases, we lose money on private cases, but we try to help out."

The state also brought in Jeffrey P. Bishop, a philosophy professor and director of the Albert Gnaegi Center for Health Care Ethics at Saint Louis University, to testify as part of an effort to establish that the rule would uphold medical ethics about treating unborn life with dignity.

"The state has the responsibility to uphold the dignity of human beings, and in part, it seems to me that grinding and washing tissue down the drain that was at one time part of human life is not a dignified way of disposing of those materials," Bishop said.

He went on to talk about how poets and philosophers had pondered "the uniqueness of the human animal" and have granted certain status to the human animal as "deserving respect" and "under the law deserving some sort of rights."

Sparks was less than receptive to Bishop, at one point expressing his frustration with the philosopher by slowly spinning around in his chair. Later, Sparks told the courtroom he had long since discredited the testimony after Bishop had admitted he had not read the rule in "extreme detail" because "it's very complicated to read."

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