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Federal court blocks Texas fetal remains burial rule

U.S. District Court Judge Sam Sparks ruled Texas cannot require health providers to bury or cremate fetuses, delivering another blow to state leaders in the reproductive rights debate.

Protesters of Texas' fetal remains burial rule gather outside the Governor's Mansion on Jan. 6, 2017.

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

U.S. District Court Judge Sam Sparks ruled Texas cannot require health providers to bury or cremate fetuses, delivering another blow to state leaders in the reproductive rights debate.

On Friday afternoon, Sparks wrote in his ruling that Texas Department of State Health Services’ fetal remains burial rule’s vagueness, undue burden and potential for irreparable harm were factors in his decision. He also wrote that the state had proposed the new rule “before the ink on the Supreme Court's opinion in Whole Woman's Health was dry.”

“The lack of clarity in the Amendments inviting such interpretation allows DSHS to exercise arbitrary, and potentially discriminatory, enforcement on an issue connected to abortion and therefore sensitive and hotly contested,” Sparks said.

Texas Attorney General Ken Paxton said in a news release that his office would appeal the decision, adding that Sparks' ruling "reaffirms that the abortion lobby has grown so extreme that it will reject any and every regulation no matter how sensible."

"Indeed, no longer content with merely ending the life of the unborn, the radical left now objects to even the humane treatment of fetal remains," Paxton said. "Texas stands committed to honoring the dignity of the unborn and my office is proud to continue fighting for these new rules.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, which sued the state in December to stop the rule, said in a news release that the ruling shows the law is "unnecessary, unconstitutionally vague, and manifestly insulting to women."

“Our Constitution protects a woman’s fundamental right to access reproductive health care without needless barriers, and we will continue fighting for decisions like this wherever politicians choose to ignore that right.”

Amy Hagstrom-Miller, president and CEO of Whole Woman’s Health and lead plaintiff in the case, said in a news release that the "anti-abortion attacks cannot and will not slow us down."

"It is so important that our resiliency continues to blaze a path so that people in all communities are inspired to stand up and continue to fight back against political interference that attempts to regulate our lives,"

The ruling comes more than a month after the Texas Department of State Health Services slated the mandate to go into effect Dec. 19. Lawyers for the Center for Reproductive Rights won a temporary restraining order to halt its implementation, and earlier this month Sparks delayed his decision, saying he needed more time to review the evidence.

The agency initially released the proposed burial rule in July just days after the U.S. Supreme Court overturned Texas’ abortion provider restrictions. The rule announcement spurred intense debate between reproductive rights groups and anti-abortion groups.

During two public hearings, department leaders heard stories of abortions, miscarriages, and general grief over losing a baby. While anti-abortion groups argued that the rule was a means to bring human dignity to the fetuses, reproductive rights advocates said the rule was another way for Texas to punish women who chose an abortion, saying the cost of the burials would be passed on to patients, making abortions harder to obtain for low-income Texans.

During multi-day court hearings earlier this month, state attorneys said the rule was designed to provide aborted or miscarried fetuses a better resting place than a landfill. They also argued that there would be no cost for patients to worry about and only miniscule costs for providers. The state also said that there were multiple groups willing to help with costs.

But Center for Reproductive Rights lawyers argued the rule had no public health merits and no clear directions on how it would work for providers. Providers who testified noted it was unclear if they would be on the hook for fines and disciplinary action from Texas if the nonprofit groups mishandled the fetuses. They also said separating fetuses away from other medical waste would likely mean an uptick in costs for transportation and new disposal procedures.

Sparks expressed frustration throughout the court proceedings that neither side could provide a firm estimate of the costs of implementing the rule. He also, one point, agreed with Center for Reproductive Rights attorneys' argument that there would be no public health benefits.

In his ruling, Sparks wrote that the department's estimates don't know "the true impact" of the rule and that their "simple math" is "unsupported by research and relies heavily on assumptions."

Read related Tribune coverage here:

  • U.S. District Court Judge Sam Sparks announced he was delaying the start date of the state's fetal remains burial rule for three weeks. State officials had originally scheduled the rule to go into effect on Dec. 19.
  • In the first of two days of hearings, Texas attorneys and the Center for Reproductive Rights went head-to-head over whether the state will be allowed to implement its fetal remains burial rule.
  • Texas health officials quietly proposed the fetal remains rule in July, just weeks after the U.S. Supreme Court struck down the state's controversial 2013 law that placed strong restrictions on abortion.

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